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Interim Decision #4010

Matter of L-L-P-, Respondent
Decided February 24, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An applicant for special rule cancellation of removal under section 240A(b)(2) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2018), based on spousal abuse
must demonstrate both that the abuser was his or her lawful spouse and possessed either
United States citizenship or lawful permanent resident status at the time of the abuse.
FOR RESPONDENT: Laura L. Lichter, Esquire, Denver, Colorado
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kalin Ivany, Assistant Chief
Counsel
BEFORE: Board Panel: GREER and GOODWIN, Appellate Immigration Judges;
PEPPER, Temporary Appellate Immigration Judge.
GOODWIN, Appellate Immigration Judge:

In a decision dated September 17, 2019, an Immigration Judge denied the
respondent’s application for special rule cancellation of removal under
section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229b(b)(2) (2018), a form of relief reserved for certain victims of
domestic violence in accordance with the provisions of the Violence of
Against Women Act, enacted as Title IV of the Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 1902
(“VAWA”). The respondent has appealed from this decision. During the
pendency of his appeal, he filed a motion to remand so that he may apply for
cancellation of removal for certain nonpermanent residents pursuant to
section 240A(b)(1) of the Act, based on intervening case law. The
Department of Homeland Security (“DHS”) opposes the respondent’s appeal
and motion. The appeal will be dismissed, the motion will be granted, and
the record will be remanded.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United
States without being admitted or paroled. The following facts are undisputed.
In 2001, an Immigration Judge denied his application for cancellation of
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removal under section 240A(b)(1) of the Act because he had not
demonstrated the requisite hardship to a qualifying relative and granted his
request for voluntary departure. The respondent departed from the United
States but then reentered this country without admission or parole.
In 2006, the respondent was again placed in removal proceedings through
the service of a notice to appear that failed to specify the time and date of his
removal hearing. Based on his common law marriage, which lasted from
1995 to 2011, he filed an application for adjustment of status as a battered
spouse self-petitioner. In 2012, the United States Citizenship and
Immigration Service denied his Petition for Amerasian, Widow(er), or
Special Immigrant (Form I-360) because he had not established that his
former spouse possessed lawful immigration status in the United States
during their marriage.
Before the Immigration Judge, the respondent sought special rule
cancellation of removal under section 240A(b)(2) of the Act. The
Immigration Judge denied this application because the respondent had not
met his burden of proof to show that, during his marriage, his former spouse
held the necessary status either as a United States citizen or lawful permanent
resident when she abused him. Sections 240A(b)(2)(A)(i)(I), (II) of the Act.

II. ANALYSIS
A. Special Rule Cancellation of Removal
Section 240A(b)(2)(A) of the Act provides, in relevant part, that
The Attorney General may cancel removal of, and adjust to the status of an alien
lawfully admitted for permanent residence, an alien who is inadmissible or
deportable from the United States if the alien demonstrates that—
(i)(I) the alien has been battered or subjected to extreme cruelty by a spouse or
parent who is or was a United States citizen (or is the parent of a child of a United
States citizen and the child has been battered or subjected to extreme cruelty by
such citizen parent); [or]
(II) the alien has been battered or subjected to extreme cruelty by a spouse or
parent who is or was a lawful permanent resident (or is the parent of a child of an
alien who is or was a lawful permanent resident and the child has been battered or
subjected to extreme cruelty by such permanent resident parent) . . . .

