Interim Decision #2155

MATTER OF DUNN
In Deportation Proceedings ,
A-8464157
Decided by Board June 19, 1972
(1) Although respondent, immediately following his refusal to comply with an
order to report for induction into the armed forces in 1966, departed the
United States and abandoned his permanent resident status, he was not
relieved from the duty of complying with an order to report for induction in
June 1968, notwithstanding he may not have been a permanent resident alien
at that time.
(2) Respondent's deportability predicated on inadmissibility under section
212(a)(22) of the Immigration and Nationality Act on the ground he departed
the United States to avoid training or service in the armed forces, is
established by clear, convincing, and unequivocal evidence on the basis of his
August 30, 1966, statement of refusal to comply with an order of the Selective
Service Board to report for induction, his conviction for refusing to submit to
induction, and his testimony to the effect he departed the United States in
September 1966 to avoid induction.
CHARGES:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]— Excludable at time
of entry—no immigrant visa—section 212(aX20) [8 U.S.C.
1182(a)(20)]
Act of 1952—Section 241(aX1) [8 U.S.C. 1251(aX1)]—Departed to avoid
training or service in armed forces—section 212(a.)(22)
[8 U.S.C. 1182(a)(22))
ON BEHALF OF RESPONDENT:
George C. Fisher, Esquire
400 Charming Avenue
Palo Alto, California 94302
(Brief filed)

ON BEHALF OF SERVICE:
Bernard J. Hornbach
Trial Attorney
(Brief filed)

This is an appeal from an order of the special inquiry officer
finding the respondent deportable as charged in the order to show
cause. His application for voluntary departure was denied and an
order of deportation entered. The appeal will be dismissed.
The respondent, a 27-year-old native and citizen of Canada, was
admitted to the United States for permanent residence at Detroit,
Michigan on April 8, 1953. His Selective Service Board ordered him
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to report for induction on September 28, 1966. He informed the
Board on August 30, 1966 that he would not comply with the order
because he felt that "conscription is amoral and totally unjustified" (Exh. 4). He departed for Canada on September 2, 1966.
The respondent appeared at the office of the Immigration and
Naturalization Service at Vancouver, B.C., Canada on September
6, 1966 and advised that he was abandoning his permanent
residence in the United States. He surrendered his alien registration receipt card (Form I-151). Following the surrender of his alien
registration receipt card, the respondent returned to the United
States on several occasions. He was indicted in the United States
District Court for the Northern District of California for violation
of Title 50, Appendix U.S.C. section 462 - Refused to Submit to
Induction. He was convicted on September 6, 1968 upon a plea of
guilty and sentenced to imprisonment for a period of two years, 18
months of which were suspended. The respondent served six
months at McNeil Island Penitentiary and thereafter was placed on
probation for 18 months. He testified that he was last admitted to
the United States as a visitor in January of 1971 (p. 26).
The order to show cause charges that the respondent is subject
to deportation in that at the time of entry he was excludable

under section 212(a)(20) of the Immigration and Nationality Act as
an immigrant not in possession of a valid unexpired immigrant
visa and under section 212(a)(22) of the Act as an alien who

departed from or remained outside of the United States to avoid or
evade training or service in the armed forces. The special inquiry
officer found the respondent deportable on both charges.
The special inquiry officer concludes that the respondent abandoned his permanent residence when he departed from the United
States in 1966 to avoid training or service in the armed forces of
this country (p. 3, special inquiry officer's opinion). The record
establishes, however, that the respondent was convicted in September of 1968 for refusal to submit to induction on June 14, 1968
(see record of conviction attached to Exh. 5). The question arises as

to whether the respondent would be liable to induction if he were
not a permanent resident alien in 1968.
The fact that the respondent may not have been a permanent
resident alien did not relieve him from the duty of submitting for
induction into the armed forces. The applicable statute, section 12,
Universal Military Training and Service Act, 50 U.S.C. App.,
section 462, reads in pertinent part:
Any ... person ... who ... evades ... service in the armed forces or any
requirements of this title ... or of said rules, regulations or directions, or who in
any manner shall knowingly fall or neglect or refuse to perform any duty
required of him under or in the execution of this title, or rules, regulations or

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directions made pursuant to this title ... shall upon conviction
by imprisonment.... (Emphasis supplied.)

be punished

An induction order imposes a continuing duty on a "registrant"
to submit for induction regardless of the fact that he may have
abandoned his permanent residence following a departure to
evade service in the armed services. Cf. White v. United States, 403
F.2d 1005 (C.A. 8, 1968), cert. denied 89 S.Ct. 1196 (1969); United
States v. Prince, 398 F.2d 686 (C.A. 2, 1968); Silverman v. United
States, 220 F.2d 36 (C.A.8, 1955). The Selective Service regulations
implementing section 12 of the Universal Military Training and
Service Act, supra, provide in substance that it is a continuing
duty of all "registrants" to report for and submit to induction
"regardless of the time when or the circumstances under which a
registrant fails or failed to report for induction pursuant to an
Order to Report for Induction," 32 CFR 1642.2 and 1642.15. Under
the statute and the regulations the order for the respondent to
report for induction in 1968 was proper regardless of his resident
status at that time.
Counsel contends that the respondent is not subject to deportation pursuant to section 212(a)(22) of the Immigration and Nation.
ality Act because he departed from the United States for the
primary purpose of attending college in Canada and not for the
purpose of avoiding or evading training or service in the armed
forces of the United States. Counsel relies on the Board's decision
in Matter of Nunez-Toro, 11 I. & N. Dec. 501, 503 (BIA, 1966), which
holds that an exclusion or deportation pursuant to section
212(aX22) may occur only if the alien's "primary purpose for
departing or remaining abroad was to avoid training or service in
the armed forces." (Emphasis supplied.)
We find no support in the evidence for counsel's contention. The
respondent testified in an exclusion proceeding on October 11, 1966
(p. 10, Exh. 3) as follows:
On 6 September I left for Canada because I didn't want to report [for
induction]. and I didn't want to stick around California ... I felt they [Selective
Service] would pull me out of school. I tried to go to the University of British
Columbia but I was too late to register.

We note that on this occasion the respondent was applying for
admission as a nonimmigrant student to resume his studies at
Stanford University (p. 3 of Exh. 3). When questioned as to how
long he had been in a state of mind that he would not serve in the
armed forces of the United States, the respondent replied, "it is
hard to pin point, but probably the 1st of September of this year
[1966]" (p. 12, Exh. 3). The respondent departed for Canada on
September 2, 1966. He surrendered his alien registration receipt
card (Form I-151) at the office of the Immigration and Naturaliza1 62

Interim Decision #2155
tion Service in Vancouver, B.C., Canada on September 6, 1966. He
stated on this occasion that he was abandoning his residence in
the United States (Exh. 2).
The respondent's testimony at the deportation hearing of July 7,
1971 is of the same tenor. He testified, "I wasn't going to serve in
the Armed Forces of the United States" (p. 16). When questioned
as to whether he really went to Canada to avoid the draft, the
respondent answered:
A. ... what was in my mind was that I wanted to continue going to school and
the United States wasn't going to permit me going to school...anywhere.
Q. Because they were going to draft you?
A. Sure.

The respondent's testimony, his conviction for refusing to submit to induction and his statement on the questionnaire, dated
August 30, 1966, which accompanied the Selective Service order to
report for induction (Exh. 4) 1 satisfy us that deportability under
section 212(aX22) has been established by evidence that is clear,
unequivocal and convincing.
We find no merit to counsel's contention that the Government is
estopped from deporting the respondent. Counsel's argument in
this regard is based upon claims (I) that the respondent was
expressly assured that he would not be deported if he pleaded
guilty to the charge of refusing to submit to induction and serve
his sentence; (2) that the respondent was not advised that he could
have applied to be relieved from liability for training and service
under section 4(a) of the Selective Service Act of 1967; and (3) that
the excessive delay in instituting deportation proceedings until
after the completion of criminal action against the respondent
caused severe detriment to him.
The only evidence supporting the respondent's claim that he
was assured immunity from deportation in return for a plea of

guilty in the criminal action is his self-serving declaration (p. 19).
The special inquiry officer stated for the record that he would
reopen the proceeding for corroborating evidence, provided the
respondent could produce such evidence within 30 days (p. 30). To
date no such evidence has been submitted. Furthermore, the
public defender, who it is alleged gave the assurance, has no
authority to enter into any agreement which would bind the

Government.
The respondent was not eligible for relief under section 4(a) of
the Selective Service Act because at the time he refused to submit
Under remarks (section 20) the respondent stated, "I will refuse to comply
with any decision reached by the 'Selective Service Bureau' as T feel conscription
is amoral and toally unjustified."

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to induction, he was not a nonimmigrant. Furthermore, if the
respondent had been in a position to claim exemption from
military service under section 4(a) of the Selective Service Act, he
would now be subject to deportation based on inadmissibility
under section 212(aX22) as an alien ineligible for citizenship.
• We find no excessive delay in commencing deportation proceedings in this case. There is no statutory period within which a
deportation proceeding must be instituted under section 241(a) of
the Immigration and Nationality Act. The respondent testified
that he last entered the United States in January of 1971 (p. 26).
He was admitted as a nonimmigrant visitor to visit his parents.
The order to show cause was served upon him in April of 1971. He
testified that if permitted he wished to enroll at Stanford University (p. 28).
Our review of the record and briefs satisfies us that the hearing
was fair, that deportability on both charges has been established
by clear, convincing and unequivocal evidence, and that the
special inquiry officer properly applied the pertinent legal princi-

ples. We affirm the special inquiry officer's finding that the
respondent is not eligible for voluntary departure under the
provisions of section 101(fX7) of the Act. He is precluded from
establishing good moral character for the statutory period as an
alien who has been confined to a penal institution for an aggregate
period of 180 days. An appropriate order will be entered.
ORDER: The appeal is dismissed.

