Cite as 28 I&N Dec. 173 (BIA 2020)

Interim Decision #4003

Matter of M-A-M-Z-, Respondent
Decided December 17, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Expert testimony is evidence, but only an Immigration Judge makes factual findings.
(2) When the Immigration Judge makes a factual finding that is not consistent with an
expert’s opinion, it is important, as the Immigration Judge did here, to explain the
reasons behind the factual findings.
FOR RESPONDENT: Hillary Gaston Walsh, Esquire, Phoenix, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Joey L. Caccarozzo, Assistant
Chief Counsel; Lois B. Agronick, Associate Legal Advisor
BEFORE: Board Panel: MULLANE, CREPPY, and LIEBOWITZ, Appellate Immigration
Judges
MULLANE, Appellate Immigration Judge:

In a decision dated November 22, 2017, an Immigration Judge denied the
respondent’s applications for asylum, withholding of removal, and protection
under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature Dec.
10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”), and ordered him removed
from the United States. The respondent has appealed from that decision. The
appeal will be dismissed. 1

I. BACKGROUND AND IMMIGRATION JUDGE’S DECISION
The respondent is a native and citizen of Mexico. He is married to a
United States citizen, and they resided together in his late mother-in-law’s
house in Mexico. He has United States citizen stepchildren who live in the
United States.
1

A three-member panel of the Board heard oral argument in this case on December 5,
2019.

173

Cite as 28 I&N Dec. 173 (BIA 2020)

Interim Decision #4003

In February 2016, the respondent’s car was set on fire outside the
mother-in-law’s home in Mexico. It was the middle of the night and a
neighbor alerted them to the fire. The respondent went outside but no one
saw who started the fire.
A second incident took place on May 2, 2016, when he drove to the
veterinarian’s office with his wife’s granddaughter in the backseat of the car.
Two men parked next to the respondent and one of them asked whether the
respondent knew him. The respondent said no, and the man pointed a gun at
the respondent and said, “You know who I am. You stole from me.”
According to the respondent, the man hit him two or three times with the gun
and also punched him. He threatened to kill the respondent but noticed the
granddaughter and said he would kill him the next time. The respondent
testified that he did not know the man or what he was talking about and did
not owe him any money. The respondent filed a police report about the
incident.
When asked whom he feared in Mexico, the respondent said he was
“afraid of the mafia. I mistrust anything.” He admitted that he did not know
the identities or group affiliations of the individuals who attacked him.
A private investigator also testified as a witness for the respondent. The
private investigator previously worked as a law enforcement officer for the
United States Government. The Immigration Judge accepted the witness as
an expert on general country conditions and cartel activity in Mexico. In
the course of an investigation, the witness learned that the respondent’s
step-daughter was arrested in January 2015 for attempting to smuggle
methamphetamine and heroin across the border. He concluded that the same
man who provided the drugs for her to smuggle into the country also attacked
the respondent, because their physical description of the man matched. He
also testified that the respondent’s step-daughter told him that she was
working for the Drug Enforcement Administration (“DEA”), but he did not
verify her claim with the DEA. His theory was that the assault against the
respondent was related to the drugs confiscated from his step-daughter,
because the assailant wanted to recover his lost money. The witness testified
that drug smugglers will threaten the family members of a person who has
lost drugs.
The Immigration Judge issued a written decision wherein he summarized
the evidence presented, including a detailed description of the testimony
given by the respondent and the witness. He then set forth the applicable
legal standards for asylum, withholding of removal, and protection under the
Convention Against Torture. The Immigration Judge found that the
“respondent is a member of the cognizable particular social group composed
of ‘family,’ with a particular subgroup of ‘immediate family members of [the
respondent’s step-daughter].’” He concluded that the mistreatment the
174

Cite as 28 I&N Dec. 173 (BIA 2020)

Interim Decision #4003

respondent suffered in the arson incident and the assault outside the
veterinarian’s office was not severe enough to constitute past persecution.
The Immigration Judge made an alternative conclusion, stating that
“[e]ven if the two events mentioned by the respondent had constituted
persecution, the respondent would not have met his burden to establish a
nexus to his social group of family.” The Immigration Judge focused on the
timeline and said that “[t]he car burning and assault against the respondent
did not occur until over a year after [his step-daughter’s] loss of the drugs.”
He found that the evidence presented did not show that the arson and assault
were even related. He focused on the fact that the respondent did not know
the identity of the arsonist or the assailant. With respect to the assailant, the
Immigration Judge pointed out that he “made no mention to the respondent
of [his step-daughter] or the lost load of drugs.” Furthermore, the respondent
did not have a close relationship with his step-daughter as she had never
visited him at the home in Mexico, and he could not recall the last time he
spoke with her. All of these factors led the Immigration Judge to find “the
timeline of events and the two events themselves to be too speculative to
establish any sort of nexus.”
The Immigration Judge next turned to the witness’s testimony and found
his “testimony and affidavit to be unhelpful and full of speculation.” The
Immigration Judge explained that the witness’s testimony regarding the
“match” between the respondent’s assailant and his step-daughter’s drug
provider was speculative and based on “general descriptions,” and gave it
little weight. The Immigration Judge was also not persuaded by the witness’s
claim that the respondent’s step-daughter worked for the DEA because the
witness admitted that he did not confirm the information with the DEA, and
that the reasons the witness provided could be explained other ways. The
Immigration Judge also pointed out that the witness “did not address the
typical timeline of retaliation by cartels” and that he “did not address the
significance of strength of relationship between a smuggler and a particular
family member.” The Immigration Judge concluded that the witness’s
testimony did not establish a nexus between the harm the respondent
suffered and a protected ground, so the respondent had not established past
persecution.
Turning to the respondent’s claim of a well-founded fear of future
persecution, the Immigration Judge reasoned that the respondent had not met
his burden of proof. He concluded that the respondent had not shown that
there was a pattern or practice because “no one in the respondents’ family
has suffered harm that rises to the level of persecution.” The attempt to steal
vehicles from his wife and his wife’s other daughter lacks a connection to the
arson or assault, and “there was no mention of [the step-daughter] or the lost
load of drugs from January of 2015.” The Immigration Judge also noted that
175

Cite as 28 I&N Dec. 173 (BIA 2020)

Interim Decision #4003

the other threats and messages were connected to the step-daughter, and that
the respondent’s other family members have not been harmed. For these
reasons the Immigration Judge concluded that the “respondent has not
demonstrated that similarly situated individuals are persecuted pursuant to a
pattern or practice in Mexico.”
The Immigration Judge also reasoned that the respondent had not
individually shown a well-founded fear of future persecution. The
Immigration Judge pointed to the respondent’s concession that “he does not
know the identities of the individuals who have harassed and threatened his
family.” This included an admission that the respondent does not know
“which cartel these individuals belong to, if they belong to a cartel at all, or
how involved they are in the cartel.” The Immigration Judge noted that the
respondent’s fears regarding the cartels “does not have a nexus to his
membership in the particular social group consisting of his family” and that
a generalized fear of cartels is not a basis for asylum.
The Immigration Judge also denied the respondent’s claim for
withholding of removal and protection under the Convention Against
Torture. The respondent’s withholding of removal claim failed for a lack of
proof, for largely the same reasons that his asylum claim failed. The
Immigration Judge denied the respondent’s Convention Against Torture
claim because “the respondent has not established that it is ‘more likely
than not’ that he would be tortured if removed to Mexico.” He described
the respondent’s claim that he would be tortured by cartel members as
“speculative and not corroborated by objective evidence.” No other family
members have been tortured. The Immigration Judge also pointed out that
the respondent did not receive any threats while in the United States.
Furthermore, the Immigration Judge found that the respondent’s claim relies
“upon a series of speculations” and that he had not met his burden of proof.

