Interim Decision #2739

MATTER OF OPFERKUCH

In Exclusion Proceedings
A-22953714
Decided by Board April 11, 1979

A salaried "project specialist" who plans to enter the United States three to six times
during a period of 18 months to serve as a liaison between his employer in Canada and
a Texas corporation, who never solicits business in the United States, and who has as
his sole purpose the gathering of pertinent information for a company in which he is
not an officer or principal, comes within the definition of a nonimmigrant business
visitor as that term is defined under section 101(a)(15)(B) of the Immigration and
11U1(a)(15)(B). Matter of Neill, 15 MN Dec. 331 (BIA 1973),
Nationality Act, 8
distinguished.
EXCLUDABLE:

Act of 1952—Sec. 212(a)(14) [8 U.S.C. 1182(a)(14))—Not in possession of
a valid unexpired labor certification
Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant—not in
possession of a valid unexpired immigrant visa

ON BEHALF OF APPLICANT:

ON BEHALF OF SERVICE:

George P. Doyle, Esquire
Doyle, Denman & D'Amico
10 Ellicott Square Building

George Indelicate
Appellate Trial Attorney

Buffalo, New York 14202

By: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This case presents an appeal from a decision of the immigration
judge on November 27, 1978, ordering that the applicant be excluded
and deported from the United States. The appeal will be sustained.
The applicant is a citizen of West Germany and a landed immigrant
in Canada who seeks admission to the United States for 2 or 3 days as a
business visitor. He is a salaried "project specialist" for Holderbank
Consulting, Ltd., a Canadian corporation founded to sell its expertise
in fields related to cement manufacturing. The applicant allegedly
never solicits business in the United States, but rather is a coordinator
liaison between Holderbank and Kaiser Cement and Gypsum Corporation in San Antonio, Texas, examining facilities there and relaying
information back to his employer in Canada. It is anticipated that he
158

Interim Decision #2739
would be required to enter this country as a liaison three to six times
during the contract period of a maximum of 18 months. It would
appear, therefore, that he expects to be employed in the United States
for less than 8 percent of his working year.
Placing reliance upon our decision in Matter of Neill,15 I&N Dec. 381
(BIA 1975), the immigration judge found that the applicant's intended
activity is a personal service in the United States, independent of any
other commercial activity, and not within the definition of "business"

as defined in section 101(a)(15)(B) of the Immigration and Nationality
Act, as amended, 8 U.S.C. 1101(a)(15)(B). Counsel contended, both in
his appeal brief and at oral argument, that the Neill case is totally
distinguishable from the instant case.
Section 101(a)(15)(B) of the Act defines a nonimmigrant

visitor as—

business

an alien ... having a residence in a foreign country which he has no intention of
abandoning and who is visiting the United States temporarily for business.—

The term "business" as used in. section 101(a)(15)(B) has been held not
to include ordinary labor for hire, but is limited to intercourse of a
commercial character. See Karnuth v. U.S. ex rel. Albro, 279 U.S. 231
(1929); Matter of Hira, 11 I&N Dec. 824 (BIA 1965,1966; A.G. 1966).. We
are persuaded that the applicant does in fact come within the above
definition and thus qualifies as a nonimmigrant visitor within the
purview of section 101(a)(15)(B) of the statute.
In Matter of eill, supra, a principal in a Canadian engineering fi:rm,
then earning approximately 30 percent of its income from clie:nts
located in the United States, averaged one or more trips a week to this
country in connection with his practice. In concluding that the applicant was not engaged in "business" as that term is used in section
101(a)(15)(B) of the Act, we found that his professional activities in the
United States went "well beyond functions which can be described as
necessary incidents to international trade or commerce." We further
found that he was "regularly performing personal services in the
United States independent of any other commercial activity." The
Board ordered his exclusion and deportation from this country, pursuant to section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20).
Upon review of the record, we are in agreement with the contention
of counsel for the applicant that this case is clearly distinguishable
from our earlier decision in the Neill case. The latter case concerned
the active participation by a principal in the firm in negotiation and
solicitation of business in this country while ostensibly here for consultation purposes only. We are satisfied that in the present case, the
applicant's sole purpose in coming to this country would be to gather
pertinent information for a company in which he is not an officer or
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Interim Decision 112739
principal. Accordingly, the appeal will be sustained and the applicant
granted temporary admission into the United States.
ORDER: The applicant is permitted to enter the United States for
such periods of time, and under such conditions, as the District
Director may impose.

160


Interim Decision #1485

MATFER OF GLIN

.1n Deportation Proceedings
A-11569685

Decided by. Board Jay 2, 1985
Respondent's conviction by a French criminal court wane serving overseas as
a member; or the United States Army may not sewn as a basis' for his deportation under section 241(a) (4), Immigration and Nationality Act, since
the French court lacks authority to make a binding recommendation against
deportation pursuant to section 241(b) of the Act, as amended. [Matter of
N , 7 L & N. Dec. 3613, overruled, insofar as it rules that a criminal conviction need not be in the United States to sustain an order of deportation under section 241(a) (4) of the Act.]
Crtaaoa:
Order: Act of 1932—Section 241(a) (4) [8 U.S.O. 1251(a) (4)3--Convicted
of a crime committed within 5 years after entry
and confined for 1. year or more (theft, in violation
of the French Penal Code).
—

The respondent, a native of Egypt, a citizen of France, has beeh
found deportable as one convicted of a crime involving moral turpitude committed within five years after his entry and sentenced to
confinement for a year or more, to wit, theft committed on or about
October 9, 1960 in violation of the French, Penal Code (8 U.S.C.
1251(a) (4)). The case has been certified to the Board of Immigration Appeals for final decision on an issue of law.
The respondent, an unmarried male alien, 23 years of age concedes that he entered the United States through the port of New
York on or about December 10, 1958; that he was admitted as an
immigrant at that time; that he was convicted in France by a French
Court on or about December 22, 1960 for the offense of theft, committed on or about October 9, 1900, and that he was sentenced to
13 months imprisonment by a French court. The respondent, however, denies deportability on the charge stated in the order to show
Cause.

242

Interim Decision #1485
The case has been certified for final decision because of apparent
85.N.
conflict between this Board's ruling in Matter of N—,
Dec. 356 (B, November 23,1956), and an unreported decision'
in which .we. followed a ruling by the Court of Appeals for the
Ninth: Circuit' which holds that a foreign conviction of an alien
serving in the United States Army 'could not serve as a, basis for
deportation under-section 241(a) (4) of the Immigration and Nationality Act.
Our decision in Matter of N—, (supra), concerned an alien who
after admission for permanent residence was sent overseas as a member of the Armed Forces of the United States. He was convicted
of the crime of theft by a military court-martial in Germany and
was sentenced to be dishonorably discharged, to forfeit, all pay and
allowances, and to be confined at hard labor for one year in . a
disciplinary barracks located in. Pennsylvania. One of the aigumenti advanced by counsel was that the conviction to constitute a
ground of deportation, must have taken place in the United States.
We held that the statute did not require the conviction to be in the
United States in order to sustain a charge of deportability under
section 241(a) (4) of the Immigration and Nationality Act.
The case of Gubbels v. Hoy (supra, footnote 2), also involved the
court-martial conviction of an alien serving in the United States
Army. The Court of Appeals for the Ninth Circuit held that the
conviction could not serve as a basis for deportation under section
241(a) (4) of the Act because the court-martial did not have the
power to make the recommendation against deportation as provided
in section 241(b) of the said Act. The court held that the recommendation against deportation was a part of the legislative scheme
in relation to a charge under section 241(a) (4) of the Immigration
and Nationality Act.
The alien in the Leyva-Oeltoa case (supra, footnote 1) was convicted by a Mexican court of the crime 'of rape committed within
five years of the alien's entry for permanent residence on September
18, 1956. Following Gubbels v. Hoy (supra, footnote 2) we held that
the charge laid under section 241(a) (4) could not be sustained
because such a charge envisions only convictions occurring in the
United States. We said "since the Mexican tribunal is not authorized to make a binding recommendation (against deportation), we
must conclude that its judgment may not be used as the basis for
I

dfatter of Letton - Oohort, .L-10705756. December 12, 1963.

Gubbels v. Hoy, 261 F.2d 952 (C.A. 9, November 14, 1958).

243

Interim Decision #1485
deportation under section 241(a) (1)." (Cf. Matter of B--, 7 I. & N.
Dec. 166.).
The respondent in the instant case was convicted 'by a French
criminal court while serving overseas as a member of the United

States Army. The French court is not authorized to make a binding
recommendation against deportation pursuant to section 241(b) of
the Immigration and Nationality Act. We conclude, therefOre, that
a judgment of conviction entered by a French court may not be
used as the basis for deportation under section 241(a) (4) of the
Immigration and Nationality Act. That portion of our decision
in Matter of N=, 7 I. & N. Dec. 356, which rules that the criminal

conviction need not be in the United States to sustain an order of
deportation under section 241(a) (4) of the Immigration and Nationality_ Act is - hereby expressly overruled. An appropriate order
terminating the proceedings wilt be entered.
r ORDER: The order of deportation entered by the special inquiry
Officer on:-March 17, 1965 is hereby withdrawn.
"( It 44 further ord,jreel that the proceedings under the order to show
dime dated December 22, 1964 be and the same is hereby terminated.