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Interim Decision #4013

Matter of Mouafak AL SABSABI, Respondent
Decided March 29, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The “offense clause” of the Federal conspiracy statute, 18 U.S.C. § 371 (2012), is
divisible and the underlying substantive crime is an element of the offense.
(2) Because the substantive offense underlying the respondent’s Federal conspiracy
conviction—namely, selling counterfeit currency in violation of 18 U.S.C. § 473
(2012)—is a crime involving moral turpitude, his conviction for conspiring to commit
this offense is likewise one for a crime involving moral turpitude.
FOR RESPONDENT: William P. Cook, Esquire, Alexandria, Virginia
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Assistant Chief Counsel

Matthew Sidebottom,

BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;
HUNSUCKER and PETTY, Appellate Immigration Judges.
PETTY, Appellate Immigration Judge:

The Department of Homeland Security (“DHS”) appeals from the
Immigration Judge’s March 6, 2018, decision concluding that the
respondent’s conviction for conspiracy under 18 U.S.C. § 371 (2012) is not
one for a crime involving moral turpitude and terminating the removal
proceedings against the respondent. We conclude that the Immigration Judge
erred by applying the categorical approach to only the conspiracy statute
without considering the turpitudinous nature of the underlying offense the
respondent conspired to commit. Upon our de novo review, we conclude
that the respondent was convicted of a crime involving moral turpitude and
that he is removable. Accordingly, the DHS’s appeal will be sustained, the
Immigration Judge’s order terminating proceedings will be vacated, and the
record will be remanded to the Immigration Judge for further proceedings.

I. FACTUAL BACKGROUND
The respondent is a native and citizen of Syria who was admitted to the
United States on September 6, 2013, as a lawful permanent resident. On
May 31, 2016, he was convicted of the offense of conspiracy in violation of
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18 U.S.C. § 371. The DHS charged the respondent with removability under
section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(A)(i) (2012), as an alien who, within 5 years of admission, was
convicted of a crime involving moral turpitude. The Immigration Judge
determined that the DHS did not meet its burden to establish that the
respondent is removable as charged and terminated proceedings.
Specifically, the Immigration Judge concluded that 18 U.S.C. § 371 is
indivisible because its statutory language criminalizes only conspiracy and
the underlying criminal object of a conspiracy is merely a means of
committing conspiracy. The DHS contends that the Immigration Judge erred
in terminating proceedings because the respondent was convicted of
conspiring to sell counterfeit currency, and the substantive offense the
respondent was convicted of conspiring to commit is a crime involving moral
turpitude. Whether the respondent’s offense is a crime involving moral
turpitude that renders him removable is a question of law we review de novo.
8 C.F.R. § 1003.1(d)(3)(ii) (2020).

II. DISCUSSION
We apply the categorical approach to determine if a criminal offense is a
crime involving moral turpitude. See Matter of Ortega-Lopez, 27 I&N Dec.
382, 384 (BIA 2018). The respondent’s statute of conviction, 18 U.S.C.
§ 371, reads in pertinent part:
If two or more persons conspire either to commit any offense against the United
States, or to defraud the United States, or any agency thereof in any manner or for
any purpose . . . each shall be fined under this title or imprisoned not more than five
years, or both.

As discussed in Matter of Nemis, 28 I&N Dec. 250, 252–54 (BIA 2021), this
statute is divisible. It can be violated either by conspiring to defraud the
United States or one of its agencies (the “defraud clause”) or by conspiring
to commit another federal offense (the “offense clause”). Id. Here, the
conviction record reflects that the respondent was convicted under the
“offense clause.” See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)
(noting that courts may look to the conviction record “to determine what
crime . . . a defendant was convicted of”).
Next, we must determine whether the “offense clause” is itself divisible
based on the underlying crime that was the object of the conspiracy or
whether, as the Immigration Judge concluded, the object of the conspiracy
merely constitutes the means of unlawfully conspiring. See, e.g., United
States v. Taylor, 843 F.3d 1215, 1222–23 (10th Cir. 2016) (applying the
categorical approach to both alternative statutory provisions and
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sub-alternatives under those provisions). To do this, we may look to
authoritative sources such as the statutory text, judicial opinions, jury
instructions, and record of conviction. See Mathis, 136 S. Ct. at 2249; see
also Shaw v. Sessions, 898 F.3d 448, 454 (4th Cir. 2018) (“Without the power
to consult the indictment, the Board would have been unable to learn the
object of that conspiracy.”). We conclude that the “offense clause” of
18 U.S.C. § 371, is divisible and the underlying crime is an element of the
offense.
“Section 371’s use of the term ‘conspire’ incorporates long-recognized
principles of conspiracy law.” Ocasio v. United States, 136 S. Ct. 1423, 1429
(2016). “[U]nder established case law, the fundamental characteristic of a
conspiracy is a joint commitment to an ‘endeavor which, if completed, would
satisfy all of the elements of [the underlying] criminal offense.’” Id. (quoting
Salinas v. United States, 522 U.S. 52, 65 (1997)). Accordingly, jury
instructions from the United States Court of Appeals for the Tenth Circuit
explain that the defendant must have not only “agreed with at least one other
person to violate the law” as a general matter, but also that the defendant
“knew the essential objective of the conspiracy.” Pattern Crim. Jury Instr.
10th Cir. 2.19 (2021). This requires the jury to determine whether the
defendant had knowledge of a specific unlawful objective. See United States
v. DiTommaso, 817 F.2d 201, 218 (2d Cir. 1987) (stating that a conspiracy
conviction “cannot be sustained unless the Government establishe[s] beyond
a reasonable doubt that [the defendant] had the specific intent to violate the
substantive statute” (citation omitted)); Jordan v. United States, 370 F.2d 126,
128 (10th Cir. 1966). That knowledge of the essential objective—the
underlying criminal goal—is submitted to a jury strongly suggests that the
criminal objective is an element of the conspiracy. Mathis, 136 S. Ct. at 2248
(noting that elements “are what the jury must find beyond a reasonable doubt
to convict the defendant”).
Other authority points to the same conclusion. For example, the United
States Sentencing Guidelines premise the base offense level for a guidelines
sentence under 18 U.S.C. § 371 on “the offense that the defendant was
convicted of . . . conspiring to commit.” U.S. Sent’g Guidelines Manual
§ 2X1.1(a) & cmt. n.2 (U.S. Sent’g Comm’n 2018). This sentencing scheme
suggests that the underlying crime is an element rather than a means of
committing a conspiracy. Cf. Mathis, 136 S. Ct. at 2256 (“[I]f statutory
alternatives carry different punishments, then under Apprendi they must be
elements.”); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (requiring
a jury to agree on any circumstance increasing a statutory penalty).
Divisibility as to the underlying offense is also implicit in the requirement
that conspiracy to commit a particular substantive offense requires proof of
at least the same degree of criminal intent necessary to commit that
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underlying offense. See United States v. Feola, 420 U.S. 671, 686 (1975);
Ingram v. United States, 360 U.S. 672, 678 (1959). Finally, a review of the
pertinent criminal records reflects that the respondent was charged with and
convicted of conspiring to commit specific enumerated offenses. See Mathis,
136 S. Ct. at 2257 (noting that an indictment can indicate by referencing one
alternative term to the exclusion of all others that the alternative terms are
elements “each one of which goes toward a separate crime”). In sum, the
Mathis analysis strongly suggests that the identity of the underlying
offense—the criminal object of the conspiracy—is an element of
a conspiracy conviction under § 371.
This conclusion is consistent with our decades-old approach under which
Immigration Judges look to the offense underlying a conspiracy conviction
to determine the immigration consequences of that conviction. See Matter
of Vo, 25 I&N Dec. 426, 428 (BIA 2011); Matter of Bader, 17 I&N Dec. 525,
529 (BIA 1980); Matter of Flores, 17 I&N Dec. 225, 228 (BIA 1980); Matter
of McNaughton, 16 I&N Dec. 569, 573 n.2 (BIA 1978), aff’d, McNaughton
v. INS, 612 F.2d 457 (9th Cir. 1980) (per curiam); Matter of M-, 8 I&N Dec.
535, 543 (BIA 1960); Matter of S-, 2 I&N Dec. 225, 228 (BIA 1944). As we
explained more than 60 years ago, “[t]he character and effect of a conspiracy
is not to be judged by dismembering it and viewing its separate parts, but
only by looking at it as a whole.” Matter of M-, 8 I&N Dec. at 543. To do
otherwise would render the very idea of a criminal conspiracy unintelligible.
See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 552 (2001) (explaining
“common inchoate offenses” including conspiracy “attach to [other] criminal
conduct”). There is no conspiracy in the air; one cannot unlawfully conspire
without a specific criminal purpose. Shaw, 898 F.3d at 454 (“Shaw
necessarily conspired to do something.”); Mizrahi v. Gonzales, 492 F.3d 156,
161 (2d Cir. 2007) (“[A] defendant is guilty not of generic conspiracy, but of
conspiracy to murder; not of generic attempt, but of attempt to kidnap; not
of generic solicitation, but of solicitation to sell drugs.”). This is so because
absent a specific criminal purpose there can be no shared criminal purpose,
and without a shared criminal purpose there is no conspiracy. See Ocasio,
136 S. Ct. at 1429; Salinas, 522 U.S. at 63; Am. Tobacco Co. v. United States,
328 U.S. 781, 810 (1946).
We therefore conclude that under the “offense” clause of 18 U.S.C. § 371,
the underlying offense that formed the criminal object of the conspiracy is an
element of the conspiracy offense. It follows that a conspiracy is
categorically a crime involving moral turpitude if the underlying criminal
object of the conspiracy is itself a crime involving moral turpitude. Matter
of S-, 2 I&N Dec. at 228 (“[I]f the substantive offense is one involving moral
turpitude, then it follows as a matter of law that the conspiracy to commit

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that offense also involves moral turpitude.”).1 Accordingly, we proceed to
determine whether a violation of the underlying offense the respondent
conspired to commit is categorically a crime involving moral turpitude.
For an offense to constitute a crime involving moral turpitude, it must
have “two essential elements: reprehensible conduct and a culpable mental
state” of specific intent, knowledge, willfulness, or recklessness. Matter
of Aguilar-Mendez, 28 I&N Dec. 262, 264 (BIA 2021) (citation omitted).
Generally, moral turpitude refers to conduct that is “inherently base, vile, or
depraved, and contrary to the accepted rules of morality and the duties owed
between persons or to society in general.” Id. (citation omitted). However,
some categories of crimes are inherently turpitudinous. In this regard,
“crimes in which fraud is an ingredient are regarded as involving moral
turpitude” though fraud need not be an explicit element of the offense.
Afamasaga v. Sessions, 884 F.3d 1286, 1289 (10th Cir. 2018) (citation
omitted); see also Jordan v. De George, 341 U.S. 223, 227–28 (1951);
Matter of Martinez, 16 I&N Dec. 336, 337 (BIA 1977). Of particular
relevance here, fraud that impairs a governmental function is a crime
involving moral turpitude. Flores-Molina v. Sessions, 850 F.3d 1150,
1158–59 (10th Cir. 2017); Rodriguez v. Gonzales, 451 F.3d 60, 64 (2d Cir.
2006) (per curiam); Notash v. Gonzales, 427 F.3d 693, 698–99 (9th Cir.
2005); Matter of Kochlani, 24 I&N Dec. 128, 131 (BIA 2007); Matter
of Tejwani, 24 I&N Dec. 97, 98 (BIA 2007); Matter of Jurado, 24 I&N Dec.
29, 35 (BIA 2006); Matter of Flores, 17 I&N Dec. at 229.
The respondent concedes that the underlying offense for his conspiracy
conviction is selling counterfeited currency, and the conviction record
establishes that one of the underlying statutes the respondent conspired to
violate was 18 U.S.C. § 473 (2012).2 See Shepard v. United States, 544 U.S.
1