These provisions plainly state that an abusive spouse must be either a
United States citizen or a lawful permanent resident at some point in time.
This case presents a matter of first impression, namely, whether an applicant
for special rule cancellation of removal must demonstrate that his or her
spouse possessed United States citizenship or lawful permanent resident
status at the time that the applicant was abused by and married to this spouse.
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This is a legal question, which we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii)
(2020).
1. Statutory Construction
We begin by considering whether sections 240A(b)(2)(A)(i)(I) and (II)
clearly and unambiguously specify the point in time at which the abusive
spouse must possess either United States citizenship or lawful permanent
resident status. See Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1056
(2019) (“[W]e begin ‘where all such inquiries begin: with the language of
the statute itself.’” (citation omitted)); see also Bostock v. Clayton Cnty., 140
S. Ct. 1731, 1738 (2020) (stating that a court should “interpret[] a statute in
accord with the ordinary public meaning of its terms at the time of its
enactment”). “To determine whether Congress has directly spoken on [an]
issue, we use ‘traditional tools of statutory construction.’” Banuelos v. Barr,
953 F.3d 1176, 1180 (10th Cir. 2020) (quoting Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc. (“Chevron”), 467 U.S. 837, 843 n.9 (1984)). Where
the language of the statute is clear and unambiguous, our inquiry ends,
because we “must give effect to the unambiguously expressed intent of
Congress.” Chevron, 467 U.S. at 842–43.
Sections 240A(b)(2)(A)(i)(I) and (II) of the Act require an alien to have
been “battered or subjected to extreme cruelty by a spouse . . . who is or was”
either a United States citizen or lawful permanent resident. We perceive,
from the plain language of the statute, more than one possible time frame for
the spouse to hold United States citizen or lawful permanent resident status.
The word “is” in these provisions could be interpreted to mean that the
spouse held United States citizenship or permanent resident status at the time
of the marriage and abuse, or, as the respondent argues, at the time the
application for cancellation of removal was filed. As the statute is
susceptible to more than one interpretation, we conclude that sections
240A(b)(2)(A)(i)(I) and (II) are ambiguous. We must therefore determine
which interpretation reasonably reflects Congress’ intentions for these
provisions. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 980 (2005) (stating that “ambiguities in statutes within an
agency’s jurisdiction to administer are delegations of authority to the agency
to fill the statutory gap in reasonable fashion”); Martinez-Perez v. Barr, 947
F.3d 1273, 1280 (10th Cir. 2020) (same).
2. Overall Statutory Context
“The broader context . . . of the statute provides considerable assistance”
in construing an ambiguous term or phrase. Robinson v. Shell Oil Co., 519
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U.S. 337, 345 (1997). An analysis of the overall statutory context may not
resolve an ambiguity, but it will assist in determining which meaning applies
when considering the statute’s purpose. See John Hancock Mut. Life Ins. Co.
v. Harris Trust & Sav. Bank, 510 U.S. 86, 94–95 (1993); see also Payless
Shoesource, Inc. v. Travelers Cos., Inc., 585 F.3d 1366, 1374 (10th Cir.
2009) (“[W]e must ask whether the word is used ambiguously within the
actual . . . context in which it appears. After all, when interpreting a . . .
statute, we derive meaning not just from abstract words in isolation, but from
their context . . . as a whole.”).
Here, the parentheticals in sections 240A(b)(2)(A)(i)(I) and (II) provide
context in determining the overall meaning of those provisions. For instance,
the parenthetical at section 240A(b)(2)(A)(i)(I) provides that an applicant
may be “( . . . the parent of a child of a United States citizen and the child has
been battered or subjected to extreme cruelty by such citizen parent).” 1 We
find it significant that the phrase “has been battered or subjected to extreme
cruelty by such citizen parent” in this parenthetical is in the present perfect
tense. Section 240A(b)(2)(A)(i)(I) of the Act (emphasis added). Congress
uses this tense to “denot[e] an act that has been completed.” Barrett v. United
States, 423 U.S. 212, 216 (1976); see also Carr v. United States, 560 U.S. 438,
448 (2010) (looking to “Congress’ choice of verb tense to ascertain
a statute’s temporal reach”). The parenthetical specifies that this past harm
must have been committed “by [a] citizen parent.” Thus, the ordinary
meaning of this parenthetical is that the child must have been abused by
a parent who was a citizen at the time the abuse took place. See Bostock, 140
S. Ct. at 1738.
Notably, removing the final phrase “by such citizen parent” from this
parenthetical would not change our understanding of the statute except with
regard to the abuser’s status at the time the abuse occurred. In this way,
Congress used the phrase “by such citizen parent” to explicitly tie the abusive
parent’s citizenship status to the past abuse, indicating that the abusive parent
must have possessed United States citizenship status at the time the abuse
took place. Based on our examination of sections 240A(b)(2)(A)(i)(I) and
(II) as a whole, including their parentheticals, we conclude that the abusive
spouse (or parent) must be a United States citizen or lawful permanent
resident at the time of the abuse. Moreover, because the spousal portion of
these provisions requires the abuser to be a “spouse,” this abuse must have
occurred during the course of the marriage. Section 240A(b)(2)(A)(i)(I) of
the Act (emphasis added); see also section 240A(b)(2)(A)(i)(II) of the Act.
1

The parenthetical is identical in both sections, except as to the status of the parent as
either a United States citizen or lawful permanent resident. We examine only the first
parenthetical, but our reasoning applies to both sections.