II. ANALYSIS
A. Standard of Review
We review findings of fact determined by an Immigration Judge,
including credibility findings, under a “clearly erroneous” standard. 8 C.F.R.
§ 1003.1(d)(3)(i) (2020). We review questions of law, discretion, and
judgment, and all other issues in appeals from decisions of Immigration
Judges de novo. 8 C.F.R. § 1003.1(d)(3)(ii).
An Immigration Judge’s finding regarding the motive of the persecutor is
a factual issue that is reviewed for clear error. See Matter of J-B-N- & S-M-,
24 I&N Dec. 208, 215 (BIA 2007). The Immigration Judge has broad
176

Cite as 28 I&N Dec. 173 (BIA 2020)

Interim Decision #4003

latitude as to how to interpret the evidence before him. See Matter of D-R-,
25 I&N Dec. 445, 454–55 (BIA 2011), rev’d on other grounds, Radojkovic
v. Holder, 599 F. App’x 646 (9th Cir. 2015). Moreover, the Board is not
permitted to substitute its own view of the evidence on appeal. Clear error
exists only where the Immigration Judge’s findings “‘are illogical or
implausible,’ or ‘without support in inferences that may be drawn from the
facts in the record.’” Matter of A-B-, 27 I&N Dec. 316, 341 (A.G. 2018)
(citations omitted).
B. Expert Witness
An expert witness is broadly defined as someone who is “qualified as an
expert by knowledge, skill, experience, training, or education.” Fed. R. Evid.
702; see also Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1269 (9th Cir.
1994); Matter of J-G-T-, 28 I&N Dec. 97, 100–01 (BIA 2020). An expert
has “scientific, technical, or other specialized knowledge [that] will help the
trier of fact to understand the evidence or to determine a fact in issue.” Fed.
R. Evid. 702(a); see also Matter of Marcal Neto, 25 I&N Dec. 169, 176 (BIA
2010) (stating that Immigration Judges may rely on experts “regarding
matters on which they possess little or no knowledge or substantive
expertise”). The Federal Rules of Evidence are not binding in immigration
proceedings. Matter of D-R-, 25 I&N Dec. at 458 n.9. Nevertheless, Rule
702 provides a useful guidepost for Immigration Judges in making factual
findings. See Matter of Vides Casanova, 26 I&N Dec. 494, 499 (BIA 2015).
In other words, Immigration Judges must consider whether evidence is
probative and fundamentally fair when deciding whether to admit evidence.
But the question whether to rely on specific portions of the expert witness
testimony for making a factual finding is different. See Alaska Rent-A-Car,
Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). Expert
witness testimony is evidence, but only an Immigration Judge makes
factual findings. The question of what probative value or weight to give
to expert evidence is a determination for the Immigration Judge to make
as the fact finder. See 8 C.F.R. § 1003.1(d)(3)(i); see also United States
v. Ruvalcaba-Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) (stating that the
finder of fact decides how much weight to give to expert testimony).
Thus, even where, as here, an Immigration Judge finds an expert to be a
credible witness, it does not follow that the Immigration Judge must accept
all the testimony and opinions provided as facts. Expert witness testimony
is evidence and so is treated the same as all evidence in immigration
proceedings, where the Immigration Judge is the trier of fact and weighs the
evidence in accordance with that role. That said, when the Immigration
Judge makes a factual finding that is not consistent with an expert’s opinion,
177

Cite as 28 I&N Dec. 173 (BIA 2020)

Interim Decision #4003

it is important, as the Immigration Judge did here, to explain the reasons
behind the factual findings. Cf. Matter of J-G-T-, 28 I&N Dec. at 104
(“There is no indication that the Immigration Judge reasonably considered
whether the witness’s opinion had a sufficient factual basis to essentially
establish the respondent’s claim.”).
The respondent argues that the Immigration Judge denied him due
process of law when he gave little weight to the expert witness’s opinion in
his factual findings. The respondent contends that the Immigration Judge
should have given him notice and provided him the opportunity to present
additional evidence, relying on Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011).
We do not agree that Ren requires such notice. In that case, the United States
Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises,
concluded that an Immigration Judge needed to inform a credible respondent
about the specific corroborating evidence necessary to meet his burden of
proof and provide a continuance to obtain the evidence. Id. at 1091–92. Ren
did not address this situation, where the respondent provided an expert
witness to establish his claim for asylum. Nothing in Ren suggests that the
respondent is entitled to a pre-decisional determination about the sufficiency
and persuasiveness of the expert testimony.
In the context of an asylum application, a respondent bears the burden
of proof. See sections 208(b)(1)(B), 240(c)(4)(B) of the Immigration and
Nationality Act, 8 U.S.C. §§ 1158(b)(1)(B), 1229a(c)(4)(B) (2018). The
statute and regulations, moreover, do not contemplate an advisory opinion
from an Immigration Judge to the respondent—during the proceedings—as
to whether the respondent has submitted sufficient expert evidence to meet
his burden of proof. See section 208(b)(1)(B)(ii) of the Act; 8 C.F.R.
§ 1208.13(a) (2020). We are not inclined to fashion such a procedure for
expert testimony where it would inevitably require multiple hearings and
advisory decisions by an Immigration Judge. See generally Avelar-Oliva
v. Barr, 954 F.3d 757, 771 (5th Cir. 2020) (holding that an Immigration
Judge is not required to give “advance notice of the specific
corroborating evidence necessary to meet the applicant’s burden of proof”);
Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (stating that “the alien bears
the ultimate burden of introducing such evidence without prompting from
the [Immigration Judge]”). The respondent has the obligation to put forth
the necessary proof to meet his burden and cannot complain after the fact
when he has not satisfied his burden of proof. Accordingly, the Immigration
Judge’s conduct of the hearing and consideration of the expert testimony did
not violate the statute, the regulations, or due process.

178

Cite as 28 I&N Dec. 173 (BIA 2020)

Interim Decision #4003

C. Asylum
The Immigration Judge denied the respondent’s application for asylum
because the respondent did not meet his burden of proof regarding nexus.
An applicant for asylum must show that “at least one central reason” for the
persecution was on account of a protected ground. Section 208(b)(1)(B)(i)
of the Act. However, before we address this issue, it is important to resolve
two preliminary issues—particular social group and the severity of the harm
that the respondent suffered.
The respondent’s claim is based on his membership in a particular social
group consisting of the family or immediate family members of his
step-daughter. As the Attorney General held in Matter of L-E-A-, 27 I&N
Dec. 581, 586 (A.G. 2019),
An applicant must establish that his specific family group is defined with sufficient
particularity and is socially distinct in his society. In the ordinary case, a family
group will not meet that standard, because it will not have the kind of identifying
characteristics that render the family socially distinct within the society in question.

We need not remand on the issue of whether the respondent established a
cognizable particular social group. This is so because even if the respondent
articulated a viable particular social group, he also bears the burden of
demonstrating that he was persecuted, or fears persecution, “on account of”
that membership in a particular social group. Reyes v. Lynch, 842 F.3d 1125,
1136–37 (9th Cir. 2016). We address the “on account of” or nexus issue in
detail below, and decide the case on that basis. Regarding the severity of the
harm that the respondent suffered, we note that the Department of Homeland
Security (“DHS”) has acknowledged, on appeal, that the harm rises to the
level of past persecution under applicable Ninth Circuit precedent, and so we
do not rely on the Immigration Judge’s contrary conclusion.
The determinative issue in this case is whether the Immigration Judge
clearly erred in finding that there was no nexus between the threatening
encounters the respondent has experienced and his membership in a
particular social group. See Matter of A-B-, 27 I&N Dec. at 343 (“Whether
a purported persecutor was motivated by an alien’s group affiliation is a
‘classic factual question’ which the Board may overturn only if ‘clearly
erroneous.’” (citation omitted)).
The respondent’s testimony does not establish a nexus between the
harm he suffered and a protected ground. The first incident the respondent
testified about was when his family’s car was set on fire in front of his
mother-in-law’s house. No one saw the perpetrators, and the respondent does
not know who did it or why. In the second incident, which happened about
3 months later, the respondent was violently assaulted in the parking lot of a
179

Cite as 28 I&N Dec. 173 (BIA 2020)

