Interim Decision #1311

MATTER

of Pnur.Anaimplr

In DEPORTATION Proceedings
A-6705791
Decidedby Board December 10,1963
(1) An illegitimate child could not derive U.S. citizenship under section 314 of
the Nationality Act of 1940.
(2) Although both his admission to the United States for permanent residence
and his mother's naturalization as a U.S. citizen occurred while he was under
16 years of age, an illegitimate child born January 1, 1932 in Finland, did not
derive U.S. citizenship under section 321(a) (3) of the Immigration and
Nationality Act, since he was over 10 years of age on December 24, 1952, the

effective date of the Act.
(3) Since conviction within the meaning of section 241(a) (4), Immigration
and Nationality Act, exists when the•following elements are present: (1) if
there has been a Judicial finding of guilt, (2) the court takes action which
brings the case in the category of those which are pending for consideration by
the court—the court orders that the defendant be fined or incarcerated or the
court suspends the imposition of sentence, and (3) the action of the court is
considered a con -victim by the state court for at least some purpose, an auen
convicted on a plea of guilty of the crime of simple robbery by a Colorado court
which ordered imposition of sentence suspended and placed him on probation
for 5 years has been convicted.
CHARGE :

Order : Act of 1952—Section 241 (a) (4) [8 U.S.O. 1251(a) (4) ]—Convicted of
two crimes after entry, to wit, simple robbery and statutory rape.

The case comes forward on appeal from the decision of the special
inquiry officer dated May 23, 1963 ordering respondent deported to
Finland on the charge contained in the order to show cause.
The first issue is that of alienage. The respondent was born out
of wedlock on January 1, 1932 in Finland. The respondent's mother
was

naturalized on January 15, 1945 in the United States District

Court at New York. The respondent was admitted to the 'United
States for permanent residence on June 16, 1947. At the time of his
admission to the United States he was under 16 years of age, being 15
years and five months old. Since the mother's naturalization and the
708-450--05----27

401

Interim Decision *1311
respondent's lawful admission for permanent residence occurred subsequent to the effective date of the Nationality Act of 1940 on January
18, 1941, the respondent could not acquire United States citizenship

under the provisions of section 2172 of the Revised Statutes of the
United States.
Counsel urges that respondent is a United States citizen under
section 314(a) or section 314(b) of the Nationality Act of 1940 or,
in any event, under section 321 (a) (3) of the Immigration and Nationality Act. Section 314 of the Nationality Act of 1940 provides
that a child born outside the United States of alient parents, or of
an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen upon fulfillment of the
following conditions :
(a) The naturalization of both parents; or
(b) The naturalization of the surviving parent if one of the parents
is deceased; * * *
(e) The naturalization of the parent having legal custody of the
child when there has been a legal separation of the parents; and if( d) Such naturalization takes place while said child is under the age
of eighteen years; and
(e) Such child * * * thereafter begins to reside permanently in the
United States while under the age of eighteen years.
Counsel concedes that the respondent is an illegitimate child and
that there has never been any adjudication of paternity. He argues
that in this case the mother is to be considered as the parent or that
there should be a presumption of death of the putative father and that
the surviving parent is the mother. He cites several cases dealing with
legitimate children where the surviving parent was divorced with the
right of custody which was sufficient for derivation of citizenship and
another case involving a widowed mother who became a citizen while
her legitimate child was a minor residing in the United States. 1
It may be pointed out that the cited cases involve legitimate children
and there is no evidence in the instant case that the mother is the
surviving parent or that the putative father has died. 2 In the report of
the Committee on the Judiciary pursuant to Senate Resolution 137 it
was recognized that under the 1940 Act a child born out of wedlock
and never legitimated could not derive United States citizenship either
through the naturalization of the putative father or through his
1

Petition of Boasky, 77 F. Supp. 832 (S.D. Mich., 1948) ; In re Graf, 277 F. 969

(D. Md., 1922).

Matter of D

—

W M , 9 L & N. Dee. 633 involved an adopted child and is
—

—

not pertinent.

402

Interim Decision #1311
mother? 'However, in granting naturalization to a foreign born
illegitimate child, who was born on July 13, 1944, was admitted to the
United States for permanent residence on July 26, 1947 and whose
mother became naturalized on September 1, 1950 petitioned for her
illegitimate child under section 322 of the 1952 Act, the court by
granting such naturalization indicated that automatic derivative
citizenship would. not have been available to such a child under the
1940 Act.4
Counsel also urges that the respondent derived citizenship under the
provisions of section 321(a) (3) of the Immigration and Nationality
Act. This section provides for acquisition of citizenship upon the
naturalization of the mother if the child was born out of wedlock and
the paternity of the child has not been established by legitimization

and if such naturalization takes place while such child is under the age
of 16 years; and such child is residing in the United States pursuant to
a lawful admission for permanent residence at the time of the naturalization of such parent or thereafter begins to reside permanently in the
United States while under the age of 16 years.
In Matter of L—,7 I. & N. Dec. 512, after first noting that under the
Nationality Act of 1940 a child born out of wedlock did not derive
citizenship through its mother, the facts were that the subject was
born out of wedlock on April 1, 1938 in Martinique, the mother was
naturalized on November 20, 1951 and the subject was admitted for
permanent residence on December 4, 1953. In analyzing section 321(a)
of the Immigration and Nationality Act, the following basic requirements were set forth: (1) that the parent or parents be naturalized;
(2) that such naturalization take place while the child is under the
age of 16 years; and (3) that the child take up lawful permanent residence in the United. States before reaching the age of 16 years. It was
held that the subject acquired United Stales citizenship upon his

lawful admission to the United States for permanent residence on
December 4, 1953. Likewise, in Matter of T—, 7 L & N. Dee. 679, a
child born out of wedlock was held to have acquired citizenship under
section 321(a) of the Immigration and Nationality Act when she
reentered the United States as a returning resident in 1955 prior to
her 16th birthday, her mother having been naturalized a United States
citizen in November 1952. It was held that the law in effect when the
'Senate Report No. 1515, 81st Cong., 1st Sess., 708. Under section 102(h) of
the 1940 Act (8 U.S.C. 502(h), 1942 ed.) the term "child" included a child legitimated -under the law of the child's residence or domicile whether in the United
States or elsewhere; also a child adopted in the United States, provided such
legitimation or adoption takes place before the child reaches the age of 16 years
and the child is in the legal custody of the legitimating or adopting parent or

parents.
•.7a re Howard's Petition,147 F. Supp 676 (W.D. Mo. W.D., 1956).

403

Interim Decision #1311
last material condition is met is controlling; that one of the conditions
of section 321 set forth in subsection (5) is that the child must begin
to reside permanently in the United States or must have been lawfully
admitted to the United States for permanent residence while under
the age of 16 years. The original entry of the applicant in 1948, prior
to the Immigration and Nationality Act. of 1952, did not operate to
confer upon her any derivative citizenship under section 321(a) of
the Act. However, her reentry in 1955 while she was still under 16
years of age operated to confer derivative citizenship under section
321(a) of the 1952 Act.
In. Matter of L—, 8 I. & N. Dec. 272, the respondent, an illegitimate
child, was born in Jamaica on September 21, 1938. He was lawfully
admitted to the United States for permanent residence on June 2,1949
when about 10 years of age. His mother was naturalised on December
12, 1949 when respondent was 11 years of age. The Board quoted with
approval the special inquiry officer's order that there was no doubt that
under the law in effect at the time the respondent entered the United
States and at the time of his mother's naturalization, section 314 of
the Nationality Act of 1940 did not provide for derivation of United
States citizenship through the naturalization of his mother because he
was an illegitimate child. The Board then went on to restate the holding in Matter of L—, 7 I. & N. Dee. 512, that the basic requirements
of section 321. of the 1952 Act were that: (1) the parents or parent
be naturalized.; (2) such naturalization take place while the child is
under the age of 16 years; and (3) the child takes up lawful permanent
residence in the United States before reaching the age of 16 years.
It was not necessarily the passage of the Act which was the last material condition but the fact that number two of the three material
conditions is an. "open condition", a continuing situation, permitting
the statute to bestow citizenship on respondent so long as he was under
the age of 16 when the law was passed. The Board referred to the case
of Espiadola v. Barber, 152 F. Supp. 829 (N.D. Cal., 1957), as not a
binding precedent because Espindola was past 16 when the 1952 Act
became effective and clearly could not have brought himself within
the terms of section 321 of the Immigration and Nationality Act.
The case of Espinclola v. Barber, supra, involved an alien illegitimate son, born. October 22, 1935 whose mother became a naturalized
citizen on March 7, 1950. The plaintiff was lawfully admitted to the
United States for permanent residence on September 4, 1943. The
court then cited the legislative history contained in Senate Report No.
1515, 81st Cong., 1st Sees., 708, for recognition of the fact that under
the 1940 Act a child born out of wedlock and never legitimated could

