Interim Decision #2723

MATTER OF NG
In Exclusion Proceedings

A-20820915
Decided by Board July 24, 1979
(1) The immigration judge and the Board have the power in either exclusion or deportation proceedings to grant nunc pro tune permission to reapply for admission following
deportation when the grant will effect a complete disposition of the case.
(2) Where an alien was found inadmissible in exclusion proceedings, an immigration
judge did not have the power to grant him advance permission to reapply for admission after exclusion and deportation.
Act of 1952—Sec. 212(a)(20), I&N Act (8 U.S.C. 1182(a)(20))—Immigrant
not in possession of a valid unexpired immigrant visa
0e Bon.u.r. or Sum=
ON BEHALF OF AFYLIOANT.
EXCLUDABLE

Steven Singer, Esquire
Barst & Mukamal

James W. arable
Trial Attorney

12'1 John Street

New York, New York I0007
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb; Board Members

In a decision dated February 2,1978, an immigration judge found the
applicant excludable under section 212(a)(20) of the Immigration and
Nationality Act, 8 U.S.C. 1182(0(20), as an immigrant without a valid
unexpired immigrant visa or other valid entry document and ordered
him excluded and deported from the United States. The immigration
judge contemporaneously granted the applicant advance permission to
reapply for admission following deportation,' conditioned upon the
applicant's prompt filing of an application for such permission and his
reapplying for admission, following his departure from this country, in
possession of an immigrant visa.'
' Pursuant to section 212(a)(16) of the Act, 8 U.S.C. 1182(a)(16), an alien who has been
excluded and deported is barred from reentering the United States for one year following deportation unless he secure* permission to reapply for admission prior to the
expiration of that one-year period.
The trial attorney correctly noted in his brief that approval of an application for
advance permission to reapply shall be conditioned upon the alien's departure from the

Interim Decision #2723
The Service has appealed from the portion of the immigration
judge's decision which granted the applicant advance permission to
reapply for admission on the ground that an immigration judge is
without authority to entertain an application for such relief in an
exclusion proceeding. Excludability is not at issue. The appeal will be
sustained.
An immigration judge's authority in exclusion proceedings is set
forth as follows in S C.F.R. 236J:
In determining cases referred for further inquiry as provided. in section 235 of the
Act, immigration judges shall have the powers and authority conferred upon them by
the Act and this chapter. Subject to any specific limitation prescribed by the Act and
this chapter, immigration judges shall also exercise the discretion and authority
conferred upon the Attorney General by the Act as is appropriate and necessary for
the disposition of such. cases. (Emphasis added.)

We have held that immigration judges and the Board on review have
the power to grant permission to reapply for admission retroactively
where such action is necessary for the complete disposition of the case.
See Matter of S—N—, 6 I&N Dec. 73 (BIA 1954; A.G. 1954); Matter of
Vrettakos, 14 I&N Dec. 593 (BIA 1973 and 1974), Matter of Ducret,
Interim Decision 2483 (BIA 1976); 8 C.F.R. 242.8(a) and 3.1(d). See also
Matter of Martinez, 15 I&N Dec. 563 (BIA. 1976). Cf. Matter of Millard,
11 I&N Dec. 175 (BIA 1965); compare Matter of Da.—G--, S I&N Dec.
325 (BIA 1959; A.G. 1959). Two situations have been identified in which
that power may be exercised by the immigration judge and the Board:
(1) where the only ground of deportability or inadmissibility would
thereby be eliminated; and (2) where the alien would receive a grant of
adjustment of status in conjunction with the grant of any appropriate
waivers of inadmissibility. Matter of Ducret, supra.
Likewise, absent an express grant of authority in the statute or the

regulations,' before jurisdiction to adjudicate an application for advance permission to reapply for admission may vest in the immigration judge, it must -be shown that approval of the application would
conclude the proceedings before him. Such showing is not possible in
cases involving applications for advance permission to reapply
presented to an immigration judge in the course of an exclusion
hearing.'
United States and not otherwise conditioned or limited. 8 C.F.R. 212.2(i).
' Applications for permission to reapply for admission following deportation, nunc pro
tune and contemporaneous as well as advance, lie primarily within the jurisdiction of
the District Director with review by the Regional Commissioner. 8 C.F.R. 212.2(f); 8
C.F.R. 103.1(m)(7).
The regulations explicitly preclude an alien in deportation proceedings from applying
to the immigration judge for advance permission to reapply. 8 C.F.R. 212.2(g); Matter of
Vrettakos, supra.
64

Interim Decision #2723
A grant of advance permission to reapply for admission does not
permit termination of the proceedings or in any manner affect the
execution of an exclusion order. On the contrary, an alien must depart
the United States before he may benefit from a favorable disposition of
his application. The grant of advance permission merely assures an
excludable alien, prior to his departure, that he will not be required to
remain abroad for the prescribed one-year period following his exclusion and deportation before seeking reentry into the United States.
We have considered the arguments advanced by counsel and find
them unpersuasive. We accordingly hold that the immigration judge
lacks jurisdiction in these exclusion proceedings to consider the appli
cant's request for advance permission to reapply for admission. The

following orders will be entered.

ORDER: The appeal is sustained.
FURTHER ORDER: So much of the order of the immigration
judge as purports to grant, or grant conditionally, an application for
permission to reapply for admission to the United States after deportation is disapproved and set aside for lack of jurisdiction_
FURTHER ORDERS The order that the applicant be excluded and

deported from the United States is affirmed.

65


Interim Decision *plum

Mates

or

Nassnir

In Section 212 (e) Proceedings

A-18939138

Decided by Deputy Associate Commissioner May 29, 1968
As a general rule, where both the spouse and child(ren) of an exchange visitor alien are United States citizens or lawful permanent residents, exceptional
hardship within the meaning or section 212(e) or the Immigration and wetonality Act, as amended, exists as a result of the difficulty experienced by a
family with children in parting from their relatives, friends and familiar surroundings and attempting to adjust to life in a foreign country where they are
not familiar with the language, mores or culture ; additionally, an alien who
goes abroad without his family seldom commands sufficient salary to support
big family in the United States, and tare for the family generally precludes
acceptance of employment by the wife.
,

Discussion : The decision of the District Director on February
20, 1968, denying the subject's application for a waiver of the two-year
foreign residence requirement of section 212(e) of the Immigration and
Nationality Act, as amended, on the ground that exceptional hardship
had not been established, has been certified to me for review, pursuant
to 8 CFR 103.4.
The applicant, SaeedRhajeh-Nassiri, a thirty-six year old physician,
is a native and citizen of Iran. He was admitted to the United States
on June 26, 1959 as an exchange visitor, to participate in a program
sponsored by the Institute for International Education, on a, Fulbright
travel grant. He completed a one-year internship at Lutheran Hospital
in Brooklyn, New York, and a four-year residency under a private
program at Rhode Island Hospital, Providence, Rhode Island. On
July 11, 1964, he departed to Canada.
Satisfactory evidence of Dr. Nassiri's marriage to a United States
citizen on November 3, 1964 has been submitted. They are residing
in Kingston, Ontario, Canada with their two United States citizen
children. The Department of State has determined that his residence
in Canada did not serve the purpose and intent of the Mutual Educational and Cultural Exchange Act of 196L
Applicant is now employed in Canada as a research pathologist at
a salary of $7,200 a year. lie does not have sufficient funds to transport
75&

11

4.414 J./

•

.LV II V

the family to Iran and to maintain the family until he can obtain employment. Mrs. Nassiri has been away from other members of her
family for three and one-half years and desires to be near them. She
does not wish to go to Iran, even if such were possible, as she does
not know the language or the customs of that country. Dr. Nassiri
maintains that his family would not accept his wife since she is a
Catholic and they are of Moslem faith and do not believe in interreligious marriage.
Section 212(e) provides, in part, as follows:
. . . upon the favorable recommendation of the Secretary of State, pursuant
to the request of an interested United States Government agency, or of the
Commissioner of Immigration and Naturalization after he has determined that
departure from the United States would impose exceptional hardship upon the
alien's spouse or child (if such spouse or child:is a citizen of the United States
or a lawfully resident alien), the Attorney General may waive the requirement
of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the
public interest .. .

It is to be noted that a waiver may be granted if the spouse or child
is a citizen of the United States or is a lawfully resident alien.
In cases where both spouse and child (children) are United States
citizens or lawfully resident aliens, exceptional hardship will generally
exist due to the difficulty experienced by a family with children in
parting from their relatives, friends and familiar surroundings, and
attempting to readjust to life in a foreign country where they are not
familiar with the language, mores or culture. Further, an alien who
goes abroad without his family seldom commands a high enough
salary to support the family in the United States and the wife, as
in this case, generally is in a situation in which she cannot accept em-

ployment because she has to care for the family.
In view of the foregoing, it has been determined that compliance

with the foreign residence requirement of section 212(e) would impose exceptional hardship upon Dr. Nassiri's United States citizen
spouse and child. The Secretary of State has recommended that the
foreign residence requirement be waived. It is found that the admission
of the applicant would be in the public interest,.
ORDER: It is ordered that the application of Dr. Saeed KhajehNassiri for a waiver of the two-year foreign residence requirement
of section 212 (e) of the Immigration and Nationality Act, as amended;
be granted.