Interim Decision #4003

veterinarian while seated in his automobile. The respondent testified that he
did not know the man or why he attacked him. The man told the respondent
he should know him, stating, “You stole from me.”
The respondent’s testimony regarding these incidents does not establish
clear error in the Immigration Judge’s findings regarding the motive of the
assailant. The primary flaw in the respondent’s “theory” of the attack—
retribution for his step-daughter’s drug delivery failure—is that it is not
consistent with the respondent’s interaction with the assailant. The
assailant’s insistence that the respondent should recognize him because the
respondent stole from him does not support a connection between this event
and his step-daughter’s drug delivery failure. The Immigration Judge’s
factual findings regarding motive are not clearly erroneous. See Rodriguez
v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012) (stating that an Immigration
Judge’s factual findings are clearly erroneous only if they are illogical or
implausible).
The respondent also claims that the Immigration Judge’s factual findings
are clearly erroneous based on the expert witness’s testimony. As discussed
above, an expert’s testimony is evidence, but not conclusive fact. The
Immigration Judge is charged with making factual findings. On appeal, in
order to prevail, the respondent must establish that the Immigration Judge’s
findings are clearly erroneous.
The expert witness tied the assault against the respondent to his
step-daughter’s loss of the drug load. The Immigration Judge, however,
provided ample reasons not to make this connection, and his factual findings
are well supported. The Immigration Judge did not clearly err in declining
to accept the witness’s conclusion that the man who assaulted the respondent
was the same person who gave his step-daughter the drugs for transport. The
witness based this “match” on the verbal descriptions provided to him by the
respondent and his step-daughter. The problem, as the Immigration Judge
found, was that the descriptions were so general that they applied to many
men in Mexico. There were no distinctive or special characteristics that
supported a definitive match based on the verbal description. Furthermore,
the witness’s testimony regarding the “match” is not part of his purported
expertise. As a former law enforcement agent, the expert witness does have
some experience with descriptions, but that is not his claimed expertise. See
Matter of J-G-T-, 28 I&N Dec. at 103 (discussing the importance of clearly
establishing a witness’s area of expertise).
The Immigration Judge also provided adequate reasons for not accepting
the witness’s claim that the respondent’s step-daughter was working for the
DEA. While her conviction for a drug offense was verified, the witness was
not able to confirm that she was working with DEA (and to describe the scope
and extent of the relationship) or to corroborate other aspects of her story.
180

Cite as 28 I&N Dec. 173 (BIA 2020)

Interim Decision #4003

Indeed, the Immigration Judge noted other plausible reasons that the
respondent’s step-daughter may not have received a long jail sentence, none
of which were refuted by the respondent. Furthermore, she did not testify
despite being the key percipient witness in this theory. While expert
testimony can serve an important role in immigration cases, it cannot be a
substitute for important fact witnesses who are otherwise available to testify
or provide a declaration.
The Immigration Judge also noted that the witness’s theory was
undermined by certain aspects of the “relationship” between the respondent
and his step-daughter. Indeed, the relationship was not particularly close.
The respondent married her mother only 6 months prior to her arrest, she
never visited the respondent and his wife at their home, and the respondent
had no awareness of her arrest until the expert witness told him. Without
additional evidence to support the respondent’s theory, the Immigration
Judge’s factual findings are not clearly erroneous.
The respondent now tries to rely on a new timeline, arguing that it was
his step-daughter’s conviction in October 2015 that precipitated the threats,
rather than the January 2015 arrest and loss of the drug load, which provides
a much more compressed period of time before the first incident against the
respondent in February 2016. This argument was not presented before the
Immigration Judge or in the respondent’s opening or supplemental brief on
appeal. Moreover, the respondent’s expert witness did not advocate this
theory in his testimony. Even a more compressed time frame, however, does
not make the Immigration Judge’s motive finding clearly erroneous where
the respondent did not identify the motive of the arsonist or his assailant, and
there are significant gaps between his step-daughter’s activities and the
connection to the respondent. Furthermore, this new “timeline” theory does
not establish that the Immigration Judge clearly erred in finding a lack of
nexus to a protected ground.
In the absence of past persecution on account of a protected ground, there
is no presumption of a well-founded fear of persecution. As to a
well-founded fear of persecution, the Immigration Judge concluded that the
respondent’s fear on account of a protected ground was not objectively
reasonable. Other family members remain safe in Mexico, further indicating
that the respondent does not have an objectively reasonable fear of harm on
account of his family membership. See Santos-Lemus v. Mukasey, 542 F.3d
738, 743–44 (9th Cir. 2008) (explaining that where an applicant’s claim of
future persecution is based on family membership, the fact that family
members remain unharmed in the home country undermines the claim),
abrogated on other grounds, Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th
Cir. 2013) (en banc); see also, e.g., Aruta v. INS, 80 F.3d 1389, 1395 (9th
Cir. 1996) (collecting cases).
181

Cite as 28 I&N Dec. 173 (BIA 2020)

Interim Decision #4003

In addition, the attacks occurred near the respondent’s home, and there is
insufficient evidence that he could not safely relocate to another part of
Mexico. See 8 C.F.R. § 1208.13(b)(2)(ii). The respondent has the burden of
proving that such relocation would not be possible or reasonable. See
8 C.F.R. § 1208.13(b)(3)(i); see also Recinos De Leon v. Gonzales, 400 F.3d
1185, 1190 (9th Cir. 2005). There is no clear error in the Immigration
Judge’s factual findings relating to this issue. For all these reasons, the
respondent has not established past persecution or a well-founded fear of
future persecution on account of a protected ground.
D. Withholding of Removal
At oral argument, the respondent, while acknowledging that the
Immigration Judge cited Barajas-Romero v. Lynch, 846 F.3d 351, 358–60
(9th Cir. 2017), argued for the first time that the Immigration Judge applied
the wrong standard to his application for withholding of removal under
section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2012). The
respondent did not raise this issue in his opening brief. Furthermore, in his
supplemental brief, he expressly declined to address any issue relating solely
to withholding of removal, stating that he “does not address, explicitly, the
[Immigration Judge’s] denial of his application for withholding of removal,
as he believes remand for correction of the [Immigration Judge’s] errors as
to asylum and Convention Against Torture protection will necessarily
involve a remand for correction of the errors in the withholding of removal
denial.” The respondent thus conceded that there was no separate and
independent ground to remand that related solely to the withholding of
removal claim. We will not consider this issue any further because the
respondent has waived it. See Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2
(BIA 2012) (stating that failure to raise an issue constitutes a waiver of the
claim); cf. Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996)
(concluding that, pursuant to the Federal Rules of Appellate Procedure,
failure to raise an issue in an opening brief constitutes a waiver).
E. Convention Against Torture
Finally, based on the entirety of the record, we agree, for the reasons
stated by the Immigration Judge, that the respondent has not shown that he
is more likely than not to be tortured by or with the consent or acquiescence
of a public official or person acting in an official capacity in Mexico and,
thus, is not eligible for protection under the Convention Against Torture. See
8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1) (2020). No clear error exists in the
Immigration Judge’s finding that it is not more likely than not that the
182

Cite as 28 I&N Dec. 173 (BIA 2020)

Interim Decision #4003

respondent will be tortured. See Ridore v. Holder, 696 F.3d 907, 919, 921–22
(9th Cir. 2012) (holding that an Immigration Judge’s determination of
whether an alien will more likely than not be subject to torture is a predictive
finding of fact subject to clear error review).
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See Section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

183


Interim Decision #1733

MATTER OF ALFONSO-BERMUDEZ

In Deportation Proceedings
A-12366552
Decided by Board May 11, 1987
(1) Conviction of disorderly conduct in violation of section 647(a) of the Penal'
Code of California Is couviellon of a crime involving mural turpitude [Metier

of G—R—, 5 I. & N. Dec. 18, distinguished].
(2) Conviction of disorderly conduct in violation of chapter 27, section 60, of the
Code of the City of Phoenix, Arizona, Is conviction of a crime involving moral
turpitude.
CHARGE:
Order: Act of 1952—Section 241(a) (4) 18 U.B.C. 1251(a) (4)]—Convicted of
two crimes involving moral turpitude.
ON BEHALF or RESPONDENT:
ON BEN= Or SERVICE:
James E. Curran, Esquire
Jay Segal
610 Libra Tower
Trial Attorney
Phoenix, Arizona 85008
(Brief submitted)