not derive United States citizenship under the naturalization of either
404

Interim Decision #1311
his father or mother. Turning to section 321(a) (3) of the Immigration and Nationality Act (8 U.S.C. 1243(a) (3) ), the court stated that
it was clear that Congress intended to and did change the law in this
regard in 1952 and did not intend, by the Act of that year, merely to
restate what it thought the prior law had been. The court held that the
1952 Act could not be construed as having retroactive effect by the
broad language of the savings clause set forth in section 405 (Title 8
U.S.C.A. 1101, note). It held that the language of the savings clause
was broad enough to apply as well when the Government is relying
on the provision; that the plaintiff, prior to the 1952 Act, had the
"status" or "condition" of an alien not eligible to claim derivative citizenship and in view of the savings clause, section 321(a) (3) of the
1952 Act could not operate to affect that "status" or "condition". The
court cited United States v. Menaselte, 348 U.S. 528 and other cases

and held that the savings clause could not operate to affect the plaintiff's "status" or "condition" and that the plaintiff was not a citizen
of the United States.
In the instant case the respondent was not eligible for derivative
citizenship under the 1940 Act or any prior Act. The respondent was
over 20 years of age when section 321(a) (3) of the Immigration and
Nationality Act became effective on December 2/1, 1952. The Act had

no retroactive effect and there was no status or condition to be affected
by the savings clause inasmuch as the respondent was an alien under
prior law and could not benefit by the new Act because he was then
overage. It is concluded that alienage has been established.
The crimes which form the basis of the specification in the order
to show cause are simple robbery for which the respondent was convicted in September 1955 in Colorado and statutory rape in violation
of Conneetieut statutes for which the respondent was convicted on
March 22, 1900. The crimes were committed respectively on August
29, 1955 and January 10, 1960. From the very nature of the crimes

and the interval in time and locale of their commission, it is obvious
that they did not arise out of a single scheme of criminal misconduct.
Counsel at oral argument raises the contention that the record of
the crime in Colorado did not establish a conviction. He does not dispute the fact that the crime involves moral turpitude. However, the
record of conviction shows that on September 26, 1955 in the District
Court in and for the City and County of Denver, Colorado the court
found that the evidence sustained the plea of guilty entered by the
defendant; that the cause was continued for hearing on the probation
report; that on September 28, 1955 the court granted the petition of
the defendant that he be placed on the county work gang for a period
of 90 days and further ordered that the cause be continued for hearing

on probation; that on December 21, 1959, the court after hearing and
405

Interim Decision #1311
the report of the probation officer, ordered that imposition of sentence
be suspended -for a period of five years, the court to retain jurisdiction
until that time, and that defendant be released from custody.

The main force of counsel's argument is that the action of the court
in suspending the imposition of sentence for five years and placing
respondent upon probation did not result in such a finality of conviction as would sustain the order of deportation, citing Pino v. Landon,
349 U.S. 901 (1955), as well as certain other Colorado eases. At the
outset it may be noted that the order to show cause is predicated upon
the second section of section 241(a) (4) which renders deportable an
alien who at any time after entry is convicted of two crimes involving
moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of
whether the convictions were in a single trial. It may be noted that
the statute, 39-16-6 Colorado Revised Statutes of 1958, empowers the
court to grant probation and provides that the period of probation
together with any extension thereof shall not exceed five years.
The deportation statute does not make confinement the test of deportability but concerns itself with conviction solely. In one of the
cases cited by counsel 5 it was held that in a criminal ease the sentence
is the judgment and that a. judgment need not be entered upon a
verdict.
The matter involved in the hearing has been the subject of previous
adjudication. In the latest case of Marino Gutierrez v. Immigration
and Naturalization Service, No. 18565 (9th Cir., October 11, 1968),
there was involved an alien who was convicted in California on a narcotic charge, was found guilty by the court which ordered a probation

report and continued proceedings; thereafter the court suspended proceedings and placed the petitioner on probation_ On review the petitioner contended that the Immigration Service erred in determining
that the appellant had been convicted of a crime which subjected him
to deportation and erred in. finding that the proceedings upon which
the appellant was found guilty had reached such finality that an order
of -deportation could be predicated thereon. The court noted that the
statute required only a conviction and not a, judgment of conviction
and that under California law the word "convicted" signified the status
of a person after entry of a plea of guilty to a criminal charge or
against whom a verdict of guilty of a criminal charge has been returned by a jury; and the phrase "a judgment of conviction" means the
imposition of a sentence upon a person who has been convicted of a
criminal charge after a plea of guilty or the rendition of a guilty
a

Loos v. People, 268 P. 536.
406

Interim. Decision #1311
verdict" The court also shared the views expressed in ArrellanoFlores v. Hoy, 262 F. 2d 667 (9th Cir., 1958), cert. den. 362 U.S. 921,
that it was inclined to believe that perhaps here Congress intended to
do its own defining rather than leave the matter to the variable state
statutes. Credence for this view can be found in the fact that the
present statute reads "convicted" while its predecessor read "convicted
and sentenced." It 'would appear that federal courts have generally
taken the view that a plea of guilty or finding of guilty, which is in
repose and remains undisturbed amounts to a conviction. The court
went on to distinguish the case of Pino v. Landon, 349 U.S. 901, which
involved a. Massachusetts procedure within which the petitioner had
the right to a trial de novo in the superior court if he took an appeal
from the District Court, the District Court suspended the imposition

for one year and placed the sentence on file with the crucial difference
that if the court ever removed the case from file to require the petitioner to serve the sentence, be would then he entitled to a de novo
review on appeal. The court held that under these circumstances,
especially the availability of the de novo review, there was no adjudication which could be recognized as final in Massachusetts that the
petitioner had committed any crime.
In the instant case there was a conviction

pursuant to the respondent's plea of guilty which was appealable. It was not necessary that a
judgment of conviction be entered upon the verdict of guilty. The
difference from the situation existing in the case of Pino v. Landon,
supra, is obvious.
The administrative decision cited by counsel, Matter of J—, 7 1. & N.
Dec. 580, concerned a case in Florida in which the court had postponed
imposition of sentence. The decision noted that unlike the cases which
suspended imposition of sentence which have been held to constitute a
final conviction, this postponement of imposition of sentence did not

support a finding of deportability.
Later administrative decisions have recognized that for deportation
purposes a conviction exists where the following elements are present:
(1) if there has been a judicial finding of guilt, (2) the court takes
action which birings the case in the category of those which are pending
for consideration by the court—the court orders that the defendant be
fined or incarcerated or the court suspends the imposition of sentence,
and (3) the action of the court, is considered a. conviction by the state
court for at least some purpcise. 7 It is concluded that in the instant
Citing Adams v. United States, 299 F. 2d 327 (9th 01r., 1962) ; HernandezVatensudos v. Rosenberg, 304 F. 2d 639 (9th 01r., 1932) ; Zabanazad v. Rosenberg, 306 F. 2d 861 (9th Mr., 1962).
Matter of L—R—, 8 L & N. Dec. 209; Matter of M—D—, 9 1. & N. Dec. 172;
Matter of R—R—, 7 1. & N. Dee. 478.

407

Interim Decision #1311
ease the conviction for simple robbery in Colorado meets this test of
finality of conviction. The second conviction, of statutory rape in
Connecticut, clearly involves moral turpitude also. It is concluded
that the charge contained in the order to show cause is sustained.
The respondent is not eligible for adjustment of status pursuant to
section 945 of the Immigration and Nationality Act because he was

originally lawfully admitted for permanent residence and subsequently
became deportable, a fact which does not vitiate his prior lawful
entry.2 He is ineligible for voluntary departure because the crime
of rape was committed in January 1960, within the five-year period for
which good moral character must be established.°
The respondent has a, citizen wife and two citizen minor children.
However, he has been separated front his wife for two years. Tho
separation was caused by respondent's drinking and gambling and his

wife did not know of his arrest for statutory rape. However, she
indicates a willingness to give him another chance s even though the

respondent has contributed but little to her support. However, as has
already been. pointed out, the respondent is not eligible for discretionary relief. The appeal will be dismissed.
ORDER : It is ordered that the appeal be and the same is hereby
dismissed.
'Matter of Da. gava, Int. Dee. No. 1288.
° Section 101(f) (3) of the Immigration. and Nationality Act (8 U.S.C.
1101(f) ( 3))-

408


Interim Decision #1292

NEA.I.L.La or PERBZ4nEENEZ
In DEPORTATION Proceedings

A-11261536
Decided by Board July 19,1968
Wheu parallel deportation and extradition proceedings are pending, the outotand-

lag order of deportation will be withdrawn and further deportation proceedings
held in abeyance during the pendency of extradition proceedings, since further
deportation proceedings would serve no useful purpose and the outstanding
order of deportation might unnecessarily and improperly complicate the extradition proceedings.
CHARGES:

Order : Act of 1952—Section 241(a) (1) ES U.S.C. 1251(a) (1)]—Excludable

at entry—No immigrant visa (8 MS-C.1182(a) (20) ).
Lodged : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2) ]--Remained
longer than permitted as a nonimmigrant.