This conclusion is consistent with our long-standing precedent reflecting that the
approach to inchoate crimes generally must recognize that they “presuppose a purpose to
commit another crime.” Matter of Beltran, 20 I&N Dec. 521, 526–27 (BIA 1992)
(analyzing attempts); cf. Lorillard Tobacco Co., 533 U.S. at 552. It is also consistent with
the approach taken by the courts of appeals. See Shaw, 898 F.3d at 453–54;
Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007); Mizrahi, 492 F.3d at 161;
Peters v. Ashcroft, 383 F.3d 302, 306–07 (5th Cir. 2004).
2
The respondent contends that because the indictment also references 18 U.S.C. § 470
(2012), which contains a cross-reference to 18 U.S.C. § 474 (2012), which, in turn, may
extend to conduct that is not categorically turpitudinous, it is unclear which underlying
crime he was convicted of conspiring to violate. See Matter of Lethbridge, 11 I&N Dec.
444, 445 (BIA 1965). We disagree. The indictment was phrased in the conjunctive and
the respondent was convicted as charged in the indictment. The respondent was therefore
convicted of conspiring to violate both 18 U.S.C. § 473 and 18 U.S.C. § 470. Because we
conclude conspiracy to violate § 473 is a crime involving moral turpitude, we need not
address whether § 470 is as well. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)

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13, 26 (2005) (describing the judicial records that may be considered). Count
One of the indictment provides that the respondent was charged with conduct
contrary to both 18 U.S.C. §§ 470 and 473. The docket sheet reflects that the
indictment was never amended, and the judgment reflects that the respondent
was convicted of violating 18 U.S.C. § 371 as charged in Count One of the
indictment.
The statute defining the underlying offense, 18 U.S.C. § 473, reads:
Whoever buys, sells, exchanges, transfers, receives, or delivers any false, forged,
counterfeited, or altered obligation or other security of the United States, with the
intent that the same be passed, published, or used as true and genuine, shall be fined
under this title or imprisoned not more than 20 years, or both.

We have little difficulty concluding that a conviction under § 473
inherently involves both fraud generally and fraud resulting in the
impairment of a governmental function. As we explained in Matter of Flores,
17 I&N Dec. at 230, criminal conduct involving deliberate deception is
morally turpitudinous. Intentionally passing counterfeit securities as genuine
inherently involves deception. Long ago, the Supreme Court held that
counterfeiting was “plainly” a crime involving moral turpitude. United
States ex rel. Volpe v. Smith, 289 U.S. 422, 423 (1933); see also De George,
341 U.S. at 230 (same); Fiswick v. United States, 329 U.S. 211, 221 n.7
(1946) (same). A conviction under § 473 is no different. It requires an intent
to defraud—to “pass off something valueless as being something of value.”
Winestock v. INS, 576 F.2d 234, 235 (9th Cir. 1978) (“We have difficulty
distinguishing [the intent required under § 473] from a general intent to
defraud.”); see also United States v. Anzalone, 626 F.2d 239, 244 (2d Cir.
1980) (“Section 473 requires a showing of intent to pass the obligations as
genuine . . . .”). The crime defined by 18 U.S.C. § 473 is therefore
“intrinsically wrong,” Matter of Flores, 17 I&N Dec. at 227, and for that
reason alone it is categorically a crime involving moral turpitude.
Beyond deceiving and defrauding the recipient, passing counterfeit
securities as genuine also impairs governmental functions. The power “[t]o
coin Money [and] regulate the Value thereof” is reserved exclusively to the
Federal Government, as is the concomitant power to “provide for the
Punishment of counterfeiting the Securities and current Coin of the United
States.” U.S. Const. art. I, § 8, cls. 5–6. Congress has sweeping powers
under these provisions “to regulate every phase of the subject of currency,”
United States v. Ware, 608 F.2d 400, 402 (10th Cir. 1979), including “the
correspondent and necessary power and obligation to protect and to
(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.”).

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preserve . . . this constitutional currency for the benefit of the nation,” United
States v. Marigold, 50 U.S. (9 How.) 560, 568 (1850). Indeed, “[e]very
contract for the payment of money . . . is necessarily subject to the
constitutional power of the government over the currency.” Legal Tender
Cases, 79 U.S. (12 Wall.) 457, 549 (1870). Passing counterfeit securities as
genuine infringes on this authority and depletes public trust. See Barbee
v. United States, 392 F.2d 532, 536 (5th Cir. 1968). On a large enough scale,
passing counterfeit currency may diminish the Government’s ability to
implement monetary policy, or even have destabilizing effects. See
generally Bruce G. Carruthers & Melike Arslan, Sovereignty, Law, and
Money: New Developments, 15 Ann. Rev. L. & Soc. Sci. 521, 527–28
(2019) (describing counterfeiting attacks on France and Czechoslovakia in
the 1920s that caused significant inflation, resulting in “serious problem[s]
for the legitimacy of these states and their currencies”). For these reasons as
well, a conviction under 18 U.S.C. § 473 is categorically a crime involving
moral turpitude.
The categorical approach has made determinations of whether
a conspiracy is categorically turpitudinous more complex, but it has not
altered the fundamental fact that the morality of a conspiracy cannot be
assessed in a vacuum. Recourse to the underlying substantive offense is
needed to make sense of it. See Shaw, 898 F.3d at 453–54. Here, because
the underlying substantive offense, a violation of 18 U.S.C. § 473, is
categorically a crime involving moral turpitude, the respondent’s conviction
for having conspired to violate that statute is likewise one for a crime
involving moral turpitude. See Matter of Bader, 17 I&N Dec. at 529; Matter
of Flores, 17 I&N Dec. at 228; Matter of S-, 2 I&N Dec. at 228; see also
Matter of Gonzalez Romo, 26 I&N Dec. 743, 746 (BIA 2016).
The respondent was convicted of a crime involving moral turpitude
within 5 years of his admission to the United States. The DHS has therefore
met its burden by clear and convincing evidence that the respondent is
removable pursuant to section 237(a)(2)(A)(i) of the Act. See section
240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A) (2018). Thus, the
Immigration Judge erred in terminating proceedings. See Matter of S-O-G& F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018). Accordingly, the DHS’s
appeal is sustained, the respondent’s removal proceedings are reinstated, and
the record is remanded for further proceedings.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
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.
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Matter of P-B-B-, Respondent
Decided July 23, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Section 13-3407 of the Arizona Revised Statutes, which criminalizes possession of a
dangerous drug, is divisible with regard to the specific “dangerous drug” involved in a
violation of that statute.
FOR RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Hoyt Hoyt, Assistant Chief
Counsel
BEFORE: Board Panel: GREER and O’CONNOR, Appellate Immigration Judges;
SWANWICK, Temporary Appellate Immigration Judge.
O’CONNOR, Appellate Immigration Judge:

In a decision dated May 17, 2019, an Immigration Judge found that the
respondent was removable and ineligible for asylum, withholding of
removal, and 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”), and
ordered him removed from the United States. The respondent has appealed
from this decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Jamaica who was admitted to
the United States as a lawful permanent resident. On May 17, 2006, he was
convicted of burglary in violation of Arizona law. The Department of
Homeland Security (“DHS”) placed the respondent in removal proceedings
and charged him with removability under section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2018), as an
alien convicted of an aggravated felony theft or burglary offense under
section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2018). An
Immigration Judge terminated the removal proceedings on January 15, 2010,
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holding that the respondent established status as a United States citizen. The
DHS filed an appeal, which we sustained on August 31, 2012. We reinstated
the respondent’s removal proceedings, concluding that the Immigration
Judge’s determination regarding the respondent’s citizenship was not
supported by the record.
Following remand, the respondent was convicted on May 26, 2015, of
attempted possession of a dangerous drug for sale and possession of a
narcotic drug for sale, in violation of sections 13-3407 and 13-3408 of the
Arizona Revised Statutes, respectively. Based on this conviction, the DHS
lodged charges of removability against the respondent under (1) section
237(a)(2)(A)(ii) of the Act, as an alien convicted of two or more crimes
involving moral turpitude not arising out of a single scheme of criminal
misconduct, (2) section 237(a)(2)(A)(iii) of the Act, as an alien convicted of
an aggravated felony illicit trafficking offense under section 101(a)(43)(B)
of the Act and of an attempt or a conspiracy to commit such a crime under
sections 101(a)(43)(B) and (U) of the Act, and (3) section 237(a)(2)(B)(i) of
the Act, as an alien convicted of a controlled substance violation. The DHS
also withdrew the aggravated felony theft charge.
On July 12, 2018, an Immigration Judge found that alienage was
established and sustained the lodged charges under sections 101(a)(43)(B)
and 237(a)(2)(A)(iii) of the Act, and under section 237(a)(2)(B)(i). 1 He also
found that the respondent’s drug convictions were for per se particularly
serious crimes that rendered him statutorily ineligible for asylum and
withholding of removal under the Act and the Convention Against Torture.
Additionally, he denied the respondent’s application for deferral of removal
under the Convention Against Torture. The respondent appealed from that
decision.
On January 4, 2019, we dismissed the respondent’s appeal, in part, after
concluding that he had not rebutted the presumption of alienage. However,
we remanded the record for further consideration of the respondent’s
removability in light of Lorenzo v. Sessions, 902 F.3d 930, 933 (9th Cir.
2018). 2 On remand, the Immigration Judge again sustained the charges
1

The Immigration Judge did not make a determination regarding the charge under
section 237(a)(2)(A)(ii) of the Act and the aggravated felony attempt charge under
section 237(a)(2)(A)(iii), as defined in sections 101(a)(43)(B) and (U), and we will not
address them on appeal. In any event, because the respondent does not argue that attempt
under Arizona law is categorically broader than the Federal generic definition of attempt
in section 101(a)(43)(U) of the Act, we consider any issues in this regard to be waived.
See, e.g., Matter of K-S-E-, 27 I&N Dec. 818, 818 n.1 (BIA 2020).
2
After we issued our decision, the United States Court of Appeals for the Ninth Circuit,
in whose jurisdiction this case arises, withdrew its opinion in Lorenzo on denial of

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under sections 237(a)(2)(A)(iii) and (B)(i) of the Act, found that the
respondent was ineligible for relief and protection from removal, and ordered
him removed.
On appeal from this decision, the respondent argues that his conviction
for attempted possession of a dangerous drug for sale under section 13-3407
of the Arizona Revised Statutes is not for either a controlled substance
violation under section 237(a)(2)(B)(i) of the Act or an aggravated felony
illicit trafficking offense under sections 237(a)(2)(A)(iii) and 101(a)(43)(B)
of the Act. 3 Whether the respondent’s State conviction renders him
removable is a question of law, which we review de novo. See 8 C.F.R.
§ 1003.1(d)(3)(ii) (2020).