This case comes forward on certification from the special inquiry
officer, who found respondent deportable as charged, and in the absence of an application for voluntary departure ordered him deported
to Cuba; with an alternate designation of Panama, and granted a stay
of deportation to Cuba under section 243(h).
Respondent is an unmarried male alien, a native and citizen of Cuba,
who was lawfully admitted to the United States for permanent residence on or about January 12, 1962 at Miami, Florida. On July 7,
1965, after trial, in the Municipal Court of Los Angles, Judicial District of the County of Los Angeles, California, respondent was convicted of violation of subdivision (a) of section 647 of the Penal Code
of California, in that on or about April 22, 1965 in Los Angeles he "did
wilfully and Unlawfully solicit a person and persons to engage in and
did engage in lewd and dissolute conduct in a, public place and in a
place open to the public and exposed to public view." After a probation report; proceedings were suspended without imposition of sentence and respondent was placed on probation for one year, with certain conditions relating to employment, residence and the seeking of
225

Interim Decision #1733
psychiatric or psychological treatment. He was also registered under
section 290 of the Penal Code as one who had been convicted of a
sexual offense. The sentence included a fine of $50 which respondent
On August 25, 1966 in the City Court of the City of Phoenix, Arizona, respondent was convicted of a misdemeanor in that he "on or
about the 31 day of MAY, 1966, on or about the City of Phoenix, to
wit: ADAMS HOTEL-MEN'S RESTROOM, did wilfully and unlawfully offer to commit a lewd or indecent act with another person,
namely LT. CASSIDY, in violation of Chapter 27, section 60, of the
Code of City of Phoenix." Respondent was sentenced to pay a fine
of $100 plus $33 in costs.
Official records of these convictions upon which the charge in the

order to show cause is based, were introduced in evidence. Respondent admits all of the allegations in the order to show cause, including
those concerning conviction for thestNoffenses, but contests deportability- upon the grounds (1) that these are not crimes involving
moral turpitude, and (2) that the conviction in Phoenix, Arizona
is invalid because the ordinance under which it was framed is unconstitutional and one which the municipality of Phoenix was without power to enact.
The special inquiry officer ruled correctly that the constitutionality
of a statute cannot be adjudicated in an administrative deportation
proceeding. Unless the conviction had been set aside, or there was a
court ruling that the statute upon which it was based was unconstitutional, it was properly accepted at face value. Further, conviction
under a city ordinance is considered conviction of a crime for the
.purposes of section 241(a) (4) ; Matter of W—, 4 I. & N. Dec. 401.
We concur also in the finding of the special inquiry officer that the
two convictions, although based upon a similar type of activity, are
not crimes arising out of a single scheme of criminal misconduct.
The special inquiry officer has discussed at considerable length the
background of section 647(a) of the California Penal Code. This is
a recently amended section, replacing section 647.5 which, in. Matter
of G-R-, 5 I. & N. Dec. 18, was held to define a crime not involving
moral turpitude. However, the predecessor statute (section 647.5)
was one of different import, decreeing that the performance of specific
acts would render a person a vagrant, and punishing the status of
vagrancy. In Matter of G-R- above cited, it was held by the Assistant
Commissioner, and affirmed by the Board, that the crime of vagrancy
under section 647.5 in California was not one involving moral turpitude. The present section defines certain acts as disorderly conduct,
and punishes the commission of those ads. The specific act' here in226

° Interim Decision #1733
volved, the soliciting of a person or persons to engage in, and the°
engaging in lewd and dissolute conduct in a public place, referring
to overt and public homosexual activity, has been the subject of many
similar statutes in other states. It is closely related both in wording
and content to section 722(8) of the Penal Code of the State of New
York which has been held to involve moral turpitude. United States,
237 F.2d 405 (2d Cir., 1956) ; Babouris v. Es- v.Flores-Rdiguz,
perdy, 269 F.2d 621 (2d Cir., 1959), cert. den. 362 U.S. 913 (1960) ;
see other cases and statutes cited by the special inquiry officer at page.
6 of his opinion. The conviction in Phoenix rests upon similar activity, similarly defined by the Phoenix code. We, therefore, hold with
the special inquiry officer that both crimes here are crimes involvins
moral turpitude.

A substantial part of the. hearing and the special inquiry officer's
decision are concerned with respondent's application for a stay of
deportation under section 243(h). It appears well established that

respondent and his family are and have been anti-Communist and
opposed to the Castro government in Cuba. His parents had a business
which was confiscated by Castro and they were finally able in 1966
to leave Cuba. One of his sisters is already in the United States with
her husband and child and another sister and her husband are trying
to leave Cuba.
Respondent gave considerable testimony as to his anti-Castro activities while he was in Cuba and the difficulties he had in leaving
Cuba. Combining the testimony herein with the administrative notice
taken by the special inquiry officer of the type of government existing
in Cuba, and noting also the absence of any evidence by the Government in opposition to respondent's application, we believe the special
inquiry officer was correct in granting the respondent's application for
withholding of deportation to Cuba under section 243 (h).
ORDER: It is ordered that the decision of the special inquiry officer be and the same is hereby affirmed.

227


Interim Decision #2590

MATTER O1 DACANA Y
In Deportation Proceedings
A-20972362
A-20972365
Decided by Board June 3, 1977
(1) Respondents were authorized to accept employment at St. John's Hospital in Detroit.
Subsequently, and in violation of their authorized employment, they accepted employment at another hospital prior to the approval of visa petitions submitted by the second
hospital in their behalf. The Service approved those petitions January 24, 1975, and
authorized respondents to remain until January 23, 1976.
(2) Deportation proceedings were instituted under section 241(a)(9) of the Immigration
and Nationality Act alleging respondents had violated their nonimmigrant status by

accepting employment at the second hospital before approval of their visa petitions.
(a) A visa petition filed on Form I-129B on behalf of an alien already in the United States
in a nonimmigrant classification defined in section 101(a)(15)(H) of the Act may be
adjudicated only as an application for extension of stay either to continue the same
employment or training previously authorized or to undertake different employment or
training. The approval by the Service of the Forms I-129B filed by the second hospital
on January 24, 1975, operated to authorize an extension of the stay of respondents and
inferentially affirm the continuing legality of their nonimmigrant status. For that reason
the orders to show cause should not have been issued, and the proceedings will be
terminated. •
CHARGE:
Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9))—Noninunigrants--failed to
comply with conditions of status
ON BEHALF OF RESPONDENTS: Ernest Sosnick, Esquire
Popkirk, Shamir & Greenberg, Inc.
5670 Wilshire Boulevard
Suite LSOO
Lus Arageles, Califuruia 90036

Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

In a decision dated March 19, 1S75, an immigration judge found the
respondents, husband and wife, deportable under section 241(a)(9) of
the Immigration and Nationality Act, for failure to comply with the
conditions of their status, and granted them the privilege of voluntary
d eparture by May 17, 1975, in lieu of deportation to the Republic of the
238

Interim Decision #2590
Philippines. The husband alone has appealed from that decision in
submitting his Notice of Appeal (Form I— 290A), dated March 26, 1975,
through previous counsel. Inasmuch as the Service and new counsel
treat the appeal as though the wife had appealed also, we will take
jurisdiction of her case on certification in accordance with 8 C.F.R.
3.1(c).
The respondents, natives and citizens of the Republic of the Philippines, were admitted to the United States on July 10, 1972, and August
5, 1972, respectively. Under Section 1_01(a)(15)(H)(i), they were authorized employment at St. John's Hospital, Detroit, Michigan, until
May 17, 1975, and May 4, 1975, respectively.
In violation of their authorized employment, the respondents accepted employment at the David Brotman Memorial Hospital in Culver
City, California, on November 18, 1974, and December 2, 1974, respectively. They commenced such employment prior to the approval of visa
petitions submitted by the David Brotinan Memorial Hospital on their
behalf. The visa petitions were approved on January 24, 1975, for their
new employment and they were authorized to remain until January 23,
1976 (counsel's brief p. 1).