Respondent is a former president of the Republic of Venezuela.
Early in 1958 revolutionary forces terminated his incumbency as
president. He left his homeland at that time.
Our decision of September 8, 1959, affirmed the special inquiry
officer's order directing respondent's deportation on the charge that lie
had remained in this country as a nonimmigrant longer than per-.
miffed. Respondent has not designated a country to which he would
prefer to be sent if deported. 1
Subsequent to our prior order respondent applied for the benefits of
section 243 (h) of the Immigration and Nationality Act. The case
comes here now on respondent's motion to reopen the proceedings to
afford him a hearing on that application and on the Service motion to
withdraw the deportation order. 2 We conclude that the Service motion
should be granted.
When the special inquiry officer heard respondent's case, the regulations did

not provide, as now, for the special inquiry officer to determine the place of
deportation.
3 Respondent has also filed in the District Court, Southern District of Florida
a petition for a mandatory injunction, seeking -adjudication of his application.

309

Interim Decision *1292
Respondent last arrived in the United States at West Palm Beach,
Florida on March 28, 1958. He then possessed a Venezuelan diplomatic passport and a nonimmigrant visa issued on February 10, 1958
at our Embassy in Santo Domingo.' The Service initially paroled
respondent but on January 7, 1959 admitted him as a temporary
visitor. Respondent is 49 years old. His wife and four minor children are with him in this country. Only respondent is under proceedings at this time, howeVer.
The Consul General of Venezuela in Miami informed the Service
by letter of June 5, 1958 that the Venezuelan government had cancelled
the diplomatic passports of respondent and his wife and children
(Ex. 4).
On August 24, 1959 the Venezuelan Consul in Miami filed a complaint in the District Court for the Southern District of Florida seeking respondent's extradition to Venezuela. A district judge, sitting
as a magistrate in extradition proceedings, found probable cause that

respondent had committed in Venezuela certain financial crimes which
are covered by the Treaty of Extradition between Venezuela and
this country.' He committed respondent to the custody of the United
States Marshal to await the Secretary of State's action.' Respondent
then brought habeas corpus proceedings, which the District Court
dismissed. The Court of Appeals affirmed that decision and the
Supreme Court denied certiorari.' The extradition proceedings now
Then Ciudad Trujillo.
43 Stat. 1098, T.S. No. 075 (1929).
5

18 U.S.C. 3186.

° Jimenez v. Aristeguieta, 311 F.2d 547 (C.A.. 5, 1962), eert. den. sub nom.
Jimenez v. Nixon, 373 U.S. 914 (1963).
Litigation connected with the extradition proceedings bas been extensive.
The judicial phase of the principal action terminated with an order of the magistrate dated June 16, 1961, committing respondents to the custody of the United
States Marshal, and an order of June 23, 1961, certifying the record to the Secretary of State with the judge's findings. Earlier in that proceeding, another
judge had denied respondent's motion for a protective order against the taking
of certain depositions. Respondent attempted an appeal, but the Court of
Appeals for the 5th Circuit held that it had no jurisdiction of an appeal from an
interlocutory or Sinal order of a magistrate in an extradition proceeding.
Jimenez v. Aristeguieta, 290 F. 2d 106 (C.A. 5, 1961)—criticizedi 61 Mich. L. Rev.
383 (1962).
There have been various collateral proceedings in addition to the habeas corpus
proceedings cited above. Aristeguieta v. Jimenez, 274 F.2d 206 (0.A. 5, 1960,
per euriam) and First National City Bank v. Aristeguieta, 287 F. 2d 219 (CA.
2, 1960), cert. granted 365 U.S. 840 (1961)—denials of motions to quash subpeoneas duces tecum. Jimenez v. Aristeguieta, 314 F.2d 649 (1963)—denial of
bail.

310

Interim Decision #1292
await the Secretary of State's decision whether to issue a warrant of
extradition.
The Service contends that the extradition proceedings and Immigration proceedings are exclusive and independent of each other.
Both the Service motion and the argument of respondent's counsel
point out that if respondent's removal takes place under extradition
proceedings while there is outstanding an order of deportation, the
deportation order will be executed.' The Service further points out
that in the event of extradition any immigration proceedings will be
mooted and terminated. Therefore, the Service contends, the outstanding deportation order serves no useful purpose at this time and
may introduce complications.
The Service also argues that, if the Secretary of State fails to issue
a warrant of extradition, resumption of deportation proceedings
would enable extending to respondent all rights and privileges under
the deportation laws and regulations, including adjudication of his
application under section 243(14_ Thus, the Service urges, the

motion, in seeking to eliminate the possibility of execution of the
deportation order without affording respondent his full rights and
privileges under the laws pertaining to deportation, is beneficial to
respondent.
Respondent contends that the Service motion, if granted, would not
benefit him but would deprive him of his right to an adjudication at this
time of his application under section 243(h). He apparently would
risk the possibility of deportation through extradition in. order to obtain such an. adjudication. Respondent thus prefers to rest his case
for avoiding return to Venezuela upon the Attorney General's ruling

in deportation proceedings rather than the Secretary of State's ruling
in the extradition proceedings. We are to determine whether to grant
either of the motions before us and if so which one.
We find that we need not determine whether withdrawal of the
deportation order would be beneficial or detrimental to respondent
Therefore, we do not decide whether extradition would execute an outstanding order of deportation. If granting the Service motion would
benefit respondent by preventing deportation shorn of some of its procedural safeguards, such benefit would be, for our purposes, a side
effect. We base our decision on the grounds that, in view of the extra7 Counsel for the Service indicated at oral argument that he is unwilling to
concede merit in respondent's argument that extradition with a final order of
deportation outstanding would be in effect a self executing deportation without
an opportunity for respondent to be heard on his application for a stay of
deportation. The Service representative pointed out, however, that granting the
Service motion would avoid the situation respondent contemplates. Compare
section 101(g), immigration and Nationality Act, 8 U.S.C. 1101(g).
-

311

Interim Decision #1292
dition proceedings, further deportation proceedings would serve no
useful purpose and may unnecessarily and improperly complicate the
extradition proceedings.
As we have seen, the Service motion states that deportation and extradition proceedings are exclusive and independent of each other.
Respondent asserts that the Service actions so far in these proceedings
have not demonstrated the two are mutually exclusive and independent. Both the Service and respondent are correct to some extent.
The two procedures are independent in the sense that the proceedings
under each are separate and distinct and that a decision in one is not
necessarily dependent upon the findings in the other. Though for
different purposes, they are related in their effect of removing a person
from the country. 8 Where the proceedings are parallel, therefore, one
should be cognizant of the other.
We may properly comment upon the pending extradition proceed-

ings only to the extent that references to those proceedings are necessary to our decision in the matter before us. We note that, essentially,
respondent seeks to avoid extradition and deportation on the same
ground. He contends that the present political climate in Venezuela
is decidedly adverse to him and therefore he should not be returned
to Venezuela at this time.
Respondent apparently perceives that pursuing his section 243(h)
application and his defense to extradition simultaneously may offer
procedural advantages to him. He points to the established regulations and procedures and the avenues for judicial review which appertain to an application filed pursuant to section 243(h). Although
not suggesting that he would not receive due process of law at the
hands of the Secretary of State, respondent says that there are no
regulations governing the Secretary of State's action and that the
procedures are less tested and more nebulous than those in deportation
proceedings.
At oral argument respondent's counsel suggested that a favorable
conclusion. to respondent's section 243(h) application should prevail
over a ruling by the Secretary of State to grant extradition. This
suggestion can mean only that the Secretary of State, in his discretion,
should defer to the grant of the benefits of section 243 (h). There is
no legal basis• for the granting of such an application to take precedence over the Secretary of State's issuance of a warrant of extradi- .
tion.Ifayhg,prcetvswouldbre.
Treaties and statutes of Congress form part of the supreme law of
the land and are of equivalent effect. Except to the extent that a
treaty and a federal statute may be inconsistent, neither prevails over
'Fong Tire Ting

7.