757


MATTER OF S--

In DEPORTATION Proceedings
A-4676827
Decided by Board May 25, 1962

Recommendation against deportation—Timeliness not to be challenged after
failure to appeal.
In 1955. the court vacated its 1952 Judgment for which respondent served one
year, permitted his plea of nolo contenders and sentenced him to one day.
The Court also recommended against deportation In its later decision. On
appeal, the Circuit Court, without passing on the propriety of the recomthendatton against deportation (Service had not appealed this issue), held
that the District Court had acted within its authority. The Board then
terminated proceedings on August 2u, 1955. Held: the 1955 Board decision
became the law of the case and the Service cannot now, seven years later,
move to reopen the proceedings on the ground that the r ,commendatios

against deportation was Improper.
CHARGE:
Warrant: Act of 1917—Sentenced twice for crimes committed in this country, to wit: Section 145(b) I.R.C., 26 U.S.C. 145(b), and 18
U.S.C. 2 (Rev. Ed.) ; sections 52 and 88, Title 18 U.S.C., in
re section 52, Title 'I.'
BEFORE THE BOARD

DISCUSSION: The District Director of the Immigration and
Naturalization Service at Chicago requests that the Board withdraw its order of August 26, 1955, terminating proceedings in the
above entitled matter, and reinstate its decision and order of December 10, 1954, or that the case be remanded to the Service for
further hearing. The basis of this motion is said to be that recent
decisions of the United States Circuit Court of Appeals for the
Second Circuit and of this Board indicate that if this matter were
to arise at this time a ennclusion different from that of August
1955, might result.
The District Director further alleges in his motion to reconsider
that the action taken by the Circuit Court "in the Matter of 345Crim-T, Appeal No. 11430, had no bearing on the issue" of the District Court's delayed recommendation against deportation. The
Circuit Court's action is reported as United States v. Shapiro, 222
678

F.2d 836 (C.A. 7, 1955). The motion states that the Circuit Court
"in no way ruled on the propriety or sufficiency of the recommendation against deportation."
Respondent is 65 years of age, a native of Russia, who entered
the United States at New York in 1913. This Board found on December 10, 1954, that respondent is an alien, and that his prior claims
to United States citizenship are not supported by the record. We
found further that respondent was deportable under the 1917 Act
for having been convicted twice for crimes involving moral turpitude following entry for which he was sentenced to terms of imprisonment of more than a year. Respondent was first convicted on
June 8, 1938, in the District Court of the United States at Milwaukee, Wisconsin, on a verdict of guilty on three counts of unlawfully, knowingly, fraudulently and feloniously concealing from a
trustee in bankruptcy property belonging to a bankrupt corporation under Title 11, U.S.C., sections 52 and 88, and Title 18 in re
section 52, Title 11. The sentences and judgment were served concurrently, making a total term of imprisonment of one year and six
months, served at the House of Correction, Milwaukee, Wisconsin.
On January 7, 1952, respondent was convicted in the District
Court of the United States at Milwaukee, Wisconsin, on a plea of
nob eontendere entered November 5, 1951, of the offense of unlawfully attempting to defeat and evade a large part of the income
taxes owed by his wife, R—S--, by filing and causing to be filed,
and by aiding and abetting the filing of false and fraudulent incometax returns, in violation of section 145(b) of the Internal Revenue
Code, 26 U.S.C. 145(b), and 18 U.S.C. 2 (Rev. Ed.), formerly 18
U.S.C. 550 (1940 Ed.). Respondent was sentenced to three years in
a federal penitentiary, and to pay a fine of $10,000. The record
shows, and the United States Circuit Court of Appeals stated, United
States v. Shapiro, 222 F.2d 836 (C.A. 7, 1955), that respondent paid
the fine, served one year of the sentence as required by statute, and
was then paroled. The Court further stated, "He compromised the
civil liability of his wife for her taxes for $411,000. This amount
was paid by the defendant and was accepted by the Internal Revenue Bureau of Wisconsin in payment of all taxes, penalties and
interest due and owing from said R—S-- for the years 1942 to
1947, inclusive." Respondent was ordered deported on February 17,
1954, and on December 10, 1954, this Board dismissed his appeal
from the order of deportation.
On January 20, 1955, the United States District Court for the
Eastern District of Wisconsin vacated and set aside the judgment
of conviction which had been entered against defendant on November 5, 1951, and permitted the defendant, respondent in the present
matter, to withdraw his plea of ?Jul() contendere, and to reinstate his
679

plea of not guilty. Thereafter, because of the fact that M—Shad served one year in the federal penitentiary and had paid a fine
of $10,000, and to avoid a new trial, counsel for the defendant, by
leave of the court, filed a new plea of nolo contendere to the second
count of the indictment and was found guilty as charged. He was
then sentenced to one day in the custody of the United'States Marshal at Milwaukee, said sentence to be satisfied by his reporting to
the Marshal's office and being discharged. He was fined $10,000
and was credited with the $10,000 which he had paid previously.
The court required that the officer in charge of the Immigration and
Naturalization Service at Milwaukee be called, and he appeared and
waived further notice with respect to a recommendation against
deportation. The court gave the Immigration and Naturalization
Service an additional ten days within which to file further representations opposing a recommendation against deportation. The
United States Attorney opposed the action of the court in setting
aside the Judgment of conviction, contending that, since the court

did not recommend against deportation at the time of sentencing
defendant on January 7, 1952, or within 30 days thereafter, the
court had lost jurisdiction to do so. The United States Attorney's
memorandum opposing the defendant's motion to withdraw plea of
nob() contendere referred the court to United States ex rd. Klanis v.
David, 13 F.2d 630; United States ex rel. Amara v. Flynn, 11 F.2d
899; and United States v. Kineaide, E.D. Wise. #427 Crim. Q.
The court was, therefore, fully informed with regard to the adjudication of other tribunals in similar situations. The Government's
memorandum declared Klonis to be identical with the S— matter
and pointed out that .the court (per Judge Learned Hand), while
it disapproved the drastic punishment of deportation, found that
the 30-day provision in the statute limited the power of the court,
that a nuns pro tune order was not effective, and that the proper
remedy was an application for a pardon. Despite the authority to
the contrary, on February 12, 1955, Judge Stone held that, 30 days
not having expired since January 20, 1955, the date of imposition
of judgno,nt in this action and passing of sentence on said defendant,
and the court being fully advised in the premises, recommended to
the Attorney General that the alien not be deported, and ordered

and decreed that the judgment and conviction of the defendant, S—,
not be used by the United States or the Tmmigration and Naturalization Service as the basis of any claim that, as an alien twice convicted of crimes involving moral turpitude, the defendant should
be deported. The United States appealed from the court's order of
January 20, 1955.
The judgment appealed from was the order which vacated and set
aside the judgment of conviction and permitted the defendant to
680

withdraw his plea of nolo contendere. The judgment appealed from
did not include the order of February 12, 1955, that the alien not
be deported and that the judgment and conviction not be used as the
basis of deportation proceedings. For that reason the present motion to reconsider declares that the Court of Appeals held only,
United States v. Shapiro, 222 F.2d 836 (C.A. 7, 1955), that the order
granting the motion to vacate judgment and grant new trial was
not a final appealable order, and that the Circuit Court in no way
ruled on the propriety or sufficiency of the District Court's recommendation against deportation. The Immigration Service contends
that the Circuit Court did not rule on the basic issue, whether or
not the District Court could vacate the original judgment, permit the
withdrawal of the defendant's plea of nolo contendere, and make an
order recommending against deportation, as though the court were
"first imposing sentence," in accordance with 8 U.S.C.A., section
1251(b), section 241(b) of the Immigration and Nationality Act.
The District Director is correct in his contention that the Circuit
Court passed only on the propriety of the District Court's order of
January 20, 1955, vacating the original judgment of conviction and
permitting the defendant to withdraw his plea of nob() contendere.
The Circuit Court held, first, that Rule 32(d) of the Federal Rules
of Criminal Procedure expressly authorizes the District Court to
take this action to "correct manifest injustice," and, second, that
this order by the District Court was net a final appealable judgment,
that it was merely a step in the criminal rase. The Circuit Court
stated, 222 F.2d 836 at page 840, citing United States v. Morgan,
346 U.S. 502, Kercheval v. United States, 274 U.S. 220, United States
v. Lias, 173 F.2d 685 (C.A. 4, 1949), that this was a matter within
the discretion of the trial judge, who thought and found that it was
necessary to take this action "to correct manifest injustice." Judge
Stone stated that the Government withheld institution of deportation
proceedings until long after the period of 30 days within which the
court might recommend against deportation, that the defendant believed himself to be a citizen, and that the deportation order "expands and increases the sentence imposed" by the court by adding the
"punishment" of "exile from this country to Russia for the rest of
his life," which would be "manifest injustice." The Circuit Court
declared, "Under the record and facts in this case we cannot say
that the judge abused his discretion in acting as he did," and dismissed the Government's appeal.
It is now contended by the District Director that the recommendation of the trial judge on February 12, 1955, does not legally comply with the requirements of section 241(b) of the Immigration and
Nationality Act and is insufficient to bar the deportation of respondent, citing United States ex rel. Piperkoff v. Espardy, 267 F.2d
681