Interim Decision #1677

112a,

or Worm

In Deportation Proceedings
A-13679199

Decided by Board January 3, 1967
A 13-year-old alien at -the time of her admission in 1552 who chumeti rues "as
a daughter of a United States citizen", and who did not learn until 1962 that
her father was not a bona fide citizen, did not willfully and knowingly make
a false or misleading statement upon admission even though she did not
understand in what status she was entering; hence, she has been "inspected"
within the meaning of section 245, Immigration and Nationality Act, as
amended.
OELAZOE

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (I)]—Excludableat time of entry—No immigration visa.
ON BEHALF OF RESPONDENT

Robert S. Bixby, Esquire,
559 Washington Street
San Francisco, California 94111
(Brief filed)

The respondent, un unmarried female, 28 years of age, a native and
citizen of China, has been found deportable under section 241 ( a) (1)
of the Immigration and Nationality Act (8 U.S.C. 1251 (a ) ( 1) ) as an
alien who was excludable at the time of entry in that she was an immigrant without an immigration visa. An order entered by the special
inquiry officer on January 26, 1966 provided for the respondent's deportation to the Republic of China and denied an application for adjustment of status to that of a permanent resident alien pursuant to the
provisions of section 245 of the Immigration and Nationality Act
(8 U.S.C. 1255).
The respondent's appeal from the order entered by the special inquiry officer on January 26, 1966 was before this Board in July of
1966. After careful review of the record the Board remanded the case
to the special inquiry officer for further consideration of whether the
respondent had been "inspected" within the meaning of section 245

8

Interim Decision #1677
(supra). The case is again before us on certification in accordance with
'
8 CFR 8.1 (c).
The respondent last entered the United States on January 3, 1952
and was admitted as a United States citizen. She was 13 years of age
at the time. After thorough consideration of the record we were of the
opinion that the respondent presented herself to an immigrant inspector and represented herself as a citizen of the United States, honestly
believing this to be the truth. Following the rule enunciated in Matter
of F , 9 IAN. Dec. 54, a decision approved by the Assistant Commissioner on October 7, 1960, we held that the respondent must be considered to have been "inspected" within the meaning of section 245
provided that she honestly believed herself to be a United States citizen and did not knowingly or wilfully make a false claim to citizenship at the time of entry. We remanded the case to the special inquiry
officer for consideration of the question of whether the respondent
entered in good faith and was otherwise eligible for adjustment of
status.
The case is again before us with an opinion by the special inquiry
officer denying relief under section 245 of the Immigration and Nationality Act. The special inquiry officer states in his opinion that since
the respondent did not know in what status she was coining to this
country "it is obvious that she could not have 'honestly believed' she
was a citizen of the United States." The special inquiry officer refers
to testimony of the respondent wherein she stated that she "really
didn't have any slightest idea" as to what status she possessed when
entering the United States (p. 28). She testified that she did not know
that she was entering the United States as a citizen. The special inquiry
officer reasons that since the respondent lied about the very fact which
led to admission as a United States citizen it is obvious that she could
—

not have entered in "good faith" honestly believing that she was a

citizen.
The controlling factor in the respondent's case is whether there
was an absence of a wilfull and knowingly false claim of citizenship.
The respondent was 13 years of age when she was examined by the
immigrant inspector at the port of entry. She was questioned at that
time as follows :
Q. Under what rights do you claim your admittance to the United States?
A. As a daughter of a United States citizen.

There is no doubt that the respondent thought she was entitled to
enter the United States since her true father was bringing her to this
country. The respondent did not learn that her father was not a bona
fide citizen until 1962. She believed that her true father was entitled
to bring her to the United States to join him, even though she did not

9

Interim Decision. #1677
understand in what status she was entering. Under the circumstances,
the respondent did not wilfully and knowingly make any false or misleading statement. Accordingly, the respondent must be considered
to have been "inspected" within the meaning of section 245 of the
Immigration and Nationality Act.
We find that on this record the respondent was inspected and admitted into the United States; that she has made an application for
adjustment of her status; that she is eligible to receive an imraigration
visa; that she is admissible to the United States for permanent residence and that an immigrant visa is immediately available to her by
reason of her preference status. An appropriate order will be entered.
ORDER: It is directed that the order entered by the special inquiry
officer on November 9, 1960 be and the same is hereby withdrawn.
It is further directed that the appeal be and the same is hereby
sustained; the alien's application for status as a permanent resident
alien pursuant to the provisions of section 245 of the Immigration

and Nationality Act is hereby granted.

10


Interim Decision #2153

MATTER OF POON '
In Visa Petition Proceedings
A-10106076
Decided by Board June 12,'1972
The holding in Matter of Ng, Interim Decision No. 2147, is extended to recognize
as valid for immigration purposes the adoption under Chinese law and custom
in Hong Kong in 1953 of a male child, even though not related by blood, not of
the same clan, and not of the same surname. [Matter of Chin, 12 I. & N. Dec.
240, reaffirmed.]
ON BEHALF OF PETITIONER:
Joseph S. Hertogs, Esquire

ON BEHALF OF SERVICE:
R. A. Vielhaber

580 Washington Street

Appellate Trial Attorney

San Francisco, California 94111
(Brief filed)

The United States citizen petitioner applied for preference
status for the beneficiary as her adopted brother under section
203(a)(5) of the Immigration and Nationality Act. The District
Director denied the petition on January 15, 1970. The petitioner
appeals from that denial. The matter will be remanded for further
proceedings.
The beneficiary is a male alien of Chinese ancestry who was
born in Hong Kong in 1949. The file contains a written agreement
of adoption dated October 30, 1953 according to which Cheung Yee
Muey

"of the Poon family," apparently the petitioner's mother,

adopted the beneficiary. The petitioner's father allegedly died in
1945.
The District Director based his denial upon. his conclusion that
(1) the applicable law of adoption was the Ching Code, and (2) the
Ching Code requires that "a male adopted child be related by blood
to the adopter or at least come from the same clan or have the
same surname." He cited the absence of any written evidence that
these requirements had been met and denied the application.
It is settled that the law of adoption applicable to Chinese
domiciled in Hong Kong, in addition to recent enactments by the

Hong Kong authorities, has been Chinese law and custom, Matter
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Interim Decision #2153
of Yue, 12 I. & N. Dec. 747 (BIA, 1968). In our recent precedent
decision in Matter of Ng, Interim Decision No. 2147 (BIA, April 28,
1972), we endorsed a definition of the term "Chinese law and
custom" which defined it as "the rules of law which were generally
in force in the Chinese Empire on 5th April 1843 together with and
subject to such rules of custom as were at that date and/or have
thereafter been applied in China or any part thereof or in Hong
Kong with the force of law." As we noted in the Ng case, the courts
of Hong Kong have defined Chinese law and custom "as partly
evidenced by, but not necessarily as wholly defined by or confined
to [the Ching Code]." See Matter of Chin, 12 I. & N. Dec. 240 (BIA,
1967).
The District Director's decision anticipated our subsequent precedent decision in Matter of Yiu, 13 I. & N. Dec. 624 (BIA, 1970). In
that decision, which was actually concerned with the validity of
the adoption of a female in Hong Kong under Chinese law and
custom, we noted that (1) "Chinese customary law permits adoption only for purposes of succession to the family [cult] and is
limited to males," (2) "the adoption of strangers is prohibited and
allowed only when a person has exhausted all his kindred," and (3)
"the adopted child must be of the same surname."
As we stated in Matter of Chin, supra, the Ching Code provided
for two kinds of adoption (1) adoption of a male child for the
purpose of instituting him as an heir for perpetuation of the
ancestral cult, and (2) adoption of a child, whether male or female,
without intending to institute it as an heir. In the Chin case we
noted that the Ching Code provided a number of restrictions with
respect to the first type of adoption, namely, that the child must be
male and must come from the same kindred, but that these
restrictions did not apply to the second type of adoption.
Subsequent to the District Director's decision in the present
case, we had occasion to reconsider the principles enunciated in
the Yiu decision. As a result, in Matter, of Ng, supra, we receded
from our holding in the Yiu, case and recognized the adoption of, a
female in Hong Kong under the Ching Code and Chinese custom
as a valid adoption of the second type.
The issue in the present case is whether we should apply the
same reasoning used in Matter of Ng, oupra, to the adoption in
Hong Kong of a male child, even though not related by blood, not
of the same clan, and not of the same surname. We believe the
question should be answered in the affirmative and we accordingly
extend our ruling in the Ng case to cover the present case. We also
reaffirm our earlier holding in Matter of Chin, supra, which
recognized the possibility of the simple adoption of a male of a
different family under the Ching Code.
156

Interim Decision #2153
In the present case the District Director never reached the
factual issue of the validity of the adoption. In the absence of any
findings in that regard we have no choice but to remand the
matter to the District Director for further proceedings. The following order will be entered.
ORDER: The case is remanded for further proceedings consistent with the foregoing.

157


Interim Decision #2362

MATTER OF MARTINEZ
In Exclusion Proceedings
A-17944885

Decided by Immigration Judge October 25, 1974
Affirmed by Board March 18, 1975
Applicant had been admitted to the United States for permanent residence in 1968. Two
years later, she left the United States, taking all her belongings with her and returned
to her native land where she lived and worked for three years prior to this application
for admission as a returning resident under section 101(a)(27)(B) of the Immigration and
Nationality Act Under the circumstances presented by this case, applicant's absence
was not temporary or unintentional. Therefore she was properly found excludable
under section 232(a)(20) of the Act.
EXCLUDABLE: Act of 1952—Section 212(a)(20), [8 U.S.C. 1182 (a)(20)[—Immigrant--No

valid immigrant visa.
ON BEHALF OF SERVICE:

Jesse M. Sellers
Trial Attorney
San Antonio, Texas

BEFORE THE IMMIGRATION JUDGE
(October 25, 1974)