United states, 149 U.S. 695, 709 (1895).
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Interim Decision #1292
the other. If inconsistent, the expression of the Congressional will
which is later in time prevails' Nullification of a treaty by implication is not favored, however."
Here there is no inherent inconsistency between, on the one hand,

our Treaty of Extradition with Venezuela and the statutory provisions
for extradition and, on the other, the statutory provisions of deportation, including withholding of deportation_ on the basis of impending
physical persecution. Any inconsistency which might result would
arise only from divergent applications of those provisions by different
government officials. Statutes should be interpreted and applied,
however, so as to render them harmonious and to give maximum effect
to the provisions of each.
A decision by the Secretary of State granting extradition will terminate any deportation proceedings in whatever posture they might
be at the time. Thus, although pending section 243 (h) proceedings
might support a request for reconsideration of the Secretary's decision,
or for some form of judicial relief, failing either of those remedies the
243 (h) proceedings would be effectively terminated. The same result would obtain if respondent had successfully prosecuted such
application to a conclusion. Since the granting of the stay would
not necessarily bar extradition, the stay of deportation might be
abruptly terminated.
The Treaty requirement that Venezuela will, try respondent only
for the crimes specified in the warrant of extradition (for which the
judge has already found probable cause) and the express, prohibition
against trial or punishment for a political crime or offense distinguish
the extradition proceedings from these. Only if Venezuela should,
because of overriding political considerations, dishonor its obligations
under the Treaty would the factors to be considered in the two proceedings merge. Moreover if the Secretary of State considers whether
Venezuela might physically persecute respondent, his conclusion on
the overall likelihood of physical persecution might differ from a. decision by the special inquiry officer, or by us, granting withholding of
deportation.
The withholding of deportation authorized by section 243(h) of the
Act may terminate at any time the Attorney General deems that deYong Yue Ting v. United States, supra 8 ; Av parte Gin Kato, 270 F. 343 (D.C.,
1920) ; in re Giacobbi, 32 F. Sapp. 508 (1939), aff'd sub nom U.S. ex rel. Giaoobbi
v. Pluekey, 111 F. 2d 297 (C.A. 2, 1940).
United Stales v. Domestic Fuel (tarp., 71 F. 2d424 (Oust. & Pat. App. IOU) 31 The magistrate found that the evidence did not establish probable cause for
the charges of murder and participation in murder as accessory before the fact.
He also found that the financial crimes were not of a political character—hence
not barred by Article III or the Treaty.

313

Interim Decision #1292
portation may be effected without subjecting the alien to physical
persecution. Therefore, issuance of a warrant of extradition here
might be considered basis for terminating any stay of deportation
granted under section 243 (h). In a sense the language of the Treaty
and of the statutory provisions involved in respondent's case would
all have been given effect. But the 243 (h) proceedings would actually
have served no useful purpose from the point of view of the determination of respondent's ease.

As the Service motion and argument point out, such proceedings
would serve only to complicate the extradition proceedings. We think
they should not be made available for the purpose of bolstering up
respondent's argument before the Secretary of State or providing a
diversionary and distracting element in the overall proceedings involving respondent, which are already extensive. Orderly procedure
requires deferral of any proceedings under section 243 (h) until a final
decision is rendered in the extradition case. Procedures under that
section will be available to respondent if the extradition proceeding
terminates in his favor, and if otherwise warranted at that time. We,
therefore, deny respondent's motion solely on the grounds that it is
inappropriate at this time.
Respondent contends that we lack authority to withdraw the outstanding deportation order." The statutory provisions for deportation say that aliens in certain categories in the United States shall be
deported upon the order of the Attorney General. Neither the statute
nor the regulations limits the Attorney General's discretionary authority in the timing the the entry of such an order.
Respondent's counsel concedes that we have authority to withdraw

an order of deportation in certain instances where the grounds for
deportation have been eliminated or -where certain applications for
relief, such as suspension of deportation and voluntary departure, are
to be granted." He also concedes that entry of the deportation order
could have been deferred in the first place.
Our general authority extends to exercising whatever discretion and
authority—appropriate and necessary for the disposition of the case—
the law confers upon the Attorney General in the matters before us
for determination." We do not doubt we have the discretionary power
to withdraw the order of deportation if we deem such action warranted.
"In none of the cases cited by respondent to show that the Attorney General
has a duty to deport after entry of a final order of deportation was an extradition proceeding pending along with the deportation proceeding ..
13 The Attorney General has held an outstanding order of deportation may
be withdrawn to grant suspension of deportation. Matter of B , 6 I. & N. Dec.
718.
"S OFR 3.1(d).
.

314

—

Interim Decision #1292
Only one argument of any force supports counsel's contention that,
in respondent's case, entry and withdrawal of the deportation order
is improper (although entry of the order might properly have been
deferred in the first place). We consider suoh force is slight here.
Counsel contends that the six-month period during which respondent
might have been taken into custody under the present order has run.
Thus, he argues, future reinstatement of that order after withdrawal
would open up a new opportunity for respondent's confinement. We
do not examine the legal basis for this contention. Assuming that
counsel's statement of the situation is correct, we think the possibility
he envisages is remote. If the deportation order is withdrawn, perhaps circumstances will not necessitate future reinstatement of deportation proceedings. If such proceedings are reinstated, perhaps a
final order of deportation will not be entered. If a final order of

deportation is entered, perhaps respondent will not be taken into
custody under that order.
On the other hand, while the deportation order is outstanding
respondent remains entitled to pursue his section 243 (h) application.
We have concluded that the deportation proceedings should not, during the pendency of the extradition proceedings, be reopened to enable
respondent to be heard on that application. Withdrawal of the order
of deportation removes the basis for the section 243 (h) application.
There is only a vague possibility that respondent might in the future be prejudiced through consequences flowing from a reinstatement
of the order of deportation. Against that possibility is the more
immediate possibility of complicating the extradition proceedings if
the deportation order remains in effect. Respondent may confine
to the proceedings before the Secretary of State his argument that
on political grounds he should not be extradited to Venezuela. If
successful there, it is unlikely that he would have to argue further
that his deportation to Venezuela should be withheld. But, if necessary, he could have full opportunity to present his case. The concurrent treaty and statutory procedures applicable to respondent may
thus be given their maximum effect.
We decide here only a limited phase of the overall proceedings involving respondent. In the perspective of the entire applicable statutory and treaty provisions, however, orderly procedure requires
withdrawal of the deportation order as well as deferral of further
proceedings pertaining to deportation. We see nothing in the matters of more immediate concern to us which requires a different ruling.
We shall grant the Service motion.
ORDER: It is ordered that respondent's motion to reopen the deportation proceedings to afford him an opportunity to be heard on his
.

315

Interim Decision #1292

application for the benefits of Section 243 (h) of the Immigration
and Nationality Act be and hereby is denied.
It is further ordered that the Service motion to withdraw the order
of September 8, 1959, directing respondent's deportation, and to hold

in abeyance the deportation proceedings be and hereby is granted.
It is further ordered that the order of September 8, 1959, directing
respondent's deportation be and hereby is withdrawn and that any

further deportation proceedings be held in abeyance during the pendency of the proceedings under the provisions of the Treaty of Extradition between Venezuela and the -United States and applicable statutory
provisions pertaining to extradition.

316


Interim Decision #2392

MATTER. OF

NRIrr.r,

In Exclusion Proceedings
A-19552590
Decided by Board May 16, 1975
The applicant in this case is a professional engineer who sought admission to the United
States as a visitor for business under section 101(a)(15)(13) of the Immigration and
Nationality Act. The applicant is a principal in a firm which employs 55 people and earns
about 20 per cent of its income from business in the United States. Applicant makes one
or more trips a week to the United States during which he spends some time soliciting
business; however the bulk of his time appears to be devoted to consulting with clients
and obtaining necessary information from them. Since only a small amount of his time is
spent soliciting business, and the majority of his time here appears to be spent in
connection with the rendition of his professional services as an engineer, he is in effect
extending his professional engineering practice to the United States. He may not, under
the classification of temporary visitor for business, extend his professional engineering
practice into the United States. Since he has not shown that he qualifies for admission as
a nonimmigrant, ho is presumed to he an immigrant having no visa, was properly found
excludable under section 212(a)(20) of the Act.
EXCLUDABLE: Act of 1952—Section 212(a)(20) (8 U.S.C. 1182(a)(20))—Immigrant--no
visa
ON BEHALF OF APPLICANT:

