Interim Decision *1283

MAn.J.

K

OF PAUL

In DEPORTATION Proceedings
A-5142538

Decided by Board May 14, 1903
Since respondent was represented during the deportation hearing by counsel
who had notice of the existence of pre-hearing statements made by a Government witness but did not request that the statements be made available, he
is not subsequently entitled to the production of the statements.
CHAZGE :

Order: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (8)3—After entry,
an alien who was a member of the Communist Party of the United
states.

Before us are an appeal from the order of the special inquiry officer
requiring respondent's deportation upon the ground stated above and
a motion for the production of documents. The appeal will be dismissed and the 'notion denied.
On February 4, 1963, the special inqury officer ordered respondent's
deportation upon the charge stated above. The special inquiry officer
found the charge sustained on the basis of the testimony of Service
witness Pikes. The attorney of record became ill; notice of appeal
was filed by a new attorney who thereafter handled the case. In the
notice of appeal deportability was contested on the ground that the
evidence did not support an order of deportation.
A day after the appeal was filed, =nisei filed a motion asking that
the appeal be held in abeyance and that she be furnished with copies
of all statements made by Government witness Pikes to any agency of
the Federal Government. The motion was forwarded to the special

inquiry officer who informed counsel that the record. contained no
copies of statements made by Pikes and that the motion was belated
since the proceedings before him had been completed. This motion
is now before us.
Respondent, a 66-year-old married male, a native and last a citizen
of Ruagift, has resit -led in the United States since his admission for
permanent residence in 1922. The order of deportation is based on the
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Interim Decision 4fr1283
finding that respondent had been a member of the Communist Party
after his entry. Counsel raises four main issues; laches, lack of
credibility, meaningfulness of membership, and nonaccess to
documents.
The special inquiry officer has dealt in great detail with the facts
of record and we shall state no more than is required to understand
the contentions of counsel.
Deportation hearings required three sessions. At the first (April
13, 1959) counsel conceded the accuracy of all findings of fact contained in the order to show cause except the one which charged the
respondent with having been a member of the Communist Party after
entry. The respondent refused to be sworn and testify at this session
or at those which followed.
At the second session (May 19, 1959) the Service produced Abraham
Zide who testified he had attended Communist Party meetings with
respondent from the end of 1946 to about August 1948. At the conclusion of his examination, the Service asked for an adjournment to
arrange for the appearance of another witness. Counsel objected;
when he was overruled he stated that in view of the courtesies which
had been extended to him by the examining officer he would have no
objection to the case going over sine die.
At the third session (November 1, 1962) counsel moved for termination of proceedings on the ground the Government was guilty of
lathes. The motion was overruled. (We believe the special inquiry
officer has adequately discussed this issue.) The testimony of Government witness Fikes was taken at this session.
Fikes testified that he had joined the Communist Party in Birmingham, Alabama, in 1949, that in late 1949 or early 1950, he had gone to
New York where a Communist Party representative arranged that he
stay with the respondent, that he stayed about four weeks, that during

the stay he attended four or five Communist Party meetings held at
the respondent's apartment, that respondent presided at the meetings,
that respondent paid Communist Party dues, and that in discussions
with the witness, respondent admitted that he was a member of the

Communist Party.
Fikes testified that the Stockholm Peace Petition had been one of
the subjects of discussion at the meetings, that on two or three occasions
between 1953 and 1958, he stayed at the respondent's home in New
York, that he last saw respondent in 1957'when he received a donation
for the Communist Party from him, and when in the respondent's
presence and in respondent's apartment, and after the respondent had
helped arrange the meeting, the witness met on Communist Party
matters with Communist Party officials, Silvia Hall and Jim Jackson

(pp. 77-75, 97-98, 104).
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Interim Decision #1283
Pikes admitted, that in completing a United States Army form
which asked for information concerning Communist Party membership, he had lied about membership in the Communist Party (p. 79).
He testified that' e had'een a witness before the grand jury in a case
involving the Mine, Mill and Smelter Workers Union. He stated on
cross-examination that from 1953 to 1958 he had made weekly reports,
some oral and some in writing on Communist Party matters to the
Federal Bureau of Investigation and that some of the reports mentioned respondent (pp. 83-85) . At the hearing, counsel did. not request
production of these reports, nor did counsel v...sk for a continuation

of the hearing to enable him to determine whether material existed
which would be of use in cross-examining Pikes.
It is contended that Pikes' testimony is lacking in probity and
reasonableness. Counsel contends that Pikes' testimony that he attended Communist Party meetings at respondent's home strains
credulity because the Party's concern with membership exposure
would have made it unlikely that a nonmember of a Communist Party
would have been invited to attend Communist Party meetings. We
find no merit in this contention. There is no evidence in the record
that a Communist Party member who had moved from the area where

his unit was located and who presumably would be away from that area
for some time would not have been permitted to attend. meetings of
other Communist Party units. On the contrary, it appears to us most

likely that arrangements would have been made to continue Pikes

under the direction and discipline of the Communist Party by requiring him to attend a unit in the place where he found himself.
Counsel contends that meetings at respondent's home were meetings
of members of a furniture workers union who were interested in union
problems. Pikes was a knowledgeable member of the Communist
Party : he had attended a Communist Party school, he had collected
Communist Party dues, he had been the chairman of the Communist
Party unit to which he had belonged in Birmingham, Alabama, he was
the liaison man between the Communist Party and the Mine, Mill and

Smelter Workers Union unit there, he was a member of the Southern
Regional Section of the Communist Party and was sent by the Communist Party of Alabama to New York to represent them at meetings.
Pikes testified that the meetings were Communist Party meetings
composed of persons who were furniture workers; that Communist
Party literature was distributed; that Communist Party dues were
collected.; that meetings would be stopped at the prospect of a person
not a member of the Party coming to the apartment (p. 60) ; and that
the respondent had told him that he was attempting to recruit furniture workers for the Communist Party (p_ 65). The witness knew
that there was a rank and file committee of furniture workers union
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Interim Decision #1283
(p. 99) ; he knew that the meetings he attended at respondent's home
were not meetings of the rank and file committee (p. 100) ; and he
identified the meeting as Communist Party meetings, although he was
aware that at the meetings there was discussion of problems confronting the furniture workers union (pp. 103,104) .
Counsel contends that Pikes' description of what occurred at the
Communist Party meetings he attended is so lacking in details that
what is described is nothing but the general procedure at any Communist Party club meetings, and could be used by Pikes to place himself at any Communist Party meeting he desired to testify about.
The contention is without merit. Pikes testified in 1962 about meetings which had occurred some 12 years previously. He knew they
were Communist Party meetings; he placed the respondent at these
meetings; he stated that the respondent's wife would check on persons
coining to determine if they were communists and eligible to attend
the meeting. Neither of the persons specifically mentioned contradicted this testimony. It is understandable that the specific details of
matters handled at these meetings cannot be given at this date. The
special inquiry officer who had the opportunity to observe Pikes testify,
found him credible. After careful review of the record we find the
witness credible, and accept his account of attendance at Communist
Party meetings with the respondent.
Pikes testified that one of the items considered at the Communist

Party meetings in respondent's apartment was the Stockholm Peace
Petition. Counsel drawing upon matter not in the record contends
that the petition could not have been discussed at these meetings which
Fikes stated occurred in late 1949 or early 1950 because the Stockholm
Peace Appeal was first passed in March 1950 and circularization of
petitions started at the end of May or beginning of June 1950. Counsel has not asked for a reopening of proceedings to cross-examine the
witness on the basis of this information. For the sake of argument we
shall assume that the facts alleged by counsel concerning the petition
could be established at the hearing. Since the witness revealed his

uncertainty about the exact period of time that he lived with the respondent, placing it as late 1949 or early 1950, it is not significant that
he could have been in error a month or two concerning the period he

spent with the respondent. In any event, discussions which may
have taken place in April to June 1950 could well fall within Fikes'
testimony that the meetings could have taken place in early 1950. In
view of this fact and noting that counsel does not request reopening of
proceedings to cross-examine Pikes on this matter and give him a
chance to explain the conflict if any, we do not believe that Pikes' credibility is lessened.

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Counsel contends that the respondent, a person of mature years,
would not have divulged Communist Party membership to Fikes, then
a youth. There would appear to be no reason for concealing the fact

of membership if Pikes was considered a proper person to invite to the
Communist Party meetings in respondent's home.
Counsel takes issue with Pikes' designation of a social affair as a
closed one on the ground the record clearly establishes that admission
was open to anyone who paid the admission price. Pikes' testimony
is that the dance was open only to individuals who were members of
the Party, even though tickets were sold (pp. 66-57, 94-96). We do
not find it clearly established the meeting was open to the general
public. Fikes denied that it was so open.
Counsel contends the Service has failed to carry its burden of proof
that respondent was a member of the Communist Party and that
membership was meaningful. We believe that the fact of membership
is established by the testimony of Pikes. As to meaningfulness, Pikes'
testimony—that the respondent acted as chairman at meetings, that
unwanted people would have been prevented from attending, that he
attempted to recruit people for the Communist Party (p. 65) and
that the respondent with his wife attended a special meeting at which
Pikes made a report on activities of the Party for the South, and that
respondent was active in arranging the meeting (p. 74)—reveals• more
than a nominal membership. The appeal will be dismissed.