This record relates to a 46-year-old single female alien, a native and
citizen of Mexico who last arrived in the United States at Eagle Pass,
Texas, on September 3, 1974, seeking admission as a returning resident,
under Section 101(a)(27)(B) of the Act. In support of her application for
admission she presented Form 1-151, certifying that she had been

admitted to the United States as an immigrant at Eagle Pass, Texas, on
February 1, 1E68. The examining officer was not satisfied that she was
clearly entitled to reenter the United States because it appeared that
she might coma within the exclusion provisions of Section 212(0(20) of
the Act, in that she had resided outside the United States since 1970.
Accordingly, she was held for a hearing before an immigration judge to
determine her admissibility (Exh. 1). At a hearing in exclusion proceedings held before me on October 17, 1974, at which she waived her right
to representation, it was brought out that applicant had been issued an
immigrant visa by a United States Consular Officer at Monterrey,
Nuevo Leon, Mexico, on January 23, 1968, and that she had been
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Interim Decision #2362
admitted into the United States at Eagle Pass, Texas, on February 1,
1968, as an immigrant, upon presentation of such visa (Exh. 2).
Applicant resided in Chicago, Illinois, with her brother until
November 1970, when she returned to Mexico. Her last employment in
the United States was at an automobile battery manufacturing company
located in Chicago, Illinois. In November 1970, approximately one
month after she lost her employment, she returned to Zaragoza,
Coahuila, Mexico, where she resumed her residence at 408 West
Galeana Street, with her mother. She has resided in Mexico with her
mother since then, returning to the United States on one occasion to

visit. Applicant explained that approximately one month. after she became unemployed, she packed up all her clothes and other personal
belongings and returned to Mexico.
The evidence establishes that on March 16, 1973, she appeared before
an official of the Civil Registry, Zaragoza, Coahuila, Mexico, and falsely
registered Miguel Angel Martinez and Marta Marcela Martinez, both
born in Allende, Coahuila, Mexico, on February 25, 1973, as her illegitimate children. On the date of her application for admission, she
attempted to register them as lawful permanent residents, pursuant to
8 CPR 211.1, as children born abroad to a lawful permanent resident
mother who was temporarily in Mexico, and who was returning to the
United States to resume her actual residence in this country. During the
course of the inspection it was discovered that the children were not
hers and that she had been residing in Mexico since November of 1970.
As a result of this development she was served with Form 1-122,
notifying her that she was being detained for a hearing before an
immigration judge to determine her admissibility.
The issues to be resolved in this case are: (1) whether the applicant
abandoned her residence in the United States upon her departure to
Mexico in November 1970; (2) whether after her departure to Mexico in
November 1970, she abandoned any intention she might have had to
resume her residence in the United States.
A returning resident alien, as defined in Section 101(a)(27)(B) of the
Act, is one who establishes upon her return to the United States:
(1) that he was in the status of one lawfully admitted for permanent residence before he

left the United States;
(2) that he left the United States intending to return within a period relatively short,
fixed by some early event;
•
(3) that he did not subsequently abandon that intention;
(4) that he is returning from a temporary visit abroad—that is, that at all times before
and since his departure, his actions indicated that the United States is his true and
permanent home.
The cases which have construed the phrase "temporary visit" have
established several factors which must be taken into consideration.

231

Interim Decision #2862
First, the duration of the absence has a definite bearing on whether it
can be deemed "temporary." See Gamero v. INS, 367 F.2d 123 (C.A. 9,
1966). Second, the location of the 'alien's family ties; property holdings.
and job, all relate to a determination regarding the character of a visit
abroad. Santos v.- INS, 421 F.2d 1303 (C.A. 9, 1970); Matter of Salviejo,
13 I. & N. Dec. 557 (BIA 1970). Finally, the intention of the alien with
respect to t oth the location of his actual home and the anticipated length
of his excursion have been deemed of significance to this inquiry. U.S.
ex. rel Lesto v. Day, 21 F.2d 307 (C.A. 2, 1927); Matter of Montero, 14 L
& N. Dec. 399, (BIA 1973).

In the absence of an admission of abandonment of residence, overt
actions suc:a as the nature and length of residence serve at the most
reliable inclicia of intent. In cases of prolonged absence from the United
States some aliens have been able to establish to the satisfaction of the
Attorney General that 'their departure and absence were occasioned by
a family emergency to which they felt compelled to respond and which
through no fault or act of their own, continued for a longer period than
anticipated, In other cases, such as Gamero v. INS, supra, Santos v.
INS, supra; and Matter of Salviejo, supra, the explanations for the long
absence was found unacceptable.

In the instant case, the applicant cannot be viewed as returning from
a temporary visit abroad. The evidence is clear that she has severed all
her ties with the United States and has remained in Mexico with her
mother since November of 1970. During this time she has had no
employment, business connections, family, social, cultural or other associations in the United States. In addition, there is no evidence that
she has an established permanent residence in the United States to
which she is returning after a temporary visit abroad. The undisputed
facts are that she has been residing in Mexico since November 1970; that
she has been in good health during the period of time involved; that she

has been gainfully employed at a motel in Zaragoza, Coahuila, Mexico,
as a maid since about four or five months after her return to Mexico; that
upon her return to Mexico she took all her clothes and personal belongings with her; that she has no bank account in this country; and that she
has no property in the United States. I find that the totality of the
evidence leads to the inescapable conclusion that she departed from the
United States in November of 1970, for the purpose of resuming her

the evidence clearly establishes that
regardless of what her intention upon her departure in November 1970,
might have been, applicant's stay in Mexico for four years cannot be
deemed temporary. She is, therefore, not entitled to admission upon
presentation of her alien registration receipt card. Since she does not
possess or present an immigrant visa, I hold that she is excludable
pursuant to Section 212(a)(20) of the Act, as an immigrant not in possesresidence in Mexico. In addition,

282

Interim Decision #2362
Slat of a valid, unexpired immigrant visa or other valid entry document.
Accordingly, the following order will be entered.
ORDER: It is ordered that applicant be excluded and deported from
the United States.

BEFORE THE BOARD
(March 18, 1975)
ORDER:
PER CURIAM. The decision of the immigration judge is affirmed.
The appeal accordingly is dismissed.

233


Cite as 27 I&N Dec. 295 (BIA 2018)

Interim Decision #3927

Matter of Shuying DING, Respondent
Decided May 21, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The term “prostitution” in section 101(a)(43)(K)(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), which provides that an offense relating to the
owning, controlling, managing, or supervising of a prostitution business is an
aggravated felony, is not limited to offenses involving sexual intercourse but is defined
as engaging in, or agreeing or offering to engage in, sexual conduct for anything of
value.
(2) The offense of keeping a place of prostitution in violation of section 944.34(1) of the
Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i)
of the Act.
FOR RESPONDENT: Thomas Guilde Halloran, Esquire, Oconomowoc, Wisconsin
FOR THE DEPARTMENT OF HOMELAND SECURITY: Erin O. Keeley, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY and WENDTLAND, Board Members. Dissenting
Opinion: COLE, Board Member.
PAULEY, Board Member:

In a decision dated July 27, 2017, an Immigration Judge terminated these
removal proceedings, finding that the respondent is not removable under
section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony
under section 101(a)(43)(K)(i) of the Act, 8 U.S.C. § 1101(a)(K)(i) (2012). 1
The Department of Homeland Security (“DHS”) has appealed from that
decision. The appeal will be sustained, the removal proceedings will be
reinstated, and the record will be remanded for further proceedings.
The respondent is a native and citizen of the People’s Republic of China,
who became a lawful permanent resident of the United States on December
6, 2010. She was convicted in 2017 of violating section 944.34(1) of the
Wisconsin Statutes, which provides that “[w]hoever intentionally . . . [k]eeps
1

Section 101(a)(43)(K)(i) of the Act provides that “an offense that . . . relates to the
owning, controlling, managing, or supervising of a prostitution business” is an aggravated
felony.

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a place of prostitution” is guilty of a felony. Wisconsin law defines a place
of prostitution in section 939.22(24) as “any place where a person habitually
engages, in public or in private, in nonmarital acts of sexual intercourse,
sexual gratification involving the sex organ of one person and the mouth or
anus of another, masturbation or sexual contact for anything of value.”
In determining that the respondent’s offense is not an aggravated felony,
the Immigration Judge relied on a decision in which we stated that for
purposes of section 212(a)(2)(D)(ii) of the Act, 8 U.S.C. § 1182(a)(2)(D)(ii)
(2006), “[t]he term ‘prostitution’ means engaging in promiscuous sexual
intercourse for hire.” Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549, 553
(BIA 2008) (quoting 22 C.F.R. § 40.24(b) (2006)). 2 The Immigration Judge
employed that definition in analyzing section 101(a)(43)(K)(i), which he
found only covered statutes that limit “prostitution” to acts involving
“sexual intercourse.” Because the Wisconsin statute included additional
sexual acts in its definition of prostitution, the Immigration Judge held that
it is overbroad relative to section 101(a)(43)(K)(i), and he terminated the
proceedings on that basis.
The Immigration Judge noted that his reasoning was in line with that of
the United States Court of Appeals for the Second Circuit, which concluded
that promoting prostitution under New York law was not an aggravated
felony under section 101(a)(43)(K)(i) of the Act because the State offense
“encompasses accepting payment for sexual acts beyond the ‘sexual
intercourse’ that is the exclusive subject of the immigration-law definition.”
Prus v. Holder, 660 F.3d 144, 147 (2d Cir. 2011) (per curiam); see also
Depasquale v. Gonzales, 196 F. App’x 580, 582 (9th Cir. 2006) (holding that
the offense of promoting prostitution in violation of Hawaii law is not a
section 101(a)(43)(K)(i) aggravated felony because the State’s definition of
prostitution “may include activity that is not necessarily sexual intercourse”).
To determine whether the respondent’s offense is an aggravated felony,
we apply the categorical approach set forth in Taylor v. United States, 495
U.S. 575 (1990), and its progeny. This approach requires us to compare the
elements of the respondent’s State statute of conviction to the Federal generic
definition of an offense that relates to the owning, controlling, managing, or
supervising of a prostitution business in section 101(a)(43)(K)(i) of the Act.
2

Section 212(a)(2)(D)(ii) of the Act renders an alien inadmissible if he or she, among
other things, “procures or attempts to procure . . . prostitutes or persons for the purpose of
prostitution.” (Emphases added.) Our holding in Matter of Gonzalez-Zoquiapan, 24 I&N
Dec. at 552, that section 212(a)(2)(D)(ii) does not cover acts of soliciting prostitution on
one’s own behalf, was primarily based on our conclusion that Congress had used the term
“procure” in this provision “in its traditional sense to refer to a person who receives money
to obtain a prostitute for another person.”