At the hearing the respondents admitted the allegations contained in
the Order to Show Cause, however, they denied deportability (Tr. p. 3).
Section 101(a)(15)(17)(i), pertains to an alien having a residence in a
foreign country, which he has no intention of abandoning, who is of
distinguished merit and ability and who is coming temporarily to the
United States to perform temporary services of an exceptional nature
requiring such merit and ability.
The employment of nonimmigrants, including temporary workers, is
also governed by regulations. The pertinent portion of 8 C.F.R. 214.1(c)
states:
A nonimmigrant who is permitted to engage its employment may engage only in such
employment as has been authorized. Any unauthorized employment by a nonimmigrant
conAtitutps a failure to maintain status within the meaning of section 241(a)(9) of the
Act.

Additionally, 8 C.F.R. 214.2(h)(1) provides:
If an alien in the United States desires to perform temporary services for another
petitioner, a new petition on Form 1-129B must be submitted, and if the petition is
approved, an extension of stay may be granted. .

The respondents were authorized employment at St. John's Hospital,
Detroit, Michigan. Initially they were not authorized employment at
David Brotman Memorial Hospital in Culver City, California; authorization was not obtained until some 10 -weeks after employment commenced.
The Service, however, in its motion for termination, dated May 19,
239

Interim Decision #2590
1977, requests that these deportation proceedings be terminated inasmuch as they were improvidently begun.
It is the Service position that a visa petition filed on Form 1-12913 in
behalf of an alien or aliens already in the United States in the noninunigrant classification defined in Section 101(a)(15)(H), may be adjudicated
only as an application for extension of stay either to continue the same
employment or training or to undertake employment or training different from that previously authoriied. The approval of Forms 1-1293 in
these cases on January 24, 1975, had the effect of extending the stay of
the respondents and of inferentially affirming the continuing legality of
their noninunigrant status. The Service contends the Orders to Show
Cause should not have been issued.
On the basis of the foregoing we will grant the Service Motion for
Termination. Matter of Vizcarra-Delgadillo, 13 I. & N. Dec. 51 (BIA
1968). Accordingly, the proceedings will be terminated.

ORDER: The deportation proceedings against the respondents are
terminated.

240


'interim Decision #1546

MA

t OF

Bunn('

In Exelusion..Proceedings
A-13959431

Decided by Board August 9, 1966 and .7a/wary 6, 1966
An alien lawfully admitted to the United States for permanent residence but
living in Canada where he is daily employed full time, who, Elmo 1953, except for a short period, has entered, and will continue to enter, this country
in his spare time as a returning resident alien "commuter," regularly but not
'daily, to work as a carpenter for anyone who will employ him (some jobs
last about a month, some a few weeks), and who now seeks to enter in
such capacity, is admissible as a returning resident "commuter" notwithstanding his employment in the United States is only part-time, is self-employment, and Is not (lolly. •
FaCIATDABLE : Act of 1952—Section 212(a) (20) (8 U.S.C. 1182(a) (203—Immigrant without visa.

BEFORE THE BOARD

The special inquiry officer has certified his order admitting the
applicant to the United States as a commuter; no change will be
made.
Applicant, a 40-year-old married male, a native and citizen of
Canada; -after entering the United States with an immigrant visa
in 1953, returned to his home in Canada where he is and for the
past 16 yeais has been employed as a Canadian customs officer, but
has come to the United States in his spare time to work as a.
carpenter. For a short period he stopped corning, after he had been
warned by a United States immigration officer that his employment
in the United States may have been contrary to immigration laws;
however, on November 3, 1961 he again entered the United States
with an immigrant visa with the intention of pursuing his part - time
carpentry work in the United States. A. few days' work in Maine
was followed by s. period of unemployment for about a month. Employment in Vermont. of about four weeks was stopped when he
required an operation. After spending about two months recovering,
466

Interim Decision .#1546
he sought to reenter the United:States to continue with his part-time
carpentry;: liumigrant inspector's ruling that he wa.s,not entitled
to enter as 'a commuter resulted, in this exclusion hearing.
The issues raised are whether the cominuter privilege should be
denied to the applicant because he also had a job in Canada or he-,
cause in the United, States -he- was self-employed rather than an
employee.: The special' biquiry officer finding no precedent for barring entry ordered :applicant admitted. .
A comniuter,is an alien.admittid to. the United States for permanent residence who despite- the fact that he is domiciled in foreigu
contiguous:territory and- often resides there is permitted. to enter
the United States as a re ,sident• alien to -work or to seek. work. To
maintain commuter states, .the alien must engage in work which
is permanent and stable, or, if, he is coming to seek work, it must be
of a similar, nature and it mint be obtained within six months of, his
entry. lf,the commuter stops working for other than health reasons,
he will lose bis commuter status unless he finds permanent and stable
employment within six months following the loss. Inability of the
alien to find employment because jobs are not available results in
loss of commuter status even though he enters regularly to seek
employment. . The commuter is also treated ess, a resident alien for
purposes of the report provision§ of the Mien Registration Alt.,
However, he is treated as a nonresident alien concerning naturalize:tion, Selective Seritic:e; and s the exclusion of nonresident aliens because their entry would lia'ke - an adverse - effect on Ainerican labor
(Matter of ,T—P—, 9 I.'&' N. Dec.-591; Matter of L—, 8 I. & N. Dec.
613; Matted , of hf D---15 , 8 L &N. Dec. 209).
These precedents reveal that immigration statutes make no mention
of the commuter status; it is an administrative device originated in
1927 to- permit the continued entry of Canadian and Mexicap. nationals • 'domiciled in their native lands who had for years beer
coming to the. United States to work as nonimmigrants, but whose
continued• entry as nonimmigrants was made impossible by legisla- •
—

—

tion which classed all. persons e.taniug to the United States to per-

form labor-as immigrants: Congressional approval of the commuter
status is found 'in the fact that Congress has shown awareness of
the status .and has not criticized it, nor has it in recent legislation,

includedlconutouters in its. definition of nonimmigrants (Hatter of
&.N. Dec. 716)•
The bases. for the creation of the commuter status' are given as,
tke desire rtes maintain good international .relations, a, matter . of
reciprocity, the concern for the livelihood of aliens: who had been
467

Interim Decision #1546
commuting to the United States for employment, the needs of
American industry, and the needs of communities which had grown
up in close proximity to each other on both sides of the border.
Elements of organized labor in the United States believe that the
existence of the commuter status is undesirable and unlawful: it is
argued that commuters depress wages and cause unemployment
among resident laborers whom Congress obviously desire to protect
'(Karnutil v. U.B. ex rel. Albro, 279 U.S. 231 (1929) ; Amalgamated
Meat Cutters cf Butcher Work v. Rogers, 186 F. Supp. 114 (D.C.,
1960)).
In establishing standards for the commuter status, it might be
urged as an original matter that the reasons which gave rise to the
commuter status would require consideration of the following matters: the nature of the employment, the need for the alien's services
in the United States, the ability of United States residents to obtain
similar services conveniently and reasonably, the sources of the
alien's income, and the effect upon him of barring him from entry;
however,,there are no laws or regulations imposing such tests—the
test which has been used considers the intent of the alien to continue
in the status, and whether the employment has been stable and
regular (Matter of 1—, 4 I. & N. Dec. 454). Intermittent employment has satisfied the requirement that employment be stable and
permanent (Matter of 1—P—, 9 I. & N. Dec. 591; Matter of Chaparro-Portilla, A-10532787 (January 8, 1964) (unreported) (domestic
work three days a week for part of the period; one day a week 'plus
an occasional additional day during week for rest of period)).