II. ANALYSIS
A. Removability
Section 237(a)(2)(B)(i) of the Act renders an alien removable if he or she
has been convicted of a “violation of . . . any law or regulation of a State . . .
relating to a controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)).” The term “aggravated felony” at section
237(a)(2)(A)(iii) of the Act encompasses “illicit trafficking in a controlled
substance (as defined in section 102 of the Controlled Substances Act),
including a drug trafficking crime (as defined in section 924(c) of title 18,
United States Code).” Section 101(a)(43)(B) of the Act.
To determine whether the respondent’s conviction under section 13-3407
of the Arizona Revised Statutes renders him removable under either section
237(a)(2)(A)(iii) or (B)(i) of the Act, we employ the “categorical approach”
to determine whether the elements of his State offense match those of the
“generic” Federal definitions set forth in those provisions. See Moncrieffe
v. Holder, 569 U.S. 184, 190 (2013). An “element” of a statute is a “fact[]”
that must be “‘necessarily’ involved” in an offense such that the prosecution
must prove it to sustain a conviction. Id. (citation omitted); see also Mathis
v. United States, 136 S. Ct. 2243, 2248 (2016). To fall within the generic
definitions set forth at either section 237(a)(2)(A)(iii) or (B)(i) of the Act, the
rehearing, Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. 2019), and issued a superseding
unpublished decision in that case, 752 F. App’x 482 (9th Cir. 2019).
3
In light of our disposition, we need not address whether the respondent’s conviction for
possession of a narcotic drug under section 13-3408 renders him removable as charged.
The respondent has also presented the same citizenship arguments he raised before, in
support of which he resubmits evidence that we previously determined to be insufficient to
rebut the presumption of alienage in this case. We see no reason to disturb our prior
conclusion in this regard and will not address the issue of alienage further.

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respondent’s conviction must have necessarily involved, as an element, a
substance listed under the Federal controlled substances schedules. See
Mellouli v. Lynch, 135 S. Ct. 1980, 1991 (2015); Matter of L-G-H-, 26 I&N
Dec. 365, 368 (BIA 2014).
Section 13-3407 proscribes the commission of a number of offenses
involving “a dangerous drug.” Ariz. Rev. Stat. Ann. § 13-3407 (2015). 4 It
is undisputed that “Arizona’s definition of ‘dangerous drug’ is categorically
broader than the federal definition of ‘controlled substance.’” Alvarado
v. Holder, 759 F.3d 1121, 1130 (9th Cir. 2014) (comparing the State’s
definition of a “dangerous drug” in section 13-3401(6) of the Arizona
Revised Statutes with the definition of a “controlled substance” under
Federal law and concluding that section 13-3407 is overbroad relative
to section 237(a)(2)(B)(i) because State law punishes the possession of
substances not controlled by Federal law).
Therefore, the respondent’s removability depends on whether the identity
of the controlled substance underlying a violation of section 13-3407 is an
“element” of that statute. See Matter of Gonzalez Lemus, 27 I&N Dec. 612,
613 (BIA 2019). “If it is, the State statute is divisible,” and a further
“modified categorical” inquiry would be appropriate to identify which
particular substance was involved in the respondent’s offense. 5 Id. “If,
4

Specifically, section 13-3407(A) of the Arizona Revised Statutes provides, in relevant
part:
A person shall not knowingly:
1. Possess or use a dangerous drug.
2. Possess a dangerous drug for sale.
3. Possess equipment or chemicals, or both, for the purpose of manufacturing
a dangerous drug.
4. Manufacture a dangerous drug.
5. Administer a dangerous drug to another person.
6. Obtain or procure the administration of a dangerous drug by fraud, deceit,
misrepresentation or subterfuge.
7. Transport for sale, import into this state or offer to transport for sale or
import into this state, sell, transfer or offer to sell or transfer a dangerous drug.

5

We recognize that the Ninth Circuit, in whose jurisdiction this case arises, utilized a
modified categorical inquiry in Alvarado, 759 F.3d at 1130–33, to discern whether an
alien’s conviction under section 13-3407 involved a federally controlled substance and was
therefore a predicate for removal under section 237(a)(2)(B)(i) of the Act. However, the
Ninth Circuit did not expressly analyze the divisibility of section 13-3407 in that decision,
nor did the court have the benefit of the Supreme Court’s articulation of divisibility in
Mathis. Moreover, the circuit recently certified a similar issue to the Arizona Supreme
Court. See Romero-Millan v. Barr, 958 F.3d 844, 849 (9th Cir. 2020) (asking the court
to resolve whether Arizona statutes proscribing possession of drug paraphernalia and

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instead, the identity of the controlled substance is a [mere] means by which
a crime may be committed, then the statute is not divisible and is overbroad.”
Id.; see also Mathis, 136 S. Ct. at 2248.
The plain language of section 13-3407 is instructive to the extent that it
metes out different punishments, depending on the substance involved in a
violation. See Myers v. Sessions, 904 F.3d 1101, 1107 (9th Cir. 2018)
(“Statutory alternatives that carry different punishments are elements.”
(citing Mathis, 136 S. Ct. at 2256)). More precisely, the respondent’s State
statute of conviction provides harsher sentences for offenses involving
lysergic acid diethylamide, methamphetamine, amphetamine, phencyclidine,
flunitrazepam, gamma hydroxy butrate, and ketamine hydrochloride. See
Ariz. Rev. Stat. Ann. § 13-3407(B)(1), (3), (E)–(G). Since the statute sets
forth “statutory alternatives carry[ing] different punishments,” depending on
whether a violation involved those substances, these alternatives “must be
elements.” Mathis, 136 S. Ct. at 2256; see also Matter of Gonzalez Lemus,
27 I&N Dec. at 614 (holding that a State statute providing “distinct
punishments for drug possession offenses, depending on the identity of the
specific controlled substance involved,” indicated that the identity of the drug
was an element of the statute). We therefore hold that section 13-3407 is
divisible as to the “dangerous drug” involved in a violation of that statute.
We find support for our holding in State case law. See State v. Tavasci,
No. 1 CA-CR 07-0643, 2008 WL 2315690, at *2 (Ariz. Ct. App. June 3,
2008). 6 In that case, the Arizona Court of Appeals upheld a defendant’s
conviction for multiple counts of possession of a dangerous drug under
section 13-3407 where he possessed methamphetamine and other dangerous
drugs—namely, clonazepam and diazepam. This case is significant because,
if the identities of the specific substances underlying the defendant’s offense
possession of a narcotic drug under sections 13-3415 and 13-3408 of the Arizona Revised
Statutes, respectively, are divisible with respect to the identity of the drug involved in each
offense). For these reasons, we do not consider Alvarado to be persuasive authority
regarding the divisibility of section 13-3407, which, in light of Romero-Millan, we view
as an unsettled issue in the Ninth Circuit.
6
We acknowledge that State v. Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656,
at *2 (Ariz. Ct. App. Feb. 16, 2016), and State v. Castorina, No. 1 CA-CR 08-0816, 2010
WL 2450117, at *4 (Ariz. Ct. App. June 17, 2010), suggest that the identity of the
“dangerous drug” involved in a violation of section 13-3407 is not an element of the statute.
However, the United States District Court for the District of Arizona recently reviewed
both cases, found that their reasoning was flawed, and concluded that Arizona case law
fails to provide a “clear answer[] as to the divisibility” of section 13-3407. United States
v. Sanchez-Murillo, No. CR-19-00795-PHX-SPL, 2019 WL 3858606, at *2–3 (D. Ariz.
Aug. 16, 2019) (alteration in original) (citation omitted). Accordingly, we are not
persuaded that Prescott or Castorina “definitively answer[s] whether the dangerous drug
requirement of [section] 13-3407[] is divisible.” Gonzalez-Dominguez v. Sessions, 743
F. App’x 808, 811 (9th Cir. 2018).