Counsel requests that if the appeal is not sustained, that his motion
be granted. The motion is not for reopening of proceedings but that
respondent be furnished with copies of statements, memoranda and
reports made by Pikes to the Service and other Federal agencies relating to the respondent. In particular all reports relating to the
respondent's whereabouts in 1949, 1950 and 1957 are requested. At
oral argument, counsel stated that she would be satisfied if the information was made available to the special inquiry officer presumably
for disposition in the spirit of 18 U.S.C. 3500.
The request for reports relating to the whereabouts of Fikes is occasioned by the fact that Pikes testified, at the deportation hearing,
that late in 1949 or early 1950 (pp. 52, 57, 67,102) he spent four weeks

with respondent in New York, and that this testimony is in conflict
with testimony counsel now presents which shows that at a trial in
with
November 1959 in Denver, Pikes testified that from about the summer
or fall of 1949 until about the fall of 1950 he had been a member of
the Communist Party club in Birmingham, Alabama, and had apparently spent his time in Birmingham during this period. Counsel also
cites from the report of an FBI agent on the same trial that Pikes
had informed him that ho came to Birmingham in 1950 and joined the

Communist Party there and counsel contrasts this with Pikes' testi272

Interim Decision #1283
mony at the deportation hearing that he came to New York City in
late 1949 or early 1950 and remained until January 1951 at which
time he returned to Birmingham and entered the United States Army.
Counsel has not requested the right to cross-examine the witness
on either of these matters. On this record we do not find that a conflict
of a serious nature exists. At the deportation hearing, Fikes testified that he remained in Birmingham, Alabama, to late 1949 or early
1950; the transcript of trial testimony merely reveals that it was
around the fall of 1950 that he had left Birmingham rather than early
1950 as his deportation testimony indicates it could have been. But
it is not clear from the trial testimony that Fikes actually left Birming-

ham late in 1950; the trial testimony reveals that Fikes was uncertain
as to the time he left Birmingham, indicating that it was "sometime in
1950" and that the best he could recall was that it had happened in the
fall. As to the report of the FBI agent that Fikes stated he joined the
Communist Party in 1950 in Birmingham we do not see how Fikes
can be held responsible for the agent's testimony. The FBI report
is in conflict with Fikes' own testimony at the trial that he had joined
the Communist Party in Birmingham in the summer or fall of 1949
and if the quotation furnished by counsel is accurate, it shows the

respondent as having attended a Communist Party school in New York
in 194f (the respondent attended in 1949) .

The request for production of reports made by Fikes concerning
the respondent must be denied. As the Service representative has
pointed out, counsel who represented the respondent at the hearing
had notice of the existence of the report (pp. 83-84) but did not request
that "statements" be made available. Respondent is, therefore, not
entitled to the production of the statements. Ogden v. United States,
303 F. 2d 724,733,9th Cir., and cases cited in footnote 27.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
It is further ordered that the motion for production of documents
be and the same is hereby denied.

213
708-156---05-19


Interim Decision *1977

MATTER OF. RBTODO

In Section 212 (e) Proceedings
A-13511526
A-13161625
Decided by Regional Commissioner June 3, 1969

A waiver of the foreign residence requirement of section 212(e), Immigration and Nationality Act, as amended, is denied 2 exchange visitors
(spouses) since it has not been established that their compliance therewith
would result in exceptional hardship to their 2 United States citizen children, one an 18-month-old child who has a slight internal tibial torsion requiring orthopedic correction and the other a 3-year-old child who is undernourished and has a diet problem but is otherwise healthy.
ON BEHALF OF APPLICANTS:

George E. Loebig, Esquire
200 Ross Street
112 Civic Building
Pittsburgh, Pennsylvania 15219

This matter comes forward on appeal from the decision of the
District Director, Cleveland, Ohio, who denied the applications
for waiver of the two-year foreign residence requirement of section 212 (e) of the Immigration and Nationality Act, as amended,
on the ground that compliance with the two-year foreign residence requireme.nt would not impose exceptional hardship on the
minor United States citizen children of the applicants.
The principal applicant is a 31-year-old male native and citizen
of the Philippines who was admitted into the United States on
June 29, 1963 as an exchange visitor under an exchange visitor
program to provide professional approved medical residencies for
foreign medical graduates and to enable such foreign nationals to
pursue their training in the United States and to promote the interests of international exchange. The applicant has completed
his fifth year of residency in general surgery. The spouse of the
principal applicant was admitted to the United States as an exchange visitor on November 2, 1963 for study in medical-surgical
specialties nursing which she has completed. The applications for

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waiver of the two-year foreign residence requirement are based
on hardship which would result to their 18-month-old child who
has internal tibial torsion requiring orthopedic correction and
their 3-year-old child who is undernourished and has diet problem.
In support of the applications, letters from private physicians

have been "submitted stating that the child who suffers from internal tibial torsion has been under professional care and corrective shoes are in use. Further, that if there is no improvement, it
may be necessary for orthopedic evaluation and treatment and
possible tibial osteotomy."
Upon appeal, medical evidence has been submitted that the
birth of a third child is imminent with advice against travel at
this time.
On February 10, 1969 both children were examined by a medical officer of the United States Public Health Service. In his advisory medical opinion the medical officer stated that although the
3-year-old child is said to be undernourished and have a diet
problem, the parents indicated that there were no other medical

problems at the time of interview. The medical officer further
stated that the child is small for his age but otherwise appears
healthy. The medical officer also stated that proper food and vitamins certainly will be available to the family in the Philippines
and that the medical problem would be no different in the Philippines. Concerning his examination of the 18-month-old - child, the
medical officer stated that the child has a minor amount of internal tibial torsion which will not present a hardship or exceptional
problem for the child in any country.
Counsel for the applicants requested additional time to submit
documentation and brief in this case, which was granted. No
brief has been submitted and request for oral argument was
withdrawn. The matter will be decided on the record now before
us.
Section 212 (e) of the Act provides, in part: "That upon the 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 of the United States or a lawfully
resident alien), the Attorney General may waive the requirement

of such two-year foreign residence abroad in the case of any alien

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whose admission to the United States is found by the Attorney
General to be in the public interest."
The statute provides that a waiver on hardship grounds may be
granted only if the exchange alien has a United States citizen or
lawfully resident alien spouse or child and compliance with the
foreign residence requirement would impose exceptional hardship

upon that spouse or child. Some hardship will usually be involved
in a move for a United States citizen or lawfully resident alien to
a country where the customs, mores, language and mode of living
are strange.
The factors in this case have been carefully considered. The imminent birth of the third child and any problems arising thereafter are matters for consideration by the District Director hi the
grant of any period of time within which the applicants may be
required to depart from the United States. From the foregoing
and on the basis of the medical evidence, we find that compliance

with the foreign residence requirement of section 212 (e) of the
Act would not impose exceptional hardship upon the United
States citizen children of the applicants. Therefore, the decision of
the District Director will be approved.
ORDER: The decision of the District Director, Cleveland,
Ohio, is affirmed and the appeal of the appellants is hereby dismissed.

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Interim Decision #4031

Matter of M-F-O-, Respondent
Decided November 4, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A notice to appear that does not specify the time or place of a respondent’s initial removal
hearing does not end the accrual of physical presence for purposes of voluntary departure
at the conclusion of removal proceedings under section 240B(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229c(b) (2018), even if the respondent is later served with a
notice of hearing specifying this information. Posos-Sanchez v. Garland, 3 F.4th 1176 (9th
Cir. 2021), followed. Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA
2021), overruled in part.
FOR RESPONDENT: Edgardo Quintanilla, Esquire, Sherman Oaks, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Michelle Morton, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;
CREPPY and LIEBOWITZ, Appellate Immigration Judges.
MALPHRUS, Deputy Chief Appellate Immigration Judge:

In a decision dated May 16, 2018, an Immigration Judge denied the
respondent’s application for asylum and withholding of removal under
sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality
Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2018), and 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) (“Convention Against Torture”). The Immigration Judge also
denied the respondent’s request for voluntary departure under section
240B(b) of the Act, 8 U.S.C. § 1229c(b) (2018). The respondent has
appealed from this decision and requested that we terminate his removal
proceedings. 1 We will deny his motion to terminate and dismiss his appeal
1

During the pendency of this appeal, the parties filed supplemental briefs addressing the
respondent’s eligibility for asylum, withholding of removal, and protection under the
Convention Against Torture as well as the impact, if any, of the United States Supreme

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Interim Decision #4031

with regard to the denial of his application for asylum, withholding of
removal, and protection under the Convention Against Torture. However,
we will sustain his appeal with respect to the denial of voluntary departure.
In this regard, we will overrule, in part, our precedential decision in Matter
of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021), and
remand the record to the Immigration Judge for further consideration of the
respondent’s eligibility for voluntary departure.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala who applied for
admission to the United States without valid entry documents. He was placed
in removal proceedings with the service of a notice to appear that failed to
specify the time or place of his initial removal hearing. He was later served
with notices of hearing specifying this information, and he appeared for all
of his removal hearings. 2 During proceedings, the respondent filed an
application for asylum and related forms of relief and protection from
removal and requested voluntary departure. In support of his application, he
testified that criminal gang members attacked him on six occasions, beating
him each time, robbing him during some of these incidents, and threatening
him with a knife during the last incident. He further testified that the gang
members approached him in an effort to recruit him because they were trying
to recruit more young people. The gang members spoke to him in his
indigenous dialect, demanding that he join their gang and only released him
after he asked for more time to consider their demand or falsely promised to
join them at a later date. The respondent claimed the gangs harmed him, and
will target him in the future, because he is a member of a particular social
group composed of indigenous Guatemalan youths who have abstained from
joining the street gangs.
The Immigration Judge denied the respondent’s application for asylum
and withholding of removal after finding, among other things, that he had not
demonstrated the requisite nexus between the past and feared harm and a
valid social group. 3 The Immigration Judge also concluded that the
Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), on the respondent’s
eligibility for voluntary departure.
2
The Immigration Judge initially terminated the respondent’s removal proceedings, but
we vacated his termination order on appeal, reinstated the proceedings, and remanded for
entry of a new decision.
3
The Immigration Judge also found that the respondent’s asylum application was
untimely filed. However, the parties have stipulated on appeal that the respondent is a
member of the class identified in Rojas v. Johnson, 305 F. Supp. 3d 1176, 1179

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Interim Decision #4031

respondent was ineligible for protection under the Convention Against
Torture. Finally, the Immigration Judge found that the notice to appear in
this case precluded the respondent from accruing the requisite period of
continuous physical presence for purposes of voluntary departure at the
conclusion of removal proceedings pursuant to section 240B(b) of the Act.