Using the controlling test, we find that the alien here has not abandned his intention to continue in the commuter status. We find that
the frequency and regularity of the respondent's employment in the
United States while he was able to work is sufficient to satisfy the
requirement that his employment be stable and permanent. No
change will be made in the order of the special inquiry officer.
We would point out that evidence required to terminate commuter status must be reasonable, substantial and probative and considered in view of the fact that the commuters are technically regarded as legally resident, aliens. Moreover : where commuters involved are aliens who have been coming to the United States for a
period of time, and are, applying to come to or to seek employment,
we would assume in view of the time elapsing before final adjudication is made, that they will be paroled into the United States during
the pendency of the appeal.

Interbn'Decisio'n 'iE1'546
ORDER: It is oiclered that no chanb be made in the Order of
the special inquiry officer.
BEFORE TILE BOARD

The Service moving for reconsideration of the Board's order of
August 9, 1965 which affirmed the special inqUiry officer's action
admitting, the applicant as a commuter asks that the applicant be
excluded. The motion -will be denied. . •
Counsel contends the motion was not timely filed. We find there
was an incomplete Ming within the time granted because there was
a failure to file proof with the Board of timely service of the motion
on counsel. We shall take the matter by certification. ...The regulation provides in pertinent part that the Service officer—
shall cause one copy of the motion (for reconsideration] to be served upon the
alien or party affected, as provided in Part 292 of this chapter, and 'halt
cause the record in the case and one copy of the motion to be filed directly
with the Board, together with proof of service upon the alien or other party
affected (8 CPR 3.8(c)).

This regulation requires the motion to be filed "together" with
proof that service has been madaupon the alien. Thus, there is no
more reason to permit untimely service of the motion on the alien
than there is to permit untimely service of the motion on the Board.
That service of the motion on the applicant was untimely is clear.
The Service was granted until September 20, 1965 to perfect its
motion. The Board was served with a copy of the motion on this
date; however, counsel was served by mail eight days later and proof
of such service was not filed with the Board until October I. 1965_
In view of the importance attached by the Service to the motion we

shall take it by certification. 1 (We shall consider applicant's reply
brief which also was not timely filed since it should have been filed
by October 9, 1965"but was filed October 13, 1965. The reply brief
states that the motion is defective under the regulations in that it
is not based upon new matter and that the Service has cited no
authority directly supporting its views.)
'Compliance with 8 CPR 3.8(c) imposes no difficult burden on the Service.
Here. for example, there could have been compliance had a copy of the mo-

`Bon been mailed to the applicant on the day the motion was served on the •
Board (S CPR 292.5). (If the Service believes that in the interest. of justice
personal service of the motion should be made even though there has been
' timely service by Mail,. the Service should notify the Board of its belief; the
Board may then delay consideration Of the motion until personal service Is
made.)
,

469

interim Decision #1546
The facts have been fully stated in previous orders. The-question
is what conditions an alien must meet to acquire andkeep the right
to come to the United States as a commuter—a person living in
foreign contiguous territory who regularly comes to the United
States to work.
The right of an alien to work in the United States is, with
exceptions not pertinent here, confined, to those who have been admitted for permanent residence; however, it does not, follow that
such an alien must reside in the United State's ::he may, if he desires,
continue or begin to make his home in: foreign "contiguous territory
and commute to emplo,yment in the United States. There being an
absence of statute or regulation setting standards for commuters, we
reviewed the eases and history and- found, that to be considered a
commuter, it was- necessary that the alien who had been lawfully
admitted for permanent residence take •egular employment in the
United States, hav4 the -continuing intentionlo come for such purpose, and have no break in employMent for;as long as, six months
(unless the unemployment was caused by illness).. Applying the
rules to the instant case, we found that the, special inquiry officer
had properly ordered tli.e admission of the applicant—an alien lawfully admitted for permanent residence but. living in Canada where
lie is daily employed, and who, except for a short period, has entered
.since 1953, and will continue to enter in hiq spare time, regularly
but not daily, as a self-employed carpenter to work for anyone who
will employ him (some jobs last about a month some a few weeks).
He seeks to enter, now in, the same capacity. The Service contends
that the applicant is inadmieqible because the conditions which must
be met by a commuter and are not met by him, are that he enter
daily, that the employment in the, United States be full time, and
that the employment be not self-employment.
The Service Ands its conditions-not in authority directly sustaining its position—Ahe Service cites no case holding that part-time
employment., or intermittent employment, or self-employment, or
employment requiring less• than daily entries prevents one from
being a commuter—but in general expressions concerning stable employment in cases in which the issue concerned unemployment for
six months MI the par!* .of an alien who had been coming daily, or
cases involving the alisenc,e of any employment, or so little employment (two hours) that it would be fanciful to consider it stable
employment, or 'eases involving the pretence of a ground of inad,
naisbltyoperh."
,

470


Interim Decision #2213

MATTER OF SOTJQI

In Section 223 Proceedings
A-30261999

Decided by Regional Commissioner July 11, 1973
Notwithstanding applicant's recent admission to the United States for permanent residence, application for issuance of a reentry permit is granted for the
purpose of returning abroad for approximately two years to dispose of his
business and home and to arrange to bring his immediate family to the United
States for permanent residence. [Matter of Sehonfeld, 10 1. & N. Dec. 699,
distinguished.]

This case is before me by certification. The District Director
previously denied the application and no appeal was taken.
The District Director succinctly stated the facts of this case and
the basis for his decision, as follows:
The record in your case shows that you were admitted to the United States for
permanent residence on July 21, 1972; that you listed your final address here as
N. 4945 Fairfield, Chicago, Illinois; that instead of proceeding to that address
you came to Detroit to visit a son whom you state is a student here; that you
have not been employed in the United States since your last entry; and that you
claim you now intend to return to Kuwait for two years to sell your business and
home and bring your family here.
The term residence as defined in section 101(a)(33) of the Immigration and
Nationality Act, as amended, reads. "the place of general abode; the place of
general abode means the principal, actual dwelling place in fact, without regard
to intent." Your brief sojourn in this country of less than two months is not
sufficient to establish any degree of permanency; moreover, the record clearly
indicates that you have never abandoned your residence in Kuwait, as absolutely no ties were or have been severed and all your immediate family still
resides there. Therefore, your proposed departure from the United States is
judged not to be temporary within the meaning of section 223 of the Immigration and Nationality Act, as amended.

In this case, we believe the District Director's decision strains
the facts. There is nothing unusual about alien immigrants not
having sold their homes or businesses prior to their coming to the
United States. The American Consuls specifically warn them
against doing so prior to issuance of their visas and the maximum
of four months period of validity of the latter frequently affords
insufficient time after issuance to accomplish this, particularly if
they have substantial holdings.
390

Interim Decision #2213
In his application, to the question "Reasons for going abroad",
the applicant wrote "To sell business and home. Bring my family."
When interviewed under oath at Detroit, the applicant explained
that abroad he owned and operated an electrical equipment
store—air conditioners, refrigerators, etc.; that he also owned a
house there where he lived with his wife and -five children. In the
United States, he has one son and brother. In addition to selling
his holdings, the applicant testified he wanted to make arrangements for his wife and children to obtain visas and come to the
United States. The interviewing officer, in his summary, set forth
that when the applicant was asked why he didn't do this prior to
his admission to the United States, "He said it was very difficult to
make all of the arrangements because of his business and the
children being in school"
We note that the applicant has gone through the procedures of
having his brother file, on his behalf; a petition for a preference
status of issuance of an immigrant visa and has gone through the
procedure of seeking and obtaining an immigrant visa. He has
undergone the time consuming and expensive process of traveling
to the United States to be lawfully admitted for permanent
residence. We do not believe these procedures are undertaken
lightly.
This applicant is able to depart the United States without the
permit he seeks and be readmitted for permanent residence upon
presentation of his Alien Registration Receipt Card if he returns
within one year after the date of departure. The reentry permit he
seeks enables him to obtain an extension of the validity of the
reentry permit to embrace a two-year maximum period. It is our
opinion that the present circumstances of the applicant, a need to
dispose of specific holdings and arrange to bring his immediate
family to the United States for permanent residence, are precisely
one of the sets of circumstances contemplated by section 223 of the
Act.
None of the facts set forth by the District Director, either
individually or collectively, support denial of the application. Although not cited by the District Director, this case is readily
distinguishable from Matter of Schonfeld, 10 I. & N. Dec. 669,
denying applications for permits to reenter the United States in
which case the applibants had already been issued reentry permits
and extensions thereof on two occasions for the alleged purpose of
liquidating a family business (without doing so) and had been
physically present in the United States less than two months
during a four-year period. In Schonfeld, the reentry permit was
denied upon a finding that under the circumstances present in
391

Interim Decision #2213
that case, the applicant was not seeking to depart temporarily. In
the instant case, it would be premature to make a similar finding
on the basis of the alien's actions since his lawful admission for
permanent residence, this being his first departure since such
admission.
It is ordered that the application be granted.