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in Tavasci were not alternative “elements” of section 13-3407, the fact that
he possessed several different “dangerous drugs” would have been legally
irrelevant, and the court’s decision to sustain multiple counts of possession
of a dangerous drug would have violated the constitutional prohibition
against double jeopardy.
“The Double Jeopardy Clause, applied to the States through the
Fourteenth Amendment, provides that no person may be tried more than once
‘for the same offence.’” Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018).
To determine whether a person has been either impermissibly tried for the
same offense, or permissibly tried for and convicted of different offenses, we
consider whether each offense “requires proof of a fact which the other does
not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). As noted, an
“element” of an offense is simply a “fact” that must be proved to establish a
conviction. Moncrieffe, 569 U.S. at 190; see also Mathis, 136 S. Ct. at 2248.
So offenses are considered separate and distinct for purposes of double
jeopardy if they involve distinct “elements.” Currier, 138 S. Ct. at 2153.
In light of the prohibition against double jeopardy, we previously found
that where a State has “prosecuted as separate offenses a single act involving
. . . multiple controlled substances,” as Arizona did in Tavasci, “the elements
of proof required as to” an offense involving one drug “are not the same as
those essential” to proving an offense involving a different drug. Matter of
Gonzalez Lemus, 27 I&N Dec. at 614–15 (first and second emphases added)
(internal quotation marks omitted) (citation omitted). Consequently, since
Tavasci indicates that an individual may be subject to multiple convictions
under section 13-3407 for a single act involving multiple “dangerous drugs,”
that case is persuasive evidence that the statute is divisible as to the identity
of the “dangerous drug” underlying a violation.
The United States Court of Appeals for the Ninth Circuit, in whose
jurisdiction this arises, has concluded that the prohibition against double
jeopardy is relevant to discerning whether the identity of a controlled
substance is an element of a State drug statute. See United States
v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc). The issue in
that case was whether the identity of the substance was an “element” of
transportation of a controlled substance under section 11352 of the California
Health and Safety Code. After examining multiple State Supreme Court
cases reflecting that “defendants are routinely subjected to multiple
convictions under a single statute for a single act as it relates to multiple
controlled substances,” the court determined that the “the possession of one
[substance] is not essential to the possession of another [substance].” Id.
at 1040 (alterations in original) (citations omitted). It therefore concluded
that “section 11352 creates separates crimes, each containing ‘an element not

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contained in the other,’” and thus “is divisible with regard to its controlled
substance requirement.” Id. at 1040–41 (citations omitted). 7
Even if the plain language of section 13-3407 and Arizona case law do
not “provide clear answers” as to the statute’s divisibility, we may “peek” at
the respondent’s record of conviction “for ‘the sole and limited purpose of
determining whether [the dangerous drugs listed in section 13-3407 are]
element[s] of the offense.’” Mathis, 136 S. Ct. at 2256–57 (second alteration
in original) (citation omitted). The respondent’s indictment charged him
with violating section 13-3407 for “knowingly . . . possess[ing] for sale
Methamphetamine, a dangerous drug.” 8 Because this charging document
“referenc[es] one alternative [dangerous drug] to the exclusion of all others,”
7

In a more recent unpublished decision, the Ninth Circuit stated that if “a court gains a
separate conviction for each type of drug possessed, this may show that proof of multiple
drug types is sufficient to sustain multiple convictions, but it does not resolve whether it is
necessary for a jury to agree on a single drug type to convict.” Madrid-Farfan v. Sessions,
729 F. App’x 621, 622 (9th Cir. 2018). However, based on the Ninth Circuit’s holding in
its en banc precedential decision in Martinez-Lopez, we conclude that double jeopardy
considerations are relevant to our analysis.
The Third, Sixth, Eighth, and Eleventh Circuits have taken the same approach as
Martinez-Lopez. See Gordon v. U.S. Att’y Gen., 962 F.3d 1344, 1349 (11th Cir. 2020)
(concluding that the identity of the substance possessed is an element of the crime of
possession with intent to distribute under Georgia law because the State Supreme Court
has held that the State “could charge and convict a defendant in separate counts for
simultaneous possession of three different . . . controlled substances”); Guillen v. U.S. Att’y
Gen., 910 F.3d 1174, 1182 (11th Cir. 2018) (concluding same with regard to a Florida
possession statute based on a State Supreme Court decision holding that a defendant could
be convicted of possessing two different drugs under the statute since “possession of [these]
two separate drug substances . . . constitutes . . . separate violation[s] of law” (citation
omitted)); Martinez v. Sessions, 893 F.3d 1067, 1071 (8th Cir. 2018) (holding that Missouri
case law demonstrates that “the identity of a controlled substance is an element” of
possessing a controlled substance because State courts have held that “two convictions
[under the State possession statute] involving different drugs . . . did not violate double
jeopardy”), cert. denied sub nom. Bueno-Muela v. Whitaker, 139 S. Ct. 1198 (2019);
United States v. Henderson, 841 F.3d 623, 629 (3d Cir. 2016) (reaching the same
conclusion where Pennsylvania case law upheld consecutive sentences for delivery of two
different controlled substances since “[e]ach offense includes an element distinctive of the
other, i.e., the particular controlled substance” (quoting Commonwealth v. Swavely, 554
A.2d 946, 949 (Pa. Super. Ct. 1989))); see also Raja v. Sessions, 900 F.3d 823, 829 (6th
Cir. 2018) (agreeing with the Third Circuit in Henderson because “Swavely upheld
consecutive sentences for the delivery of two different controlled substances in a single
vial under the . . . Double Jeopardy Clause”). But see Harbin v. Sessions, 860 F.3d 58,
66 (2d Cir. 2017) (“[T]he values of fair notice and avoidance of double jeopardy often
demand that the government specify accusations in ways unrelated to a crime’s elements.”).
8
We may take administrative notice of official documents, including “the contents of [an
alien’s] record of conviction.” Matter of Tavdidishvili, 27 I&N Dec. 142, 142 n.1 (BIA
2017) (citing 8 C.F.R. § 1003.1(d)(3)(iv)).

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we conclude that the alternative “dangerous drugs” listed in section 13-3407
are alternative “elements, each one of which goes toward a separate crime.”
Id. at 2257. We are therefore permitted to examine the respondent’s record
of conviction under a modified categorical analysis. See Matter of Gonzalez
Lemus, 27 I&N Dec. at 614.
The indictment in this case reflects that the respondent was charged with
violating section 13-3407 of the Arizona Revised Statutes because he
possessed for sale methamphetamine, a federally controlled substance under
21 U.S.C. § 812, schedule III(a)(3) (2018). His conviction therefore renders
him removable as charged under section 237(a)(2)(B)(i) of the Act. And
since his conviction necessarily involved “‘the unlawful trading or dealing’
in a controlled substance as defined by Federal law,” it falls within the
generic definition of an aggravated felony illicit trafficking offense under
sections 237(a)(2)(A)(iii) and 101(a)(43)(B) of the Act. Matter of L-G-H-,
26 I&N Dec. at 368 (citation omitted).
We therefore conclude that the respondent’s conviction for attempted
possession of a dangerous drug under section 13-3407 of the Arizona
Revised Statutes is for an aggravated felony and a controlled substance
violation under sections 237(a)(2)(A)(iii) and (B)(i) of the Act, respectively.
In light of this disposition, we need not address the other charges of
removability in this case.
B. Relief and Protection From Removal
The Immigration Judge concluded that the respondent was statutorily
ineligible for asylum and for withholding of removal under the Act
and the Convention Against Torture because he was convicted of an
aggravated felony for which the aggregate term of imprisonment exceeded
5 years. See sections 208(b)(2)(A)(ii), (B)(i), 241(b)(3)(B)(ii) of the Act,
8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i), 1231(b)(3)(B)(ii) (2018); 8 C.F.R.
§ 1208.16(d)(2) (2020). The respondent was sentenced to 7½ years in prison
for his violation of section 13-3407, and this sentence ran concurrently with
his sentence for possession of a narcotic drug under section 13-3408 of the
Arizona Revised Statutes. See Matter of Aldabesheh, 22 I&N Dec. 983, 989
(BIA 1999) (en banc) (holding that “where an alien has received concurrent
sentences to imprisonment, the alien’s ‘aggregate term of imprisonment’
pursuant to section 241(b)(3) of the Act is equal to the length of the alien’s
longest concurrent sentence”).
Based on the foregoing analysis, we will uphold the Immigration Judge’s
conclusion that the respondent has been convicted of a per se particularly
serious crime that bars him from applying for asylum and withholding of
removal. The respondent has not meaningfully challenged the Immigration
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Judge’s decision to deny his application for deferral of removal under the
Convention Against Torture, so that matter is not before us. See Matter of
K-S-E-, 27 I&N Dec. at 818 n.1. Accordingly, the respondent’s appeal will
be dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See Section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

51


Interim Decision IPZ(500

MATTER OF RAHMAN

In Deportation Proceedings
A-17076149

Decided by Board August 4, 1978
A lawful permanent resident who was excludable under section 212(a)(22) of the Immigration and Nationality Act, 8 U. S. C. 1182(a)(22), as having left the, United States to evade
military service, was within the Presidential Pardon of January 24, 1977, as implemented by Executive Order 11967 in that he had reentered the United States as a
returning lawful permanent resident before June 1, 1978, and deportation proceedings
ordered terminated.

CHARGE:
Order: Act of 1952—Section 241(a)(1) [8 U.S. C. 1251(a)(1)]--Excludable at time of entry
under section 212(a)(22) [8 U.S.C. 1182(a)(22)}—departed to
avoid training or service in Armed Forces
ON BEHALF OF RESPONDENT: Ham Kobel, Esquire
2156 City National Bank Building
Detroit, Michigan 48226
BY: Milhollan, Chairman; Appleman and Maguire, Board Members. Board Member Farb
abstained from consideration of this case.

The respondent, a native of Pakistan admitted to the United States as
a lawful permanent resident on July 15, 1960, left the United States on
July 19, 1967, and reentered on July 17, 1968, by presenting 1-151. In
the decision of an immigration judge dated January 21, 1. 975,, the respondent was found deportable tinder section 241(a)(1)-,of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as an alien excludable at
entry under section 212(a)(22) of,the Act, 8 U.S.C. 1182(2)(22), in that
he had departed from and remained outside of the United,. States to
evade military service. An appeal to this Board was dismissed in a
decision dated September 17, 1975. The United States Court of Appeals
for the Sixth Circuit affirmed our decision in an unpublished opinion,
and the respondent appealed to the United States. Supreme Court. On
February 22, 1977, the Supreme Court remanded the case to the Sixth
Circuit Court. of Appeals for reconsideration in -light of the Acting
Solicitor General's representation that the respondent's case was of
by the Presidential Proclamation of Pardon, Pres. Proc. No.
579

interim Decision #2665
4483, 42 Fed. Reg. 4391 (1977), reprinted in 50 U.S.C.A. App. § 462
(1978), and the accompanying Executive Order, Exec. Order No. 11967,
42 Fed. Reg. 4393 (1977), reprinted in 50 U.S.C.A. App. §462 (1978).
.Rahman v. INS, 429 U.S. 1084 (1977). On April 8, 1977, the Court of
Appeals remanded the record to us for reconsideration. The proceedings
'will be terminated.
On January 21, 1977, President Carter signed Proclamation No. 4483
granting a pardon to persons who had committed certain violations of
the Military Selective Service Act between August 4, 1964, and March
28, 1973. The President then issued Executive Order 11967 to implernent the pardon. The Executive Order provides, in pertinent part, that:
Any person who is or may be precluded from reentering the United States under 8
U.S.C. 1182(a)(22) or under any other law, by reason of having committed or apparently
committed any violation of the Military Selective Service Act shall be permitted as any
other alien to reenter the United States.