'72 (C.A. 2, 1959), and recent decisions of this Board, Matter of L ,
8 389, Matter of B—, 8-686, and Matter of P—, 8-689. In all of
these decisions the Board relied on Piperfeel?, and we found that when
the trial court has disposed of a case after a finding of guilty and has
imposed sentence, the case is no longer pending for action, either
actually or in theory, and that the recommendation against deportation to be effective must be made within 30 days from the time sentence
was first imposed. Quoting Piperlcoff, "To hold otherwise would be
to defeat the plain command of the statute, which strictly and for good
purpose, limits the time within which the extraordinary power vested
in the trial court must be exercised." However, the rule must be modified to the extent that our decision in Matter of P—, 8-689 (B.I.A.,
—

-Tune 21, 1900), was reversed by the Attorney General in Matter

of P—, 9-293 (Atty. Gen., May 24, 1961). The Attorney General declared that the test, according to Piperkoff, is whether
or not the trial court's "solo basis" for granting °cram nobis (or

for retrying a case or for permitting withdrawal of a guilty plea)
was to make the statutory recommendation against deportation. The
Attorney General found that Matter of P— should not be governed
by Piperleoff , in that the court granted coram nobi8 to P— because of
a "constitutional defect" in the prior conviction, in that under the
New York Constitution and New York cases and on the facts of P—
there was a substantial question of lack of counsel and failure to
understand the charges. The District Attorney did not oppose granting the writ. The instant case does not fall within the Attorney
General's decision in Matter of P—, 9-293. Judge Stone's memorandum makes it quite clear that he took the action to benefit S
solely to avoid deportation.
It is the conclusion of the Board that the order of the trial judge
of the United States District Court, Eastern District of Wisconsin
on February 12, 1955, that the judgment and conviction of the
defendant, S—, could not be used as the basis of a deportation proceeding against respondent as an alien twice convicted of crimes
involving moral turpitude became the law of the case at the time of
adjudication, and that. it. eannnt. h challenged at. this lath date_
When the United States appealed from the action ei the trial court
in setting aside the defendant's plea of nolo contendere, the Government apparently informed the Circuit Court (222 F.2d 836, at
page 838) "that insofar as it was concerned the action of the District Court was final and for that reason a notice of appeal was
filed to protect the rights of the United States. But according to
the notice of appeal, the appeal was only from the order of the District Court granting the defendant's motion to vacate and set aside
.

689

the judgment of conviction herein and permitting the defendant to
withdraw his plea of nolo contendere." The Government did not appeal from the February 12, 1955, order recommending that defendant
not be deported. Having abandoned that issue, we agree with counsel
that the Inunigration Service cannot at this time revive those proceedings against respondent.
The courts and this Board have held repeatedly that after deportation has been accomplished the alien will not be permitted to attack
the validity of the deportation order in a subsequent expulsion or
exclusion proceeding. In Matter of C—, 8-276, at page 278, we
cite ample authority to support this proposition. Matter of C—,
supra, holds that no collateral attack is permitted on an executed
deportation order notwithstanding a later coram nobis action that
resulted in vacating the conviction record supporting respondent's
expulsion. When we terminated proceedings on August 26, 1955,

after the United States District Court for the Eastern District
of Wisconsin had ordered and decreed that S not be deported, and
that his conviction on January 20, 1955, not be used as the basis of
any deportation proceeding, the law of this case became fixed.
The issue is not raised in the motion, but for a second reason the
Board declines to reopen proceedings against respondent. The record shows (Exh. C) that following its order of January 20, 1955,
setting aside judgment and sentence, the defendant was adjudged
guilty on his plea of nolo contendere as to count two and sentenced
to the custody of the Attorney General for an.8 day, "such commitment to be satisfied by the defendant surrendering to the custody of
the United States Marshal at Milwaukee, Wisconsin, said sentence
to expire forthwith." The charge in this case was drawn under the
Immigration Act of 1917, section 19(a), and that law directed the
deportation of an alien "who is hereafter sentenced more than once
to such a term of imprisonment [a term of one year or more] because of conviction in this country of any crime involving moral
turpitude, committed at any time after entry." When the court reduced the sentence for the income tax offenses from the original term
of three years to the final sentence of one day, the 1917 charge falls,
without regard to the recommendation against deportation. The
Circuit Court held that it was within the authority of the District
Court under Rule 32(d), 18 U.S.C.A., to take this action. Therefore,
the Government in this case is bound by the final sentence (of one
day) which was not sufficient to support the charge set forth in the
warrant of arrest.
The motion to reconsider must be dismissed.

ORDER: It is ordered that the motion be and is hereby denied.

683


Interim Decision #1896

MATTER OF 'COWAN=
In Visa Petition Proceedings
SNA-N-608
Decided by District Director December 08, 1967
An alien of distinguished achievements in European nuclear science and research
coming to this country as a visiting university professor for the 1968 spring
semester in a teaching and research position in which he will impart new
and original concepts and an international perspective to nuclear science and
engineering, is coming to the United States to perform "temporary services"
within the meaning of section 101(a) (15) (H) (I) of the Immigration and
Nationality Act since the teaching responsibilities to be discharged by him will
be exceptional in nature and unique to his specific background and specialized.
experience.

Discussion: The University of Texas, Austin, Texas, has submitted
a petition to classify nonimmigrant as temporary worker in behalf of
Dr. Lew Kowarski. Dr. Kowarski is a French citizen, having received
a degree in chemical engineering from the University of Lyons in
1928, and the Docteures-Science Physiques from the University of
Paris in 1934. He is listed in the International Who's Who, 1966-67,
and has many distinguished achievements and publications in the area
of neutron physics, reactor technology, and organization of nuclear
research. He presently holds the position as Head of the Data Handling
Division, European Center for Nuclear Research, in Geneva,
Switzerland.
The university desires to employ Dr. Sowarski as a visiting professor
for the spring semester 1968. It is a teaching and research position in
the department of mechanical and nuclear engineering.
The university has stated that it is increasingly important for students of nuclear engineering to acquire international perspective in
their work and in particular to become well informed regarding European developments both in nuclear science and nuclear engineering.
Dr. Kowarski, with his broad background of experience, will provide
an exceptional opportunity for the students to enrich their educational
programs. In this case, the concept is suported that the position is
temporary because Dr. Kowarski will discharge his teaching responsi-

571
321-654--60-33

Interim Decision #1826
bilities in a different manner reflecting his particular training and
cultural background. He will also inject into the university's program
new and original ideas end concepts in fission physics.
The beneficiary is being petitioned for to perform duties which will
be exceptional in nature and unique to his specific background and
specialized experience. For this reason, the duties can be distinguished
from duties performed by permanent faculty members of the university. Evidence has been submitted that the beneficiary has a foreign
residence which he has no intention of abandoning, and is a person of
distinguished merit and ability.
On consideration of these facts, it is concluded that the contemplated
duties of Dr. IFowarski as specified in the petition by the University
of Texas fall within the meaning of temporary in nature as required

under the governing statute. Therefore the petition will be approved.
ORDER; It is ordered that the petition to accord the beneficiary
classification under section 101(a) (15) (H) (1) of the Immigration and
Nationality Act be and is hereby approved.

572


Interim Decision #1589

"IILVITE9 -OF ALVAREZ-VERDUZGO

In Exclusion Proceedings .
A:13070941
Decided by Board May 95, 1966 '
lawft
: d permanent resident slier who 'upon application for reentry on May 30,
1955, following a one-day visit in Mexico was paroled into the United States
for prosecution for attempting to bring into this country for his own use two
grams of heroin purchased in Mexico which resulted in his conviction of a
violation of 26 U.S.C. 4724(a), is excludable under section 212(a) (23), Imrutgradon and Nationality Act, as amended (Rosenberg v. Penn, 374118.
449, inapplicable; Matter of Qtantaterna - Quintenilla, rat Doe_ No. mat
• dP•luguished).
ituizimaszn: Act of 1952L-Section 222(a) (5) [8 U.S.C. 1182(a) (5)1—Narcotic
addict.
Act of 1952-r3ection 212(a) (23) [8 U.S.C. 1182(a) (23)I—Conl
viction, of narcotic violation.