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With the context of the statute as a whole in mind, we interpret the term
“is” in sections 240A(b)(2)(A)(i)(I) and (II) as requiring that the abusive
spouse (or parent) be a United States citizen or lawful permanent resident at
the time the battery or extreme cruelty occurred. We interpret the expanded
phrase, “is or was” in the statute to mean that the spouse (or parent) may later
lose his or her citizenship or lawful permanent resident status. Yet the
applicant does not lose the opportunity to apply for special rule cancellation
of removal so long as that spouse (or parent) was a citizen or permanent
resident at the time the abuse occurred, and, in the spousal context, the
applicant was married to the abuser during this abuse. To sum up our
interpretation of the statute in the marriage context, the spouse must be a
spouse during the abuse—that is, the abuse occurs during the marriage—and
that, at the time of the abuse, the spouse is either a United States citizen or
lawful permanent resident. We next consider whether our interpretation is
reasonable given Congress’ intent in designing the VAWA.
3. Legislative Intent
Because the plain language of the statute is ambiguous, we may consider
whether the relevant legislative history of the VAWA provisions in the Act
confirms our interpretation of sections 240A(b)(2)(A)(i)(I) and (II). See
Matter of L-A-C-, 26 I&N Dec. 516, 518 (BIA 2015); see also United States
v. Manning, 526 F.3d 611, 614 (10th Cir. 2008) (“If the statute’s plain
language is ambiguous as to [c]ongressional intent, ‘we look to the legislative
history and the underlying public policy of the statute.’” (citation omitted)).
Although legislative statements have less force than the plain language of the
statute, such statements are helpful to corroborate and underscore
a reasonable interpretation of the statute. See generally, e.g., Weinberger
v. Rossi, 456 U.S. 25, 32 (1982). A review of the relevant legislative history
confirms that our interpretation of these provisions is consistent with the
underlying purpose of the VAWA.
In Matter of Pangan-Sis, 27 I&N Dec. 130, 133–34 (BIA 2017), we
discussed the legislative history of the VAWA in the context of an exception
to inadmissibility under section 212(a)(6)(A) of the Act, 8 U.S.C.
§ 1182(a)(6)(A) (2012), for certain battered women and children. 2 We
observed that Congress intended to reduce marriage fraud by requiring a
conditional permanent resident to file a joint petition with his or her United
States citizen or permanent resident spouse to remove the conditions on
residence. However, this requirement “created a situation in which abused
alien spouses were reluctant to leave their United States citizen or lawful
2
We recognize that Pagnan-Sis discussed a separate provision of the Act. We rely upon
this case solely for its discussion of legislative intent with regards to the VAWA.

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permanent resident abusers for fear of losing their potential to adjust their
status.” Id. at 133. We discussed how the House Judiciary Committee
Report accompanying the VAWA recognized that
[d]omestic battery problems can become terribly exacerbated in marriages where one
spouse is not a citizen, and the non-citizen[’]s legal status depends on his or her
marriage to the abuser. Current law fosters domestic violence in such situations by
placing full and complete control of the alien’s spouse’s ability to gain permanent
legal status in the hands of the citizen or lawful permanent resident spouse.