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Based on its survey of the State statutes in effect in 1994 when section
101(a)(43)(K)(i) was enacted, 3 the DHS has pointed out that only a handful
of States limited the definition of prostitution to acts involving sexual
intercourse at that time. 4 Our independent survey of State law from 1994 is
consistent with that of the DHS. 5 The majority of States employed a
definition of prostitution that included broad terms such as performing
or offering to perform sexual “acts,” “activity,” “conduct,” or “contacts”
for something of value. 6 The remaining States defined acts of prostitution
with a combination of such general terms and more specific ones,
including “touching,” “fondling,” “masturbation,” and “sodomy,” as well as
“fornication,” “penetration,” and “intercourse.” 7
The Immigration Judge acknowledged the DHS’s survey and agreed that
a conviction for keeping a place of prostitution under most, if not all, State
statutes could never serve as a predicate for removal under section
101(a)(43)(K)(i) because they are overbroad relative to the definition of
3

Section 101(a)(43)(K)(i) was added to the Act by section 222(a) of the Immigration and
Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, 108 Stat. 4305,
4320–21.
4
See Ga. Code Ann. § 16-6-9 (1994); La. Stat. Ann. § 14:82A (1994); Mont. Code Ann.
§ 45-5-601(1) (1994); N.C. Gen. Stat. § 14-203 (1994); Vt. Stat. Ann. tit. 13, § 2631 (1994).
5
Although the DHS has presented a separate survey indicating that in 2017 only three
States limited prostitution to acts involving sexual intercourse, we have consistently held
that “we are constrained to define offenses ‘based on the “generic, contemporary meaning”
of the statutory words at the time the statute was enacted.’” Matter of Sanchez-Lopez,
27 I&N Dec. 256, 260–61 (BIA 2018) (citations omitted).
6
See Alaska Stat. § 11.66.100(a) (1994); Ariz. Rev. Stat. Ann. § 13-3211(5) (1994); Ark.
Code Ann. § 5-70-102(a) (1994); Cal. Penal Code § 647(b) (West 1994); Conn. Gen. Stat.
§ 53a-82 (1994); Del. Code Ann. tit. 11, § 1342 (1994); D.C. Code § 22-2701.1(1) (1994);
Fla. Stat. § 796.07(a) (1994); Haw. Rev. Stat. § 712-1200(1) (1994); Idaho Code
§ 18-5613(1) (1994); Iowa Code § 725.1 (1994); Ky. Rev. Stat. Ann. § 529.020(1) (West
1994); Me. Stat. tit. 17, § 851(1) (1994); Mass. Gen. Laws ch. 272, § 53A (1994); Mo.
Rev. Stat. § 567.010(2) (1994); Nev. Rev. Stat. § 201.295(2) (1994); N.Y. Penal Law
§ 230.00 (McKinney 1994); N.D. Cent. Code § 12.1-29-03 (1994); Ohio Rev. Code Ann.
§ 2907.25(A) (West 1994); Or. Rev. Stat. § 167.007(1) (1994); 18 Pa. Cons. Stat.
§ 5902(A) (1994); S.C. Code Ann. § 16-15-375(4) (1994); S.D. Codified Laws § 22-23-1
(1994); Tenn. Code Ann. § 39-13-512(5) (1994); Tex. Penal Code Ann. § 43.02(a) (West
1994); Utah Code Ann. § 76-10-1302(1) (West 1994).
7
See Colo. Rev. Stat. § 18-7-201(1) (1994); 720 Ill. Comp. Stat. § 5/11-14(a) (1994); Ind.
Code § 35-45-4-2 (1994); Kan. Stat. Ann. § 21-3512(a) (1994); Md. Code Ann., Crim. Law
§ 16(c) (West 1994); Minn. Stat. § 609.321(9) (1994); Neb. Rev. Stat. §§ 28-801(1),
28-318(6) (1994); N.H. Rev. Stat. Ann. § 645:2(I) (1994); N.J. Stat. Ann. § 2C:34-1(a)
(West 1994); N.M. Stat. Ann. § 30-9-2 (1994); Okla. Stat. tit. 21, § 1030 (1994); Va. Code
Ann. §§ 18.2-346(A), 18.2-361 (1994); Wash. Rev. Code § 9A.88.030 (1994); Wis. Stat.
§ 944.30 (1994); Wyo. Stat. Ann. §§ 6-4-101, 6-2-301(a)(vii) (1994).

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prostitution we outlined in Matter of Gonzalez-Zoquiapan. But the
Immigration Judge found that this was the inevitable result of our definition
of prostitution. Likewise, while the respondent recognizes that section
101(a)(43)(K)(i) would have very limited applicability under the
Immigration Judge’s reasoning, she asserts that the proper recipient of any
criticism in this regard is Congress.
We disagree with the Immigration Judge and with the case law on which
he relied because the term “prostitution” in section 101(a)(43)(K)(i) does not
necessarily have the same meaning as it does in the inadmissibility provision
at section 212(a)(2)(D). “It is not unusual for the same word to be used with
different meanings in the same act, and there is no rule of statutory
construction which precludes the courts from giving to the word the meaning
which the Legislature intended it should have in each instance.” Atlantic
Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932); see also Evntl.
Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007).
Congress may have intended the term “prostitution” in section
212(a)(2)(D) of the Act to have a narrower scope than the same term in
section 101(a)(43)(K)(i). Section 212(a)(2)(D) renders inadmissible aliens
coming to the United States who engage in prostitution, or who procure or
import prostitutes, whereas section 101(a)(43)(K)(i) applies to aliens
convicted of “an offense that . . . relates to” the operation of “a prostitution
business.” 8 Many years have also passed since the earliest immigration laws
prohibiting the importation of women for “prostitution” in 1875 and the
enactment of section 101(a)(43)(K)(i) in 1994, so the term’s meaning has
likely changed over time to include conduct beyond sexual intercourse. See
Matter of Gonzalez-Zoquiapan, 24 I&N Dec. at 552.
More significantly, section 101(a)(43)(K)(i) should not be so narrowly
construed as to exclude most States’ statutes proscribing the operation of
a prostitution business from serving as predicates for removal. See
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1571 (2017) (declining to
construe a term in a manner that “would come close to nullifying that
term’s effect in the statute” and “categorically exclude the . . . laws of most
States” (citation omitted)); Torres v. Lynch, 136 S. Ct. 1619, 1628 (2016)
(stating that the categorical approach should not be applied so as to
produce the “haphazard” result of preventing the Act from applying to a
significant majority of State offenses (quoting Nijhawan v. Holder, 557 U.S.
29, 40 (2009)); Matter of Keeley, 27 I&N Dec. 146, 153 n.8 (BIA 2017).

8

The existence of section 212(a)(2)(D)(iii) of the Act, which renders inadmissible aliens
“coming to the United States to engage in any other unlawful commercialized vice, whether
or not related to prostitution,” further supports our view that the term “prostitution” in
section 212(a)(2)(D) has a narrower scope than the same term in section 101(a)(43)(K)(i).

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There is no indication in Prus and Depasquale that the Second and Ninth
Circuits were presented with evidence that their interpretation of section
101(a)(43)(K)(i) would narrowly confine the applicability of that provision
to a few jurisdictions. And while the Immigration Judge had this evidence,
he decided to apply the general maxim of statutory construction that identical
words used in different parts of a statute are presumed to have the same
meaning. We conclude that the Immigration Judge erred in this regard.
For purposes of section 101(a)(43)(K)(i) of the Act, we now hold that the
term “prostitution” is not limited to offenses involving sexual intercourse
but is defined as engaging in, or agreeing or offering to engage in, sexual
conduct for anything of value. 9 This definition is similar to the “[a]ct of
performing, or offering or agreeing to perform a sexual act for hire,” as
Black’s Law Dictionary 1222 (6th ed. 1990) defined “prostitution” when
section 101(a)(43)(K)(i) was enacted.
Moreover, section 101(a)(43)(K)(i) does not proscribe merely engaging
in prostitution. Rather, it reaches offenses of a commercial nature that
“relate[] to the owning, controlling, managing, or supervising of a
prostitution business.” Thus, it cannot reasonably be argued that the concept
of “keeping” a place of prostitution, as required by the elements of section
944.34(1) of the Wisconsin Statutes, falls outside the scope of section
101(a)(43)(K)(i). Cf. Familia Rosario v. Holder, 655 F.3d 739, 748 (7th Cir.
2011) (holding that “importation into the United States of any alien for the
purpose of prostitution” under section 278 of the Act, 8 U.S.C. § 1328 (2006),
is not categorically an aggravated felony under section 101(a)(43)(K)(i)
because “[t]he statute, by its very terms, includes conduct that might have
nothing to do with ownership, control, management or supervision of a
business”).
Finally, we are unpersuaded by the respondent’s argument that our
holding may not be applied to her under the principles of retroactivity. When
she committed her offense, neither the Board nor the Seventh Circuit, in
whose jurisdiction this case arises, had held that her offense was not an
aggravated felony. Therefore, the respondent’s reliance on any belief that
her offense would not render her removable was misplaced.
9

The DHS argues that we should also withdraw from Matter of Gonzalez-Zoquiapan to
the extent that it adopted a narrower definition of the term “prostitution.” However, the
meaning of the term “prostitution” in section 212(a)(2)(D) is not at issue in this case. We
reiterate that Congress may have intended “prostitution” to mean different things in
sections 212(a)(2)(D) and 101(a)(43)(K)(i) of the Act. We therefore decline to revisit
Gonzalez-Zoquiapan at this time. In any event, the categorical approach is inapplicable to
section 212(a)(2)(D) because that provision does not require a conviction. See Matter of
Obshatko, 27 I&N Dec. 173, 175 & n.2 (BIA 2017).

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Section 101(a)(43)(K)(i) of the Act is not limited to offenses involving
sexual intercourse for hire. Rather, it encompasses offenses relating to
the operation of a business that involves engaging in, or agreeing or
offering to engage in, sexual conduct for anything of value. 10 Consequently,
we conclude that the respondent’s conviction for keeping a place of
prostitution in violation of section 944.34(1) of the Wisconsin Statutes is
categorically for an aggravated felony and renders her removable under
section 237(a)(2)(A)(iii) of the Act. The Immigration Judge therefore erred
when he terminated her removal proceedings. Accordingly, the DHS’s
appeal will be sustained, the removal proceedings will be reinstated, and the
record will be remanded for further consideration of any relief for which the
respondent may be eligible.
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.