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney

Seymour Nathanson, Esquire
480 Congress Street
Portland, Maine 04111

In a decision dated June 18, 1974, the immigration judge ordered that
the applicant be admitted to the United States as a nonimmigrant
business visitor. The Immigration and Naturalization Service has appealed from that decision. The appeal will be sustained.
The applicant is a native and citizen of Canada. He is a mechanical
engineer by profession, and he appears to be a principal in a Canadian
engineering firm which employs approximately 19 engineers and has a
total staff of 55 persons. The applicant is married, has children, and
owns property in Canada. The record indicates that he has no intention
of abandoning his Canadian residence.
The applicant seeks to enter the United States in connection with his
engineering practice. As of the date of the hearing, his Canadian. firm
331

Interim Decision #2392
was earning approximately 30 percent of its income from clients located
in the United States. The firm's activities are evidently limited to
providing consultation on engineering problems and to doing the design
and drafting work on projects such as the installation and renovation of
machinery in paper mills.
Employees of the firm often enter the United States for the purpose
of consulting with clients. While in the United States, these employees

obtain information about the project on which they are working. Their
"on-site" labor is generally limited to the making of notes and drawings,
and to the taking of measurements. The drafting and design work is

performed in Canada at the offices of the firm. The applicant's firm does
not engage in the actual construction or installation of equipment; this
work is contracted out by the client.
The applicant spends some of his time in the United States soliciting
business; however, the bulk of his time here appears to be devoted to

consulting with clients and obtaining necessary information from them.
Most of his engineering-related trips to the United States are also of
short duratian. In the years when his firm first began doing work for
United Spates clients, the applicant evidently made fewer than ten such
trips here a Year, However, he now travels to the United States more
regularly, averaging one or more trips a week in connection with his
practice.
The narrcw question to be decided here is whether a professional
engineer, who reolarlytravels to,the United States in connection with
the rendition. of his professional services, may qualify as a nonimmigrant
business visitor under section 101(a)(15)(B) of the Immigration and
Nationality Act. Unless the applicant qualifies for a nonimmigrant
status, he is presumed to be an immigrant, and is inadmissible as an
immigrant without an immigrant visa. See section 214(b), Immigration
and Nationality Act.
The Service's basic position in this case appears to be that the applicant does not qualify as a business visitor because he does not seek to
enter temporarily. In advancing this position, the Service relies on
several cases dealing with temporary workers under section 101(a)(15)(H), and on several cases dealing with aliens who are coming to

the United ,States to perform work for hire on a regular and continuing
basis.

The cases concerning temporary workers, however, are not in point.
The Service appears to have construed section 101(a)(15)(H) as requiring that the job for which a temporary worker seeks admission be a job
of a temporary character, regardless of the alien's intended length of
stay. Matter of Contopoulos, 10 I. & N. Dec. 654 (Actg. R. C. 1964);
Matter of University of California Medical Center, 10 I. & N. Dec. 715
(R.C. 1964); iiiatter of M

—

S H , 8 I. & N. Dec. 460 (ri.. C. 1959; Asst.
—

—

332

Interim Decision #2392
Comm. 1960), The case law with respect to business visitors has established no such requirement, and on the contrary indicates that the
business relationship may be of a continuing or long standing nature.
The only condition in this respect is that each visit be temporary in
duration. See Matter of Hira, 11 I. &N. Dec. 824, 827 (BIA 1965, 1966;
A.G. 1966); Matter of.Cortez-Vasquez, 10 I. & N. Dec. 544, 546 (BIA
1964); Matter ofP—, 8 L & N. Dec. 206, 207 (BIA 1958); Matter of M ,
6 I. & N. Dec. 533, 535 (BIA 1955); Matter of G—P—, 4 I. & N. Dec.
217, 221-22 (C.O. 1950).
There is language in several of the "business visitor" cases relied upon
by the Service which indicates that the temporary or permanent nature
of a job has a bearing on whether an alien's visit can be characterized as
temporary. See Matter of G—, 6 I. & N. Dec. 255, 256 (BIA 1954);
Matter of L—, 3 I. & N. Dee. 857 (BIA 1950). However, the precise
basis for decision in those cases is not entirely clear, and the results
reached are easily explainable under the view that the activities of the
aliens could not be considered "business" within the meaning of the
statute.
The nonimmigrant business visitor classification contained in section
101(a)(15)(B) must be construed, within the framework of the Act. Cf.
Matter of Udagawa, 14 L & N. Dec. 578 (BIA. 1974). For some time
now, Congress has sought to protect American workers from job competition of an undesirable, nature. See e.g. section 212(a)(14), Immigration and Nationality Act; section 3, Immigration Act, of 1917 (Act of
February 5, 1917, 39 Stat. 874, 875-78). This protection dearly extends
to members of the professions, as well as to workers who traditionally
might be considered skilled or unskilled laborers. See sections 212(a)(14), 203(a)(3), and 203(a)(6), Immigration and Nationality Act.
In light of this congressional policy, the term "business" as used in
section 101(a)(15)(13) has been held not to include ordinary labor for hire,
but is limited to intercourse of a commercial character. See Karnuth, v.
U.S.ex rel. Albro, 279 U.S. 231 (1929); Matter of Hira, 11 I. & N. Dec.
824 (BIA 1965, 1966; A.G. 1966); Matter of P—, 8 I. & N. Dec. 206 (BIA
1958). However, an alien need not be considered a "businessman" to
qualify as a business visitor, if the function he performs is a necessary
incident to international trade or commerce. Matter of Him, supra; see
Matter of 6 1. & N. Dee. 832 MLA 1955); Matter of R—, 3 I. & N.
Dec. 750 (BIA 1949).
We have concluded that the applicant is not engaged in "business," as
that term is used in section 101(a)(15)(B). We recognize that certain
activities of a professional character may be considered `business." See
Matter of Vilanova-Gonzalez, 11 I. & N. Dec. 610, 612 (BIA 1966);
Matter of Sparmann, 11 L & N. Dec. 285 (Actg. D.D. 1965). However,
the applicant's professional activities in the United States go well be..
—

a a

333

Interim Decision #2392
yond functions which can be described as necessary incidents to international trade or commerce.
The applicant has indicated that of the portion of his time spent in the
United State a minor fraction is devoted to the solicitation of engineering work. The majority of his time here appears to be spent in connection with the rendition of his professional services. These services are
not performed as an incident to any international commercial activity,
except to the extent that the performance of this service can, itself, be
considered an international commercial activity.
The applicant appears to be in the process of extending his professional engineering practice to the United States. Although we would

hesitate to call the applicant's services "ordinary labor for hire," he is
regularly performing personal services in the United States independent of any other commercial activity. This he may attempt to do as an
immigrant or via the nonimmigrant provisions of section 101(a)(15)(H)
or of section 101(a)(15)(L). These latter nonimmigrant categories afford
some degree of protection for any American workers who might be
adversely affected by the applicant's professional practice. See 8 CFR
214.2(h); 8 CPR 214.2(1). The applicant, however, may not establish a
regular and continuing professional engineering practice in the United
States as a temporary visitor for business.
The decision of the immigration judge was incorrect, and the appeal

will be sustained. We note that the exclusion order entered below will
act as a bar to the applicant's admission to the United States for a period
of one year under section 212(a)(16) of the Act. However, the applicant's
good faith and the other circumstances surrounding this case would
appear to be favorable factors for consideration in any application for
permission to reapply for admission.
ORDER: The appeal is sustained, and the applicant is ordered
excluded anc. deported from the United States pursuant to section
212(a)(20) of - ;he Immigration and Nationality Act.

Irving A. Appleman, Board Member, abstained from consideration in
this case.