Id. at 134 (quoting H.R. Rep. No. 103-395, at 26, 37 (1993), 1993 WL
484760).
This concern of Congress—that an alien spouse would be subject to
a United States citizen or lawful permanent resident spouse’s control over his
or her immigration status—motivated the VAWA legislation to ensure that
aliens do not remain in abusive relationships because of immigration
consequences. See H.R. Rep. No. 106-939, at 111 (2000) (Conf. Rep.) (Joint
Explanatory Statement), 2000 WL 1479163, at *111 (stating that the VAWA
was “designed . . . to prevent immigration law from being used by an abusive
citizen or lawful permanent resident spouse as a tool to prevent an abused
immigrant spouse from reporting abuse or leaving the abusive relationship”);
see also 140 Cong. Rec. H10,693, H10,693 (daily ed. Oct. 4, 1994)
(statement of Rep. Schumer), 1994 WL 545675, at *H10,693-01 (stating that
the VAWA “permits immigrant spouses of United States citizens to escape
from their abusive spouses without risking deportation”).
This Board and the circuit courts have recognized that Congress intended
the VAWA to prevent abusive citizens and residents from using immigration
benefits as a means to control their alien spouses.
See, e.g.,
Perales-Cumpean v. Gonzales, 429 F.3d 977, 983 (10th Cir. 2005)
(recognizing that Congress enacted the VAWA to protect victims of abuse);
see also Da Silva v. Att’y Gen. U.S., 948 F.3d 629, 636 (3d Cir. 2020)
(“VAWA cancellation of removal is ‘intended to ameliorate the impact of
harsh provisions of immigration law on abused women.’” (citation omitted));
Toro v. Sec’y, U.S. Dep’t Homeland of Sec., 707 F.3d 1224, 1230 (11th Cir.
2013) (stating that the purpose of the VAWA’s self-petitioning provisions
“is to prevent the citizen or resident from using the petitioning process as a
means to control or abuse an alien spouse” (quoting H.R. Rep. No. 103-395,
at 37)); Matter of Pangan-Sis, 27 I&N Dec. at 134 (quoting same); Matter of
M-L-M-A-, 26 I&N Dec. 360, 364 (BIA 2014) (“[A] purpose of VAWA relief
is to empower aliens to leave abusive relationships.”); Matter of A-M-,
25 I&N Dec. 66, 77 (BIA 2009) (stating that “the underlying purpose of the
battered spouse provisions of the Act . . . is to enable aliens to leave their
abusive citizen or lawful permanent resident spouses who may use the threat
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of deportation or sponsorship for an immigration benefit to maintain control
over them”).
Although the VAWA has been amended several times to include
a self-petitioning visa provision, special rule cancellation of removal for
battered aliens, and an exception to inadmissibility, we recognize that, in
enacting all these benefits, one of Congress’ goals was to free abused spouses,
who are married to United States citizens or lawful permanent residents, from
the fear that remaining in an abusive marriage is the only way to obtain lawful
immigration status. This goal clearly contemplates that the abusive United
States citizen or lawful permanent resident spouse is actually able to use that
status to benefit—or punish—his or her alien spouse. We made this
particularly clear in Matter of Pangan-Sis, 27 I&N Dec. at 135, where we
stated that the VAWA exception to inadmissibility in that case covers
“a spouse of a United States citizen or lawful permanent resident who suffers
abuse . . . . However, coverage is not extended to aliens who are married to
non-United States citizens and non-lawful permanent residents, because such
persons lack ‘immigration leverage’ over their spouses.”
In light of this discussion from Pangan-Sis, we conclude that our
interpretation of sections 240A(b)(2)(A)(i)(I) and (II) is reasonable and
consistent with congressional intent. Where the abuser is the spouse of an
applicant seeking special rule cancellation of removal based on spousal abuse,
the applicant must demonstrate that the abuser held both legal status as the
applicant’s legally recognized spouse and United States citizenship or lawful
permanent resident status at the time of the abuse.
We have recognized that special rule cancellation of removal is
a continuing application since an applicant continues to accrue physical
presence and good moral character until the final administrative order is
entered. See Matter of M-L-M-A-, 26 I&N Dec. at 363. However, the
continuing nature of this form of relief does not relieve an applicant of the
burden to demonstrate that, at the time of abuse occurring during the
marriage, the abuser was his or her lawful spouse and either a United States
citizen or lawful permanent resident. Our decision in M-L-M-A- supports
this conclusion. There, we granted special rule cancellation of removal to an
applicant who had divorced her abuser, after the abuse had taken place. Since
her abuser was her lawful spouse and either a citizen or permanent resident
at the time of the abuse, her divorce was irrelevant to her statutory eligibility
for this form of relief.
Our interpretation of sections 240A(b)(2)(A)(i)(I) and (II) gives full
effect to the language enacted by Congress and is consistent with
congressional intent. We therefore hold that an applicant for special rule
cancellation of removal under section 240A(b)(2) based on spousal abuse
must demonstrate both that the abuser was his or her lawful spouse and
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possessed either United States citizenship or lawful permanent resident status
at the time of the abuse, even if the abuser’s spousal status, citizenship, or
lawful permanent resident status was later terminated or revoked, or the
abuser can no longer use an immigration benefit to control the applicant.
4. Application to the Respondent’s Case
The respondent has not demonstrated that his former spouse was a United
States citizen or lawful permanent resident at the time they were married and
when she abused him. The parties agreed below, and do not otherwise
dispute on appeal, that the respondent’s former spouse was not a United
States citizen or permanent resident during the marriage and abuse. The
parties further agreed below, and do not dispute on appeal, that she had likely
obtained permanent residence some years after the marriage and abuse ended.
Because the respondent has not shown that his former spouse was a citizen
or permanent resident during the marriage and abuse, he is ineligible for
special rule cancellation of removal pursuant to section 240A(b)(2) of the
Act. 3
We are not persuaded by the respondent’s argument that his former wife
used the fact that she had applied for, but had not yet obtained, immigration
status during their marriage as “leverage” to keep him in the abusive marriage.
An abusive spouse must have the actual ability to affect an alien’s
immigration status in order to threaten the alien in the manner contemplated
by the VAWA. Thus, the Immigration Judge correctly denied the
respondent’s application for special rule cancellation of removal.
B. Motion to Remand
The respondent argues that remand is warranted so that he can apply for
cancellation of removal under section 240A(b)(1) of the Act because he may
be able to establish the requisite 10 years of continuous physical presence for
this form of relief under intervening case law from the United States Court
of Appeals for the Tenth Circuit, in whose jurisdiction this case arises. See
3