392


Interim Decision #2402

MATTER OF SINGH

In Visa Petition Proceedings
A-20312960
Decided by Board November 11, 1974
(1) The United States citizen petitioner applied for immediate relative status for the
beneficiary as his.parent, wider section 201(b) of the Immigration and Nationality Act.
The petitioner was born out of wedlock in 1944. The beneficiary did not marry petitioner's mother until 1971. Petition was denied because beneficiary was not a parent
under section :.01(b)(2) of the Act since the petitioner had not been legitimated, prior to
his eighteenth birthday, in accordance with section 101(b)(1)(C). ,
(2) Petitioner was not legitimated under section 230 of the California Civil Code since the
record chows that neither petitioner nor beneficiary was a domiciliary or resident of
California befcre petitioner's eighteenth birthday Matter of Fabled, 12 I. & N. Dec. 503
(D.D. 196'7) distinguishable because in Pableo the father had established residence in
California prior to his son's eighteenth birthday.

ON BEHALF

OF PETITIONER:

John M. Bernier, Esquire
820 Forum Building
Sacramento, California 95814

The United States citizen petitioner applied for immediate relative
status for the beneficiary as his parent under section 201(b) of the
Immigration and Nationality Act. In a decision dated March 28, 1974,

the district director denied the petition. The petitioner has appealed
from that denial. The appeal will be dismissed.
The beneficiary is a male who is a native of India and a citizen of the
Fiji Islands. The petitioner was born out of wedlock in the Fiji Islands in
1944. The beneficiary did not marry the petitioner's mother until 1971.
Section 101(b)(2) of the Act defines the term "parent" as meaning a
parent only where the relationship exists by reason of any of the circumstances set forth in section 101(b)(1) of the Ad. The term "child" is
defined in section 101(b)(1)(C) as including:
a child legitimated under the law of the child's residence or domicile, or under the law
of the father's residence or domicile, whether in or outside the United States, if such
legitimation takes place before the child reaches the age of eighteen years and the child
is in the custody of the legititimating parent or parents at the time of such legitimation.

Since the petitioner was 27 years old at the time his father married his
370

Interim Decision #2402
mother, that marriage could not have resulted in legitimation within the
scope of section 101(b)(1)(0).
Counsel argues that the petitioner was legitimated under the provisions of section 230 of the California Civil Code. However, since the
record shows that neither the petitioner nor the beneficiary was a
domiciliary or a resident of California before the petitioner's eighteenth
birthday, legitimation under section 230 of the California Code could not
possibly bring the petitioner within the scope of section 101(b)(1)(C) of
the Act.
Counsel has relied on Matter of Pableo, 12 I. & N. Dec. 503 (D.D.
1967). However, that case is distinguishable from the present situation
because in Pableo the father established residence in California prior to
his son's eighteenth birthday.
The district director's decision was correct. The appeal will be dismissed.
ORDER: The appeal is dismissed.

371


Interim Decision #2338

MATTER OF ZOELLNER
In Deportation Proceedings
A-10316628

'

Decided by Board December 16, 1974
(1) Where an alien had been convicted of two crimes involving moral turpitude and was
thereafter, in a deportation proceeding, found deportable under section 241(a)(4) of the
hiunigration and Nationality Act, he was properly advised that he could apply for
adjustment of status wider section 245 of the Act in conjunction with an application for a
waiver of inad missibility under section 212(h) of the Act.
(2) The constitutionality of the immigration laws is not a proper subject for consideration
in an administrative deportation hearing.
(3) British Honduras is included in the definition of an adjacent island to the United
States in section 101(b)(5) of the Act. Respondent is precluded from naming British
Honduras as fie country of deportation under section 243(a) of the Act because he is
neither native, citizen nor resident of that country.
CHARGE:
Order: Act of 1952—Section 241(a)(4), [8 U.S.C. 1251(a)(4)]—Convicted of two crimes
involving moral turpitude at any time after entry.
•
ON BEHALF OF RESPONDENT: Glen H. Downs, Esquire
Legal Aid Service
732 S.W. Third Avenue
Portland, Oregon 97204

In a decision dated October 26, 1973, the immigration judge found the
alien respondent deportable as charged and ordered his deportation to
West Germany. The respondent has appealed from that decision. The
appeal will be dismissed. .
The respondent is a native and a citizen of Germany who entered the
United States in 1955. At the hearing, the SerVice introduced certified

records showing the following convictions relating to the respondent: (1)
September 17, 1957, in the District Court of Grayson County, Texas, for
the crime of theft over $50 (Exh. 2); (2) December 10, 1959, in the
Municipal Court of the City and County of San Francisco, California, for
the crime of petit larceny, section 488 of the California Penal Code (Exh.
3); (3) July :.2, 1972, in the Circuit Court for Multnomah County,
Oregon, for the crime of forgery in the first degree (Exh. 4). We agree
162

Interim Decision #2338
with the immigration judge's conclusion that the respondent's deportability under section 241(a)(4) of the Immigration and Nationality Act has
been established by clear, convincing, and unequivocal evidence.
The immigration judge informed the respondent that he could apply
for adjustment of status under section 245 of the Act in conjunction with
an application for a waiver of inadmissibility under section 212(h) of the
Act (Tr. p. 41). No such application was submitted. The respondent is
ineligible for any other discretionary relief from deportation because of
his recent conviction.
On appeal, counsel claims that the immigration judge should have
terminated the proceedings because section 241(a)(4) of the Act is unconstitutional. However, as the immigration judge pointed out, the
constitutionality of the immigration laws is not a proper subject for
consideration in an administrative deportation hearing. Matter of Santana, 13 I. & N. Dec. 362 (BIA 1969); Matter of L—, 4 I. & N. Dec. 556
(BIA 1951).
Counsel alSo contends that the immigration judge erred in refusing to
allow the respondent to designate British Honduras as the country of
deportaton pursuant to section 243(a) of the Act.
Section 243(a) permits an alien to designate the country to which he
wishes to be deported, except that an alien may not designate "any
foreign territory contiguous to the United States or any island adjacent
thereto or adjacent to the United States unless such alien is a native,
citizen, subject, or national of, or had a residence in such designated
foreign contiguous territory or adjacent island." (Emphasis supplied.)
Section 101(b)(5) of the Act defines the term "adjacent islands" as
including ". . other British, French, and Netherlands territory or
possessions in or bordering on the Caribbean Sea."
In Matter of Longsworth, 13 I. &N. Dec. 225 (BIA 1969), we held that
British Honduras is within the section 101(b)(6) definition of "adjacent
islands," because it is a British territory bordering on the Caribbean
Sea. In Matter of Piggott, 15 I. & N. Dec. 129 *(BIA October 30, 1974),
we receded from the result reached in Matter of Longsworth with
regard to the eligibility of a native of a foreign colonial' possession to
apply for suspension of deportation under section 244 of the Act. Our
holding in Master of Piggott, had no effect on our holding in Matter of
Longsworth that British Honduras was within the section 101(b)(5)
definition of "adjacent islands."
Since British Honduras is within the section 101(b)(5) definition of
"adjacent islands," its designation by one who is not a native, citizen,
subject, national, or resident of that country is precluded by section
243(a) of the Act. Consequently, it was proper for the immigration judge
to refuse to order deportation to British Honduras, and instead to direct
deportation to West Germany, the country in which the respondent was
163

Interim Decision #2338
born. The respondent stated that he did not fear persecution if deported
to West Germany (Tr. p. 40). The decision of the immigration judge was correct. The appeal will be
dismissed.
ORDER: The appeal is dismissed.