334


Interim Decision #2811

MATTER OF BOROMAND
In Section 246 Proceedings
A-19278665
Decided by Board August 1, 1980
(1) In the absence of evidence to support a finding of a fraudulent or sham marriage or
legal dissolution of the marriage, the denial of an adjustment of status application or
the subsequent rescission of an adjustment grant cannot be based solely on the
nonviability of the marriage at the time of the adjustment application. See Matter of
McKee, Interim Decision 2782 (BIA 1980).
(2) To the extent that Matter of Sosa, Interim Decision 2469 (BIA 1976), holds that an
alien seeking admission, to the United States as the spouse of a United States citizen or
lawful permanent resident may be excluded solely because the marriage upon which
such status is based is "nonviable", it is overruled. Matter of!rondo, Interim Decision
2781 (BIA 1980), modified.
(3) Where investigation of marital relationship conducted and evidence'did not indicate
a fraudulent or sham marriage, respondent's misrepresentation that he and his wife
were residing together at the time of his adjustment application, did not constitute a
material misrepresentation to render him ineligible as a matter of law for adjustment
of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255. See
Matter of 8— and B—C—, 9 I&N Dec. 436 (BIA 1960; A.G. 1961). Rescission proceedings commenced pursuant to section 246 of the Act, 8 U.S.C. 1256, terminated.
ON BEHALF OF RESPONDENT. Mark A. Anvaripour, Esquire
11 East Adams Street, #604
Chicago, Illinois 60603
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This is an appeal from a March 5, 1979, order of an immigration
judge, rescinding the adjustment of status which had been granted the

respondent under section 245 of the Immigration and Nationality Act,
8 U.S.C. 1255. The appeal will be sustained.
The respondent is a 29-year-old native and citizen of Iran who last
entered the United States on January 10, 1973, as a nonimmigrant
student. On August 8, 1973, the respondent married Patricia Seymour,
a United States citizen, in. Chicago, Illinois. The respondent's wife filed
an immediate relative visa petition on his behalf on January 24, 1974,
which was approved on February 23, 1974. On August 7, 1974, the
450

Interim Decision #2811
respondent's status was adjusted to that of a lawful permanent resident based on his marriage to Patricia Seymour.
On March 11, 1975, the respondent was notified by the Service of its
intention to rescind the adjustment of status granted him on August 7,

1974. The notice of rescission charges that the respondent's adjustment of status is subject to rescission under section 246 of the Act, 8
U.S.C. 1256, since at the time of adjustment, the respondent and his
wife were not living together in a marital relationship. It further
charges that the respondent made false statements concerning his
relationship with his wife in order to secure permanent residence in
the United States.
In his decision rescinding the respondent's grant of adjustment of
status, the immigration judge found that although the respondent and
his wife had entered into p. lawful marriage, the parties had ceased
living together in March 1974, and that no bona fide husband and wife
relationship existed at the time, the respondent was granted his adjustment of status in August 1974. He found further that the respondent
had falsely stated at his August 7, 1974, Service interview conducted in
connection with his adjustment application, that he was residing with

his wife. Based on the materiality of this misrepresentation, the immigration judge concluded that the respondent was ineligible for the
adjustment of status granted him. See section 212(a)(19) of the Act, 8
U.S.C. 1182(a)(19).
On appeal, counsel for the respondent argues that since the respondent's marriage was not a fraudulent one, the grant of his adjustment of
status cannot now be rescinded based on the marital difficulties of the
parties. It is contended that the statements of the respondent and his
wife indicating that they were not living together were made in states

of anger and rage. Furthermore, it is maintained that a statement
made by the respondent on December 18, 1974, in which he averred
that he married Patricia Seymour for the sole purpose of obtaining
lawful permanent status, was made without the benefit of counsel and
that the respondent did not knowingly and intelligently sign the
statement. It is argued that the immigration judge erred by admitting
this statement into evidence.
At the rescission hearing, the respondent testified that he and his
wife were living together at the time of his adjustment application in
August 1974, and that they continued cohabiting until November 1974.
He maintained that his statement to the immigration officer on
December 18, 1974, that he and his wife stopped living together in
March 1974 was untrue and that he was upset at the time the statement was made. In a sworn statement dated December 10, 1974, and at

the hearing, the respondent's wife stated that she and the respondent
'eased living together in March 1974. She also testified that she was
Agl

Interim Decision #2811
forced to tell the immigration officer that she and the respondent were
living together at the time the respondent applied for adjustment
because the respondent had threatened her. A friend of the respondent's wife verified this information in a sworn statement dated August
13, 1975. Contained in the record are a divorce complaint and countercomplaint filed by the parties in 1974 and 1975, which indicate that
they cohabited until on or about February 27,1974.
Based upon the demeanor of the witnesses and the inconsistencies of
the respondent's statements, the immigration judge found that the
respondent's testimony lacked credibility and that the testimony of his
wife was worthy of belief. An immigration judge's findings regarding
the credibility of witnesses appearing before him are entitled to considerable weight. Matter of Tertg,15 I&N Dec. 516 (BIA 1975); Matter of
S , 8 I&N Dec. 574 (BIA 1964 Furthermore, counsel's contention that
the immigration judge erred in admitting the respondent's December
18,1974, statement into evidence is without merit. The officer who took
the statement testified that he informed the respondent of his right to
counsel (Tr. p. 8). Moreover, we note that there is no right to counsel
during the taking of a preliminary statement in the investigation
stage. See Matter of Steele, 12 I&N Dec. 302 (BIA 1967); Metter of
Argyroe, 11 1&N Dec. 585 (BIA. 1966). There is no indication that the
respondent made the statement involuntarily or that he did not understand what he was signing. Therefore, we find that the immigration
judge properly admitted the statement into evidence.
Based on the foregoing evidence, we conclude that the respondent
misrepresented the status of his marriage at the time he applied for
adjustment of status. The inquiry in this case does not end here
-

—

however since it must also be determined whether the respondent's

misrepresentations regarding his marriage were material in order to
render him ineligible for adjustment of status under section 212(a)(19)
of the Act. In Matter of S— and B—C—, 9 I&N Dec. 436 (BIA 1960; A.G.
1961), it was held that a misrepresentation under section 212(a)(19) of
the Act is material if (1) the alien is excludable on the true facts, or (2)
the misrepresentation tends to shut off a line of inquiry which is
relevant to the alien's eligibility and which might well have resulted in
a proper determination that he, be excluded. The same test of materiality can be applied to the misrepresentation in this case since an
applicant for adjustment of status is placed in the same position as an
alien applying for admission to the United States as an immigrant.
In Matter of Sosa,15 I&11 Dee. 572 (BIA 1976), we addressed the issue
of separation and marriage viability and its relationship to an adjustment of status application in the context of the spousal visa petition
underlying the adjustment application. That case involved an alie n
who had originally been admitted to the United States as a lawf!
452

Interim Decision #2811
permanent resident based on his marriage to a United States citizen
and who subsequently sought admission to this country as a returning
resident. We found there that since the applicant's marriage to his
United States citizen wife was not viable at the time he applied for his

immigrant visa and sought admission to the United States, his immigrant visa was invalid and he was therefore inadmissible to the
United States under section 212(a)(20) of the Act, 8 U.S.C. 1182(0(20).
This conclusion was based on our finding that the applicant and his
wife had ceased living together very shortly after their marriage and
that their marriage was "dead" prior to the issuance of the applicant's
immigrant visa and his admission to this country as a lawful
permanent resident. We stated there that since it was the intent of
Congress to exempt alien spouses of United States citizens from the
numerical limitations of the Act in order to prevent the separation of
families and to preserve the family unit, immigration benefits could
not be conferred on the basis of a nonviable or terminated marriage.
Our decision in Soso., id., was consistent with our previous decisions

which held that a visa petition could only be approved where the
petitioner established that he and the beneficiary had entered into a
bona fide marriage which is presently viable and ongoing. See Matter
of Mintah, 16 I&N Dec. 540 (BIA 1975), modified, Matter of McKee,
Interim Decision 2782 (BIA 1980). However, in Matter of McKee, id., we
adopted the position expressed in Chan v. Bell, 464 F.Supp. 125 (D.D.C.
1978), wherein it was held that a visa petition filed on behalf of an alien
spouse could not be denied solely because the parties to the marriage
were no longer living together. Under Chan and McKee, the issue is
not whether there is a presently subsisting or "viable" marriage
(assuming there is no legal separation or dissolution of the marriage),
but rather whether the marriage was entered into for the primary
purpose of circumventing the immigration laws. See also Dabaghian v.
Civiletti, 607 F.2d 868 (9 Cir. 1979). Therefore, to the extent that Matter
of Sosa, supra, holds that an alien seeking admission to the United