On appeal, the respondent renews his argument that the DHS has access to the
respondent’s former spouse’s immigration records, and it refuses to share them, despite
formal requests that it do so. The Immigration Judge properly determined that the
respondent was responsible for demonstrating eligibility for relief. 8 C.F.R. § 1240.8(d)
(2020). The DHS is not required to provide documentation of immigration status for
persons not a party to these matters. Moreover, the refusal to share information about the
ex-wife’s current lawful immigration status is not a due process violation, as it would not
affect the outcome in the respondent’s case. See Matumona v. Barr, 945 F.3d 1294, 1308
(10th Cir. 2019) (“To prevail on a due-process challenge, the petitioner must show
prejudicial error.”).

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Banuelos, 953 F.3d at 1184 (holding that the “stop-time” rule ending the
period of continuous physical presence for cancellation of removal is not
triggered by the combination of two documents containing the date and time
of the removal hearing). Because the relevant notice to appear failed to
specify the time and date of the respondent’s hearing, it was incomplete, and
we agree with the respondent that he may now be able to establish the
requisite period of physical presence under section 240A(b)(1)(A).
Accordingly, the respondent’s appeal is dismissed and his motion to remand
is granted so that he may pursue cancellation of removal under section
240A(b)(1) of the Act.
ORDER: The respondent’s appeal is dismissed.
FURTHER ORDER: The respondent’s motion to remand is granted,
and the record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and the entry of a new decision.

249


Interim Decision #2043

MATTER OF DON DONALDSON'S KEY BAIL SERVICE

In Bond Cancellation Proceedings
A 17971351

Decided by Acting Regional Commissioner September 30, 1969
Where an alien released from Service custody under delivery bond conditioned upon his surrender on demand for deportation, departed the United
States prior to the date demanded for surrender, his departure, in the absence of aggravated circumstances and at no expense to the Government,
amounts to substantial compliance with the terms of the bond; hence, the
outstanding delivery bond is cancelled.
ON BEHALF OF OBLIGOR:
Charles Bagby, Esquire
681 Market Street
San Francisco, California 94105