This' case is before us pursuant to an order of a special inquify

officer' terminating the proceedings and certifying the case to this
Board.
The applicant is a 24-year-old married male, native and. citizen
of - Mexico, who was lawfully, admitted to the United States for
permanent residence on February 26, 1962. He departed to Mexico
on May 29, 1965 and applied for readmission to the United States
on the following day at which time he attempted to bring into this
Country approximately two grams of heroin for his own use. He
was paroled. into the United States for 'prosecution and was convicted on August 2, 1965 for a violation of 26 U.S.C. 4724(a). He
has been confined to a United States Public Health Service hospital for treatment for narcotic addiction.
The special inquiry officer concluded that the evidence was insufficient . to warrant the applicant's exclusion as a narcotic drag
addict under section 212(a)-(5) of the Immigration and Nationality
Act since - the record does not' containa medical certificate as pro- .
yided in section 236(d). The only issue which requires discussion
625

Interian.Decision #1589
is whether the applicant is excludable under section 212(a) (23)
because of the 'conviction mentioned above. The fact that the
conviction took place subsequent to the alien's application for admission and while he was under parole in the United States is
not material. Water of
9 I. & N. Dec. 148 (A.G., 1961).
After .citing Rosenberg v. Fleuti, 874-11S. 449 (1963), two subsequent judicial decisions based on the Fleuti holding, and Matter
of Quintanilla Quintanilla, Int. Dec. No. 1587 (1965), the special
inquiry officer found that the applicant had not made a departure
which was meaningfully interruptive of his legal residence and •
held that his return to this country could not subject him to the
-

provisions of the Immigration and Nationality Act relating to

exclusion.
It was stated in the brief of the appellate trial attorney that the applicant's case was not protected by Fiend because the applicant
had proceeded to Mexico for the purpose of purchasing a narcotic
drug. Actually, the applicant testified (Tr. pp. 7-9) that he had
used heroin weekly for about one year; that he had always obtained
it in lios Angeles with the exception of the one occasion in May
1965; that he did not go to Mexico for the purpose of buying
heroin but to get his wife's grandmother; and that he bought the
heroin at Tijuana, Mexico, because it was offered to him. There
is nothing to contradict this testimony, and we are inclined to
believe the applicant's statement that he did not go to Mexico for
the specific purpose of buying the heroin.
A, though it appears that the applicant did not go to Mexico for
the purpose of buying the heroin, we hold that his ease is distinguishable from Fiend because, at the very time of his application
for readmission to the United States, he. was violating the lain
Of this country by attempting to bring in a narcotic drug. In
littdition, the court referred to Fleuti's brief crossing of the border
and the irrational hazard of subjecting him to exclusion for a condition for which he could not have been deported if he had remained
in this country. On the other hand, this applicant would apparently be deportable under section 241(a) (11) of the Act even if
there. hid been no entry: The applicant's case is distinguishable
from Fiend on its facts and is alio distinguishable from Matter of
Quintanilla Quintanilla, supra, in which there was no Allegal purpose in the departure or the return to the United States. We believe
-

-

• that the applicant's ease is analogous to Matter of Coral Fragoeo,
Int. Dec. No. 1549 (January 14, 1966).• During a short absence in
-Mexico, hat alien had encouraged and abetted two other aliens to
enter the United States in violation of law, and we held that the
-

626

Interim Decision #1589
and circumstances were so different from Fiend as to render
its holding inapplicable.
Although the special inquiry officer stated that he did not page
authority either to exclude or to admit the applicant, we hold that
the case is properly before us in exclusion proceedings and that the
applicant is excludable under section 212(a) (23) of the Act because of the narcotic conviction. Accordingly, we will withdraw
the special inquiry officer's order terminating the proceeding and
will direct a substituted finding of fact and conclusion of law.
ORDER: It is ordered that the special inquiry officer's order,

'facts

terminating the proceeding, be withdrawn.
It is further ordered that the following be substituted for the
special- inquiry officer's eighth finding of fact:

(8)

That he purchased two grams of heroin during his absence in Mexicd
which he was attempting to bring into the United States when be

applied for readmission on May 80,•.965.

It is further ordered that the following be substituted for the
special inquiry officer's conclusiOn of law numbered. (1):

(1)

That under section 212(a) (23) of the Immigration and Nationality
Act the alien is inadmissible on the ground that he has been convicted
for importation of a narcotic without payment of tax in violation of
26 4724(a).

It is further ordered

that the alien be excluded and deported -from

the United States.

627


Interim Decision #1876

MATTER

or SCIIONFELD

In SECTION 228 Proceedings
A-11870415-6
Decidedly Aeting Regional Coanatiseioner May 26,1984

Applicants who do not have, and have never established, an actual residence in
this country having been physically present in the United States less than 2
months during a 4-year period following their admission for permanent residence in April 1980 are ineligible for permits to reenter the United States under
section 228, Immigration and Nationality Act, since their proposed departure
Is not temporary within the meaning of the statute.

The District Director, Miami, Florida, has denied these applications on the basis that further residence abroad could not be considered temporary. Appeal has been taken to the Regional
Commissioner.
The applicants are a 40-year-old married alien and her 14-year-old
con. Both entered the United States at Miami, Florida, on April 8,
1960, with immigrant visas issued at Caracas, Venezuela, charging
them against the Czechoslovakian quota. Both were of Israeli
nationality.

On April 22, 1960, within three weeks of their admission, both filed
Applications for Permits to Reenter the United States, showing departure date of April 26, 1960, the reason being for the mother to
liquidate a business. Permits were granted to May 4, 1961. On April
5, 1961, both applied for extensions which were granted to May 4, 1962.
On April 14, 1962, both returned to the United States at the port of
New Orleans, Louisiana. On April 17, 1962, three days after their
return, both again filed Applications for Permits to Reenter the United

States, showing proposed departure date as April 21, 1962, which were
granted to April 17, 1963. On March 11, 1963, extensions were applied
for and granted to April 19, 1961. Both returned to the United States
and were admitted at Miami, Florida, on March 21, 1964. On March
23, 1961, two days after this last return, they again filed. Applications
for Permits to Reenter the United States, showing their proposed de-

parture

as March 29, 1964. The District Director at Miami, Florida,
669

Interim Decision #1376
denied the applications on April 2, 1964, and the appeals were filed
with a letter from the applicants stating that because of the political
situation the husband's and father's printing business would require

them to lose 60 per cent of their savings if the business were liquidated
now and stating that they had to wait for a better time to liquidate their
business.
Section 223 of the Immigration and Nationality Act provides for the
issuance of a reentry permit to a lawfully admitted alien who intends
to depart temporarily from the United States. In these cases, the
applicants do not have and never have established an actual residence in
the United States. Their return to the United States on March 21,
1964, was apparently made merely to gain entry within the validity
period of the reentry permit. for the, second time since their arrival

in the United States as quota immigrants. Since they are, in fact, residents of Venezuela, having been physically present in the United
States less than two months during a four-year period, their proposed
departure is not temporary within the meaning of the statute.
ORDER: The decision of the District Director of Miami, Florida,
is affirmed, and the appeals of the appellants are hereby dismissed.

670


Cite as 28 I&N Dec. 276 (BIA 2021)

Interim Decision #4014

Matter of Margaret VUCETIC, Respondent
Decided March 31, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of aggravated unlicensed operation of a motor vehicle in the first degree in
violation of section 511(3)(a)(i) of the New York Vehicle and Traffic Law, which prohibits
a person from driving under the influence of alcohol or drugs while knowing or having
reason to know that his or her license is suspended, is categorically a crime involving moral
turpitude. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), followed.
FOR RESPONDENT: Kerry Q. Battenfeld, Esquire, Buffalo, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Eric W. Schultz, Assistant
Chief Counsel
BEFORE: Board Panel: GRANT, MULLANE, and GORMAN, Appellate Immigration
Judges.
GRANT, Appellate Immigration Judge:

In a decision dated May 7, 2018, an Immigration Judge terminated the
removal proceedings against the respondent. The Department of Homeland
Security (“DHS”) has appealed from this decision. The respondent opposes
the appeal. The appeal will be sustained, the proceedings will be reinstated,
and the record will be remanded to the Immigration Judge for further
proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Canada and a lawful permanent
resident of the United States. She was twice convicted of aggravated
unlicensed operation of a motor vehicle in the first degree in violation of
section 511(3)(a)(i) of the New York Vehicle and Traffic Law as
a consequence of two separate arrests in 2014 and 2015, respectively. Based
on these convictions, the DHS charged her with removability under section
237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(A)(ii) (2012), as an alien convicted of two crimes involving
moral turpitude not arising out of a single scheme of criminal misconduct.
Relying on Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), the
Immigration Judge determined that the respondent’s State statute of
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Interim Decision #4014

conviction—which prohibits a person from driving under the influence of
alcohol or drugs while knowing or having reason to know that his or her
license is suspended—can involve both reprehensible conduct and a culpable
mental state for purposes of a crime involving moral turpitude. However,
the Immigration Judge distinguished the respondent’s New York statute of
conviction from the Arizona statutes at issue in Matter of Lopez-Meza,
because, while the Arizona statutes require a defendant to “drive” a motor
vehicle, the respondent’s State statute of conviction reaches, at a minimum,
an individual who merely “operates” a vehicle. Thus, the Immigration Judge
concluded there is a realistic probability that section 511(3)(a)(i) would be
applied to nonreprehensible conduct falling outside the generic definition of
a crime involving moral turpitude and terminated proceedings.
On appeal, the DHS challenges the Immigration Judge’s decision to
terminate, arguing that it has established that the respondent’s offenses are
crimes involving moral turpitude, which render her removable under section
237(a)(2)(A)(ii) of the Act. See section 240(c)(3)(A) of the Act, 8 U.S.C.
§ 1229a(c)(3)(A) (2018) (providing that the DHS has the burden of
establishing by clear and convincing evidence that an alien who has been
admitted to the United States is removable). Whether the respondent’s
offenses are crimes involving moral turpitude that render her removable is
a question of law we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2020).