164


Interim Decision #2785

MATTER OF WADAS

In

Exclusion Proceedings
A-24000645

Decided by Board March 14, 1980
(t) In exclusion proceedings, under S C.F.R. 236.2(b), the immigration judge has the
authority to regulate the course of the hearing, and where a determination of venue is
essential to such regulation, he may in certain situations hear a motion to change
venue without infringing on the general parole jurisdiction of the District Director.
(2) Where an applicant for admission has been paroled into the United States by the
District Director and has been granted permission to continue his journey outside the
district, his motion to the immigration judge in exclusion proceedings to change venue
is subject to considerations similar to those present in venue motions in deportation
proceedings.
.(a) Where the applicant for admission was paroled into the United States, allowed to
journey outside New York, the district of the port of entry, where he had never
resided, and where the possible excludable acts had occurred in, and possible witnesses
were located in Massachusetts, an interpreter is required, and two previous hearings
failed to resolve the applicant's excludability, it was appropriate for the immigration
judge to hear a motion to change venue to Boston.
EXCLUDABLE:
,Order; Act of 1952 — Section 212(a)(20) [8 U.S.C. 1182(a)(20)] — Immigrant — not in
possession of a valid visa

QN

6EHALF OF APPLICANT:

Pro se

Milhollan, Chairman; Manistio, Appleman, Maguire, and Farb, Board Members

The Service has filed an interlocutory appeal from a decision of
Immigration Judge John Ruggiero, granting a change in venue from
IsTpw York to Boston. It is the Service's contention that the immigration judge lacks jurisdiction to change venue in exclusion proceedings.
Although we do not normally hear appeals from interlocutory decisions, in this case we will make an exception because the issue to be
considered is important, and unlikely to be resolved in a more satisfactory context. Cf. Matter of Sacco,15 I&N Dec. 109 (BIA 1974); Matter f
rang 14 I&N Dec. 670 (BIA 1974). The appeal will be dismissed.
At the exclusion hearing before the immigration judge on July 19,
346

Interim Decision #2785
1979, there was testimony presented by the applicant for admission to
the effect that the designation of New York as the location of the
exclusion hearing was inappropriate. The applicant had applied for
admission at New York, had been paroled into the United States by the
District Director, and had been granted permission to continue his
journey outside the New York district of the Service. Based on the
information adduced at the hearing, the immigration judge concluded
that the exclusion hearing would more properly be heard in Boston,
and he ordered the change in venue to that city.
The Service on appeal contends that the immigration judge has no
jurisdiction to change the venue in exclusion proceedings where, as
here, the applicant has been paroled into the United States and allowed to travel outside the district in which he made his application
for admission. It cites section 212(d)(5) for the proposition that the
Attorney General may parole aliens into the United States under such
conditions as he may prescribe, and that parole is not an admission for
purposes of the immigration laws. The Service also cites 8 C.F.R.
212.5(a) to show that the discretion granted to the Attorney General

under section 212(d)(5) of the Act has been delegated to the District
Director in charge of a port of entry. In addition, the Service relies on
Matter of Lepofsky, 14 I&N Dee- 718 (BIA. 1974), to establish its

may parole aliens into the
United States. Lepofsky involved a case where the immigration judge
allowed two applicants for admission to withdraw their application for
admission and granted them conditional "permission" to remain in the
United States for one month. The Board held that this order was an
infringement on the parole power of the District Director.
contention that only the District Director

Finally, the Service cites Conceiro v. Marks, 360 P.Supp. 454 (S.D.
N.Y. 1973) for the authority that the Board has consistently held that

the District Director alone may parole aliens into the United States.
ronceiro concerned a Cuban refugee refused parole by the District

Director who brought habeas corpus proceedings in the District Court.
It was noted by the court that the Board had adopted the position that
the discretion to parole lay with the District Director.
The Service concedes that im.migration judges in deportation
proceedings do have the authority to decide changes in venue. Matter
of Seren, Interim Decision 2474 (BIA 1976). It contends, though, that
Seren is distinguishable on at least two grounds. The first is that the
immigration judge in deportation proceedings has jurisdiction over
questions involving procedural due process, and that venue is such a
question. Secondly, it asserts that an alien in deportation proceedings

has made an entry which places him within the normal Constitutional
protections, while an applicant for admission who has been paroled
into the United States "has no legal immigration status".
347

Interim Decision #2785
The last point that the Service makes is that even if the immigration
judge had authority to change venue, the applicant had not established
that this change was necessary.
After considering the points raised by the Service, we have concluded that change of venue in exclusion proceedings, where the applicant has been paroled in and allowed to travel outside the district
where he applied for admission, is governed by considerations similar
to those present in deportation proceedings. Although the situation

to the Service to present a conflict between the parole
powers of the District Director, and the jurisdiction which vests in the
immigration judge at the point where the exclusion hearing begins, we
view the situation in some what different terms. In a deportation
proceeding, the immigration judge has the jurisdiction to consider
venue because "8 C.F.R. 242.8 grants the immigration judge the power
to take such action as "may be appropriate to the disposition of the
case". Matter of Seren, supra. We see no reason that the same considerations should not hold true in this exclusion proceeding. 8 C.F.R. 236.1,
may appear

in discussing exclusion proceedings, states in almost identical words

that:
"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."

In addition, 8 C.F.R. 236.2 delineates the rights and procedures to be
followed in exclusion proceedings in terms very similar to those in
deportation proceedings. This indicates that the distinction that the
Service wishes to draw between deportation and exclusion proceedings
on procedural grounds is not well founded_ It also shows that the

asserted distinction between Constitutional rights in deportation
proceedings as opposed to those accorded in exclusion proceedings, is
in fact almost irrelevant. Whatever differences in treatment may be
justified on Constitutional grounds, the regulations provide protections to the aliens which are quite similar.
In addition, as a matter of practical consideration, the immigration
judge is in a good position to hear arguments on the issue of venue and

determine whether or not a hearing could better be conducted in a
different Service district. The exclusion hearing would provide a full
opportunity for all sides of the matter to be heard, and the issue could
be promptly resolved.
We do not find this procedure to infringe on the authority of the
District Director to set the conditions for parole. Unlike Lepofsky,
supra, where there was no express or implied authority for the immigration judge to find an alien excludable and then allow him to
remain, a change in venue is a natural adjunct of the immigration
348

Interim Decision #2785
judge's authority to conduct exclusion hearings under 8 C.F.R. 236.1
Such jurisdiction does not affect the District Director's jurisdiction to
set parole, or the conditions to be met by the parolee. It also does not
affect the District Director's authority to detain an applicant for
admission; nor does it in fringe on his authority to limit the applicant's
enlargement on parole to the vicinity of the port of entry. Here, the
applicant was paroled into the United States and allowed to travel
outside the district of the port of entry. In such a case, where it appears
with good reason that another venue should be designated after the
hearing commences, the immigration judge has the authority to hear a
motion to change venue, weigh the factors involved, and to make a new
designation if he considers it necessary. This procedure will enable
him to "regulate the course of the hearing" as provided in 8 C.F.R.
236.2(b).
In this case, the District Director designated New York as the place
of the hearing, and he contends that a change in venue is not justified.
The transcript shows that the applicant has never resided in New
York. It also indicates that the excludable acts occurred in, and the
possible witnesses are located in Massachusetts. In addition, the applicant requires an interpreter, and of which there have already been two,
with no resolution of the charge of excludability. We agree in these

circumstances that the immigration judge properly found that he had
authority to consider the question of venue once the hearing had
commenced, and that a change in venue was appropriate in the circumstances. The appeal is accordingly dismissed.
ORDER, The appeal is dismissed.

349