DISSENTING OPINION: Patricia A. Cole, Board Member
I respectfully dissent. I agree with the Immigration Judge’s decision that
the respondent’s conviction is not for an aggravated felony under the existing
Federal definition of “prostitution.” The majority has crafted a definition of
prostitution for purposes of section 101(a)(43)(K)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), as engaging in, or
agreeing or offering to engage in, sexual conduct for anything of value. The
majority decision concludes that this newly crafted definition categorically
covers the conduct proscribed by the Wisconsin statute at issue in this case,
but it notes that the precise contours of the term “sexual conduct” will be
decided in future cases. This overly broad definition is supported by limited
analysis, and it is contrary to immigration law, the law of the United States
Court of Appeals for the Seventh Circuit, and the canons of statutory
construction.
The majority does not provide any analytical authority for its definition
other than noting that the definition is “similar” to that of Black’s Law
10

The respondent does not argue that Wisconsin law reaches conduct beyond “prostitution”
under section 101(a)(43)(K)(i), assuming, as we now hold, that that term is not limited to
acts involving sexual intercourse. We will therefore leave the precise contours of the
concept of “sexual conduct” for a case in which an alien argues that his or her offense does
not fall within that phrase.

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Dictionary and providing, without any analysis, a survey of the definitions
of “prostitution” from the 50 States and the District of Columbia in 1994.
Additionally, the majority does not even discuss the ramifications of its new
definition of prostitution for section 101(a)(43)(K)(ii) of the Act, which
references the provisions of 18 U.S.C. §§ 2421, 2422, and 2423 (2012),
which relate to engaging in “prostitution, or in any sexual activity.”
As the majority acknowledges, the question whether the respondent’s
crime constitutes an aggravated felony is governed by the categorical
approach set forth in Taylor v. United States, 495 U.S. 575 (1990), and its
progeny. Under this approach, we compare the scope of conduct punished
under section 944.34(1) of the Wisconsin Statutes, which proscribes keeping
a place of prostitution, to the generic definition of an offense that relates to
the owning, controlling, managing, or supervising of a prostitution business
in section 101(a)(43)(K)(i) of the Act. Only the minimum criminal conduct
necessary to sustain a conviction under a given statute is relevant.
The Immigration Judge relied on our decision in Matter of
Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008), where we adopted the
definition of prostitution contained in the Department of State regulation at
22 C.F.R § 40.24(b) (2006), which limited prostitution to acts involving
“sexual intercourse.” The majority finds that the distinction between a
ground of inadmissibility and the aggravated felony ground of removability
supports its conclusion that a different definition of prostitution is warranted
in this case. However, this distinction is an insufficient basis to create a
different definition of prostitution under section 101(a)(43)(K)(i) of the Act.
Moreover, unlike the majority, I conclude that the Immigration Judge
properly applied the canon of statutory interpretation that is employed in
the Seventh Circuit, namely, the presumption that identical words used in
different parts of the same statute should carry the same meaning. See White
v. Scibana, 390 F.3d 997, 1002 (7th Cir. 2004) (applying “the general rule of
statutory construction that identical words used in different parts of the same
statute are presumed to have the same meaning”). This rule of statutory
construction is also supported by a decision of the Second Circuit, which
held that a New York conviction for promoting prostitution was not for an
aggravated felony under section 101(a)(43)(K)(i) of the Act because the State
offense, which reached acts of prostitution beyond sexual intercourse, was
broader than the generic definition under the Act. Prus v. Holder, 660 F.3d
144, 146–47 (2d Cir. 2011) (per curiam) (relying on the definition in Matter
of Gonzalez-Zoquiapan, 24 I&N Dec. at 553); see also Kepilino v. Gonzales,
454 F.3d 1057, 1061 (9th Cir. 2006) (relying on the State Department’s
definition of “prostitution” in determining the alien’s inadmissibility under
section 212(a)(2)(D)(i) of the Act, 8 U.S.C. § 1182(a)(2)(D) (2006)).

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Furthermore, as the respondent argues on appeal, although Black’s Law
Dictionary defines prostitution more broadly than the definition we applied
in Matter of Gonzalez-Zoquiapan, on which the Immigration Judge relied,
there are other definitions of “prostitution” that support our prior definition
of that term. See Dictionary.com Unabridged, http://www.dictionary.com
/browse/prostitution (last visited May 21, 2018) (defining prostitution as “the
act or practice of engaging in sexual intercourse for money” (emphasis
added)); The Law Dictionary, https://thelawdictionary.org/prostitution/ (last
visited May 21, 2018) (defining prostitution as “the act or practice of a
woman who permits any man who will pay her price to have sexual
intercourse with her” (emphasis added)).
Although the majority concludes that the appropriate time for assessing
the state of the law in determining the meaning of the term “prostitution”
in section 101(a)(43)(K) of the Act is 1994, apparently that was not the
case when we decided Matter of Gonzalez-Zoquiapan and announced the
narrow definition of prostitution for immigration purposes. I agree with
the Department of Homeland Security that the only existing immigration
definition of prostitution is quite limited in the aggravated felony context,
but I cannot support the majority’s overly broad definition for the term based
on a supposition that Congress “may have intended” a different meaning in
section 101(a)(43)(K). Matter of Ding, 27 I&N Dec. 295, 298 (BIA 2018).
Congress has expanded and limited the language relating to prostitution
in the Act through the years. Specifically, former section 212(a)(12) of the
Act, 8 U.S.C. § 1182(a)(12) (1988), the direct predecessor of section
212(a)(2)(D), rendered excludable “aliens who directly or indirectly procure
. . . prostitutes or persons for the purpose of prostitution or for any other
immoral purpose.” (Emphasis added.) Congress eliminated the more
expansive language relating to “any other immoral purpose” when it enacted
section 212(a)(2)(D)(ii). See Immigration Act of 1990, Pub. L. No. 101-649,
§ 601(a), 104 Stat. 4978, 5067–68. The more limited definition of
prostitution that the Immigration Judge relied on below is also supported by
that 1990 amendment. I agree with the respondent that it is the Congress that
should provide any new definition for “prostitution,” because neither the
legislative history of the term nor the aggravated felony ground in section
101(a)(43)(K)(i) supports the majority’s new definition.
Finally, I would note that section 101(a)(43)(K)(i) of the Act, which
designates as an aggravated felony “an offense . . . that relates to the owning,
controlling, managing, or supervising of a prostitution business,” is more
akin to the plain language of section 212(a)(2)(D)(iii), which covers aliens
“coming to the United States to engage in any other unlawful commercialized
vice, whether or not related to prostitution.” I believe those provisions
should be interpreted similarly.
302


Interim Decision #1764

Mawr= or Brovr
In Section 245 Proceedings
A-12083668
Decided by District Director May 86,1967
An applicant for adjustment of status pursuant to section 245 of the Immigra•
Pion and Nationality Act, as amended, who is a nonpreference immigrant
alien who is an employee of a foreign embassy in the United States (section
101(a) (15) (A) (ii) of the Act) and who intends to continue such employment,
is subject to the labor certification requirement of section 212(a) (14) of the
Act.

The applicant is a 65-year-old widow, a native of England and
citizen of Canada, who was admitted to the United States as a temporary visitor on June 4, 1960. After admission her nonhrunigrant
status was changed to that of an employee of a foreign government
under seetion. 101 (a.) (15) (A) (ii) of the Immigration and Nationality
Act. From July 1960 to April 1962, she was employed as a clerk-typist
by the British Embassy, Washington, D.C., and since that time she
has been employed in the same capacity by the Canadian Embassy,
Washington, D.C. She has applied for permanent residence status
under section 245 of the Act as a nonpreference immigrant alien. No
certification under section 212(a) (14) of the Act was submitted with
the application. Nevertheless, the application was accepted pending a
determination as to whether she was exempt from the requirements
of that section on the basis of her foreign government employee
status, which she expected to continue.
Among the classes of aliens who are excludable from admission to
the United States is the class of aliens described in section 212(a) (14),
as amended by the Act of October 3, 1965, which reads in pertinent
part: "Aliens seeking to enter the United States, for the purpose of
performing skilled or unskilled labor, unless the Secretary of Labor
has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United
States who are able, willing, qualified, and available at the time of application for a visa and admission to the United states and at the

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Interim Decision #1764
place to which the alien is destined to perform such skilled or =skilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in. the
United States similarly employed. The exclusion of aliens under this
paragraph shall apply to . . . nonpreference immigrant aliens described in section 203 (s) (8)."
The Act fails to exempt specifically from the labor certification
requirement those persons who are employed by foreign governments.
However, in view of the limited locale of most such employment, the
fact that salary and working conditions are not normally related to
similar jabs in industry, even in the same general area, and that often
the prospective employee must have the nationality of the employing
government or at least not be a. citizen of the United States, the question of the applicability of section 212(a) (14) to aliens seeking status
as lawful permanent residents for the purpose of engaging or continuing such employment was presented to the Department of Labor
for consideration.
Noting that such aliens may continue to engage in the work in question as nonimmigrant aliens and after full consideration of the factors
involved, the Administrator of the Bureau of Employment Security
of the Department of Labor advised that the certification requirements
should aptly to employees of embassies seeking permanent residence
status. We agree.
Subsequently, on April 19, 1967, an appropriate certification by
the Department of Labor covering the position was issued. The applicant has complied with the requirements of section 212(a) (14). She
has also filed a written waiver, pursuant to section 247 (b) of the Act
and as required by section 245.1(c), Title 8, Code of Federal Regulations, of the rights, privileges, exemptions and immunities which
would otherwise accrue to her by reason of her employment by a
foreign government. She has been found to be admissible to the United
States for permanent residence and eligible in every respect to receive
an immigrant visa. Such a visa is immediately available. It is concluded that the applicant is eligible, statutorily and as a matter of
discretion, for the status which she seeks.
ORDER: It is ordered that the application for status as a permanent resident be and the same is hereby granted.