II. ANALYSIS
A. Asylum and Withholding of Removal
For purposes of this appeal, we will assume without deciding that the
respondent has established the validity of his proposed social group of
indigenous Guatemalan youths who have abstained from joining the street
gangs and demonstrated his membership in it. However, we will affirm the
Immigration Judge’s finding that he has not demonstrated the requisite nexus
between the past or feared harm and his membership in this group. 4 See
Matter of H-L-S-A-, 28 I&N Dec. 228, 234 n.5 (BIA 2021) (explaining that
“an applicant must not only demonstrate that th[e] group is valid and he is
a member of this group, but also the requisite nexus between group
membership and any persecution”); see also Ayala v. Holder, 640 F.3d 1095,
1097 (9th Cir. 2011) (per curiam). To establish the requisite nexus for
purposes of asylum, the respondent must demonstrate that his membership
in his proposed social group was or would be “one central reason” for the
past or feared harm. Section 208(b)(1)(B)(i) of the Act. For purposes of
withholding of removal, because this case arises within the jurisdiction of the
United States Court of Appeals for the Ninth Circuit, he must only
(W.D. Wash. 2018), and thus his application is not untimely. See Matter of A-C-A-A-, 28
I&N Dec. 351, 352 (A.G. 2021) (permitting the Board to rely on party stipulations). See
generally Rojas v. Wolf, No. 16-cv-01024 (W.D. Wash. Nov. 4, 2020) (approving
settlement agreement).
4
For the first time on appeal, the respondent asserts he was harmed and fears harm in
Guatemala based on his race, “Kanjobal Maya,” and his membership in another social
group, “Kanjobal Maya who abstain from joining gangs.” However, the respondent, who
testified that his race was “Maya” below, was represented by counsel before the
Immigration Judge and did not advance these additional grounds during his removal
hearings. Thus, they are not properly before us. See Matter of W-Y-C- & H-O-B-, 27 I&N
Dec. 189, 190 (BIA 2018) (holding that we generally will not consider an argument that
could have been, but was not, raised before the Immigration Judge); see also Honcharov
v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (per curiam). Even if the respondent had
argued below that he was “Kanjobal Maya,” which we recognize refers to a specific
subgroup within the Guatemalan Mayan community, it would not alter our conclusion that
he has not established the requisite nexus between the past and feared harm and a protected
ground.

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Interim Decision #4031

demonstrate, pursuant to controlling precedent in this circuit, that his
membership in his proposed social group was or would be “a reason” for the
harm. Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021). 5
The Immigration Judge did not clearly err in finding that gang members
targeted the respondent in Guatemala because they wanted him to join their
ranks and that his membership in his proposed group was not, nor would it
be, “one central reason” or “a reason” for the past or feared harm. See Matter
of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (“A persecutor’s actual motive
is a matter of fact to be determined by the Immigration Judge and reviewed
by us for clear error.”). The respondent does not claim that these gang
members told him they were targeting him because he was an indigenous
Guatemalan youth who refused to join their ranks. Rather, he believes that
he was targeted on this basis because the gang members communicated with
him in his indigenous dialect and indigenous individuals are a minority in
Guatemala. However, as the Immigration Judge noted, a majority of those
residing in the area where the respondent was harmed are indigenous. Even
if the gang members were aware of the respondent’s indigenous status based
on the demographics of the area and their ability to communicate with him
in an indigenous dialect, in light of the facts of this case, this evidence alone
does not establish that his membership in his proposed social group was or
would be “one central reason” or “a reason” for the past or feared harm. See
Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir. 2009) (explaining that
statements indicating that persecutors “were aware” of an applicant’s
ethnicity are insufficient to establish a nexus between his ethnicity and the
alleged harm).
Moreover, this evidence is not inconsistent with the Immigration Judge’s
determination that the gang members simply wished to recruit him into their
gang to expand their ranks, irrespective of his indigenous status. See Matter
of L-E-A- (“L-E-A- I”), 27 I&N Dec. 40, 43–44 (BIA 2017) (providing that
5

While controlling circuit precedent provides that applicants for withholding of removal
need only demonstrate that a protected ground was or would be “a reason” for past or future
harm, many circuits agree with our conclusion that the “one central reason” standard
applies to both applications for asylum and withholding of removal. See Matter of C-T-L-,
25 I&N Dec. 341, 350 (BIA 2010); see also Singh v. Garland, 11 F.4th 106, 114 (2d Cir.
2021); Vazquez-Guerra v. Garland, 7 F.4th 265, 271 (5th Cir. 2021); Sanchez-Castro
v. U.S. Att’y Gen., 998 F.3d 1281, 1286 (11th Cir. 2021); Quintero v. Garland, 998 F.3d
612, 631 (4th Cir. 2021); Thayalan v. Att’y Gen. of U.S., 997 F.3d 132, 142 (3d Cir. 2021)
(citing Gonzalez-Posadas v. Att’y Gen. U.S., 781 F.3d 677, 684–85 & n.6 (3d Cir. 2015));
Sanchez-Vasquez v. Garland, 994 F.3d 40, 46–47 (1st Cir. 2021).
But see
Guzman-Vazquez v. Barr, 959 F.3d 253, 272–74 (6th Cir. 2020) (requiring applicants for
withholding of removal to demonstrate that a protected ground was or would be “at least
one reason” for the harm).

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an applicant cannot demonstrate the requisite nexus if “the persecutor would
have treated the applicant the same if the protected characteristic . . . did not
exist”). 6 It is well established that Central American gangs direct harm
“against anyone and everyone perceived to have interfered with, or who
might present a threat to, their criminal enterprises and territorial power,”
including “those who refuse to join their ranks.” Matter of S-E-G-, 24 I&N
Dec. 579, 587 (BIA 2008). “[T]hese motivations do not constitute
persecution on account” of any valid protected ground. Barrios v. Holder,
581 F.3d 849, 856 (9th Cir. 2009) (citation omitted), abrogated on other
grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013)
(en banc).
The respondent has not pointed to any convincing direct or circumstantial
evidence that his membership in a particular social group of indigenous
Guatemalan youths who have abstained from joining the street gangs was, or
would be, either “one central reason” or “a reason” for past or feared harm
in Guatemala. 7 The Immigration Judge was not required to accept the
respondent’s opinion that the gang members sought, or would seek, to harm
him based on his membership in this group. See Macedo Templos
v. Wilkinson, 987 F.3d 877, 883 (9th Cir. 2021) (concluding that an applicant
had not shown the requisite nexus where he failed to present evidence that
the criminals who harmed him were “driven by the same motive, beyond his

6

The Attorney General overruled the portion of L-E-A- I relating to whether a nuclear
family could constitute a viable social group but left undisturbed our nexus analysis.
Matter of L-E-A- (“L-E-A- II”), 27 I&N Dec. 581, 596–97 (A.G. 2019). Later, the Attorney
General vacated L-E-A- II in its entirety. Matter of L-E-A- (“L-E-A- III”), 28 I&N Dec.
304, 305 (A.G. 2021). Thus, our nexus analysis in L-E-A- I remains good law.
7
Although the Immigration Judge properly applied the “a reason” standard in denying
the respondent’s application for withholding of removal, he went on to say he was denying
that application because it “requires a more objective and stringent burden of proof.” While
it is true that the burden of proof for withholding of removal regarding the likelihood of
harm is higher than it is for asylum, see Matter of M-A-S-, 24 I&N Dec. 762, 765 (BIA
2009), in most jurisdictions the same nexus standard, the “one central reason” standard,
applies to both asylum and withholding of removal, see, e.g., Matter of C-T-L-, 25 I&N
Dec. at 350. In the remaining jurisdictions, the “a reason” nexus standard for withholding
of removal “includes ‘weaker motives’” than the “one central reason” nexus standard for
asylum. Garcia, 988 F.3d at 1146 (citation omitted); see also Guzman-Vazquez, 959 F.3d
at 272–74. Where the denial of withholding of removal turns on the issue of nexus, an
Immigration Judge should not state that withholding of removal is being denied as a result
of a higher burden of proof. Instead, an Immigration Judge should only do so when the
denial turns on the likelihood of harm. To the extent the Immigration Judge erred in this
regard, it was harmless error in this case.

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opinion” (emphasis added)). 8 “[T]he reason[] that generate[d] the dispute”
in this case, as the Immigration Judge found, was the gang members’ desire
to expand their ranks. Matter of L-E-A- I, 27 I&N Dec. at 45; see also Matter
of J-C-H-F-, 27 I&N Dec. 211, 217 (BIA 2018) (applying clear error
standard of review). We will therefore affirm the Immigration Judge’s
decision to deny the respondent’s application for asylum under section
208(b)(1)(A) and withholding of removal under section 241(b)(3)(A) of the
Act.
The respondent also has not established any basis to disturb the
Immigration Judge’s alternative finding that he did not experience, nor would
he experience, persecution committed by forces the Guatemalan Government
is unable or unwilling to control. See J.R. v. Barr, 975 F.3d 778, 782
(9th Cir. 2020) (stating that to establish a persecution claim based on violence
inflicted by gang members, an applicant must show the government of the
country of removal is “‘unable or unwilling’ to control them”
(citation omitted)). Consequently, we will also affirm the Immigration
Judge’s denial of asylum and withholding of removal on this independent
basis.
B. Convention Against Torture
We will also affirm the Immigration Judge’s determination that the
respondent has not established his eligibility for protection under the
Convention Against Torture. See 8 C.F.R. §§ 1208.16(c), 1208.18(a) (2021).
We agree with the Immigration Judge that the harm the respondent
experienced in Guatemala—specifically, threats and bruises that did not
require medical attention—do not satisfy the regulatory definition of torture.
See 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel and
inhuman treatment and does not include lesser forms of cruel, inhuman or
degrading treatment . . . .”). The respondent was last harmed in Guatemala
more than 4 years ago, when he was a teenager, and he has not shown that
the gang members who threatened and harmed him in that country are still
interested in locating him and targeting him for harm, let alone torture. See
8

The respondent contends that the Immigration Judge erroneously required him to show
that his social group membership accounted for 51 percent of the gang members’
motivation. However, the Immigration Judge’s nexus analysis does not rest on such a
showing, since he explicitly found that the respondent did not establish his social group
“has any nexus” to past or feared harm. See Santos-Ponce v. Wilkinson, 987 F.3d 886, 890
(9th Cir. 2021) (observing that where “there was no nexus at all,” there is “no distinction
between the ‘one central reason’ phrase in the asylum statute and the ‘a reason’ phrase in
the withholding statute” (citation omitted)).