II. ANALYSIS
To determine whether the respondent’s convictions are crimes involving
moral turpitude, we apply the “categorical approach,” examining the State
statute “defining the crime of conviction to see whether it fits within the
generic definition of a crime involving moral turpitude,” while “focus[ing]
on the minimum conduct that has a realistic probability of being prosecuted
under the statute.” Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA
2016) (citing Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013)); see also
Matthews v. Barr, 927 F.3d 606, 617–18 (2d Cir. 2019), cert. denied,
141 S. Ct. 158 (2020).
“To involve moral turpitude, a crime requires two essential elements:
reprehensible conduct and a culpable mental state.” Matter of Silva-Trevino,
26 I&N Dec. at 834. Conduct is “reprehensible” if it is “inherently base, vile,
or depraved, and contrary to the accepted rules of morality and the duties
owed between persons or to society in general,” while a “culpable mental
state” requires deliberation or consciousness, such as intent, knowledge,
willfulness, or recklessness. Id. at 833–34 (citation omitted).
At all relevant times, the respondent’s State statute of conviction provided
as follows:
277

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Interim Decision #4014

Aggravated unlicensed operation of a motor vehicle in the first degree. (a) A person
is guilty of the offense of aggravated operation of a motor vehicle in the first degree
when such person: (i) commits the offense of aggravated unlicensed operation of a
motor vehicle in the second degree as provided in subparagraph (ii), (iii), or (iv) of
[section 511(2)(a) of the New York Vehicle and Traffic Law] and is operating
a motor vehicle while under the influence of alcohol or a drug in violation of
[sections 1192(1)–(5) of that statute].

N.Y. Veh. & Traf. Law § 511(3)(a)(i) (McKinney 2014). This provision
requires a defendant to operate a motor vehicle on a public highway while
under the influence of alcohol or a drug knowing or having reason to know
his or her license or privilege of operating such a motor vehicle or privilege
of obtaining a license to operate such a vehicle is suspended, revoked, or
otherwise withdrawn. CJI2d[NY] Veh. & Traf. Law § 511(3)(a)(i) (2020).
We conclude that a conviction under this provision requires the State to
establish both the requisite culpable mental state and level of reprehensible
conduct for a crime involving moral turpitude, and there is no realistic
probability the statute would be applied to conduct that would not constitute
a crime involving moral turpitude.
A. Culpable Mental State
We agree with the Immigration Judge that a violation of section
511(3)(a)(i) requires a culpable mental state sufficient for a crime involving
moral turpitude. In Matter of Lopez-Meza, 22 I&N Dec. at 1196, this Board
explained that when the offense of driving under the influence “is committed
by an individual who knows that he or she is prohibited from driving, the
offense becomes such a deviance from the accepted rules of contemporary
morality that it amounts to a crime involving moral turpitude.” We reasoned
that “[t]he aggravating factor rendering the [driving under the influence]
conviction a crime involving moral turpitude in Matter of Lopez-Meza was
the culpable mental state needed for a conviction under” the Arizona statutes
at issue in that case—namely, “that the defendant knew, at the time that he
was driving while under the influence of alcohol, that his driver’s license had
been suspended and that he was not permitted to drive.” Matter of
Torres-Varela, 23 I&N Dec. 78, 85 (BIA 2001) (citing Matter of Lopez-Meza,
22 I&N Dec. at 1194–95). In light of these “aggravating circumstances,” we
concluded that the Arizona statutes at issue required a sufficient culpable
mental state for a crime involving moral turpitude, despite the absence of
“a specific element of intent in the statutes.” Matter of Lopez-Meza, 22 I&N
Dec. at 1195; see also id. at1192 (“[W]hile crimes involving moral turpitude
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Interim Decision #4014

often involve an evil intent, such a specific intent is not a prerequisite to
finding that a crime involves moral turpitude.”).
On appeal, the respondent maintains that section 511(3)(a)(i) of the New
York Vehicle and Traffic Law is not a crime involving moral turpitude
because the statute provides that a person may be convicted of that offense if
they knew or, at a minimum, had “reason to know” their privilege to drive
had been suspended, revoked, or withdrawn. The respondent argues that it
is unclear whether having “reason to know” that a license has been suspended
amounts to recklessness or criminal negligence under New York law, and
she contends that neither recklessness nor criminal negligence is a sufficient
culpable mental state for a crime involving moral turpitude.
Pursuant to section 15.05(3) of the New York Penal Law, “[a] person acts
recklessly with respect to a result or to a circumstance described by a statute
defining an offense when he [or she] is aware of and consciously disregards
a substantial and unjustifiable risk that such result will occur or that such
circumstance exists,” and “[t]he risk must be of such nature and degree that
disregard thereof constitutes a gross deviation from the standard of conduct
that a reasonable person would observe in the situation.” (Emphasis added.)
“A person who creates [a substantial and unjustifiable] risk but is unaware
thereof solely by reason of voluntary intoxication also acts recklessly with
respect thereto.” Id. (emphasis added). By contrast, “[a] person acts with
criminal negligence [under New York law] with respect to a result or to
a circumstance described by a statute defining an offense when he [or she]
fails to perceive a substantial and unjustifiable risk that such result will occur
or that such circumstance exists.” N.Y. Penal Law § 15.05(4) (McKinney
2021) (emphasis added).
We have held that recklessness is a sufficient culpable mental state for
moral turpitude purposes where it entails a conscious disregard of
a substantial and unjustifiable risk posed by one’s conduct. See, e.g., Matter
of Tavdidishvili, 27 I&N Dec. 142, 143–44 (BIA 2017) (collecting cases).
As noted, the respondent’s State statute of conviction requires a defendant to
operate a motor vehicle while under the influence knowing or having reason
to know he or she is not permitted to drive. See CJI2d[NY] Veh. & Traf.
Law § 511(3)(a)(i). Because a person who creates a “substantial and
unjustifiable risk,” but is unaware of such a risk “solely by reason of
voluntary intoxication,” acts recklessly under New York law, we conclude
that a violation of section 511(3)(a)(i) necessarily involves, at a minimum,
recklessness, a culpable mental state falling within the definition of a crime
involving moral turpitude. N.Y. Penal Law § 15.05(3); see also Gayle
v. Sessions, 719 F. App’x 68, 69–70 (2d Cir. 2018) (holding that reckless
endangerment in the second degree under New York law, which requires
a perpetrator to act recklessly within the meaning of section 15.05(3),
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Interim Decision #4014

involves a sufficient culpable mental state for a crime involving moral
turpitude).
B. Reprehensible Conduct
We disagree with the Immigration Judge’s determination that there is a
realistic probability the respondent’s State statute of conviction would be
applied to conduct that is not reprehensible because the statute covers an
individual who merely “operates,” rather than “drives,” a motor vehicle. The
DHS asserts that the term “operates” in section 511.3(a)(i) is analogous to
the requirement in the Arizona statutes at issue in Matter of Lopez-Meza,
22 I&N Dec. at 1189, that a defendant “driv[e] or be[] in actual control” of
a vehicle. We are persuaded by the DHS’s argument.
Section 511(3)(a)(i) cannot be read in isolation; it must be read in
conjunction with the statutory provisions it follows and cross-references—
namely, sections 511(1) and 511(2) of the New York Vehicle and Traffic
Law. See generally Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)
(stating that courts generally read statutory language in the context of the
broader statutory scheme). Section 511(2)(a) provides that a person is guilty
of aggravated unlicensed operation of a vehicle in the second degree when,
under various circumstances including those related to prior suspension of
a license as a consequence of impaired driving, the person commits the
offense of aggravated unlicensed operation of a motor vehicle in the third
degree, as defined in section 511(1)(a). Therefore, a person can only be
found guilty under section 511(3)(a)(i) for engaging in conduct that is
prosecutable under section 511(1)(a)—and that provision clearly states that
a person is guilty “when such person operates a motor vehicle upon a public
highway while knowing or having reason to know that such person’s license
or privilege” to drive has been “suspended, revoked or . . . withdrawn.” N.Y.
Veh. & Traf. Law § 511(1)(a) (emphasis added).
Thus, reading section 511(3)(a)(i) of the New York Vehicle and Traffic
Law in conjunction with sections 511(1)and 511(2), a person is guilty of the
offense of aggravated unlicensed operation of a motor vehicle in the first
degree only when such person “operates a motor vehicle upon a public
highway” while under the influence knowing or having reason to know that
such person’s license or privilege of operating such a vehicle or privilege of
obtaining a license to operate such a vehicle is suspended, revoked, or
otherwise withdrawn based on: a prior finding of “[o]perating a motor
vehicle while under the influence of alcohol or drugs” in violation of section
1192 of the New York Vehicle and Traffic Law; a conviction for a violation
of that section; or a mandatory suspension pending prosecution for such
a violation.
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Interim Decision #4014

The phrase “operates a motor vehicle” under New York law encompasses
driving a vehicle as well as “[using] the mechanism of the automobile for the
purpose of putting the automobile in motion even though [the vehicle does
not move].” People v. O’Connor, 607 N.Y.S.2d 856, 858 (Crim. Ct. 1994)
(alterations in original) (citations omitted); see also People v. Alamo, 315
N.E.2d 446, 458–59 (N.Y. 1974); People v. Marriott, 325 N.Y.S.2d 868, 868
(App. Div. 1971). In other words, the statute requires a defendant to either
actually drive the vehicle, or take active steps to drive it. Because section
511(3)(a)(i) requires a defendant to “operate” a vehicle in either of these
ways while under the influence “on a public highway,” putting the public at
risk, the offense involves “a baseness so contrary to accepted moral standards
that it rises to the level of a crime involving moral turpitude.” Matter
of Lopez-Meza, 22 I&N Dec. at 1195. Based on this requirement, we
additionally conclude that there is not a realistic probability the respondent’s
State statute of conviction would be applied to conduct that is not
reprehensible—such as conduct that took place solely on a vehicle owner’s
private driveway.
Weighing the dangerous conduct necessarily involved in a violation of
section 511(3)(a)(i) along with the culpable mental state needed to commit
such a violation, we conclude that the offense of aggravated unlicensed
operation of a motor vehicle in the first degree under New York law is
categorically a crime involving moral turpitude. See id. at 1196 (stating that
a finding of moral turpitude “results from a building together of elements by
which the criminalized conduct deviates further and further from the private
and social duties that persons owe to one another and to society in general”).
Therefore, the DHS has satisfied its burden to establish that the respondent’s
convictions under this statute render her removable under section
237(a)(2)(A)(ii) of the Act, and the Immigration Judge erred when he
terminated proceedings. 1 Accordingly, the appeal of the DHS is sustained,
the decision of the Immigration Judge is vacated, and the proceedings are
reinstated. The record is remanded to give the respondent an opportunity to
apply for any relief for which she may be eligible.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the
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.
1
The respondent does not argue that her offenses arise out of a single scheme of criminal
misconduct, and we deem the issue waived. See, e.g., Matter of P-B-B-, 28 I&N Dec. 43,
44 n.1 (BIA 2020).