349


Interim Decision #1901

MATTER OF THOMPSON

In Deportation Proceedings
A-18180078
Decided by Board August 29, 1968
Deportability under section 241(a) (1), Immigration and Nationality Act, for
lack of a valid section 212(a) (14) labor certification at entry is not sustained in the case of an alien who, acting in good faith, was admitted in
possession of an immigrant visa based on a labor certification as a sleepin domestic, who failed to obtain the employment with the prospective employer because it had been withdrawn the morning of the day of her arrival, and who obtained another job the following morning as a sleep-in
domestic for which she secured a new labor certification. [Matter of Paco,
12 L & N. Dec. 599, distinguished.]
CHARGE:

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1--Excludable at entry—lacking certification required under
section 212(a) (14), 1952 Act (8 U.S.C. 1182(a)
(14)
).

ON BEHALF

or

SERVICE:

Newton T. Jones
Trial Attorney

The special inquiry officer found respondent deportable and
granted her voluntary departure, He certified his order to the
Board.
Respondent, a 32-year-old married female, a native and citizen
of Jamaica, and an experienced domestic, received a certification
from the Department of Labor that her entry for permanent residence to take employment in the Baltimore, Maryland area as a
sleep-in domestic was authorized because sufficient workers were
not available and her employment would not adversely affect
workers similarly employed. The certification was dated December 5, 1967. Her visa was issued on March 8, 1968. Respondent
arrived on March 13, 1968 at 6 P.M. and was admitted. The admitting immigrant inspector whom she asked to call her prospective employer was informed that the offer of employment had
1

Interim Decision #1901
been withdrawn that morning. The employment agency which
had made the arrangement placed the respondent in another job
as a sleep-in domestic the next morning and secured another
labor certification for her. She is now employed as a sleep-in
domestic.
The special inquiry officer found that respondent acted in good
faith, and the equities were strong in her behalf ; however, he is
of the opinion that Matter of Paco, 12 I. & N. Dec. 599, required
the respondent to be found deportable as charged. We believe that
Paco is distinguishable and respondent is not deportable. Paco involved a sleep-in domestic whose offer of employment was withdrawn before she came to the United states, and who did not find
certifiable employment available. (Her job offer may not have been
a bona fide one, and there is an indication that she was aware of
this.) In the instant case, there is no question but that the respondent acted in good faith; a job was available within the
terms of the labor certificate, and she took such a job. The protection the law seeks to give American labor is no way compromised.
Proceedings will be terminated.

ORDER: It is ordered that the special inquiry officer's order of
July 22, 1968 be and the same is hereby withdrawn.
It is further ordered that the proceedings be and the same are
hereby terminated.

2


Interim Decision #2881

MATTER OF COLLEY,

et al.

In Visa Petition Proceedings
PHI-N-8302-8305
Decided by Commissioner June 19, 1981
(1) Beneficiaries, employed as aerial survey pilot, survey pilot/ navigator, aerial photographer, and aerial camera operator, possessed the requisite "specialized knowledge"
within the meaning of sectiqn 101(a)(15)(L) of the Immigration and Nationality Act,
8 U.S.C. 1101(a)(15)(L), to be classified as intracompany transferees because their
skills were necessary to operate the unique and unusually sophisticated aerial photography and computerized navigational system developed by the Canadian parent company. The petitioner has also demonstrated that all four beneficiaries have been employed by the parent company in excess of one year and that their services are essential
for the successful operation of this particular equipment.
(2) In Matter of Rautin, 13 I&N Dec. 618, and Matter of LeBlanc, 13 l&N Dec. 816, the
oceupatinns did not inherently qualify the beneficiaries and the Service looked for
elements beyond general job tasks and duties for the specialized knowledge related to
the proprietary interests of the business, its management, and concerned skills or
knowledge related to the proprietary interests of the business, its management, and
concerned skills or knowledge not readily available in the job market.
(3) Specialized knowledge must be relevant to the business itself and directly concerned
with the expansion of commerce or it must allow a business to become competitive in
overseas markets. Matter of Michelin Tire Corporation, 17 I&N Dec. 248 (R.C. 1978).
(4) Most employees today are specialists and have been trained and given specialized knowledge; however, it can not he concluded that all employees,with specialized knowledge
or performing highly technical duties are eligible for classification as intracompany
transferees.
ON BEHALF OF PETITIONER: Howard R. Scherer
Montgomery, McCracken,
Walker, and Rhoads
Three Parkway
Philadelphia 19105

This matter is before me on certification from the Regional Commissioner in accordance with 8 CFR 103.4.
The District Director found the beneficiaries eligible as intracompany.
transferees under section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. I101(a)(15)(L), on October 21, 1980. The District
Director reopened that decision based upon his motion, approved the
visa petitions and certified the proceeding to the Regional Commissioner.
117

Interim Decision #2881
The Regional Commissioner affirmed the District Director's decision
approving the visa petitions.
The petitioner seeks to classify the beneficiaries as intracompany

transferees based upon the claim that they possess specialized knowledge and that they have been employed by the Canadian parent firm for
at least 1 year. The petitioner seeks to employ the beneficiaries in the
following occupations: aerial survey pilot, survey pilot/navigator, aerial
photographer, and aerial camera operator. The District Director
approved the petitions based upon n broad interpretation of the term
"specialized knowledge" and the fact that the beneficiaries possessed
highly technical skills acquired and practiced over a period of years. The
District Director also relied upon the Dictionary of Occupational Titles
(U.S. Department of Labor, Employment and Training Administration,
Fourth Edition, 1970) which classified the identified occupations as
"Professional, Technical and Managerial." The District Director concluded "(t]he Service does not enhance it's responsibilities by attempting to narrowly draw terms left undefined, persumable [sic] on purpose,
by the Congress."
Section 101(a)(15)(L) of the Act, 8 U.S.C. 1101(A)(15)(L), reads as
follows:
(L) an alien who, immediately preceding the time of his admission into the United

States, has been employed continuously for one year by a firm or corporation or other
legal entity or an affiliate or subsidiary thereof and who seeks to enter the United
States temporarily in order to continue to render his services to the same employer or a
subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves
specialized knowledge,

The petitioner, Capital Air Surveys, Inc., was incorporated in the
state of Delaware on February 22, 1980. It has obtained a Certificate of
Authority from the Commonwealth of Pennsylvania authorizing the
transaction of the business of conducting aerial land surveys. The petitioner is a wholly-owned subsidiary of Capital Air Surveys Limited,
Pembroke, Ontario, Canada which was incorporated in that country in
1957. The United States subsidiary specifically seeks aerial photography and survey work in this country thus expanding its business operation into the United States. The petitioner has one aircraft registered in
the United States and has established a business office at 6241 Saltsburg
Road, Pittsburgh, Pennsylvania. The value of the aircraft and the specialized aerial survey equipment is estimated to be $1,750,000 and
$360,000, respectively. The petitioner's counsel states that the company
has previously submitted bids for performance of aerial survey contracts in the United States and while these bids were not successful, it is
the company's intention to establish'an ongoing business in the United
states.
The evidence and information furnished clearly establishes that the
118

Interim Decision #2881
petitioner is a bona fide business entity incorporated under laws of
Delaware. The fact that the petitioner to date has not performed any
actual business or work is not material In Matter of LeBlanc, 13 I&N
Dec. 816 (R.C. 1971), the'Service determined that an alien beneficiary
may be coming to the United States to establish an affiliate or subsidiary office and the affiliate or subsidiary need not be in existence or be
operational at the time of admission. Furthermore, H.R. Rep. No_

91-851 in section 1(b) specifically- states that the provision was enacted
to address the absence of statutory provision for "international executives to be admitted for temporary assignments with parent Companies,
branches or affiliates . . ." The Report also refers to intracompany transfers for companies with "branches both in Canada and the United States"
and freely uses the term international corporations throughout. There is
no wording either in the Act or legislative history to indicate the L
nonimmigrant visa category was to be limited to American parent
corporations thus restricting the movement of foreign corporations and
their investments into the United States. As a wholly owned subsidiary
of a Canadian Company, I find that the petitioner may employ qualified
employees under section 101(a)(15)(L), 8 U.S.C. 1101(a)(15)(L).
The remaining issues are to determine whether or not the beneficiar-

ies will be employed by the petitioner in an executive or managerial
occupation or in a capacity involving specialized knowledge and that the
beneficiaries have been employed by the same employer or affiliate or
subsidiary thereof for one year prior to' their admission. The record of
proceedings establishes that the petitioner has contracted to perform
high altitude jet photography for Teledyne Geotronics of Long Beach,
California. The altitude will range from 42,000 to 48,000 feet.' The petitioner claims that the use of its equipment and process requires specialized knowledge well outside the parameters of a traditional survey pilot,
navigator, or camera operator and that the terms of contract require the
use of highly complex equipment.
The term specialized knowledge is not defined by statute. H.R. Rep.
No. 91-851 also fails to provide a precise definition of the term but the
Report does state that the purpose of the L provision is to facilitate the
admission of "key personnel" and "managerial personnel." The Report
furthermore states: "The class of persons eligible for such nonimmigrant
visas is narrowly drawn and will be carefully regulated and monitored
by the Immigration and Naturalization Service."•Thus, the intent of
Congress was not to authorize the admission of all employees.
The modern workplace requires a high proportion of technicians and
specialists. Most employees today are specialists and have been trained
and given specialized knowledge. However, in view of the House Report,
it cannot be concluded that all employees with specialized knowledge or
performing highly technical duties are eligible for classification as intra-