The Attorney General has interpreted the Presidential Pardon as
relieving those aliens within its terms from the application of the "evading training or service" provisions of section 212(a)(22) of the Act if the
alien presented himself for readmission to the United States as a returning lawful permanent resident on or before June 1, 1978. See 42 Fed.
Reg. 59563 (1977). It is clear that the respondent, who reentered the
United States on July 17, 1968, is within the terms of the pardon as
-

Interpreted by the Attorney General. We find, therefore, that the

deportation proceedings instituted against the respondent must be terminated, and the order of deportation entered in this case must be
withdrawn.
ORDER: The deportation proceedings are terminated; the order of
deportation entered against the respondent is withdrawn.

50 U.S.C.A. App. § 451 et seq.
580


Interim Decision #2462

MATTER. OF MUJAHLD

In Visa Petition Proceedings
A-20929515
Decided by Board January 13, 1976
(1) Under the law of Egypt, all that is required for a valid marriage is that the parties to
the marriage contract be competent; that two male or one male and two female
witnesses be present; and that the marriage be adequately publicized, as by registration. No other formalities or ceremonies are required, nor must the marriage be
consummated. Since petitioner's marriage to beneficiary in Egypt, on September 2,
1974, appears to have met the foregoing requirements, it is found to have actually taken
place, despise the absence of a wedding ceremony.
(2) Since petitioner's marriage to beneficiary on September 2, 1974, occurred before
petitioner's divorce terminating his first marriage took effect (May 27, 1975), the
marriage is not valid for the purpose of conferring preference classification on beneficiary as his spouse under section 203(a)(2) of the Immigration and Nationality Act, as

amended.
ON BEHALF OF PETITIONER: Pro se

The lawful permanent resident petitioner applied for preference
status for the beneficiary as his spouse under section 203(a)(2) of the
Immigration and Nationality Act. In a decision dated October 30, 1975
the district director denied the petition on the ground that a prior
marriage of the petitioner had not been legally terminated before his
marriage to the beneficiary was celebrated. The petitioner has appealed
from that decision. The appeal will be dismissed.
In support of his petition the petitioner, a native and citizen of Egypt,
has submitted a certificate of marriage, which shows that the marriage
took place on September 2, 1974 between parties who had reached
maturity, that both parties and their legal guardians consented to the
marriage, that two witnesses were present at the marriage, and that a
copy of the marriage contract was issued to the Aldaily Office of Civil
Registry, Cairo, Egypt. The petitioner has also submitted a copy of a
divorce decree terminating his first marriage. The divorce judgment
took effect on May 27, 1975, more than eight months after the marriage
of the petitioner to the beneficiary.
The district director, citing Matter of H—, 9 I. & N. Dec. 640 (BIA
1962), denied the visa petition for the reason that, even if the marriage
546

Interim Decision #2462
is valid where celebrated, it is void as against public policy in the United
States because it is a polygamous marriage and, therefore, cannot be
recognized as valid marriage for immigration purposes.
It appears to us that the marriage in issue actually took place on
September 2, 1974, before the petitioner was divorced from his first
wife. Consequently, we agree with the district director that this marriage cannot be considered valid for immigration purposes. However, on
appeal the petitioner asserts that it was his intention not to marry the
beneficiary until his divorce from his first wife was final, both because of
his understanding of the immigration law and because of his own principles. Therefore, when he was on vacation in Egypt in. September 1974,
although he signed the marriage contract, he did not have an "actual
wedding." That wedding has evidently not taken place yet. Moreover,
the petitioner did not file his visa petition until after the divorce from his
first wife was final.
Having considered the petitioner's contentions, we find that his marriage to the beneficiary has actually taken place, despite the absence of a
wedding ceremony. All that is required for a valid marriage in Egypt
under Egyptian law is that the parties to the marriage contract be
competent, that two male or one male and two female witnesses be
present, and that the marriage be adequately publicized, as by registration. No other formalities or ceremonies are required, nor must the
marriage be consummated. 1 These requirements appear to have been
met. Moreover, if the marriage were not complete without a ceremony,
as the petitioner contends, we would still have to deny his petition, as he
would not have established the claimed relationship to the beneficiary.
For the foregoing reasons, we shall deny the petition. However, this
is without prejudice to the filing of a new petition if the petitioner should
again marry the beneficiary now that his divorce is final.
ORDER: The appeal is dismissed.

a "Some Arpeaa of Marriage under Egyptian Law, 2_ memorandum prepared by Fred
Karpf, Foreign Law Section of the Law Library, Library of Congress, 1956.

547


Interim Decision #2743

MATTER OF ELLY VELEZ PAMATONG

Application for Permission to Represent Persons
Pursuant to Title 8, Section 292.1,
of the Code of Federal Regulations
Decided by Board November 9, 1979
(1) Under 8 C.F.R. 292.1, only certain designated individuals are authorized to represent
persons before the Board and the Service. Included in this category are attorneys as
defined in 8 C.F.R. 1.1(0.
(2) In the case of an individual who is an alien, the provisions of 8 C.P.A. 292.1 apply

equally to resident aliens and refugees, and thus the provisions of Article 19 of the
Convention and Protocol Relating to the Status of Refugees are complied with.
(3) Notwithstanding the provisions of Article 19 of the Convention and Protocol Relating to the Status of Refugees, an alien refugee who is a graduate, of the Philippines
Law Program is denied permission to practice before the Board since he is not within
any of the categories specified in 8 C.F.R. 292.1(d).
ON BEHALF OF APPLICANT: Pro se
By: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The applicant desires permission to represent persons before the
Board of Immigration Appeals. He is a native and citizen of the Philippines and a
graduate of the University of the Philippines Law Program. He is
considered a refugee by the United Nations High Commissioner for
Refugees, although from the information provided by the applicant,
his present status in the United States is not specified.
Under the provisions of 8 C.F.R. 292.1, only certain designated
individuals are authorized to represent persons before the Service and
the Board. Included in this category are attorneys as defined in 8 C.F.R.
1.1(f). Law students and law graduates not yet admitted to the bar are
also authorized under certain circumstances to represent persons. In
addition, certain reputable individuals, appearing at the request of the
person involved, may represent that person. The final category of
individuals who may represent persons includes those who have been
accredited by the Board as representatives of recognized
organizations.
The applicant here wishes to practice before the Board and the
Immigration and Naturalization Service and the

175

Interim Decision #2743
Service for compensation. To do this, he must meet the same qualifications as any individual desiring to function as an attorney. This means
that he must qualify as a member of a bar as defined in 8 C.F.R. 1.1(f).
This requirement would appear to conform to the provisions of Article
19 of the Convention and Protocol Relating to the Status of Refugees,
cited by the applicant, as it is applicable to all who wish to practice
before the Board and the Service, resident aliens and refugees alike.
Since the applicant here is not an attorney within the meaning of 8
C.F.R. 292.1 as defined in 8 C.F.R. 1.1(f), his application must consequently be disapproved.
ORDER. The application is disapproved.

176


MAI i.r.11 OF C
In DEPORTATION Proceedings
A-3873207
Decided by Board June 28, 1960
Evidence—Jencks rule—Responsibility for determining existence of pre-hearing
statements—Recall of Government witnesses for cross-examination on basis
of pre-hearing statements—Alien's rights controlled by Jencks statute.
(1) Special inquiry officer was not required to make independent determination of whether additional Jencks statements were available where examining officer's declaration that the two pre-hearing statements supplied respondent were the only ones in existence was supported by the record.
(2) Special inquiry officer's refusal to recall Government witnesses for crossexamination on basis of pre-hearing statements made available for first time
at reopened hearing was not prejudicial error where witnesses had previously testified in great detail on very matters contained in pre-hearing statements and full and adequate cross-examination on such matters had been
allowed.
(3) Respondent is not entitled to greater rights under Jencks rule than he has
under Jenek,A ctatute (18 U.S.C. 3500).

CHARGE:
Warrant: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (6)1—After
entry, member of Communist Party of United States.
BEFORE THE BOARD

Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the charge stated
above. The appeal will be dismissed.
Respondent, a 56-year-old male, a native and national of Russia,
has been a resident of the United States since 1921. In 1954, he
was ordered deported on the ground that after his entry he had
been a voluntary member of the Communist Party (about 1925 to
1937). Judicial review resulted in a remand of the case to the administrative authorities so that it could be considered under Rowadt
v. Perfetto, 355 U.S. 115 (1957). Reopened hearing was held on
February 10, 1959. No evidence was submitted by either the Service or respondent. The special inquiry officer reviewed the evidence

of record and concluded that respondent had been a voluntary member of the Communist Party and that the membership had been
696

"meaningful" under the rule laid down in Rowo/dt. Appeal to this
Board resulted in a reopening of proceedings so that respondent
could have access to pertinent statements of Government witnesses,
and so that further evidence could be furnished on the issue of the
meaningfulness of membership if it was desired.
Hearings were then held on November 24, 1959, and on January 6,
1960. The Service made available under 18 U.S.C. 3500(a) a statement made by Government witness M on May 27, 1952, and one
made by Government witness P— on April 22, 1953. No other
evidence was offered by either the Service or respondent. Respondent refused to testify either when called by the Government as a
witness or to present his own defense. (He did make an informal
statement not under oath stating that he had brought no harm to
this country and that the university he managed sought to satisfy
cultural needs.) The special inquiry officer reviewed the evidence
of record and held that respondent had been a voluntary and meaningful member of the Communist Party. Deportation was ordered.
The appeal from this order is now before us.
Evidence as to respondent's membership in the Communist Party
and the meaningfulness of the association comes from Government
witnesses P and M , admissions and declarations made by
respondent, and documents concerning the Jewish Workers University (later the Jewish Educational Institute) with which respondent was associated.
Witness P
testified that he had been a member of the Communist Party (or an affiliate) from 1928 to 1937; that he was outside the United States from 1931 to 1932; that he held various
offices in the Communist Party; that he first became acquainted
with respondent in 1929; that in 1929, 1930, and 1933, he and respondent attended four or five meetings of Communist Party leaders; that the subject of the meetings was the carrying out of Communist Party directives and that he last saw respondent between
1933 and 1935 at Communist Party headquarters.
testified that he had been a member
Government witness M
of the Communist Party from 1919 to 1937; he listed several positions he had with the Party during the period. He testified that
he fi 1rst saw respondent in about 1924, that he saw him a few hundred times thereafter, and that he attended about 40 to 50 closed
meetings of the Communist Party where respondent was present.
The last time the witness saw respondent at a closed Communist
Party meeting was in 1936. The witness stated that from 1925 to
1928 it had been his duty to make sure that persons coming to
closed meetings of the Communist Party were members in good
standing, that in performance of his duties he had checked respondent's Communist Party membership book during this period and
697
562713— 61