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Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017) (providing that
Convention Against Torture “relief is forward-looking, requiring the
applicant prove that it is more likely than not that he would be tortured if he
were removed to the proposed country”). The respondent’s “speculative fear
of torture is insufficient to satisfy the ‘more likely than not’ standard” for
Convention Against Torture protection. Garcia, 988 F.3d at 1148.
Moreover, the respondent’s generalized assertions concerning governmental
corruption and disparate treatment of indigenous people in Guatemala are
insufficient to establish that it is more likely than not that he will be tortured
in that country by or with the consent or acquiescence of a government
official or an individual acting in an official capacity. See Delgado-Ortiz
v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam). 9 Consequently,
the Immigration Judge’s predictive findings have not been shown to be
clearly erroneous, and we will affirm his decision to deny the respondent’s
application for protection under the Convention Against Torture. See Matter
of Z-Z-O-, 26 I&N Dec. 586, 590 (BIA 2015) (reviewing an Immigration
Judge’s predictive findings for clear error).
C. Jurisdiction
The respondent’s argument that his removal proceedings should be
terminated because his notice to appear failed to specify the time or place of
his initial removal hearing, thereby depriving the Immigration Judge of
jurisdiction over his proceedings, is foreclosed by our precedential decisions
in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and Matter of
Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). As we explained in those
decisions, the filing of a notice to appear vests an Immigration Judge with
jurisdiction over proceedings, even if that notice fails to specify the time or
place of the hearing, so long as a notice of hearing specifying this information
is later sent to a respondent. See Matter of Arambula-Bravo, 28 I&N Dec. at
390–91; Matter of Bermudez-Cota, 27 I&N Dec. at 447. We held, moreover,
that neither the United States Supreme Court’s decision in Pereira
v. Sessions, 138 S. Ct. 2105 (2018), nor its decision in Niz-Chavez
v. Garland, 141 S. Ct. 1474 (2021), require the termination of removal
proceedings when a notice to appear fails to specify the time or place of
a removal hearing. 10 Matter of Arambula-Bravo, 28 I&N Dec. at 391; Matter
9

Contrary to the respondent’s contentions, the Immigration Judge appropriately assessed
whether he, “in particular,” would be tortured in Guatemala. Garcia, 988 F.3d at 1147.
10
In Niz-Chavez and Pereira, the Supreme Court interpreted sections 239(a) and
240A(d)(1) of the Act, 8 U.S.C. §§ 1229(a) and 1229b(d)(1) (2018), provisions we address
in more detail below.

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of Bermudez-Cota, 27 I&N Dec. at 447; see also United States
v. Bastide-Hernandez, 3 F.4th 1193, 1196 (9th Cir. 2021).
As noted, after the notice to appear in this case was served on the
respondent and filed with the Immigration Court, the respondent received
notices of hearing specifying the time and place of his hearings, and the
respondent appeared for all of these hearings. We will therefore deny the
respondent’s motion to terminate. 11
D. Voluntary Departure
To establish his eligibility for voluntary departure at the conclusion of
proceedings pursuant to section 240B(b) of the Act, the respondent must
demonstrate, among other things, that he “has been physically present in the
United States for a period of at least one year immediately preceding the date
the notice to appear was served under” section 239(a) of the Act, 8 U.S.C.
§ 1229(a) (2018). Section 240B(b)(1)(A) of the Act. Section 239(a)(1)(G)(i)
of the Act, in turn, requires that a “notice to appear” specify the “time and
place at which” the initial removal hearing “will be held.” We previously
recognized in Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. at
225–26, that the language at section 240B(b)(1)(A) of the Act is similar to
the language of the so-called “stop-time” rule at section 240A(d)(1)(A) of
the Act, 8 U.S.C. § 1229b(d)(1)(A) (2018), which ends the accrual of
continuous physical presence for purposes of cancellation of removal “when
the [respondent] is served a notice to appear under section 239(a).” We
additionally recognized that the Supreme Court concluded in Pereira, 138
S. Ct. at 2110, that a notice to appear that fails to specify the time or place of
a removal hearing does not end the period of continuous physical presence
under the “stop-time” rule at section 240A(d)(1) of the Act. Consistent with
our past precedents, 12 we held in Matter of Viera-Garcia and Ordonez-Viera
that where a notice to appear fails to specify the time or place of a
respondent’s removal hearing, the service of a notice of hearing specifying
this information perfects the notice to appear, satisfies the requirements of
11

Although the respondent argues on appeal that he is a low enforcement priority and that
his removal proceedings should be terminated or dismissed without prejudice on this basis,
it is within the Department of Homeland Security’s prerogative to exercise prosecutorial
discretion in that manner. See, e.g., Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 170
& n.3 (BIA 2017).
12
Specifically, we relied on Matter of Bermudez-Cota and Matter of Mendoza-Hernandez
and Capula-Cortes, 27 I&N Dec. 520, 529 (BIA 2019). We held in the latter case that a
deficient notice to appear that fails to specify the time or place of proceedings is perfected
by the service of a notice of hearing specifying this information, satisfies the notice
requirement of section 239(a), and triggers the “stop-time” rule under section 240A(d)(1).

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section 239(a), and ends the accrual of physical presence for purposes of
voluntary departure pursuant to section 240B(b)(1)(A) of the Act.
Following the issuance of Matter of Viera-Garcia and Ordonez-Viera,
the Supreme Court held in Niz-Chavez, 141 S. Ct. at 1480, that, to trigger the
“stop-time” rule under section 240A(d)(1), a notice to appear must be a single
document containing all the information about a respondent’s removal
hearing specified in section 239(a) of the Act, including the time and place
of the initial hearing. We agree with the parties that our holding in Matter of
Viera-Garcia and Ordonez-Viera does not survive Niz-Chavez. We hereby
overrule Matter of Viera-Garcia and Ordonez-Viera, to the extent it held that
a defective notice to appear can end a respondent’s accrual of physical
presence pursuant to section 240B(b)(1)(A) of the Act. 13
Based on Pereira and Niz-Chavez, the Ninth Circuit, in whose
jurisdiction this case arises, has likewise concluded in binding precedent that,
for purposes of section 240B(b)(1)(A), the service of a notice of hearing
cannot cure a notice to appear that lacks the time or date of a respondent’s
initial removal hearing. Posos-Sanchez v. Garland, 3 F.4th 1176, 1185–86
(9th Cir. 2021). The court first noted that the phrase “under section 239(a)”
in section 240B(b)(1)(A) of the Act means that the Department of Homeland
Security must serve a respondent with a notice to appear “containing all the
information that Congress listed in [section 239(a)],” including the time and
place of the initial hearing. Id. at 1185; see also Pereira, 138 S. Ct. at 2117
(interpreting the phrase “under section 239(a)” in section 240A(d)(1) as
requiring the service of a notice to appear “‘in accordance with’ or ‘according
to’” the requirements of section 239(a) (citation omitted)). The court also
found it significant that section 240B(b)(1)(A) speaks of “the date the notice
to appear was served.” Posos-Sanchez, 3 F.4th at 1184 (quoting section
240B(b)(1)(A) of the Act). The court found that Congress used the definite
article “the” in combination with the singular nouns “date” and “notice to
appear” in section 240B(b)(1)(A) to “equate[] servi[ng]” a notice to appear
under section 239(a) “with a discrete moment, not an ongoing endeavor.” Id.
at 1185 (second alteration in original) (quoting Niz-Chavez, 141 S. Ct. at
1483). Accordingly, the court reasoned that a respondent accrues physical
presence for purposes of section 240B(b)(1)(A) from the moment he enters
the United States until he is served with a single document providing him
with all the information required by section 239(a) of the Act. We agree with
the Ninth Circuit’s reasoning and will apply it nationwide. See generally
Matter of Ortega-Lopez, 27 I&N Dec. 382, 387 (BIA 2018) (noting “the
13

We also overrule Matter of Mendoza-Hernandez and Capula-Cortes to the extent it
conflicts with the Court’s holding in Niz-Chavez.

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Interim Decision #4031

paramount need for ‘uniformity in the administration of immigration laws’”
(citation omitted)).
As noted, the respondent was served with a notice to appear that did not
specify the time or place of his initial removal hearing. Although he was
later served with a notice of hearing specifying this information, the notice
of hearing otherwise lacked the information listed in section 239(a)(1). As
a result, the deficient notice to appear in this case does not preclude the
respondent from establishing the requisite period of continuous physical
presence for purposes of section 240B(b)(1)(A) of the Act.
See
Posos-Sanchez, 3 F.4th at 1185. Consequently, we will remand the record
for the Immigration Judge to evaluate in the first instance whether the
respondent is otherwise statutorily eligible for voluntary departure under
sections 240B(b)(1)(B) through (D) of the Act, and whether he merits
voluntary departure in the exercise of discretion. See section 240(c)(4)(A)
of the Act, 8 U.S.C. § 1229a(c)(4)(A) (2018). 14
Accordingly, the respondent’s motion to terminate is denied, and his
appeal from the Immigration Judge’s decision denying his application for
asylum, withholding of removal, and protection under the Convention
Against Torture is dismissed. His appeal from the Immigration Judge’s
decision denying his request for voluntary departure is sustained, and the
record is remanded for further consideration of his eligibility for voluntary
departure at the conclusion of proceedings under section 240B(b) of the Act.
ORDER: The respondent’s motion to terminate is denied, and his
appeal is dismissed in part and sustained in part.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

14

In light of our disposition of the respondent’s appeal on the foregoing dispositive
grounds, we need not reach his remaining appellate arguments. See, e.g., INS
v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and
agencies are not required to make findings on issues the decision of which is unnecessary
to the results they reach.”).

417


Interim Decision #1300

II/Amman or M/S PANACHIA THEOSEEPASTI

In FINE Proceedings
NYC-10/52.489
Decided by Board August 23, 1963
(1) Liability to fine as to an alien crewman inspected and denied landing privileges, as to whom permission was later granted the agent to take him ashore
for medical treatment conditioned upon his being under guard at all times and
returned to the vessel but who eluded his guard and is still at large, properly
lies under subsection (a) (3) of section 254, Immigration and Nationality Act.
(2) Proceedings under section 254 (a) (3) of the Act require personal service of
notice to deport on the party charged with liability to fine.
IN RE : M/S Panagivis Tkeoskepasti, which arrived at the port of New York from
foreign on February 8, 1963. Alien crewman involved : Aristidis
Muskatas.
Beset FOR FINE: Act of 1952—Section 254 (8 U.S.C. 1284).