119

Interim Decision #2881
company transferees. The House Report indicates the employee must
be a "key" person and associates this employee with "managerial
personnel."
In Matter of Raulin 13 I&N Dec. 618 (R.C. 1970), an L-1 nonimmigrant visa classifications was accorded to an executive secretary. In
Matter of LeBlanc, 13 I&N Dec. 816 (R.C. 1971), a sales assistant was
determined to be eligible for classification as an intracompany transferee.
In both of these decisions, the Service did not find that the occupations
inherently qualified the beneficiaries for the classification sought and
looked for elements beyond general job tasks and duties. Both decisions

reste d on a finding that the beneficiaries had essential knowledge of the
business's product or service, management operations, decision making
process, or similar elements. In other words, the specialized knowledge
related to the proprietary interests of the business, its management,
and concerned skills or knowledge not readily available in the job market.
Similarly, in Matter of Michelin Tire Corporation 17 I&N Dec. 248
(R.C- 1978), the Service found that the specialized knowledge must be
relevant to the business itself and directly concerned with the expansion
of commerce or it must allow a business to become competitive in over-

seas markets. In that case, the Service denied classification to a highly
educated and experienced teacher who was to instruct the children of
French employees in order that the students not retrogress in their
studies upon their return to the French educational system.
The petitioner in this proceeding has furnished additional evidence
and information which demonstrates that it is involved in unusually
sophisticated aerial photography and that it uses a computerized navigational and camera operating system known as a dual channel digital
control system. The system was developed by the parent company and a
patent is being sought. The system is unique to the company although
perhaps two other similar systems exist in North America. The Chief,
Procurement Section, Contract Management 'Division of the U.S.
Geological Survey has confirmed that the camera operation and navigational systems used in high altitude jet photography are essentially
developed "in house" by the companies engaged in such photography
and that systems are not commercially available at this time. The petitioner has also demonstrated that all four beneficiaries have been
employed by the parent company in excess of 1 year and that their
services are essential for the successful operation of this particular
equipment.
In view of the foregoing discussion, I find the beneficiaries to be
involved in duties which are necessary in order for the company to
remain competitive, that those duties related directly to the product or
service of the company, and that the beneficiaries have specialized knowl-

edge of the equipment and particular techniques used by the petitioner
120

Interim Decision #2881

and which are within the proprietory knowledge of the petitioner. I,
therefore, find the beneficiaries eligible for the classification sought.
ORDER: The petitions are approved.

121


MATTER OF M/V "TRINITY MARINER"
In Fine Proceedings
BAL-10/1.528
Decided by Board May 3, 1978
(1) A Service delay in instituing fine proceedings which prevents the carrier from presenting evidence on the issue of mitigation is a mitigating factor in a fine under section 254 of
the Act.
(2) An alien crewman admitted in TRWOV status to proceed to his vessel ceases to be a
TRWOV nonimmigrant upon joining the vessel and assumes the status of a crewman;
the provisions of section 254 of the Act are thereafter applicable to him and liability for
fine under section 271 of the Act does not lie.
(2) One or multiple violations by the same crewman in the course of a single trip to the
TInitacl States raaalta in a single fine titular section 254 of the Act_

Failure to report a desertion within 24 hours of the time such desertion becomes known
constitutes lack of compliance with section 251 of the Act; the express language of
section 251 precludes remission of the fine once liability has been established.

(4)

BASIS FOR FINE: Act of 1952—Section 251 (8 U.S.C. 1281]
Section 254 [8 U.S.C. 1284]
Section 271 [8 U.S.C. 1321]
rn re: M/V "TRINITY MARINER," which arrived at the port of Baltimore, Maryland,
from foreign, on March 19, 1974. Alien crewman involved: GWC JONG LUH
ON BEHALF OF SERVICE:

OM BEHALF OF CARRIER:
Geoffrey S. Tobias, Esquire
Ober, Grimes, & Shriver
1600 Maryland National Bank Building
Baltimore, Maryland 21202

George W. Masterton

Appellate Trial Attorney

BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

This is an appeal from the decision of the District Director dated

S eptember 12, 1977, finding that the appellant carrier had incurred fines
totaling $2,010 arising from its failure to detain an alien crewman. Since
it appears that the appeal may have been untimely filed, we shall
433iisider the case on certification as provided by 8 C.F.E._ 3.1(c). The
appeal will be sustained in part and dismissed in part.
The alien crewman arrived in Seattle, Washington, by air on March 7,
L.974, en route to join the M/V "Trinity Mariner" at Portland, Maine,
508

Interim Decision *Zti4t3
and was issued a Form 1 194, Arrival-Departure Record, endorsed as
follows:
TRWOV
AUTHORIZED BY AGREEMENT
UNDER SEC. 238(d), I. & N. ACT
ADMITTED SEA
DATE 3-7-74 VI NO. S07

CARRIER MUST ASSURE DEPARTURE
OF ABOVE NAMED PERSON
BY 517174 VIA TRINITY MARINER
FROM (PORT) PORTLAND, ME.

The crewman jointed the vessel which thereupon sailed coastwise,
arriving at Baltimore without touching foreign on March 19, 1974.._On
March 29,1974, the crewman was apprehended at the Greyhound His
Depot in Baltimore in possession of a one-way ticket to Boston. He was
returned to the vessel and ordered detained and deported by Service of
a Form 1-259 on representatives of the vessel. On April 15, 1974, after
the vessel had sailed foreign, the Service.was notified that the crewman
had deserted the vessel on April 12, 1974.
In June, 1970, over two years after liability for fine was incurred, a

Form 1-79, Notice of Intention to Fine, was issued alleging violations of
section 251 of the Immigration and Nationality' Act, 8 U.S.C. 1281
(failure to file a timely notice of a desertion); section 254 of the Act, 8
U.S.C. 1284 (failure to detain on board an' alien crewman ordered
detained); and section 271 of the Act, 8 U.S.C. 1321 (failure to prevent
the unauthorized landing of an alien). All of the above charges were
sustained by the District Director who imposed fines in the amount of
$1,000 each for violations of sections 254 and 271 and $10 for violation of
section 251, the maximum penalties provided by the Act.'
On appeal, counsel does not contest the Service's allegation that the

crewman had deserted and he thus concedes liability for fine. He contends, however, that by the time the Notice of Intention to Fine had
been served, all parties with knowledge of the events in issue had long
since severed their relationship with the vessel and records relevant to a
determination of whether mitigation may be warranted were no longer
available. In essence, counsel argues that the Service's long delay in
bringing these proceedings precluded the appellant from presenting any
evidence which would justify mitigation of the fine and that the imposition of maximum penalties under these circumstances constitutes a
violation of the appellant's due process rights.
Inasmuch as the Service's failure to act promptly appears to have
prevented the appellant from establishing mitigation as counsel contends, we shall mitigate the fine on the section 254 charge to $200, the
maximum reduction allowable under the statute.
509

11UGL 11111 1-ACC.1.1.L111

irLAY*0

We find, however, that liability for fine under section 271 of the Act,'
does not lie on the facts of this case and we shall accordingly grant
remission of the fine imposed pursuant to that section. We have held
that once an alien crewman admitted in TRWOV status to proceed to his
vessel has joined the vessel, the purpose of his transit without visa is
fulfilled; he ceases to be a TRWOV nonimmigrant and assumes the
status of a crewman at the time he joins his vessel and the provisions of
section 254 of the Act are thereafter applicable to him. See Matter of

M/V Ferrol, 14 I. & N. Dec. 18 (BIA 1972). In Matter of SS Greystoke
Castle and M/V Western Queen, 6 I. & N. Dec. 112 (BIA 1954; A.G.

1954), a case decided on a different issue, we observed that the effect of
the phrase "including an alien crewman whose case is not covered by
section 254(a)" in section 271 is to exclude from the provisions of section
271 alien crewman whose cases fall within section 254. The Board
stated, "where Congress has prescribed a specific procedure in section
254(a)to prevent the unauthorized landing of alien crewmen, the similar
provisions of section 271(a) were to be inapplicable in such cases."
Inasmuch as the alien in the present case became a crewman upon
joining the M/V "Trinity Mariner" on March 7, 1974, his case is covered
by Section 254 and, consequently, the fine under section 271 was improperly imposed.
While it appears that two separate violations of section 254 may be
involved in this case, one or multiple violations by the same crewman
results in a single fine under section 254. See Matter of M IV Signeborg, 9
I. & N. Dec. 6 (BIA 1960).
We agree with the District Director that liability for fine has been
incurred under section 251 of the Act._ Failure to report a desertion
within 24 hours of the time such desertion becomes known constitutes
lack of compliance with that section. See 8 C.F.R. 251.2. The express
language of section 251 bars remission of the fine once liability under the
statute has been established.
We shall modify the District Director's decision in accordance with
the foregoing opinion.
ORDER: The decision of the District Director is modified to provide
for mitigation of the penalty under section 254 to the extent of $800 and
for remission of the penalty under section 271; and that so modified, the
decision of said official is hereby affirmed_ The penalty is permitted to

stand at $210.
I Section 271 provides in pertinent part: "(a) It shall be the duty of every person . .
bainging an alien to, or providing a means for an alien to come to, the United States
(Excluding an alien crewman whose case is not covered by section 254(a)) to prevent the
lAnding of such alien in the United States at a port of entry other than as designated by the
Attorney General or at any time or place other than as designated by the immigration
officers".
510


MATTER OF SS "SAN MARCO IV"

In FINE Proceedings
NYC-10/52.49
Decided by Board July 6, 1961
Fine—Vessel's owners solely liable under sec. 243(e) for failure to pay crewman's deportation expenses—Liability for failure to comply with "order"
under sec. 243(c) depends upon contemporaneous association with vessel.
(1) Section 243(e) of the 1952 Act does not allow imposition of fine against
vessel's agents for failure or refusal to pay costs of deporting alien crewman. Under section 243(c) these expenses are assessable solely against
vessel's owners and penalty under section 243(e) for failure to make payment cannot be incurred by other parties.
(2) Liability to fine for failure to comply with "order" of Attorney General
will not attach to agents who have not acted for vessel in question for
nearly six years prior to "order". Sections 243(e) and 237(b) create responsibilities only for those parties who had specified relationship with
vessel at or reasonably contemporaneous with time of "order".
Bests FOE FINE : Act of 1952—Section 243(e) [8 U.S.C. 1253].
Dr RE: SS. San Marco IV, which arrived at the port of San Pedro, California,
from foreign on September 12, 1953. Alien crewman involved:
A—S—.
BEFORE THE BOARD

DISCUSSION: This appeal is directed to an administrative penalty of $300 which the District Director at New York has ordered
imposed on the Transmarine Navigation Corporation, as agents for
the above-described vessel. The specific violation charged is failure
and/or refusal to pay the deportation expenses of the above-named
alien crewman.
It appears from the record Submitted that the following material
facts exist without substantial controversy. The crewman was
granted a conditional permit to land temporarily in the United
States at the time of the vessel's arrival, supra. But he violated the
terms of his admission by failing to sail foreign with it and thereafter remaining in this country. However, he was taken into custody by the Service and ordered deported in 1957. He was removed
from the United States on the SS. Independence on May 26, 1959.
Appellant, who had acted as bunkering agents for the vessel's time
charterers upon its arrival, supra, was then billed for the costs of
350

his removal ($275). Thom) fine proceedings followed its refusal to

pay them'
Appellant disclaims liability on the ground that only the vessel's
owners are responsible for payment of the crewman's deportation
expenses under section 243(c) of the Immigration and Nationality
Act, which reads, in part:
* • * In the case of an alien crewman, if deportation proceedings are instituted at any time within rive years after the grunting of the last conditional permit to land temporarily under the provisions of section 252, a a a
the deportation * * * shall be at the expense of the owner or owners of the
vessels * * " by which such alien came to the United States * * a. (Emphasis
supplied.)