States as the spouse of a United States citizen or lawful permanent

resident may be excluded solely because the marriage upon which such

status is based is "nonviable", it is hereby overruled' However, Sosa
remains valid precedent to the extent that it stands for the proposition
that an alien seeking admission as an immigrant may be found inadmissible if the marriage upon which his visa petition was based has
We note that in Dabagitian v. Civiletti, supra, the Ninth Circuit held that a marriage
legally valid but "factually dead" (nonviable) at the time of adjustment of status cannot
be the basis for rescission. In light of that decision, we held in Matter of Kondo, Interim
Decision 2791 (BIA 1980), that Sosa, supra, is no longer applicable law in the Ninth
Circuit. To the extent that our decision in Kmato implies that Sosa is applicable in
circuits other than the Ninth Circuit it is hereby modified.
A

rn

Interim Decision #2811
been legally terminated.
In keeping with this line of cases, we conclude that in the absence of
evidence to support a finding of a fraudulent or sham marriage or
evidence showing the legal dissolution of the marriage at the time of
the adjustment, the denial of an adjustment of status application or
the subsequent rescission of such grant cannot be based solely on the
nonviability of the marriage at the time of the adjustment application.
In the present case, it does not appear that the respondent married
Patricia Seymour for the sole purpose of evading the immigration
laws. See Lutwak v. U.S., 344 U.S. 604(1953); Barkv. INS, 511 F.2d 1200
(9 Cir. 1975); Matter of Phillis, Interim Decision 2407 (MA 1975). The
parties were married two months after they met. At the hearing, the
respondent's wife testified that the parties had a good relationship for
the first month of their marriage until the respondent left to attend
school in Louisiana. It appears from her testimony that it was only
after the respondent returned from Louisiana three months later that
the parties' differences surfaced (Tr. p. 34). Subsequent to his return,
the respondent and his wife cohabited for a three month period. In a

sworn statement dated December 10, 1974, the respondent's wife
claimed that the respondent informed her prior to their marriage that
his school tuition would be less expensive if he married a United States
citizen and became a lawful permanent resident. She further maintained in that statement that the respondent offered her a Persian rug
if she would marry him. At the hearing however, she stated that the
respondent gave her the rug after their marriage and that he did not
pay her any money for the marriage (Tr. pp. 25, 39). In addition, she
maintained that she married the respondent because she loved him
(Tr. p. 38). Although the respondent's wife at one time stated that she
believed that the respondent had married her in order to obtain
immigration benefits, she later testified that she did not think the
respondent's immigration problems were his only reasons for marrying her (Tr. pp. 34, 35). Based on the facts and circumstances in the
present case, we find that the parties entered into a bona fide marriage
with the intent of joining together as husband and wife and that the
respondent did not marry Patricia Seymour for the primary purpose of
obtaining immigration benefits.
Based on the foregoing, we conclude that in this particular case the
respondent's adjustment of status grant cannot be rescinded based on
the charge that he materially misrepresented his living arrangements
with his wife at the time of his adjustment application. Since we have
concluded that an adjustment application cannot be denied based
solely on the nonviability of the marriage at the time of adjustment,
the respondent's misrepresentation cannot be considered material in
this regard. Furthermore, since we find that the respondent's marriage
454

Interim Decision #2811
was not a sham, the respondent's misrepresentations did not cut off a
line of inquiry which would have lead to a denial of his adjustment
application.' See generally, Matter of S— and B—C—, supra. Accordingly, the appeal will be sustained and the proceedings shall be
terminated.
ORDER: The appeal is sustained. The proceedings commenced
pursuant to section 246 of the Act are hereby terminated.

2 The record indicates that there was no legal separation or dissolution of the marriage
at the time of the adjustment application. Therefore, we need only address the question
of whether the marriage was a sham or fraudulent at its inception.

455


Interim Decision *1820

'MATTER OF MEDINA-OCEOA

In Exclusion Proceedings
A-17384381-2

Decided by Board December 13, 1967
Applicants, natives and citizens of M0Y100, who Ara ("timing to the United
States for the purpose of demolishing a house that had been given them and

taking the salvageable lumber back to Mexico to use in building homes for
themselves, who will not be paid and will use no local labor in the operation,
are admissible as nonimmigrant visitors for business within the purview of
section 101(a) (15) (B), Immigration and Nationality Act.
Ex°Lunen's: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182 (a) (20)]
—Immigrants without visas.

The cases are before us by certification. The special inquiry officer
ordered applicants excluded as immigrants not in possession of the
appropriate documents. We find applicants admissible as nonimmigrants.
The applicants, Jose and his younger brother, Jesus, natives and
citizens of Mexico, applied for admission on October 18, 1967 at
San Ysidxo, California as nonimmigrants for business. They stated
they had been given a house at Long Beach, California by the owner,
that they intended to demolish it, take the debris to the local dump,

and take the salvageable lumber back to Mexico where they planned
to build homes for themselves.
The applicants will demolish the building without the use of local
labor and will transport the material in a truck belonging to Jesus.
They will not be paid. This is the first venture of this type and
applicants have no plans to engage in others. They expect to do
the job in about six days and plan on making two trips to take all
the material to Mexico. Both applicants are farmers; one does some
carpentry also.
The special inquiry officer held that the applicants' sole and principal purpose is to perform labor in the United States in competition
with the local labor market. We however find that the primary purpose
is to enter the United States to take back to Mexico property which
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Interim Decision #1820
has been given to them. The cases are similar to that in Matter of
Cortez-Vasguez, 10 I. & N. Dec. 544, in which we found a Mexican
national who entered the United States to collect wood on American
ranchs for disposition in Mexico was admissible as a nonimmigrant
visitor for business.
ORDER: It is ordered that the decision of October 19, 1967 of the
special inquiry officer be reversed and that the applicants be found
admissible as nonimmigrant visitors for business.


Interim Decision #2596

MATTER OF TAERGHODSI

In Deportation Proceedings
A-22369456
Decided by Hoard June 28, 1977
(1) Respondent was arrested by the Houston police for obstructing traffic on May 1, 1976.
When they ascertained he was an alien, they notified the Service which took him into
custody May 2, 1976. In his possession was an identification card issued by the Marriott
Corporation indicating his participation in an Employee Health and Welfare Benefits
Plan administered by that corporation. Deportation proceedings were brought under
section 241(a)(9) of the Immigration and Nationality Act on the ground that respondent
violated his nonimmigrant status by accepting employment without the prior permission 9f the Service required by 8 0.17.1t. 214.2(f)(6). Dazed on the identification card and
the respondent's statements made at the hearing, the immigration judge found him
deportable on the grounds alleged in the orders to show cause.
(2) Under 8 C.F.R. 242.8(a) an immigration judge may, subject to the requirements of
procedural due process, consolidate the cases of different respondents if he deems it
necessary to promote administrative efficiency. Respondent's hearing was held during
three different hearings interspersed with the cases of four other respondents charged
with deportability on unrelated grounds. However, after denial of several preliminary
motions, all connection between respondent here and the other respondents ceased.
Nevertheless, there was no severance of respondent's case.
(33 While severance may have been warranted by the dissolution of the nexus between the
cases, where respondent was afforded an opportunity to litigate his case and the
Immigration judge clearly culled the essential facts and issues pertinent to respondent's
case from the record, respondent was not prejudiced by the failure to sever.
(4) Where deportability is established on the basis of evidence unrelated to the allegedly
unlawful arrest, denial of a motion to suppress evidence does not constitute reversible
error even if that evidence was seized unlawfully. Since respondent admitted his
employment at the hearing, and that admission was itself, sufficient to establish deportability, respondent's deportability is established by untainted, clear, convincing and
'unequivocal evidence.
CEIARGE:

Jrder. Act of 1952—Section 241(a)(9) 1$ U.S.C. 1251(a)(9)1—Nonimmigrant---failed to
maintain status
Or- BEHALF OF RESPONDENT: Nancy Hormachea, Esquire
815 Hawthorne
Houston, Texas 77006

BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members
260

Interim Decision #2596
In a decision dated December 9, 1976, the immigration judge found
the respondent deportable under section 241(a)(9) of the Immigration
and Nationality Act on the ground that he had failed to maintain his
nonimmigrant student status. The respondent was granted voluntary
departure in lieu of deportation. The respondent appeals from the
finding of deportability, arguing that it was based on evidence unlawfully seized and which should have been excluded from consideration at
the hearing. The appeal will be dismissed.
The respondent, a native and citizen of Iran, was admitted to the
United States as a nonimmigrant student on December 31, 1970. On
May 1, 1976, he was arrested by the Houston police in the aftermath of a
political d emonstration, apparently on the charge of obstructing traffic.'
After transportation to the station house for booking, the respondent's
personal effects were confiscated. Upon ascertaining that the respondent was an alien and that he was unable to verify his alien status, the
Immigration and Naturalization Service was notified.
On May 2, 1976, the respondent was remanded to the custody of
Service officers. His personal effects, confiscated at the time of his
incarceration, were also turned over to the service officers. Among
these effects was a document issued by the Marriott Corporation, bearing the respondent's name, and relating his participation in an "Employee Hcalth and Welfare Benefits Plan" administered by that corporation.