The District Director at New York has ordered an. administrative
penalty of $600, $1,000 mitigated to the extent of $400, imposed upon
the vessel's agents. Said official predicates his-action on. a Notice of
Intention to Fine (Form 1-79) stating that the section. of the law
involved is 254 of the Immigration and Nationality Act (8 U.S.C.
1284). He charges a violation thereof, in the following language:
.. . failure to detain on board the vessel at all times an alien crewman
(Aristidis Mustakas) who had not been granted a conditional permit to land
temporarily in the United States.

It appears upon the record before us that the following material
facts exist without substantial controversy. Aristidis Itustakas, a
native and national of Greece, was serving as a crewman aboard this
ship at the time of its above-described arrival in the United States.
Immigration inspection, which was then accorded its crew members,
resulted in the refusal of conditional landing privileges to him.
Under the statute, therefore, the vessel's agents, inter aiia, had the
absolute duty of detaining him on board the ship and deporting him
from the United States thereon. However, the Service later gave
the agents permission to take the crewman ashore for medical treat360

Interim Decision #1300
ment, on condition that he be kept under guard at all times and
returned aboard the vessel. The ship's second officer was assigned
the task of accompanying the crewman to the doctor and bringing him
back to the ship, but the latter eluded his guard en route to the doctor's
office. Insofar as the record shows, he is still at large in this country.
As to crewmen arriving aboard vessels in United States ports, section 254(a) of the Immigration and Nationality Act (8 U.S.C. 1284)
imposes three separate and distinct, though closely related, duties
which the parties named in the statute, including the vessel's agents,
are charged with the responsibility of meeting. • Failure to perform
these duties subjects those parties, agents included, to the penalty
specified in the statute.
Subsection (1) requires crewmen to be detained on board an arriving vessel until an immigration officer has completely inspected them.
It does so without the necessity of individual notice. The reason is
that the law itself, without more, serves as notice.
Subsection (2) provides that crewmen must be detained on board
after inspection, unless and until they are issued landing permits.

Again, there is no requirement of individual notice. The reason, likewise, is that the statute itself serves as notice to continue the detention
until such time as an immigration officer lifts it by issuing a conditional landing permit, or otherwise. When and if that is done, the
terms of the permit and/or the other conditions attached to the crewman's landing constitute full notice to all, agents included, of the
limitations placed thereon. While the permit or other authorization
may not be furnished the agents, the statute makes them responsible
nevertheless.

Subsection (3) necessitates the deportation of crewmen, either
before or after they are permitted to land temporarily, if such action
is required. This provision of the statute is the logical result sought
to be accomplished by subsections (1) and (2) thereof, to the end that
the intent of the Congress in enacting this legislation, to wit: the close
control of crewmen and the prevention of aliens from using the seaman's route to gain easy access to this country, might be effectuated.
Clearly, as to a crewman required by the statute to be detained on
board until inspection and not thereafter granted a conditional landing permit by the examining immigration officer, then, as in cases of
subsections (1) and (2) the law itself, without more, serves as notice
to deport. To hold otherwise woUldbe to reach an absurd result. But
if the requirement of deportation is imposed after the crewman has

been granted a conditional landing permit and his detention lifted,
then notice of a personal nature is essential. (Matter of SS "Marilena," 7 I. & N. Dec. 453; Matter of 111/V "Ai nflnn Stange;" 81. & N.
Dec. 639.)
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Interim. Decision 41E1300
In the unreported case of the SS. "Atlantic Unity," (PHI10/99.161), decided by this Board on July 9, 1959, we were confronted
with a situation substantially similar to the one now before us for
consideration. Therein, the boarding immigration officer refused
conditional landing privileges to an alien crewman, but the Service
later consented to his removal from the ship for hospitalization. Such
consent was given upon the responsible parties agreeing in writing to
the following conditions: that upon release from the hospital, the crewman would be promptly removed from the United States without expense to the Government; that he would be under guard after his
release from the hospital until his deportation; and that the foregoing
arrangements would not relieve the responsible parties from liability
to fine proceedings and deportation costs if the crewman failed to so
depart from the United States. These conditions were not met and
the crewman gained his enlargement in the United States, although
he was eventually taken into custody by Service officers.
The proceedings in the foregoing case were based on a charge of

"failure to deport" in violation of section 254(a) (3) of the Immigration and Nationality Act. We upheld the fine imposed by the District
Director therein, thus indicating the appropriate provision of the

statute to be relied on in substantially similar situations when there
has been a "failure to detain and deport." In this instance, however,
section 254(a) (3) was not used. Therefore, the appeal will be
sustained.
ORDER: It is ordered that the appeal be and the same is hereby
sustained.

362


MATTER OP

(Alma

In Section 212(e) Proceedings

A-13805097
Decided by District Director May 28, 1968
An exchange visitor is granted a waiver of the foreign residence requirement of
section 212 (e) of the Immigration and Nationality Act, as amended, as compliance therewith would result in extreme hardship to his United States
citizen wife since it would disrupt and indefinitely postpone her education
preparatory to teaching at the college level.

Discussion: The applicant, Peng-Khuan Chong, is twenty-seven
years of age, a native and citizen of Malaysia. He was admitted to the
United States as an exchange visitor on August 2, 1960, sponsored
by Exchange Program G—I-1 of the Institute of International Education. He obtained his bachelor degree in economics in 1964 under the
sponsorship of P—I-43 of Cornell University. Following a temporary
absence, he was readmitted to the United States on September 15,
1964, under P—I-70 of the University of New Hampshire to pursue
a master's degree in government. He received his master's degree in
political science in 1966. Practical training as a teacher was authorized
until June 1968. He was a part-time instructor while working. for his
master's degree.
Mr. Chong married a citizen of the United States on February 5,
1966, and presently resides in the United States with her. Mrs. Chong
is studying at the University of New Hampshire for a master's degree
in English under a Ford Foundation grant. She will complete her
course work for 'the degree in June 1969. She was teaching as a graduate assistant until February of 1968. She is not now employed and is
totally dependent upon her husband for support. She therefore feels
that she would have to accompany her husband if he was required to
return to Malaysia as he could not maintain two households. This
would disrupt her education and indefinitely postpone her desire
to teach at the college level.
In view of the foregoing, it has been determined that the applicant's compliance with the foreign residence requirement of section
793

Interim Decision #18132
212(e) of the Immigration and Nationality Act, as amended, would
impose exceptional hardship upon his United States citizen spouse.
The Department of State has reviewed the facts in the case and recommends that the waiver be granted.
It is found that the admission of the applicant would be in the
public interest.
ORDER: It is ordered that the application of Peng-Khuan Chong
for a waiver of the two-year foreign residence requirement of section
212(e) of the Immigration and Nationality Act, as amended, be
granted.

794


Interim Decision #2566

MATTER OF GREAT WALL
In Visa Petition Proceedings
A-19784032
Decided by Acting Regional Commissioner March 16, 1977
(1) Petitioner sought to classify beneficiary for the issuance of an immigrant visa under
section 203(a)(6) of the Immigration and Nationality Act as a store manager at a salary
of 5850.00 per month. The record reveals that at the time the petition was filed the
petitioner did not and could not pay the proffered wage indicated in the job offer (Form
MA 7-50B) nor did the petitioner establish on appeal that he could and would be able to
pay the beneficiary the salary offered in the future.
(2) A visa petition for sixth-preference classification will be denied where it is found that
the beneficiary io not being- paid the wages specified in the Job Offer for Alien Employ
ment at the time the petition was filed becafise section 204(b) of the Act requires a
determination that all the facts stated in the petition are true before the petition may be
approved.
ON BEHALF OF PETITIONER: Ahvin S. M. Tan, Esquire
700 West Towers Building
1200-35th Street
West Des Moines, Iowa 52065

This matter comes forward on appeal from the order of the District
Director who on November 18, 1976, denied the petition for sicth

preference to classify the beneficiary as a store manager. The District
Director determined that the petitioner had failed to establish that Ile
was financially able to pay the salary rate as stated in the job offer.
The petitioner is an Oriental gift shop and food store. The beneficiary
is a 25-year-old male, single, native of China, and citizen of Hong Kong,
who last entered the United States as a nonimmigrant student. Review
.Dfhis Statement of Qualifications submitted with the petition and signed
D ecember 19, 1975, reflects that his major field of study from July 1970
through November 1974 was industrial engineering without receipt of a
degree. In January 1974 he began study at Simpson College and received a Bachelor of Arts Degree with an economics major on May 25,
1975.
The petitioner in his job offer, which is dated December 16, 1975,
stated he wished to hire the beneficiary as a store manager at the rate of
8350.00 per month for a 40 -48 -hour week. In the job offer and the
-

142

Interim Decision #2566
petition itself (filed with the Service on April 9, 1976) he stated that the
annual income of the organization was $50,000.00, and that there were
two to three other employees at the establishment. There is no question
that the beneficiary meets the requirements as set forth in the certified
job offer. The issue herein is whether the petitioner is qualified to proffer
the employment. It is noted that the petitioner's original request for labor
certification was denied on January 22, 1976, but the denial was reversed
on March 24, 1976, on the basis of the petitioner's assurance that the wage
offer would be increased.