281


Interim Decision #1391

MATTER OF BISULOA

In VISA PETITION Proceedings
A-18187621
Decided by Regional Commissioner July RS,

1988

Petition to accord nonquota status as a minister of a religious denomination,
pursuant to section 101(a) (27) (F), Immigration and Nationality Act, is denied
since there is no evidence that beneficiary, who has been a voluntary worker as
an evangelist, has ever carried on the vocation of minister; furthermore, it
has not been established be is seeking to enter solely to carry on the vocation
of minister since he would receive no salary for his church work and would be
required to earn his living by obtaining other employment; neither has it been
established that his services are needed as assistant pastor since the church
has only 40 members and the present pastor is employed 8 days each week in
a different vocation.

The District Director has denied, the petition for the following
MUGS:
Ton have felled to establish that the beneficiary has been continuously, for at
least two years immediately preceding the time of this application, carrying on
the vocation of minister of a religious denomination. Documentary evidence
submitted in support of this application merely establishes that beneficiary has
been a "Deacon". Ton have also failed to establish that beneficiary was ever
ordained as a minister.

The matter is now before us on appeal.
The beneficiary is a 46-year-old native of Italy who resides in Argentina. The only evidence submitted with the petition concerning the
beneficiary's qualifications is a statement dated November 25, 1962
from the Christian Cultural Assembly (Christian Assembly) in
Buenos Aires, Argentina, which states that he worked in the Fellowship of Christ for approximately eight years. The document refers
to the beneficiary as Deacon.
On appeal an additional document was submitted from the same
organization which states the beneficiary is an Evangelical Minister
at Buenos Aires and has been a minister since 1958.
The petitioner, the Reverend Joseph Carro, is the pastor of the
Christian Church of West Islip, New York. The petitioner was in712

Interim Decision #1391
ter-viewed by an officer of this Service on June 26, 1963 and furnished
the following information.
The Church has 40 members and as pastor he receives no salary. In addition
to his duties as pastor the petitioner also works three days a week at a market.
If the petition is approved the beneficiary would serve as assistant pastor. Be
would serve the Church at Sunday services and two evening services weekly.
The beneficiary's brother who is a member of the congregation has arranged for
his employment in a gasoline station and the beneficiary would receive no salary
for his Church work.
The Christian Cultural Assembly in Argentina does not issue ordination certificates to its ministers, but issues only a Certificate of Ministry. The petitioner
also advised that to his knowledge the beneficiary has been a voluntary worker
as an Evangelist in Buenos Aires and has not acted as a minister of a Church
performing full ministerial duties.

Section 101 (a) (27) (F) of the Immigration and Nationality Act
provides that, in order to be eligible for nonquota classification as a
minister, it must be established that the beneficiary is "an immigrant
who continuously for at least two years immediately preceding the
time of his application for admission to the United States has been,
and who seeks to enter the United States solely for the purpose of
carrying on the vocation of minister of a religious denomination s and
whose services are needed by such religious denomination having a
bona fide organization in the United States; .. ."
Section 42.25 (c), Title 22, Code of Federal Regulations, provides
as followS:
The term "minister" as used in section 101(a) (27) (E) of the Act, means a
person duly authorized by a recognized religious denomination having a bona
fide organization in the United States to conduct religious worship, and to perform other duties usually performed by a regularly ordained pastor or clergyman
of such denomination. The term shall not include a lay preacher not authorized
to perform the duties usually performed by a regularly ordained pastor or clergyman of the denomination of which he is a member, and shall not include a nun,
lay brother or cantor.

We have carefully examined the entire record in this case. Although
the beneficiary has been issued a Certificate of Ministry, he was apparently able to acquire this document without completing any prescribed course of training or acquiring any formal theological education. Moreover, there is no evidence that the beneficiary has ever
carried on the vocation of a minister of a religious denomination. We
therefore find that it has not been satisfactorily established that the
beneficiary is a minister within the meaning of section 101 (a) (27) (F)
of the Immigration and Nationality Act and 22 CFR 42.25(c).
Additionally, the statute requires that the beneficiary be seeking to
enter solely for the purpose of carrying on his vocation of minister of
a religious denomination and that his services be needed. In this
case the beneficiary would receive no salary for his work with the
713

Interim Decision #1891
Church and would be required to earn his living by obtaining other
employment. Also, the Church which has only 40 members and
whose present pastor is employed three days each week in a different
vocation has not satisfactorily established its need for an assistant
minister.
In view of the foregoing we find that the petition cannot be approved. The appeal will be dismissed.
it is ordered that the appeal be and the same is hereby dismissed.

714


M-9'FrER OF B—
In VISA PETITION Proceedings
A-12154402

Decided by Board September 30, 196'0
Adopted child—Section 101(b)(1)(E)—Two-year period of custody following
adoption held essential.
Child adopted on July 29, 1959, under 1950 Jamaican Adoption of Children
Law found ineligible for immigration benefits as "adopted child" in view. of
present inability to satisfy two - year legal custody requirement imposed by

section 101(b) (1) (E) of the 1952 Act.
BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the District Director, Cincinnati, Ohio, dated June 16, 1960, denying the visa petition for preference status under section 203(a) (3)
of the Immigration and Nationality Act on behalf of the beneficiary

for the reason that the required relationship of parent and child
has not been established.
The petitioner, a native and citizen of Jamaica, British West
Indies, 57 years old, male, is a permanent resident alien. The beneficiary, a native and citizen of Jamaica, British West Indies, 13
years of age, is the adopted daughter of the petitioner. Evidence
has been submitted that the beneficiary was adopted by the petitioner and his wife on July 29, 1959, by decree of the Resident

Magistrate's Court at Kingston, Jamaica.
Section 203(a) (3) of the Immigration and Nationality Act, as
amended by the Act of September 22, 1959, grants third preference
status to the unmarried sons or daughters of aliens lawfully admitted for permanent residence. Section 205(b) provides that no
petition for preference in behalf of a son or daughter under paragraph (2), (3) or (4) of section 203(a) shall he approved unless
the petitioner establishes that he is a parent as defined in section
101(b) (2) of the Immigration and

Nationality Act.

The term

"parent" is defined in section 101(b) (2) in reference to the circumstances existing in section 101(b) (1).
Subparagraph (E) of section 101(h) (1) contains the definition"
of an adopted child which is relevant to the circumstances of the
98

present case. That subparagraph defines an adopted child for immigration purposes as a child adopted while under the age of 14
years if the child has thereafter been in the legal custody of, and has
resided with, the adopting parent or parents for at least two years.
In the instant case the beneficiary was adopted on July 29, 1959.
She was under 14 years of age at that time. However, the adoptive
parents have not had legal custody for two years subsequent to the
adoption as required by the statute.' The beneficiary accordingly
does not as yet qualify. It is noted that the required two-year period
of legal custody subsequent to adoption will not occur until July 29,
1961, at which time the application for a visa petition may again
be submitted.
We have taken note of the brief submitted by the petitioner, including the unsigned letter of Janunry 2R, 1960, from the Adoption
Board at Jamaica. We have examined section 22 of the Jamaican
Adoption of Children Law, 1956, and the other information contained
in the letter. Careful consideration of the information therein does
not change our conclusion that the two-year period of legal custody
subsequent to adoption required by section 101(b) (1) (E) of the
Immigration and Nationality Act, as amended, has not been satisfied.
The visa petition must be denied at this time.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
there existed both the required period of
Cf. Matter of M—, 8— 148, in w
residence and of legal cus ody subsequent to the decree of adoption.

t

99


111COrlill iJeC

MATT=

or

urt 31:F100V

Kamm

In Deportation Proceedings
A-17092896

Decided by Board July 30,1968
In the absence of fraud, an alien who entered as a sixth preference immigrant
based on a labor certification as an automobile mechanic, who failed to obtain
the certified employment with the prospective employer due solely to lack of a
Job opening, who thereafter obtained employment as an automobile Mechanic
and who is still willing to work for the petitioning employer whenever a Job
is offered, is not deportable for lack of a valid labor certification at entry.
CHARGE
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable at
time of entry—No due certification by Secretary of Labor as required by
section 212 (a) (14) of the Act.
ON BEHALF OF RESPONDENT:

Herman Grant, Esquire,
10 North Clark Street,
Chicago, Illinois 60602

The case comes forward pursuant to certification by the Regional
Commissioner, Northwest Region, pursuant to 8 CFR 3.1(e) of the
order of the special inquiry officer dated May 20, 1968 terminating the
deportation proceedings.
The special inquiry officer has set forth the facts of the case in full
and for the purpose of our decision we shall set forth only such facts

as are pertinent. The record relates to a native of Romania, a citizen of
Israel, 46 years old, married, male, who last entered the United States
at the port of New York on August '7, 196'7 and was admitted for permanent residence upon presentation of an immigrant visa according
him a sixth preference under the Romanian quota. The labor certification upon which the sixth preference was based certified him for employment as an automobile mechanic at Harbor Motors, Inc. The
respondent testified that he went to Harbor Motors accompanied by his
friend, Alex Barnes, and talked to Mr. Szabo of Harbor Motors, the
prospective employer, but was informed that there was no work for him
but as soon as there would be work, the employer would call him. The
employer suggested that he go to school and learn English in the
meantime. While the Job Offer (Form ES-5 175B) stated that a

819

Interim Decision #1889
working knowledge of the English was desirable, it does not appear
that knowledge of the Rnglish language was required. The failure to
obtain employment was due solely to lack of a job opening. The
respondent obtained employment with the General Cooperage Company, Chicago, Illinois in October 1967 as a machine operator and
mechanic since October 1967 for which no labor certification was
obtained. He has been employed part time as an automobile mechanic
and is still ready, willing and able to work for Harbor Motors whenever he is offered a job. The evidence establishes that the respondent
was fully qualified as an automobile mechanic and eligible for the sixth
preference which was issued to him. There is no allegation of fraud on
the part of the respondent nor does the evidence of record reflect that
the respondent or the employer have been guilty of any fraud in obtaining the sixth preference classification. The respondent did work as an
'automobile mechanic for another employer but there is no evidence
to contradict respondent's assertion that he was discharged due to a
language barrier and not for lack of skill as an automobile mechanic.
In Matter of Tucker, Int. Dec. No. 1758, referred to by the special
inquiry officer, and differentiated on the facts, there was involved an
alien who had obtained a labor certification by an employer who
never intended to employ her as a domestic and who obtained immediate employment 'after her entry aS to. Sewina machine operator,
the type of work she was doing before arrival. In bMatter of Paco, Int.
Dec. No. 1832, the job offer on -which the labor certification was issued,
was withdrawn prior to the alien's application for admission to the
United States. In the instant case the respondent has obtained a sixth preference
and a labor certification as an automobile mechanic for which he has
fully qualified, and sought to obtain employment at the job with the
prospective employer'. He was not successful because the employer had
no job available. Thereafter be obtained employment for a period
about a month as an automobile mechanic, the category in which he
had been Certified, but left dim to language difficulties. The respondent
is still willing to work for the petitioning employer whenever a job
is offered to him. There is no evidence that the job offer upon which the
ceitification yrits predicated was not bona fide or that any fraud was
imputable to the respondent. It is concluded that deportability on the
charge stated in the order to show cause has not been established by
clear, convincing and uneqUivocal evidence. The decision of the special
inquiry officer terminating proceedings will be approved.
ORDER: It is ordered that the decision of the special inquiry officer
dated May 20, 1968 'terminating deportation proceedings be and the
same is hereby approved.
,

-

820


Interim Decision #2939

MATTER OF LUNA

In Visa Petition Proceedings
A-24616710
Decided 6' Board April

26, 1983

(1) New York will recognize, as a matter of comity, a divorce rendered in the Dominican
Republic where the Dominican court's jurisdiction was based on the domicile of one of
the parties.
(2) Henceforth, a pronouncement of a divorce for cause by an official of theCivil Registry
of the Dominican Republic, unless irregular on its face, will be accepted as prima facie
OVidOlnei, of compliance with the time and notice requirements of Dominican divorce law.
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Ronald LeFevre
Appellate Trial

Antonio C. Martinez, Esquire
324 West 14th Street
New York, New York 10014

Attorney

Br: fillihollan, Chairman; Maniatis, Dunne, Mont, and Vacca, Board Members

The lawful permanent resident petitioner applied for visa preference
classification for the beneficiary as her spouse under section 203(a)(2) of
the Irntnigration and Nationality Act, 8 U.S.C. 1153(a)(2). In a decision
dated July 18, 1982, the District Director denied the petition. The peti-

has appealed. The appeal will be sustained_
The petitioner is a 27-year-old female, a native and citizen of the
Dominican Republic. She was admitted to the United States for permanent residence on December 29, 1974, at New York, New York. The
beneficiary is a 27-year-old native and citizen of the Dominican Republic.
The petitioner and beneficiary were married to each other in New York
City on December 29, 1978. Both the petitioner and the beneficiary
were previously married. To establish the legal termination of their
prior marriages, the petitioner submitted copies of divorce decrees and
pronouncements from the Dominican Republic purporting to terminate
each of them.
The District Director denied the petition on the ground that the
petitioner's marriage is invalid because the beneficiary's divorce in the
Dominican Republic would nut be recognized by the state of New York
because the benefiCiary did not appear in the proceedings before the

tioner

385

Interim Decision #2939
Dominican Court in person or through counsel, but that judgment was
entered against him' by default. The District Director relied upon our
decision in Matter of Rodriguez, 15 I&N Dec. 227 (BIA 1975).
The District Director correctly noted that the validity of i marriage
generally is determined according to the law of the place of celebration.
Matter of Gamero, 14 I&N Dec. 674 (BIA 1974); Matter of Levine, 13
I&N Dec. 244 (BIA 1969); Matter of P , 4 I&N Dec. 610 (BIA; A.G.
1952). Thus, the validity of the petitioner's present niarriage to the
beneficiary depends upon whether New York would recognize the
Dominican divorce purporting to terminatd the beneficiary's prior
marriage.
The general rule is that a decree of divorce valid where rendered is
valid everywhere and will be recognized either under the "full faith and
credit" clause of the United States Constitution, or in the case of divorces
rendered in foreign countries, under the principle of comity, provided
that recognition would not contravene public policy. 27B C.J.S., Divorce,
sections 326-333 (1959). A foreign court must have jurisdiction to render
—

a valid decree, and the applicable tests of jurisdiction are ordinarily

those of the 'United States, rather than of the divorcing country, and a
divorce obtained in a foreign country will not normally be recognized as
valid if neither of the spouses had a domicile in that country, even
though domicile is not a requirement for jurisdiction under the divorcing
country's laws. 24 Am.Jur.2d, Divorce and Separation, sections 964-65
(1966); Annot., 13 A.L.R.3d 1419 (1967).
The domicile of the parties has long been recognized as the primary, if
not the exclusive, basis for the judicial power to grant a divorce. See
Williams v. North Carolina, 317 U.S. 287 (1942); Williams v. North
Carolina, 325 U.S. 226 (1945). New York recognizes divorces rendered
in foreign countries based on domicile of one of the parties. Sorensen v.
Sorensen, 219 App. Div. 344, 220 N.Y.S. 242 (1927); Quintana v.
Quintana, 101 N.Y.S.2d 593 (1950); see also Annot., supra,
New York, unlike many other states in the United States, will recognize a divorce decree rendered in a foreign country not based on domicile of either of the parties provided there is some physical presence on
the part of at least one party within the jurisdiction of the court rendering the divorce, and some type of appearance or submission to jurisdiction by the other party. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262
N.Y.S.2d 86 (1965), cert. denied, 383 U.S. 943, cert. denied, 384 U.S.
971 (1966); see also Matter of Rodriguez, supra; Matter of Li Ganoza, 15
I&N Dec. 593 (BIA 1976); Matter of Moncayo, 14 I&N Dec. 472 (BIA
1973).
With respect to the beneficiary's divorce, the record contains a decree
of divorce entered on A ugnst 15, 1978, purporting to grant a divorce on
grounds of incompatibility of character to Gisela Pena Hernandez
PRa