The District Director, however, relies upon section 243(e), which
provides that:
A failure or refusal on the part or the master, commanding ufficel, agent,
owner, charterer, or consignee of a vessel, aircraft, or other transporta ■
line to comply with the order of the Attorney General to take on board, guard
safely, and transport to the destination specified any alien ordered to be deported under the provisions or tins Act, or a failure vi refusal by any each
person to comply with an order of the Attorney General to pay deportation
expenses in accordance with the requirements of this section, shall be punished by the imposition of a penalty in the sum and manner prescribed in
section 237(b).

The latter section sets the penalty for each such failure or refusal
at $300, and provides for withholding of clearance of the vessel
until such penalty is paid.

The District Director is of the opinion that all three of the foregoing sections must be read together to properly identify the parties
responsible for the expenses of the crewman's deportation. He
reasons that the last two sections, by enumerating the persons subject to fine for violations spelled out therein, operate to define the
words "owner or owners" contained in the first section. He concludes that an agent recorded as representing the owner of a vessel
is one with the owner and assumes responsibilities under the Immigration and Nationality Act accordingly. He cites as authority two
prior precedent decisions of this Board wherein we held agents liable
to fines for failure to detain crewmen on board vessels arriving in
the United States under section 254(a) (2) of the Tmmigration and
Nationality Act (8 U.S.C. 1284), where they acted as such for:
1 Before refusing to pay, appellant, at no slight inconvenience, had learned
the identity of the vessel's owners at the time here involved; had ascertained,
that they had been reduced to bankruptcy` ; had discovered tne name aria address of the parties who had thereafter acquired ownership of the vessel;
had requested the latter to pay the crewman's deportation expenses ; had received a refusal of payment by the latter; and had made all this information known to the Service.

351

(1) Bunkering purposes wil.)--.1futb'er of SS. "Lake Manewanka," 5 I. & N. Dec. 296; and
(2) The time charterers solely—Matter of SS. "Maritena,"
7 I. & N. Dec. 453.

The problem presented by the foregoing is obvious and, at least,
insofar as we are concerned, one of first impression. We, however,
are satisfied that the District Director's solution of it is incorrect,
for several reasons.
First, we think the District Director applied too narrowly the
rule of statutory construction that each section of the law must be
read in connection with every other part so as to produce a harmonious whole (Ex parte The Public National Bank of New York, 278
U.S. 555). The Immigration and Nationality Act contains several
administrative fine sections, other than 237(b) and 243(e), which
have a direct bearing on section 243(c). Certainly, all these sections must be considered in arriving at a correct decision as to the
proper scope of section 243(c) within the logical, legal framework
of the Immigration and Nationality Act as it relates to crewmen.
Section 252, which is specifically mentioned in section 243(c),

attached certain conditions to this crewman's admission:
(1) He was only permitted to remain in the United States for
the period of time his vessel was to be in port, and in no
event to exceed 29 days;
(2) He was required to depart from this country aboard the
vessel on which he arrived; and
(3) He could not be paid off and/or discharged without the
prior permission of the Service acting for the Attorney
General.
In order to insure the control of the crewman under the foregoing
part of the Act, section 254 imposed specific duties on designated
parties connected with the vessel's operation at the time of its
arrival, including its agents, as follows:
(1) To detain the crewman on board until he was inspected by
an immigration officer;
(2) To detain the crewman on board after inspection, unless
and until an immigration officer granted him a conditional
landing permit; and
(3)

Thereafter, Lu deport the crewman if reyaired to do so by.

an

immigration officer.
Thereunder, the obligations of the agents as to the crewman were
completely discharged when the first requirement was fulfilled and

the crewman was issued a conditional landing permit (see Unitecl
States v. Prince Line, Ltd., 189 F.2d 386), for the reason that after

the

crewman had cleared the immigration officer and been admitted
to the United States, albeit temporarily, the agents had absolutely
352

of subsection (a) (2)
of section 254 on the agents could have been reestablished by cancellation of the crewman's landing permit, which would have constituted a requirement for his deportation as provided for in No. 3,
supra (see Mattel' of 'WV "Signeborg," 9-6), but since this was not
done the agents were beyond the reach of the statute.'
Accordingly, we do not think the view can seriously be maintained
that sections 243(e) and 237(b) can be utilized to re create responsibilities on the part of these agents who have not acted as such
for this vessel since its arrival at least six years prior to the demand for payment. A careful consideration of these latter sections,
in the light of the foregoing, makes it manifest that they relate
only to the parties named therein who have the specified connection
with the vessel at or reasonably contemporaneously with the Attorney General's "order" to take a crewman on board, guard him
safely, transport him to the specified destination, or to ' pay his
deportation expenses. Obviously, parties having no connection with
no control over his conduct. The binding effeet,

-

the vessel as agents at or near the time of the Attorney General's

"order" cannot reasonably be presumed to be in a position to comply
therewith. We so hold. Factually, the absence of this contemporaneous time factor clearly distinguishes this case from those relied on
by the District Director, ante. Furthermore, those cases are concerned with section 254 of the Immigration and Nationality Act
which is entirely different from section 243(c).
Our second reason for disagreeing with the District Director is
that there are several rules of statutory construction, other than
the one he has applied, which are equally applicable to this situation. We think a proper application of all these principles, infra,
clearly supports our ruling, supra.
The words "owner or owners" appearing in section 243(c) are
ordinary and must be given their usual and commonplace meaning
(Auers v. Phillips Petroleum Co., 25 F. Stipp. 458; Schultz v.
Morgan, 42 Pac. 254). Certainly, the words "owners" and "agents"
are not considered synonymous by any recognized authoritative lexicographers, legal or otherwise. In this connection, if the Congress
had intended to hold the agents responsible, it would have been a
simple matter to have named them in section 243(c) as was done in
many other of the administrative fine sections of the Immigration
and Nationality Act, including those relied on by the District Director. That it did not so intend is revealed by examination of the
2 The question of a payoff and/or discharge in violation of section 252, supra,
and section 256 of the statute is not involved here, and in any event the crewman's desertion relieved the agent of responsibility for the termination of his
services and presence aboard his vessel (Matter of SS. "Evimar." 7-35n)

353
6547; 77-53

24

legislative history of this section (Sen. Rep. No. 1137, 82d Cong.,
2d Sess., Calendar No. 1072, p. 32, penultimate sentence, first complete paragraph) . 8
With relation to the foregoing, it is important to note that liability
to fine under the sections referred to by the District Director depends upon an "order," which involves the element of personal
notice. The introduction of this element furnishes another reason
why the efforts of the District Director to equate the "agents" with
the "owners" are unavailing. This is because where the element of
personal notice is involved the "agents" are not one with the "owners." (See, Matter of 55. "Morning Light," 7-280; and Compagnie
Generale Transatlantigae v. Elting, 298 U.S. 217.)
Also, this statute must be strictly construed in all respects because
of its quasi-penal nature (Miller v. Robertson, 266 U.S. 243). As
a matter of law, it must be construed in favor of these agents
(United States v. J. H. Winchester cf Co., 40 F.2d 472). That is,
the language of the law cannot be enlarged beyond the meaning of
its terms in order to carry into effect the general purpose for which
it was enacted (In re McDonough,, 49 Fed. 360). Mere convenience
of enforcement cannot justify a strained construction of this statute
(United States v. J. H. Winchester & Co., supra).
Support for the foregoing, if same be necessary, is found in the
May 24, 1960, ruling of the Comptroller General of the United States
in a substantially similar matter involving these same agents. This
record contains a copy thereof, addressed to the Southwest Regional
Office of the Service, which reads as. follows:
Gentlemen:
Reference is made to your letter of March 29, 1960, reporting an uncollectible debt against the Transmarine Navigation Corporation in the amount of
$547.75, representing detention and deportation cost of G—N—.
An examination of the records of the Maritime Administration shows that
the SS. "IGOR" is owned by the Pelops Maritime Co., Ltd. (Greek) since 1956.
Since section 243(c), 8 U.S.C. 1254 (sic), provides that the owner (sic) of
the ship involved are responsible for the charges as stated in your letter, no
further action will be taken by this office toward collecting the amount due
from the Transmarine Navigation Corporation. It is suggested that your office
institute proper collection action against the Pelops Maritime Co., Ltd.
Tn connection with the foregoing, it is clear from the record that
the Southwest Regional Office of the Service has considered itself
bound by this ruling and has not instituted fine proceedings in cases
such as this, and we think properly so. The only further comment
on this point necessary is that the development of our first reason
3 It reads as follows: "In the case of any alien crewman who is ordered
deported within 5 years after the granting of the last conditional permit to
land, the deportation [costs] from this country shall be borne by the owner
of the vessel or aircraft on which he arrived." (Emphasis added.)

354

for sustaining tho agents' appeal adequately disposes of the District
Director's dismissal of the Comptroller General's ruling as a precedent.
ORDER: It is ordered that the appeal be sustained, that the fine
be not imposed, and that the proceedings be and same are hereby
terminated.

355