Further Service inquiry of the petitioner's business revealed that
Great Wall, Inc., has issued $21,000.00 worth of common stock. Mr.
Shau Chung Hu, who signed the petition, owns $10,000.00, the beneficiary owns $10,000.00 and the beneficiary's sister owns $1,600.00
worth of stock in the company.
The beneficiary has also loaned the corporation $3,000.00 which admittedly was to cover operating expenses rather than for expansion of
the business. The source of these funds was his mother. The beneficiary
also admitted that although he had been employed by Great Wall, Inc.,
since September 1975, he had Tint received a salary as of September 14,
1976. It was further revealed that the two to three employees shown on
the petitioner's job offer were, in fact, two part-time employees. The
estimated inventory of Great Wall, Inc., as of September 14, 1976, was
$10,000.00. At that time the following total sales were shown in the
corporation's books:
November 1975 — $4,190.00
December 1975 — 8,278.00
January 1976 — 2,223.00
February 1976 — 1,802.00
March 1976
April 1976
May 1976
June 1976

— 2,086.00
— 1,700.00
— 1,736.00
— 2,222.00

There were no figures for July and August, 1976. Monthly rent for the
shop was $538.00, electricity $40.00—$100.00, and salary for the two
part-time employees was $200.00 $300.00 per month.

On appeal, the petitioner, through counsel, concedes that the shop
will not realize a profit, and, in fact, will suffer a loss. However, the
petitioner urges that a prospective view of the venture be taken since it
is relatively new. An uncertified income statement was submitted on
appeal covering the period June 1, 1975 to May 31, 1976, which reflects a
net loss (based on fiscal year) of $2,110.37. The petitioner also stated for
the record in a letter dated December 29, 1976, that the beneficiary is
now receiving his wages and will continue to receive them; however, no
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Interim Decision #2566
evidence to support such claim has been produced. The brief on appeal,
among other things, stated that the beneficiary's salary will be paid in
stocks at the next annual meeting of the corporation.
The fact that the petitioner may, sometime in the future, be able to
pay the wage of $850.00 per month has been taken into consideration.
However, in visa petition proceedings the burden of proof to establish

eligibility rests with the petitioner (Matter of Brantigan , 11 I. & N.
Dec. 493). The record in the instant case reflects that at the time the
petition was filed with this Service the petitioner did not and could not

pay the offered wage. Prospectively, the petitioner has not conclusively
borne his burden and established on appeal that he can and will be able
to pay the beneficiary the salary of $850.00 per month as offered on
December 16, 1975.
The certification required by section 212(a)(14) of the Immigration
and Nationality Act, as amended, (the Act) was issued on March 24,
1976. At the time that Section 212(a)(14) was originally enacted, the
drafters of the Immigration and Nationality Act stated that the purpose
of the provision was "to provide strong safeguards for American labor
and to provide American labor protection against an influx of aliens

entering the United States for the purpose of performing skilled or
unskilled labor where the economy of individual localities is not capable
of absorbing them at the time they desire to enter this country." (Emphasis supplied.) H.R. Rep. No. 1365, 82nd Cong. 2nd Session (1952),
reprinted in (1952) U.S. Code Cong. & Ad. News 1705.
The petition, if approved, would establish a priority date as of the
date that the job offer (Form MA 7-50B) was accepted for processing by
any office within the employment service system of the Department of
Labor. In the instant case the priority date for visa issuance to the
beneficiary would be January 2, 1976, pursuant to Federal Lea -illations at
8 C.F.R. 204.1(c)(2).
Section 204(a) of the Act requires the filing of a visa_ petition for
classification under section 203(a)(6). Section 204(b) states, among other
things, "After an investigation of the facts in each case, and after
consultation with the Secretary of Labor with respect to petitions to
accord a status under Section 203(a)(3) or (6), the Attorney General
shall, if he determines that the facts stated in the petition are true

and

that the alien in behalf of whom the petition is made is . . . eligible for a
preference status under Section 203(a), approve the petition . . ." (Emphasis supplied.)
When a sixth-preference petition is filed, it seeks to establish that the
employer is making a realistic job offer to an alien who is Qualified, and
that the proposed employment will not displace United States workers
dL Lhe time the petition is filed. I du nut feel, nor du I believe the
Congress intended, that the petitioner, who admittedly could not pay
144

Interim Decision #2566
the offered wage at the time the petition was filed, should subsequently
become eligible to have the petition approved under a new set of facts
hinged upon probability and projections, even beyond the information
presented on appeal.
Eligibility for the preference being sought at the time of filing of the
petition was previously decided by the Regional Commissioner in Ratter of Katigbak, 14 I. & N. Dec. 45. I am aware that Katigbak is not
foursquare with the instant case in that the Regional Commissioner
considered the beneficiary's eligibility for third preference at the time
the petition was filed. However, it was determined that the beneficiary
must be qualified at the time the petition is filed with this Service if a
priority date for visa issuance is to be established.
In sixth-preference visa petition proceedings the Service must consider the merits of the petitioner's job offer, so that a determination can
be made whether the job offer is realistic and whether the wage offer
can be met, as well as determine whether the alien meets the minimum
requirements to perform the offered job satisfactorily. It follows that
such consideration by the Service would necessarily be focused on the
circumstances at the time of filing of the petition. The petitioner in the
instant case cannot expect to establish a priority date for visa issuance
for the beneficiary when at the time of making the job offer and the filing
of the petition with this Service he could not, in all reality, pay the
salary as stated in the job offer. See Matter of Sonegawa, 12 I. & N.
Dec. 612, wherein it is held that the petitioner must demonstrate financial ability to meet the wage requirements of the certified job offer.
The brief and documentation in support of the appeal before me do not
substantially challenge the initial material on file considered by the
District Director in his decision. I have carefully considered the entire
record in this matter and T concur with the findings of the District
Director. Accordingly, I will order that the appeal be dismissed.
The denial of this petition is without prejudice to the submission of a
new petition accompanied by a new labor certification establishing facts
as they now exist.
IT IS ORDERED that the appeal be and the same is hereby
dismissed.

145


Interim Decision #1902

MATTER

or Ammg

In Section 212 (e) Proceedings
A-14159727
Decided by District Director July 19, 1968
"Exceptional hardship" within the meaning of section 212(e) of the Immigration and Nationality Act is established by an exchange -visitor whose
United States citizen child has a form of chronic dermatitis with skin
eruptions which is recognized as a contraindication to vaccination for
smallpox, and smallpox is endemic to the country to which the exchange
visitor and his family must depart.

-„
The applicant, Kishore Shreepad Ambe, a 38-year-old physician, is a native and citizen of India. He was last admitted to the
United States from Canada as an exchange visitor on June 4,
1964. His wife, Mrs. Leela Ambe, their daughter Neeta, both natives and citizens of India, and their son Milind Ambe; a native
citizen of Canada were admitted at the same time as members of
the family of an exchange visitor. Dr. Ambe had previously been

in the United States as an exchange visitor from July 1957 until
September 1960, at whiCh time he departed to Canada to study
medicine. At the time of his reentry he was destined to The Cot-

Hospital in Santa Barbara, California to serve as an intern
and he is presently connected with the hospital as a resident physician.
tage

Dr. Ambe and his, wife are the parents of a United States citizen son, Rajeev K. Ambe, born on April 1, 1965 in Santa Barbara, California, who is too young to be separated from his
parents.
Medical evidence presented establishes that the applicant's
United States citizen child, Rajeev, no age three, as well as his
Canadian citizen child, Milind, age six, have severe atopic dermatitis. They both have eruptions over their bodies due to this skin
condition. The applicant has presented letters from his children's
pediatrician and dermatologist stating that it would be dangerous
to vaccinate the children for smallpox or any member of the

3

Interim Decision # 1902
Ambe family in contact with them, as the virus of the vaccination
can provoke severe and even fatal reactions in persons having
skin eruptions caused by atopic dermatitis. He stated that this

condition may persist for years and is not in itself dangerous or
contagious. The applicant submits that without being actively immunized against smallpox his family cannot be taken to India
where smallpox outbreaks are frequent.
This Service has been advised by the United States Public
Health Service that the presence of any form of chronic dermatitis in the individual to be vaccinated or in a household contact is
recognized as a contraindication to vaccination. Vaccination of a
child with chronic dermatitis, or infection of such a child by a

household contact who has been vaccinated can result in eczema
vaccinatum, an exceedingly serious complication which sometimes
results in death. The United States Public Health Service has also
indicated that smallpox is endemic to Inida. Consequently, persons not vaccinated for smallpox could not go there without
endangering their health.
In view of the foregoing, it has been determined that the applicant's compliance with the foreign residence requirement of
section 212(e) of the Immigration and Nationality Act, as
amended, would impose exceptional hardship on his United States
citizen son. This Service is acting as interested agency in behalf
of the applicant's two alien children. Mrs. Ambe is included in
her husband's application for a waiver. The Secretary of State
has reviewed the matter and has recommended that the foreign
residence requirement be waived for the applicant, his wife, and,
two children. It has been found that the admission of the applicant to the United States would be in the public interest.
ORDER: It is ordered that waivers of the two year foreign
residence requirement of section 212 (e) of the Immigration and
Nationality Act, as amended, be granted to Dr. Kishore S. Ambe,
his wife, Mrs. Leela Ambe, and his children, Neeta and Milind
Ambe.

4


MATFER OF

In VISA PETITION Proceedings
VP 3-1-118123
Decided by Board July 18, 1958
Legitimation of children —Poland— Evidence.
Under Polish law, a child born out of wedlock is legitimate or legitimated
when acknowledged by its natural father. When primary evidence of acknowledgment In the form of a certificate issued by the Polish Registrar is
lacking, a certificate of birth and baptism showing the father's name may be
regarded as satisfactory secondary evidence of such acknowledgment.