96

that at other closed meetings at which he had seen respondent present and where he himself did not make a check, a Communist Party
official performed this duty. The witness testified that respondent
had written for the Morning Freheit, a Jewish language publication
of the Communist Party.
Respondent's association with the Jewish Workers University is
established by admissions made at the hearing and elsewhere. The
period of the association covered by this record runs from about
1926 to 1947.
The school is characterized as a part of the Communist Party by
a Communist Party publication and by two Government witnesses.
One of the witnesses testified that he had been present at the convention of the Communist Party which ordained the birth of the
school, and that the school had been formed to train Communist
Party leaders and teachers. He stated that appointment to the job
held by respondent was made by a branch of the Communist Party
and that it was respondent's duty to see that the Communist Party
program and dogma were carried out in the school.
An information pamphlet concerning the program of the school
in 1933 and 1934 (respondent is listed as an official) reveals that it
existed for the "revolutionary fighter against the present capitalist
system"; that it is a "Marxist-Leninist school"; that it will train
the student with the Marxist-Leninist "weapon in the struggle
against the capitalist system"; and that the courses furnished included a study of Marxism-Leninism, Dialectical Materialism, History of the Three Internationals, History of the Russian Revolution, and Principles of Communism.
Respondent's writings about the school reveal complete approval
of its non-partisan education aimed at helping the working class
secure its final liberation (Exh. 10, Letter from respondent while a
student at the school, 1926). An article written in 1947 by respondent for the Morning Freheit, a Communist Party daily, speaks
approvingly of a student who filled every day of her "wonderful
life with deeds for every worker and popular organization." The
organizations to which this student felt obligations were "the Branch,
the school [Jewish Institute], the Party, the 'Morning Freheit' and
the 'Daily Worker'." (Exh. 11)
The Communist Party itself characterizing certain individuals and
institutions which had sent greetings to the Daily Worker in 1930
called them sympathizers with the aims and policies of the Communist Party and its central organ the Daily Worker; this same
comment reveals the policy in question is the overthrow of the exof true
ploiting class and their government fur the establl _b_1111Cllt
1

proletarian dictatorship. The school of which the respondent was
an official sent a greeting over his name (Exh. 15).
698

Documents submitted by respondent concerning the school from
1941 to 1943 (Exhs. 23-27) reveal an interest in Yiddish cultural
matters.
We believe that this record establishes by evidence that is reasonable, substantial and probative that respondent was a voluntary
knew respondent personmember of the Communist Party. M
all y over a long period of time; he was present at meetings of the
Communist Party closed to all but members of the Communist
Party; he himself had checked respondent's Communist Party book
before admitting him to some of the meetings. This testimony is
not contradicted by anything in the record. On the contrary, it is
corroborated by testimony of Government witness P and the
ample evidence of record which establishes respondent's belief in
an active role in bringing about the final liberation of the working
class. The testimony finds corroboration in respondent's leadership
over long periods of time in a school founded by the Communist
Party to train Communist Party leaders, and his position as a
writer for a Communist Party newspaper. His actions are not such
as would be inconsistent with the existence of Communist Party
membership, but, on the contrary, are the actions of one who could
well have been a member of the Communist Party. It is not improper to consider such circumstantial evidence.
We believe that membership was meaningful. Respondent's experience and work was such that he must have known that the organization he had joined was the political organization known as
the Communist Party. His failure to explain the membership, its
existence over a long period of time, respondent's participation in a
position of leadership and responsibility in a program of training
future leaders of the Communist Party, and respondent's employment writing for a Communist Party newspaper must negative any
assertion that the membership was not meaningful. Respondent's

case differs from that of Rowoldt, .supra, where membership was
explained as being for the purpose of obtaining food and lodging
in a period of emergency. In the instant case, there is no explanation of the membership and there is no evidence that it was primarily to obtain food and lodging in a period of emergency. Niukkanen v. McAlexander, 265 F.2d 825, which counsel referred to in
oral argument, was then pending before the Supreme Court. It
was decided on April 18, 1960 (362 U.S. 390). A careful study of
the case reveals no reason why respondent's membership should not
make him deportable. Finally, on the issue of the meaningfulness
of membership, we believe it is proper to consider the record as it
existed, without amplification, to determine if it met the requirements of Kowa1dt (see Ng Yip Yes T. Barber, 267 .F.2d 206, C.A. 9,
1959).
699

Counsel charges that Government witness P— has now been
discredited and for this reason is no longer being used by the Service. He asked the examining officer and the special inquiry officer,
and now asks this Board, to determine if it is true that P— is a
discredited witness. The examining officer stated he had no knowledge that P— was a discredited witness. The special inquiry officer refused to go outside the record. We ourselves see no reason to
make an inquiry on this score which is a matter for counsel to
establish, and is a proper subject for investigation by counsel.
Counsel contends that M

is discredited because the court in

U.S.D.C., S.D. Calif., Civ. No. 15, 446,
August 27, 1956, refused to accept his testimony. We think it too
well established to require citation that the credibility of a witness
must be left in large part to the hearer of the testimony. The testimony of neither M— nor P— has been contradicted; their
testimony is not improbable but, on the contrary, is quite consistent
with the existence of activities in which respondent probably could
not have engaged had lie not been a member of the Communist
Party. We see no reason to reject the testimony of the witnesses.
At the last reopened hearing, the Government made available
under 18 U.S.C. 3500(a) a statement made on May 27, 1952, by
M— (Exh. 28) and one made by P— to a Service officer on
April 22, 1953 (Exh. 29). Counsel is of the belief that other statements exist to which he is entitled and that it was the special inquiry
officer's duty to determine the existence of the statements. The
special inquiry officer ruled that the record and the declaration of
the examining officer revealed that there existed only the two statements made available and that no further inquiry on the issue was
needed. We believe the special inquiry officer ruled properly in this
testified he had made a statement to a
matter. We note that P
Service officer in April 1953 concerning respondent and that he denied making others. We note that M— thought that in 1952 he
may have made one statement about respondent to an official of the
Service and his testimony does not reveal that he made more than
one statement. The examining officer declared for the record that
the two statements supplied were complete and that inquiry had
revealed no other statements. This information is strongly supported by the record, and together with the record was a proper
basis on which the special inquiry officer could rule (Badon v.
United States, 269 F.2d 75 (C.A. 5, 1959), certiorari denied 361
U.S. 894).
M— did testify that from 1939 to 1953 he had reported some
harassing incidents to the Federal Bureau of Investigation and
some to the Service and that he had appeared to give expert testimony concerning an organization, but had not acted as an identifyUnited States v. Ifusnitz,

700

ing witness at that time. The special inquiry officer ruled that
respondent was not entitled to either the statements made concerning the harassment or the one made concerning an organization if
such statements existed, and that it was not necessary to make any
further inquiry as to the existence of the statements. We see no
error here.
Counsel contends that he was entitled to cross-examine P
and
M— on the basis of the statements which were supplied at the
reopened hearing. The special inquiry officer ruled that the witnesses testified in great detail on the very matters contained in the
statements and that there had been full and adequate cross-examination on these matters. We find the ruling proper. Where a party
is entitled to statements, the fact that he did not receive the statements at the proper time will neither be prejudicial error nor give
an absolute right of cross examination, if it can be shown that the
failure to make the statements available at the proper time or to
permit cross-examination actually worked no prejudice (Rosenberg
v. United States, 360 U.S. 367). Counsel attempts to distinguish
Rosenberg from the case before us on the ground that the statement involved there did not say anything about the testimony given
on the stand but merely related to an ability to recall the facts of
the case which had already been admitted on cross-examination.
We cannot accept this distinction; Rosenberg applies to any matter
which could be used for the purpose of impeachment.- Bergman v.
United States, 253 F.2d 933 (C.A. 6, 1958), and United States v.
Prince, 264 F.2d 850 (C.A. 3, 1959), cited by counsel, were decided
before Rosenberg. Counsel is of the belief that he has greater
-

rights under the Jencks rule than under the Jencks Act.

Rosenberg,

and Palermo v. United States, 360 U.S. 343, require dismissal
of the contention.
Upon complete review of the record and contentions of counsel
we believe deportation was properly ordered.
Order: It is ordered that the appeal be and the same is hereby
dismissed.
supra.

0

701


iterim Decision #2035

MATTER OF METHURE
In Deportation Proceedings
A-18160358
Decided by Board March 20, 1970
leportability under section 241(a) (9) of the Immigration and Nationality
Act is established by clear, convincing, and unequivocal evidence obtained
pursuant to lawful interrogation and arrest where respondent, who was
initially interrogated by a Service officer inside a Service vehicle, and who,
after leaving the car and while not under arrest, voluntarily admitted
working illegally, after which he was taken to the Immigration office,
where he was advised of his rights under the Miranda rule, and was
sworn upon an affidavit in which he admitted he had violated his immigration status as a student by engaging in employment.

CHARGE :
Order: Act of

1952 — Section 241(a) (9) [8 U.S.C. 1251(a) (9)]—Nonimgrant---failed to comply with conditions of status.