An Order to Show Cause was issued by the Service on May 3, 1976,
charging the respondent with deportability under section 241(a)(9) of
the Act. Specifically, it was alleged that the respondent had violated his
nonimmigrant status by accepting employment without the advance
permission of the Service, as required by 8 C.F.R. 214.2(f)(6).
Hearings were held before the immigration judge on June 16, October
27, and November 15, 1976. At these hearings, the respondent's case

was heard in conjunction with the cases of four other aliens, all of whom
had bean arrested at the May 1st political demonstration. 2 The five
respondents were represented by the same counsel. The immigration

judge denied the motion to suppress the identification card signed by the
Houston police. He relied upon this card and statements made by the
respondent at the hearing to find the respondent deportable under
section 241(a)(9) by clear, convincing, and unequivocal evidence.
I

We are faced at the outset with some question as to the procedure
' No evidence of prosecution on this charge appears in the record.
* A fourth hearing was held un February 17, 1977. However, the Immigration judge had
rendered his decision in the respondent's case on December 13, 1976, and this hearing did
not concern him.
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Interim Decision #2596
employed by the immigration judge in this case. The respondent's case

was heard during three different hearings, interspersed with the cases
of four other respondents charged with deportability on unrelated
grounds. 3 However, after two preliminary motions, made in conjunction
with two or more of the other respondents, 4 were denied by the immigration judge, all nexus between the respondent's case and the cases of
the other four respondents dissolved. 5 The respondent's case was
nevertheless not severed from those of the other four respondents. We
feel that it is appropriate at this time to discuss the considerations which
should govern the immigration judge's decision whether to consolidate
or hear separately the cases of different alien respondents.
Section 242(b) of the Immigration and Nationality Act grants wide
latitude to the Attorney General to determine the nature of deportation
proceedings, mandating only that certain procedures essential to procedural due process be followed by the immigration judge. See generally
Kwang Hai Chew v. Coldi-ny, 344 U.S. 590 (1953); 'Shaughnessy v.
United States, 345 U.S. 206 (1953).
The regulations issued by the Attorney General do not specifically
address the issue of joinder or consolidation of proceedings. However, 8
C.F.R. 242.8(a) specifies that it is within the power of the immigration
judge "to take any . . . action consistent with applicable provisions of
la.w and regulation as may be appropriate to the disposition of the case."
We interpret this provision to allow the immigration judge, subject to
the requirements of procedural due process, to consolidate the cases of

' One respondent was charged with failing to depart the -United States after the
expiration of his student visa. Two others were charged with transferring to another school
without prior authorization from the Immigration and Naturalization Service. The case of
a fifth respondent was severed from those of the other four when it became apparent to
the immigration judge that he might be eligible for suspension of deportation under
section 244(a)(1) of the Act.
4 At the outset of the hearing, two motions were made involving the respondent. The
first was a motion to suppress evidence seized incident to the allegedly unlawful arrest by
the Houston police on May 1, 1976. This motion was made jointly by the respondent and
rcam other respondents. The second was a motion, made jointly by all the respondents, for
discovery of all photographs, statements, and other evidence resulting from their May 1
incarceration.
Three respondents, not including the respondent in this case, joined in a motion for
discovery relating to the procedure employed by the Service to implement the directive
contained in GI. 214.2(f)(6). These same three respondents, again not including the
respondent in this case, asserted an estoppel claim, alleging affirmative Government
wais conduct based upon this section. These three respondents also sought to establish that
lla.ey had been the victims of selective "prosecution" by the Immigration and Naturaliza
then Service solely on the basis of their political views. The respondent in this case joined
in none of these last three legal maneuvers.

262

Interim Decision #2596
different respondents, if he deems such consolidation necessary to promote administrative efficiency. 6
This interpretation of 8 C.F.R. 242.8(a) finds support in judicial
decisions concerning the authority of a hearing officer to consolidate
proceedings in other types of Federal administrative proceedings. In
Association of Massachusetts Consumers, Inc. v. U.S. Securities and
Exchange Commission, 516 F.2d 711 (D.C. Cir. 1975), the court stated:
No principle of administrative law is more firmly established than that of agency
control over its own calendar . . . Consolidation . . . and similar questions are housekeeping details addressed to the discretion of the agency and, due process or statutory
considerations aside, are no concern of the courts. 516 F.2d at 714.

See also City of San Antonio v. Civil Aeronautics Board, 374 F.2d 326
(D.C. Cir. 1967); Cella v. United States, 208 F.2d '783 (7 Cir. 1953), cert.
denied 347 U.S. 1016 (1954); Davis, Administrative Law Treatise and
Administrative Law for the Seventies ,§8.12.

We conclude, therefore, that it is within the power of the immigration
judge to consolidate proceedings, if such consolidation does not serve to
deny the respondent the right to fully and clearly litigate his claims.
N ecessarily, then, each case in which there has been a consolidation
must be considered on its own record, with scrutiny of the respondent's
opportunity at the hearing to have his case clearly presented before the
immigration judge. Cf. Williams v. United States, 416 F.2d 1064, 1068

(8 Cir. 1969); Tillman v. United States, 406 F.2d 930, 934 (5 Cir. 1969).

Turning to the case before us on appeal, we find that once the
jointly-made motions for suppression and discovery were denied by the
immigration judge, all connection between the respondent's case and
those of the other individuals at the hearing disappeared. At this point,
severance of the respondent's ease would have been the best course of
action, both in the interests of administrative efficiency and clarification

of the record for appeal, and in the interests of insuring full and proper
presentation and consideration of the respondent's case by the immigration judge.
However, after a review of the voluminous record, we find that the
respondent was in fact afforded a full opportunity to litigate his case,
and that the immigration judge's opinion clearly and accurately culls the
6 We thus conclude that the joinder and consolidation rules applicable in Federal civil
and criminal judicial proceedings do not strictly obtain in Federal deportation proceedings.
See Fed. Rules of Civil Procedure, Rules 19, 20, and 21; Fed. Rules of Criminal
Procedure, Rule 8 (b). However, the chial policies behind the particular rules adopted in
Federal civil and criminal proceedings, the promotion of administrative efficiency in a
manner consistent with the safeguarding of the litigants' rights, must obviously serve as

mir vide in devising standards to envPrn enneolidation in Federal deportation proceed-

ings. See Davis, Administrative Law Treatise, and Administrative Law for the Seventies,
§8.12.
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Interim Decision #2596
essential facts and issues from the record. In this conclusion, we are
influenced by the fact that the respondent's case presented relatively
simple issues of law and fact. Thus, while consolidation of dissimilar
cases is not to be encouraged, and care must always be taken to insure
full protection of the respondent's due process right to a full and fair
hearing, we find that the respondent was not prejudiced by the immigration judge's failure to sever in this case,
II

The respondent argues on appeal that his motion to suppress was
improperly denied by the immigration judge, and that we should therefore terminate proceedings on the ground that the finding of deportability rests exclusively upon evidence tainted by the allegedly unlawful
arrest by the Houston police. For the reasons that follow, this claim is
without merit.
In his motion to suppress, the respondent sought exclusion of the
employee identification card seized from him by the Houston police
incident to his May 1, 1976, arrest. He argued that this arrest was
unlawful, and that evidence seized as a result thereof was therefore
inadmissible against him in. a subsequent deportation proceeding. The
immigration judge denied the respondent's motion on the ground that
evidence seized by a state police - officer, even if incident to an illegal
arrest, was nonetheless admissible in a Federal deportation proceeding.
We need not address the argument that the immigration judge should
have excluded this evidence from the hearing (but see United States v.
Janis, 428 U.S. 433 (1976)) for we find that the respondent testified at
the hearing to his unauthorized employment (Tr. p. 28, Hearing of June
16, 1976). 7 It is settled that the mere fact of an illegal arrest is not fatal
to the initiation of subsequent deportation proceedings. U.S. ex ret.
Bilokumsky v. Tod, 263 U.S. 145 (1923); Avila Gallegos v. INS, 525
F.2d 666 (2 Cir. 1975). Rather, when deportability can be established on
-

the baths of evidence unrelated to the allegedly unlawful arrest, failure

to grant a motion to suppress, even if the evidence was in fact seized
unlawfully, does not constitute reversible error. Since the respondent
admitted his past employment at the hearing, and since this admission
7 The respondent initially asserted a right to refuse to testify under the Fifth Amendment to the United States Constitution. This claim was properly rejected by the immigra-

tion judge. A respondent may reftase to testify in a deportation proceeding on the basis of
the Fifth Amendment only when a particular question relates to activity which is potentially incriminating. See Chavez-Maya v. INS, 519 F.2d 397 (7 Cir. 1975). There is no
eriminal penalty which attaches to unauthorized employment in the United States. The
respondent, therefore, had no valid basic for refusing to testify, and the admission of his
testimony, when he chose to comply with the immigration judge's direction, is not subject

to attack.

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Interim Decision #2596
by itself was sufficient to establish deportability under section 241(a)(9),
we find that deportability was established by clear, convincing, and
unequivocal evidence not subject to any potential taint. We shall therefore dismiss the appeal.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is permitted to depart from

the United States voluntarily within 30 days from the date of this order
or any extension beyond that time as may be granted by the District
Director; and in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.

265