BEFORE THE BOARD

Discussion: The case comes forward on appeal from the order
of the District Director, New York District, dated April 3, 1958,
denying the visa petition on the ground that the beneficiary, having been born out of wedlock and never legitimated. was not entitled to nonquota or preference quota status through her natural
father.
The petitioner, a native of Poland naturalized on July 15, 1957,
at New York, seeks nonquota status or preference status on behalf
of his daughter, who was born in Poland on May 18, 1939. It is
conceded by the petitioner that the beneficiary was born to his
fiancee out of wedlock. However, the petitioner asserts that he in.tended to marry the mother of the beneficiary but that through some
family misunderstanding the marriage did not take place before the
birth of the child, that 3 months after the child was born war broke
out and that he has never since returned to Poland. However, he
states that he has always recognized the beneficiary as his daughter
and that while in England in 1948 he sent a document to the Polish
authorities acknowledging paternity of the beneficiary and that she
has been registered in his name.
The only document the petitioner has been able to submit is a
certificate of birth and baptism issued on the basis of church birth
certificate books for the year 1948 by the Roman Catholic Church
in the parish of the Holy Cross at Warsaw, Poland, showing the
birth of the beneficiary on May 18, 1939, and showing the father's
name as that of the petitioner and the mother's name as A—R .
73

The date of baptism is given as May 19, 1948. At oral argument
the petitioner repeated that he had made a statement before a
notary public in 1948 which he had sent to Poland to the mother
of the beneficiary but that he was not aware of whether it was filed
with the church or the civil authorities. The petitioner further states
that the mother of the beneficiary died in 1957, and that he included
the name of the beneficiary in his citizenship papers.
In order to obtain any status under the immigration laws for
nonquota or preference purposes through the father, it is necessary
that the beneficiary he zither a legitimate or a legitimated child
of the petitioner. It, therefore, becomes necessary to examine Polish
law to determine whether there is any basis for the claim made by
the father that his act of acknowledgement in 1948 constituted a
legitimation of his daughter.
An article entitled "Children Born out of Wedlock—Poland" appearing in Efignights, Mid-European Law Project, Library of Congress,' is of invaluable assistance in determining whether the beneficiary may be regarded as a legitimate or a legitimated child.
The Poland resurrected after World War II retained civil laws
inherited from the partitioning powers in each of its four parts.

The civil laws of all four jurisdictions, however, had some features
in common in regard to the status of children. None of the jurisdictions any, longer held the old-fashioned concept of bastardy. A
child whose parents were not married was not called an illegitimate
child but a "child born out of wedlock" (dzieko nieslubne). Such
a child had a definite status in all jurisdictions and was a member
of its mother's family with all the rights pertaining to such status.
The child's father was obliged to contribute to its maintenance
although the details varied in the different jurisdictions.
In 1046 the legal status of children in Poland was regulated by
the statute of January 22, 1946, on the Law of Domestic Relations
and the Decree of January 22, 1946, concerning the enactment of
this statute. Bbth statutes became effective July 1, 1946. The law
of 1946 ruled in Article 51 that a child born out of wedlock shall
have the rights deriving from relationship to its mother or her
family. The law of 1946, however, consequently abandoned the traditional differences between "legitimate" and "illegitimate" children
replacing them with a new distinction reading children born "in
and out of wedlock." It was also made clear that any kind of discrimination against a child born out of wedlock would be abrogated
with retractive effect. Under Article 86 the child acknowledged by
his father shall have the legal status of a child born in wedlock.
The unified law of 1946 retained the institution of legitimation
by subsequent marriage (Article 63(1) ) as it existed previously,
Vol. 5, Nos. 9 and 10, Sept. and Oct. 1957, pp. 383 to 394.

74

but the institution of legitimation by a decree issued by the state
authorities (pe• rescriptum prineipi8), previously known in Poland
in its various legal systems and still existing in other European
countries, was abolished completely. However, an extraordinary
"quasi legitimation" of children born out of wacllnelr under peculiar
conditions was established. By decree of the guardianship author-

ity—in practice, by a special decision of the county court—a child
born out of wedlock and legitimized by the father's acknowledgement
might be "granted the legal status equal to that of a child born in
wedlock if his parents had actually lived together as husband and
wife or treated the child as if he were their child born in wedlock"
(Article 69(1)). This rule referred particularly to the extraordinary conditions caused by the Nazi occupation of Poland during the
last war. It was evidently aimed at settling the uncertain status
of these children by removing the legal hardship for which they

could not be held responsible.
A separate "Code of Domestic Relations" (Kodeks Rodzinny)
was promulgated by the Statute of June 27, 1950, which took effect
on October 1, 1950, and was amended in 1953. The law enforcing
the Code of Domestic Relations of 1950 states in Article 2 that
"all restrictions concerning the legal status of children who do not
descend from the husband of their mother (children born out of
wedlock) shall be abrogated." The new Code of Domestic Relations
abolished all distinction between the legal status of a child born of
legally married parents and that of a child born out of wedlock.

Article 67(2) of the Constitution of the Polish People's Republic
(of 1952) states that a child born out of wedlock shall suffer no loss
of rights. The Code of Domestic Relations does not draw any distinction at all between the legal status of children born in wedlock
and those born out of wedlock. The abrogation, by the Code of
Domestic Relations, of those differences which were still retained in
the law on Domestic Relations in 1946, represents one of the most
important reforms of this Code? The Code of Domestic Relations
goes so far in regulating uniformly the rights and duties of children without any distinction as to their descent that the term "children born out of wedlock" is not even used any more. ,
Article 42 of the 1950 Code presumes (1) that a child born during
an existing marriage or before the lapse of 300 days after its cessation or invalidation was fathered by the mother's husband; and (2)
whenever a child is born before the lapse of 300 days after the cessation or the invalidation of die marriage bond, but after tho contract
2 Seweryn Seer, Prawo Rodzinne (The Law on Domestic Relations), Warsaw :
1954, p. 144.
t The Code of Domestic Relations; Collected Work, ed. Maurycy Grudzinski
and Jerzy Ignatowiez (Warsaw: 1955), p. 169.

75

of another marriage by his mother, it shall he presumed that the
child was fathered by the husband of the first marriage. In addition, Article 43 provides that the father of the child is he who has
acknowledged the child or whose paternity has been decreed by the

court. The acknowledgement of paternity by a person who is not
the husband of the child's mother must be made through the Registrar of Births, Deaths and Marriages or before the guardianship
authority (Article 44 (2)). The consent of the child's mother is
necessary (Article 44 (1)). The acknowledgement has the effect
that the child and the father obtain mutually all rights and duties
deriving from the relationship of parent and child. The child
comes under the parental power of the father, which the father
shares with the child's mother, on the principle of equality of
parental rights. This principle concerns also all other duties and
rights connected with parental power. Between father and child
originates the mutual duty of support; and the child, as well as the
father, obtains all rights of inheritance. Finally, the child is given
the father's family name.
Since the present legal system does not make any distinction at
all between legitimate and illegitimate ohildren as a matter of
principle, no "legitimation" whatever is known in the Code, nor is
it possible as a constructive institution. Thus, the traditional legitimation of a child born out of wedlock, specifically by subsequent
marriage, is also unknown. Nevertheless, the Code now provides
that whenever the parents of a child born out of wedlock contract
marriage after the child is born, "the child shall use its father's
family name" (Article 37(1)). This, however, does not imply
"legitimation." All that is required to give the child a definite
status equal to that of a child born in wedlock is the establishment
of paternity by court decree or by acknoeleilgtanent by the father.
According to Article 36(1) of the Code of 1950, "the child shall

use his father's family name." But as long as the question of paternity has not been decided with regard to a child not born out
of wedlock or whose paternity has been successfully denied by the
"husband of the child's mother" (who had been the presumptive
father of this child), and the real father of the child had not yet
been established, "the child shall use his mother's family name if
the father is unknown" (Article 36(1)). Thus, as soon as the
paternity with regard to the child has been established "by acknowledgement by the real father or by judicial decree" the child
obtains his father's family name. In the Registrar of Births the
date left open because of the "unknown father" shall be entered as
soon as the child's father has been identified and legally established,
and the family name of the child finally fixed as corresponding to
76

his father's family name (Article 62 of the Statute of the Organization of the Registrar of Births, Deaths and Marriages).
The provisions of the Code of Domestic Relations (of 1950)—
particularly those concerning the children's status, presented and
discussed above--sli.ill have retroactive effect also on all persons born
before October 1, 1950, the day of enactment of the Code. The law
on the enactment of the Code provides in Article X that the provisions of the Code of Domestic Relations of 1950 shall apply to all
relations concerned by the Code even though they may have originated before the enactment of the Code, unless provision is otherwise made. It should be added that there are no such provisions in
this law providing otherwise concerning the status of children or the
relationship between parent and child. Finally, Article XXVII of
the articles of the Law of August 22, 1950, on the Provisions for the
Enactment of the Code of Domestic Relations, provides as follows:
Wherever the paternity of the man who is not the husband of the mother
has been determined in any way provided by rules enforced before the day of
the enactment of the Code of Domestic Relations, the child shall, with the day
of the enactment of this Code, obtain all rights and duties of his father and
family following from the Code of Domestic Relations and from this law.

The petitioner herein has stated that he is the natural father of
the beneficiary, that he has always acknowledged the child as his
own, and that he sent a formal acknowledgement of paternity to the
Polish authorities in 1948. The certificate of birth and baptism
which shows that the beneficiary bears the father's name may be
regarded as a subsidiary document and offers corroboration of the
petitioner's statement regarding acknowledgement in 1948. While
primary evidence of acknowledgement in the form of a certificate
issued by the Polish Registrar of Births, Deaths and Marriages is
lacking, the certificate of birth and baptism may be regarded as satisfactory secondary ericlonso thereof. In view of the summary of the
Polish law which renders legitimate a child acknowledged by its
natural father, it is considered upon the evidence presented that the
beneficiary in the instant case should be regarded as the legitimate
or legitimated child of the petitioner. Accordingly, the visa petition will be approved for nonquota status.
Order: It is ordered that the visa petition be approved for nonquota status on behalf of the beneficiary.

77


Interim Decision #1291
MATTER OF DAVER

In DEPORTATION Proceedings
A-8599958

Decided by Board June 11, 1963
(1) Respondent, a lawful permanent resident of the -United States, who in 1956
when he was 16 departed with his mother and stepfather to Germany where
the latter was assigned to a tour of military duty and in 1959 when he was 19
returned to the U.S. with his parents. again under military orders of his stepfather, did not upon his return make an entry within the meaning of section
101(a) (13) of the Immigration and Nationality, since he was an unemancipated minor under the legal compulsion to follow and accompany his
parents and his departure to and presence in a foreign place was not voluntary
nor intended by him.
(2) Therefore, respondent's return to the United States in 1959 does not constitute an entry on which to predicate a ground of deportation under section
241(a) (4) of the Act on. the basis of his conviction on March 25, 1960, of a
crime involving moral turpitude.
Onanes:
Warrant: Act of 1952--Soction 241(a)(4) [8 ILSA1 1251(a)(4)] —Crime

within five years after entry—Atrocious assault and battery.