Interim Decision #2939
(plaintiff), "Dominican, of legal age, married,, dressmaker, residing in
Santiago . . . against her legitimate husband Mr. Leoncio Dania Luna
Castro, personal circumstances unknown, who did not appear at the
hearing in spite of having been legally summoned . . . ." The judgment
further reflects that the parties were married in the municipality of
Tenares on July 3, 1976. Thus, it is clear from the judgment that the
beneficiary's divorce was based on the domicile of the plaintiff in that
action. Therefore, the District Director was in error in relying upon
Matter of Rodriguez, supra, which pertains only to divorces granted in
foreign countries not based on domicile of the parties.
We now turn to the question whether the beneficiary's divorce was
timely pronounced under Dominican law. Article 17 of the Dominican
law of divorce, Law 1306-bis, Civil Code of the Dominican Republic,
requires the spouse who obtains a divorce for cause to have the divorce
pronounced and registered by an official of the Civil Registry within 2
months. Under Article 19 of that law, a plaintiff who fails to have the
divorde pronounced and registered by an official of the Civil Registry
loses the benefits of the divorce_ Since 1976 we have examined Dominican divorces for compliance with the requirement for timely pronouniemerit. We have made our decisions based on the evidence submitted by
petitioners (Matter of Brantigan, 11 I&N Dee. 493 (BIA 1966); Matter
of Annang, 14115iN Dec. 502 (BIA 1973)) and the law as provided by the
United States Library of Congress. We have been frustrated in this
endeavor by incomplete translations of the law (Matter of Tagle, 15
I&N Dec. 595 (BIA 1976)); inaccurate translations of the law (Matter of
Hann, 18 I&N Dec. 59 (BIA 1981) and Matter of Hann, 18 I&N Dec.
196 (BIA 1982)); poor quality translations of official documents (Matter
of Lucero, 16 I&N Dec. 674 (BIA 1979)); and piecemeal presentation of
the various provisions of Dominican law pertaining to this issue. Matter
of Harm, supra; Matter of Zorrilla, 18. I&N Dec. 378 (BIA 1983).
The result has been frequent modification of precedent decisions based
on the new information. Recently, we have held that the 2-month time
period for pronouncement of a Dominican divorce for cause, referenced
in Articles 17 and 19, begins to run from the expiration of the 2-month
time allowed for appeal, which begins to run from the time the defendant is notified of the judgment. Matter of Zorrilla, supra. In other
words, in order for such a divorce to be valid, it must be pronounced and
registered between 61 and 120 days from the date the defendant is
notified of the judgment of divorce.
The record in this case does not reflect the date the defendant was
notified of the judgment. Therefore, we cannot determine the period
within which the divorce must have been pronounced. Further, of
approximately 100 eases presently pending before the Board which will
turn on the validity of a Dominican divorce, none contains documents
387

Interim Decision #2939
establishing this date. While it is possible that all of these divorces are
invalid because they were untimely pronounced, we doubt it because
most of them were pronounced within 120 days from the date judgment
was rendered, which would make it mathematically impossible for them
to have been pronounced late under Article 19, even assuming the defendant was notified of the judgment on the day it was rendered. We think
the explanation for the absence of the date of notification in all these
cases is that the pronouncement of a divorce is generally accepted in the
Dominican Republic as evidence of compliance with the time requirements for such pronouncementsA translation provided to us by the Library of Congress reflects that
Article 17 of the Dominican law of divorce provides:
Art. 17. The spouse who obtained a divorce judgment issued by a court of last instance
of a judgment which has become final, except if an appeal on cessation which.suspends
the effects of the judgment has been Bled, is under the obligation to appear before the
Official of the Civil Registry, within two months, in order to have the divorce prdmaimed and the judgment registered in the Office of the Civil Registry, provided the
other party is summoned by the bailiff in order that ho (oho) may appear before the
Official of the Civil Registry to hear the pronouncement of the divorce.
Para. The Official of the Civil Registry shall not pronounce the divorce nor transcribe
the judgment unless the formalities provided for in article 548 of the Code of Civil
Procedure have been complied with and evidence that the other party was mullioned to
appear to hear the pronouncement adt as provided above in this article is presented [to
him]. The Official of the Civil Registry which pronounces a divorce without complying
with the above provisions shall be subject to dismissal [from his employment] without
prejudice to the civil liability that may exist.

Article 548 provides:
Art. 548. Judgments declaring the suspension to an act of opposition, the cancellation of
the registration of a mortgage, payments or anything that must be executed by a third
party of against the latter, shall not be executable by said third parties of against them,
even after the term of appeal is lapsed , unless the attorney of the party executing the
judgment issues a certificate stating the date on which the defeated party was, notified
of the judgment, and upon issuance by the court clerk of a statement to the effect that

the judgment of the court is neither opposed nor has been appealed.

The "Pam." of Article 17 quoted above provides that the official of the
Civil Registry shall not pronounce or transcribe a judgment of divorce
unless there has been compliance with Article 548. In the context of
Article 17, the "third party" referenced in Article 548 is the Official of
the Civil Registry who is called upon to pronounce and register a divorce.
Article 548 prohibits "execution" (pronouncement in this instance) by
that official without proof of the date the defendant was notified of the
judgment and a statement from the clerk of court to the effect that the
judgment is not opposed and has not been appealed.
Thus, these two provisions combine to require that the Official of the
Civil Registry have, before pronouncing a divorce, the evidence neces388

Interim Decision #2939
sary to determine compliance with the time and notice requirements for
pronouncements of divorces. In view of his official position and the fact
that the statute requires that he have the evidence, presumably he will
not pronounce a divorce where that evidence does not establish compliance with the time and notice requirements of the law. Therefore,
henceforth, we will accept a prciouncement of a divorce by an official of
the Civil Registry, unless irregular on its face, as prima facie evidence

of compliance with the time and notice requirements of Dominican divorce
law. Of course it can be rebutted if the Service has evidence of failure to
comply with these requirements.
In this case, the record reflects that the beneficiary's divorce was
pronounced on November 21, 1978, 98 days from the time the judgment
was rendered. The, pronouncement is not irregular on its face, and there
is no evidence of record which suggests that it was untimely. Therefore,
we will accept it.
With respect to the petitioner's prior divorce, the record contains a
judgment of divorce entered on February 18, 1976, granting Modesto
Antonio Ramirez Lugo and Emma Ramona Fernandez Fabre a divorce
on grounds of mutual consent. The judgment reflects that both spouses
were Dominican and domiciled in Santiago, Dominican Republic. The
judgment also reflects that their attorney appeared at the hearing in
their behalf. Thus, the petitioner's mutual consent divorce was also one
based on domicile. The record reflects that it was pronounced on March
4, 1976. See Matter of Lucero, 16 I&N Dec. 674 (BIA 1979). Therefore,
we conclude that the petitioner's prior divorce would also be recognized,
as a matter of comity, by- the state of New York.
We have reviewed the file and see no other basis upon which the visa
petition might properly have been denied. Accordingly, the appeal will
be sustained and the visa petition will be approved.
ORDER The appeal is sustained and the visa petition is approved.

389


Interim Decision #2030

MATTER OF MEDINA
In Visa Petition Proceedings
A-19176697
Decided by Regional Commissioner March 18, 1970
Petitioner, who in 1963 obtained a Bachelor of Science degree in commerce
with a major in accounting, but who has never been employed as a professional accountant nor in a professional occupation, is not now a member
of the professions and is ineligible for preference classification under section 203(a) (3) of the Immigration and Nationality Act, as amended, as an
accountant.
ON BEHALF OF PETITIONER: A. W. Hargreaves, Esquire
30 Hotaling Place
P.O. Box 2067
San Francisco, California 94126

This case comes forward on appeal from the decision of the
District Director, San Francisco, who denied the petition on September 18, 1969 in that the appellant had failed to establish that
she was a member of the professions and was, therefore, not eligible for classification under section 203 (a) (3) of the Immigration and Nationality Act, as amended.
Oral argument was requested and granted. Counsel for appellant
appeared as scheduled.
The appellant is a 28-year-old single female, a native and citizen of the Philippines residing in Canada. She filed the present
petition on May 9, 1969 for classification under section 203 (a) (3)
of the Act as a member of the professions as a "Bachelor of Science degree in Commerce" to seek work in Accounting in the
United States. In support of her petition she presented evidence
of graduation from a university in the Philippines in March 1963
with a Bachelor of Science in Commerce and a major in Accounting. Form ES-575A, "Statement of Qualifications of Alien"
shows that from April 1967 to December 1967 she was employed
as a personnel clerk for a bank in the Philippines and from July
1968 to December 1969 first as a secretary for the Air Force in

506

Interim Decision #2030
Labrador, Newfoundland and after December 1969 as a "budget
clerk."
On appeal counsel presented a letter dated February 25, 1970
from the Chief of the Budget Department of the Air Force stating that the appellant worked as a "budget clerk" from December
1968 to September 1969.
Accounting is a profession and is covered by the blanket Labor
certification provided by 29 CFR 60, Schedule A, Group II.
Matter of Asuncion, 11 I. & N. Dec. 660, holds that a characteristic common to occupations in the professions is the minimum
of a baccalaureate degree while the Matter of Shin, 11 I. & N.
Dec. 686, points out that the acquisition of a degree does not, per
se, make the holder thereof a member of the professions.

The record shows that the appellant graduated seven years ago
with a major in Accounting but has never been employed as a
professional accountant. Her past work experience as personnel
clerk, secretary and budget clerk is all in nonprofessional occupations entry into which do not require as a minimum a baccalaureate degree or the high academic preparation and training characteristic of occupations considered to be within the professions.
Section 203 (a) (3) of the Act in pertinent part states: "Visas
shall next be made available to qualified immigrants who are
members of the professions."
Section 204 of the Act states that if the alien is to be classified
under section 203 (a) (3) he must file a petition with the Attorney
General for such classification.
The appellant has never been engaged in a professional occupation and is not now a member of the professions. It is clear that
Congress intended such members of the professions to be so qualified at the time the petition is filed. The decision of the District
Director was proper.
Matter of Brantigan, 11 I. & N. Dec. 493, holds that the burden
of proof to establish eligibility for a desired preference rests with
the appellant. That burden of proof has not been met. The appellant is not eligible for the preference classification she seeks. The
appeal will be dismissed.
Denial of the petition, however, is without prejudice to the consideration of a new petition for sixth preference classification
should the appellant obtain a definite offer of employment from a
prospective employer in this country seeking her services and an
appropriate certification be issued by the Department of Labor
pursuant to section 212 (a) (14) of the Act, as amended.
ORDER: It is ordered that the appeal be dismissed.
507