)N BEHALF OF RESPONDENT:

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

Martin A. Shlufman, Esquire
515 Madison Avenue
New York, New York 10022
Counsel of record:

Allan A. Shader

Trial Attorney
(Brief filed)

Leon Wildes, Esquire
515 Madison Avenue
New York, New York 10022

The respondent, a native and citizen of Guyana, has been found
3epoi table under section 241 (a) (9) of the Immigration and
Nationality Act as an alien who, after entry as a nonimmigrant
student on February 13, 1969 under section 101(a) (15) of the
said Act, failed to comply with the conditions of his nonimmigrant status. An order entered by the special inquiry officer on
April 28, 1969 grants the respondent the privilege of voluntary
departure in lieu of deportation with an alternate order providing
for his deportation to Guyana if he fails to depart voluntarily
when and as required. The respondent on appeal maintains that
522

Interim Decision #2035
the evidence establishing his deportability was obtained by an
unlawful search and seizure.
The respondent, after remaining mute for a major portion of
the hearing, finally conceded that he was deportable as charged in
the order to show cause (pp. 46 and 57). Our discussion of the
facts will be limited to the respondent's claim that the evidence
establishing deportability was obtained by means of an unlawful
search and seizure.
The arresting officer, Joseph P. Lloyd, testified that he had
received an anonymous phone call informing him that a number
of aliens were illegally employed by the Randall Plastics Company located on 46th Road in Long Island City, New York (p.
19). Between the hours of 7:30 a.m. and 8:30 a.m. on April 9,
1969, while seated in an automobile parked in front of the Randall Plastics Company, he observed the respondent walking on the
sidewalk. Ile got out of his car, identified himself to the respondent as an immigration officer, and questioned him regarding
alienage and whether he had anything on his person to establish
his right to be in the United States. The respondent informed
Officer Lloyd that he was an alien; that his passport was at home;
and that he was on his way to school (pp. 12 and 13). At this
point, Officer Lloyd invited the respondent to get into his parked
car "to show me whatever type of identification he might have on
his person" (p. 13).
Officer Lloyd further testified that after the respondent entered
his car, he (respondent) pulled a "little notebook" from his coat
pocket which contained a notation that the respondent "had

started working after arriving in the country" (pp. 13 and 21).
When questioned by Officer Lloyd regarding the notation, the
respondent replied that he had not been working (p. 32). Thereafter, several aliens were brought to the car. They had just been
taken into custody by another Service officer while working in the
Randall Plant. None of them could identify the respondent as a
fellow employee (p. 32). Officer Lloyd testified that at this point,
it was decided that they did not have enough evidence to hold the
respondent; and that " . . . I called him out of the car, and I
walked away for about six feet or so in back of the car, and he
was behind me and as I turned to approach him he made a statement to me . . . he said he was working" (p. 36). The respondent
was then returned to the car and taken to the Immigration Office.
There he was advised of his rights under Miranda v. Arizona,
384 U.S. 436 (1966), and was sworn upon an affidavit in which

523

Interim Decision #2035
he admitted that he had violated his immigration status as a student by engaging in employment.
Originally, counsel for the respondent informed the special
inquiry officer that the respondent would not testify pursuant to
the privilege contained in the Fifth Amendment to the Constitution (pp. 3 and 24). Following denial of counsel's motion to suppress the affidavit, entered as Exhibit 3, counsel waived the privilege and placed the respondent on the witness stand (p. 43). The
respondent's testimony with regard to the sequence of events
leading up to his arrest varies in some matters from the testimony
of Officer Lloyd. He testified that Officer Lloyd told him to get
into the car and stated, "you will have to make a statement"; that
after he got into the car, Officer Lloyd "searched me in my pocket
.. . put his hand in my coat pocket, pull out my pen, my pencil;
put his hand in the coat pocket and pull out the diary . . . he read
the diary and find that there is a date marked started to work
.. . then he said I will have to give him a statement" (pp. 47 and
48). The respondent further testified that Officer Lloyd "handcuffed me to the car" while he rounded up some more aliens (p.
49).
The respondent's testimony concerning the events leading up to
his arrest continues:
Then after rounding up these other guys they took us along to another
corner [of] the street so that the other guys could get their passports. Then
he call me over to him. He come up to the car a few feet back of the car.
He call me over and he say that I will have to tell him the truth and he ask
me where I was working. That if I didn't tell him that he will lock me up
and I was scared of—I was so afraid that well I told him that yes I was
working. (p. 49)

The respondent was then questioned as to whether at any time
during the aforementioned events he was informed that he had a
right to remain silent and that anything he said could be used
against him. He replied, "No sir" (p. 50). It is the respondent's
testimony that Officer Lloyd "put me hack in the car" after he
admitted that he was employed and took him to the Immigration
Office where he made the statement entered as Exhibit 3. The
respondent acknowledged his signature on Exhibit 2 (Form
1-214), which is the Usual statement informing an alien of his
rights, and his signature on Exhibit 3, which is the affidavit (p.
52). The respondent further testified that he did not read the
affidavit although there are initials showing that he made corrections on it. The respondent at first denied that the statement concerning the place of his employment was true (p. 54). He later
admitted the fifth allegation contained in the order to show cause

524

Interim Decision #2035
insofar as it relates to gainful employment in the United States in
violation of his nonimmigrant status. He also admitted deportability (p. 57).
Counsel on appeal urges reversible error. He argues that the
respondent was found deportable solely on the basis of an admission which was obtained by an unlawful arrest without probable
cause. He maintains that the admission is not admissible in evidence because:
(1)

The respondent was not warned of his constitutional rights in accordance with Miranda v. Arizona, 384 U.S. 436 (1966), when first subjected to interrogation after his arrest.
(2) The incriminating statement was the fruit of an illegal search without probable cause at the time the immigration officer invited the
respondent into his car.

Section 287 of the Immigration and Nationality Act provides in
pertinent part that any officer of the Immigration and Naturalization Service:
. . . shall have power without warrant—(1) to interrogate any alien or
person believed to be an alien as to his right to be or to remain in the
United States.

This statute, plain on its face, gave the immigration officer
authority to approach the respondent on the street in front of the
Randall Company and invite him into his car for the purpose of
interrogating him as to his right to be in the United States. Furthermore, since the immigration officer had been informed that
aliens from Guyana were unlawfully employed by the Randall
Company, it was reasonable for him to believe that the respondent might be one of those aliens. A suspicion of alienage can be a
reasonable one if no more appears than that the person
approached is in an area in which illegal aliens have been
reported. Cf. Amaya v. United States, 247 F.2d 947 (9 Cir.,
1957), cert. denied 355 U.S. 916; Matter of Au, Yim and Lam,
Interim Decision No. 1981, and cases cited (BIA, 1969). At the
time of the immigration officer's initial approach, the respondent
admitted that he was from Guyana.
It is the respondent's contention that his initial arrest was
effected at the time he entered the immigration officer's car or at
least when, according to the respondent's testimony, his liberty of
movement was constrained by the use of handcuffs. While it is
true that the immigration officer testified that he probably would
have restrained the respondent if he had attempted to leave the
car prior to the completion of his interrogation (p. 17), there is
no convincing evidence that the respondent was under the impression that he had been arrested at the time he entered the immi525

Interim Decision #2035
gration officer's car. There can be no seizure where the subject is
unaware that he is "seized," Yam Sang Kwai v. INS, 411 F.2d
683, 686 (D.C. Cir. 1969), cert. denied 396 U.S. 877.
There is no support in the record for the respondent's testimony that "they handcuffed me to the car" (p. 49) in order to
restrain him while the immigration officer assisted in the roundup of additional aliens. There is no testimony by Officer Lloyd
concerning the use of handcuffs while the respondent was seated
in his car. We note that counsel did not raise this issue when he
cross-examined Officer Lloyd. In fact when the respondent was
questioned as to "when did you get out of the car," he replied
that the immigration officer ". . . asked me to come over" (p. 50).
There is no testimony by the respondent that there had to be a
release of handcuffs before he could leave the car (pp. 49 and
50). Accordingly, we find no substance to counsel's claim that the
respondent's initial interrogation while seated in Officer Lloyd's
car amounted to an unlawful arrest.
We next turn to counsel's claim that the incriminating statement was the fruit of an illegal search. There is conflicting evidence as to whether the diary which contained a notation that the
respondent was gainfully employed was given voluntarily to
Officer Lloyd by the respondent or whether it came into the possession of the immigration officer by a search of the respondent's
person after he entered the officer's car. Regardless of how the
diary came into the possession of Officer Lloyd, the affidavit in
question (Ex. 3) was the fruit of the respondent's admission
after the immigration officer had reached the conclusion that
there was insufficient evidence to prefer charges against the
respondent, and was about to inform him that he was free to go
(p. 31). Even assuming some infirmity in the petitioner's arrest
without a warrant which might taint any document seized from
him, a deportation order will not be set aside when there is ample
competent evidence, as in this case, which, standing alone, will
support the order, Shing Hang Tsui v. INS, 389 F.2d 994, 995 (7
Cir., 1968) ; Valeros v. INS, 387 F.2d 921 (7 Cir., 1967).
It is the contention of counsel that the incriminating statement
entered as Exhibit 3 was tainted by the earlier admission of the
respondent which he alleges was obtained without warning the
respondent of his rights under the Miranda rule (supra). He also
argues that the respondent did not waive his constitutional rights
knowingly and intelligently. There was no "custodial interrogation" of the respondent at the time he voluntarily admitted that
he was employed, following his exit from the ear of Officer Lloyd.
526

Interim Decision #2035
Under the circumstances, the rule in Miranda does not apply to
the voluntary statement of the respondent which he made prior to
his arrival at the immigration office. Officer T,loyd acted within
his statutory authority in transporting the respondent to the im-

migration office for he is enabled "to arrest any alien in the
United States, if he has reason to believe that the alien so arrested is in the United States in violation of . . . law . . . and is
likely to escape before a warrant can be obtained . • ." (8 U.S.C.
1357 (a) (2) ). Furthermore, we find no substance to counsel's
claim that the respondent did not intelligently and knowingly
waive his rights under Miranda. There is a certification in the
record signed by Officer Lloyd and another witness that the warning and waiver were read to the respondent, who also read it and
affixed his signature thereto in their presence. Exhibit 3 contains
a similar warning which was executed by the respondent. There
is ample evidence in the record that the respondent speaks and
understands the English language (p. 3). We find no support in
the record for the respondent's testimony that he did not understand what he was signing when he waived his rights under Miranda (p. 51).
We affirm the finding of the special inquiry officer that the
facts of record establish that the respondent was lawfully interrogated and arrested by the immigration authorities and that he
has, in fact, violated his status as a student in the United States
by accepting full-time employment. We conclude that the deportability of the respondent has been established by clear, convincing

and unequivocal evidence.
We affirm the grant of voluntary departure in lieu of deportation and will dismiss the appeal. Since the execution of the order
has been stayed during the pendency of this appeal, we will pro- •
vide for the voluntary departure of the respondent within 30
days from the date of this decision.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
It is further ordered that, pursuant to the special inquiry officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that date as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the order
entered by the special inquiry officer.

527