The ease eoTEAR forward on appeal by the trial attorney from the
decision of the special inquiry officer dated December 19, 1962
terminating the proceedings.
The record relates to a native and citizen of Germany, 23 years old,
male, single, who originally entered the United States for permanent
residence on January 9, 1954. On March 25, 1960 in the County
Court of Ocean County, New Jersey, the respondent was convicted
of atrocious assault and battery with a knife committed on December
21, 1959, as more fully set forth in the indictment and was sentenced
to confinement in the Bordentown Reformatory for an indeterminate
term. On August 24, 1960 the special inquiry officer found the respondent deportable as charged as one who committed a crime involving moral turpitude within five years after his last entry and was
sentenced to confinement for a year or more within five years after his
alleged last entry on August 31, 1959. On January 17, 1962 counsel
304

Interim Decision #1291
for the respondent filed a motion for reopening and reconsideration
on the grounds (1) that there was not sufficient proof .upon which the
special inquiry officer could properly determine the question of the
respondent's entry or reentry into the United States; (2) that the
respondent did not enter or reenter the United States within five years
of the commission of the crime of atrocious assault and battery on December 21, 1050 ; and (3) that the respondent desired to produce proof
that his entry into the United States was not an entry pursuant to the
definition of section 101(a) (13) of the Immigration and Nationality
Act. On January 25, 1962 the special inquiry officer granted the
motion to reopen and on November 16, 1962 granted the government's
motion to reopen in connection with an application for adjustment
of status under section 245 of the Immigration and Nationality Act.
According to respondent's birth certificate he was burn on February
18, 1940 (Ex. 3) at Schweinfurt, Germany although his testimony is
to the effect that he was born February 18, 1942 (p. 17). We will
accept the birth certificate as being the correct date of birth. His
father was killed in the Second World War and his mother married a
United States citizen, a sergeant in the United States Army in October
1953. The respondent, his mother and stepfather came to the United
States in January 1954 when the respondent was admitted for permanent residence. He resided with his stepfather and mother. In
August or September 1956 the respondent's stepfather was assigned
to a new tour of duty in Germany and the respondent and his mother
were included in the orders and accompanied the respondent's stepfather to Germany (Ex. 5). The respondent lived with his stepfather and mother, went to high sehool and to the University of Maryland Extension Branch and returned to the United States in August
or September 1959 when his stepfather was transferred to this country
under military orders. The respondent was 16 years of age at the
time he departed and 19 years of age when he returned. During all
this period he was an unemancipated minor, in the custody and subject
to the control of his stepfather. It is believed that the New Jersey
statute and New Jersey cases cited by the trial attorney confirm the
conclusion that the respondent, as an unemancipated infant, was
under a duty to obey the order of his parents ; hi this case the
stepfather.
The issue in the case is whether the respondent made an entry into
the United States upon his return from Germany. The term "entry"
is defined in section 101(a) (13) of the Immigration and Nationality
Act, 8 U.S.C. 1101 (a) (13) as follows:
The term "entry" means any coming of an alien into the United States, from
a foreign port or place or from an outlying possession, whether voluntarily or
otherwise, except that an alien having a lawful permanent residence in the

305
768-456-65-21

Interim Decision #1291
United States shall not be regarded as making an entry into the -United States
for the purposes of the immigration laws if the alien proves to the satisfaction
of the Attorney General that his departure to a foreign port or place or to an
outlying possession was not intended or reasonably to be expected by him or his
presence in a foreign port or place or in an outlying possession was not

voluntary: - • •
In commenting on the exception contained in the latter portion of
this definition, the framers of the legislation explained that "however,
for the purpose of determining the effect of a, subsequent entry upon
the status of an alien who has previously entered the United States
and resided therein, the preciseness of the term 'entry' has not been
found to be as apparent." More recently, the courts have departed
from the rigidity of that rule and recognized that an alien does not
make an entry upon his return to the United States from a foreign
country where he had no intent to leave the United States (DiPasguale v. Karnath, 158 F. 2d 878 (2d Cir. 1947)) nor did not leave
the country voluntarily (Delgada& v. Carmichael, 882 U.S. 388
(1917) ) ; the bill defines the term "entry" as precisely as practicable,
giving due recognition to the judicial precedents. Thus any coming
of an alien from a, foreign port or place or an outlying possession into
the United States is to be considered an entry, whether voluntary
or otherwise, unless the Attorney General is satisfied that the
departure of the alien, other than a. deportee, from this country was
unintentional or was not voluntary.'
In the ease of DiPasquale v. Sarnuth,2 it was held that no "entry"
within the contemplation of the immigration laws had been made by
an alien who returned to the United States as soon as practicable following an unintended and unwitting departure which occurred when
the train upon which he was traveling between, points in the United
States crossed the international border without the alien's knowledge,
and indeed while he was sleeping. The ease of Daum:1Mo v. Carmie7b143 involved a Mexican alien who had made a. legal entry into the
United States in 1923, resided here until 1942 when he shipped out as
a member of the crew of an American merchant ship which was torpedoed and the alien was then taken to Cuba where he remained for
one week and then was returned to the United States. Deportation
was sought on the ground that he had been sentenced to imprisonment
for one year or more because of conviction of a crime involving moral
turpitude committed within five years after his alleged entry in 1942.
The Supreme Court reversed the Ninth Circuit Court of Appeals, following with approval the construction placed upon the word "entry"
2 U.S. Code Gong., and Adm. News, 82nd Cong., 2d Seas., p.1683.
158 F.2d 878 (2d Cir. 1917).
3 332 U.S. 388 (1947).
1

2

306

Interim Decision #1291
by DiPasquale v. Karnuth,4 holding that the alien in that ease did not
make an entry within the meaning of the immigration laws; refusing
to attribute to Congress a purpose to make his right to remain here
dependent on circumstances so fortuitous and capricious as those which

existed in that case; in effect, holding that where an alien's departure
to or presence in a foreign country was involuntary, no entry was, in
law, made upon the alien's return to the United Statee.

The court in Carmichael v. Devaney,' held that a resident of the
United States who served in the United States Maritime Service during the, Second World War and who returned to the United States
after his ship had entered several foreign ports, did not make an
"entry" within the immigration laws when returning to the United
States because it was not his voluntary act but the exigencies of war
which he was a participant that brought him to foreign ports. To

like effect it has been held that an alien who, while residing in the
United States, is inducted into the. Armed Forces and during his tour
of duty serves in a foreign country is regarded as being physically
present in this country during all of the time. And that his return to
this country as a member of the Armed Forces does not constitute an
entry.c •
It is true that the facts in the present ease differ from those existing in the cited cases which led to the present definition of the term
"entry" as used in section 101 (a.) (13) of the Immigration and Nationality Act. However, the facts are substantially similar to those
existing in U.S. ex rel. Valenti v. Karnuth-. 7 That case involves a
schoolboy of 16 in an American public school who went with his
teacher and the class for a picnic to a Canadian beach The court

held that in the decisions on the subject of departure and reentry of
an alien, there is a necessary implication that the acts of the alien
were at all times voluntary and free from restraint of any kind, and
that there was entire liberty on his part to leave or not to leave, to reenter or not to reenter, as he pleased. The court held that the minor
schoolboy in that case could not possess the freedom of action to decide
whether or not he would go; he was not a. free agent acting entirely
of his own volition; he was under compulsion as if he were in the
schoolroom and was not voluntarily departing from and reentering the
country within the meaning of the statute; on. the contrary, he was
under compulsion both when he left for and when he returned from
such picnic. The compulsion under which the relator may be presumed
I see
6

170 F.2d 239 (9th Cir. 1918).

"Matter of J—M—D—, 7 F. & N. Dec. 105.
1 F. aupp. 870 (N.D.N.Y., 1982).

307

Interim Decision #1291

to have acted serves to distinguish his case from cases where the departure was purely voluntary.
It is contended that the Valenti case has been repudiated in U.S.
sw rel. Dombrowski v. Karnuth.,

19 F. Supp. 222 (W.D.N.Y., 1937)

and Dracl&mos v. Hughes, 26 F. Supp. 192, 194 (W.D.N.Y., 1937).
However, neither of those cases involves a minor and the same answer
may be made in the tease of U.S. ex rd. Betty v. Day, 23 F. 2d 489, in
which the reentry of the relator did not occur during minority. The
principle of the Valenti case, i.e., voluntariness, has been followed in

a number of administrative deeisions. 8
In the present ease the respondent departed with his mother and
stepfather, who was in military service and under order to Germany
when he was 16 years of age and returned when he was 19 years of
age. It has been shown that the respondent was an unemanolpated
minor, under the custody and control of his parents, and he had no
choice nor was he asked whether he would depart. Under the law
in the State of New Jersey it was incumbent upon the minor respondent
to obey the directions of his parents and he was obliged to follow and
accompany his stepfather when the stepfather so directed. We do not
reach the question of whether the respondent's stepfather's departure
under military orders was a factor in the case. What is important

is that the respondent was under a legal compulsion to follow and
accompany his parents. Being under such compulsion, his case appears
to be undistinguishable from U.S. ex rel. Valenti v. Karnuth. 9 It is
believed that the respondent has established that he falls within the
exception set forth in section 101(a) (13) of the Immigration and
Nationality Act in that his departure to a foreign place was not intended by him or his presence in a foreign place was not voluntary.
It is concluded that at the time of his last return on August 31, 1959,

the respondent had not in contemplation of law made a reentry. Of
course, as regards his original entry on January 9, 1954, the definition
of the term "entry" eliminates the question of voluntariness. The
appeal will be dismissed.
ORDER : It is ordered that the appeal of the trial attorney from
the decision of the special inquiry officer dated December 19, 1962

terminating the proceedings be and the same is hereby dismissed.
'Matter of T—, 4 L & N. Dec. 235 (1951) ; Matter of P , 5 L & N. Dec. 220
N. ,
(1953) ; Matter of C , 5 1. & N. Dec. 370 (1953) ; unreported Matter of C
A-8410653 (September 30, 1960 motion to reconsider denied January 27, 1961).
1 F. Supp. 370 (N.D.N.T., 1932).
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