ON BEHALF OF ALIEN:
Julio L. Juarez, Esquire

This is an appeal from the District Director's notice of October
17, 1968 advising obligor that on July 8, 1968 the bond in the
amount of $2,000 posted by the obligor on April 14, 1968 was
breached for failure upon demand made July 2, 1968 to surrender
the alien for deportation on July 8, 1968.
The alien, a 36-year-old male native and citizen of Portugal, entered the United States as a visitor on about May 8, 1967. Service
efforts to locate the alien were unsuccessful and on April 19, 1968
his then attorney surrendered him to the Service for a deportation hearing held on that date pursuant to an order to show cause
and warrant for arrest of alien. The Special Inquiry Officer found
him to be an alien unlawfully in the United States and ordered
that in lieu of deportation he be granted voluntary departure
without expense to the Government on or before May 19, 1968, or
any authorized extension beyond such date, and in the alternative
that if he failed to depart as required, the privilege of voluntary
departure be withdrawn without further notice or proceedings
and the alien be deported from the United States to Portugal.
The alien's release under bond was authorized on date of his
hearing and the date for his voluntary departure was extended on
one occasion to June 19, 1968.
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Interim Decision #2043
Since there was no evidence or verification of the alien's departure on or before June 19, 1968, a warrant for his deportation
was issued on June 20, 1968 and the bond declared breached on
July 8, 1968 for obligor's failure to surrender the alien for deportation on that date pursuant to a timely and proper demand sent
to obligor by certified mail on July 2, 1968. A copy of this demand to surrender was mailed to the alien's then attorney and a
copy also sent by certified mail to the alien. This latter certified
letter was returned by the postal authorities marked "unclaimed."
Counsel on appeal submits that the bond was posted to assure
the alien's deportation and was declared breached on the sole
ground that obligor did not surrender the alien for deportation on
July 8, 1968. He further submits that the alien contacted the
Service during the latter part of June 1968 and made arrangements whereby he would depart to the United States via Mexico
at no expense to the Government and that while the obligor was
not made privy to these arrangements, the obligor's office manager phoned the Service office and verified that such agreement
had been entered into between the alien and the Service. Although the alien did not depart within the time agreed upon, he
did, on July 4, 1968, commence his departure trip and on July 5,
1968 he was in Vancouver, B.C., Canada. As evidence of this,
counsel presents : the original of a motel bill and receipt showing
that one Eric or Elio Boleto was in a motel (room 307) located in
Vancouver from July 5, 1968 to July 9, 1968; the original of a letter from the alien mailed from Lisboa, Portugal to the obligor;
and a copy of two pages in the alien's passport, one shows that
the passport was issued to the alien and the other is stamped to
show non-immigrant entry into Canada on July 5, 1968. Under
these conditions, counsel contends that it was not possible for obligor to surrender the alien for deportation on July 8 since he had
departed the United States on July 5. Hence, the Government's

purpose in requiring the bond was accomplished-namely, the alien's deportation, and to collect from the obligor under these circumstances is not reasonable as alien had effected his own deportation. Counsel further contends that when the Service agreed to
change the alien's departure date whereby he could leave at his
own expense on a date prior to that set for his deportation this
action on the Government's part modified the conditions of the
bond without notice to and concurrence of obligor and thereby
cancelled any theretofore written contractual agreement set forth
in the bond. This action served to cancel the obligation of surety
and released them from any requirements of the bond. In view of

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the conclusion made, we do not find it necessary to explore or decide this issue.
Since the alien was under an order of deportation when he left
the United States on July 5, 1968, he was deported in pursuance
of law. (Sec. 101(g), Immigration and Nationality Act; 8 U.S.C.
1101 (g) ). Although there was a technical violation of the conditions of the bond in that the obligor did not surrender the alien
to the Service on July 8, 1968, technical violations do not necessarily justify a breach of bond, which is in the nature of a penalty. In fact, the regulations provide that there is a bond breach
where there has been a substantial breach of the stipulated conditions. (8 CFR 103.6 (e)) .
The purpose of the bond was to assure the alien's departure
from the United States and he deported himself to Portugal at no
expense to the Government. While the Service expended some
time and expense in the initial state of the alien's unlawful stay
in the United States, the Government was not required to defray
the expense of his deportation to Portugal. In evaluating all of
the factors in this case and the lack of aggravated circumstances,
we conclude that there has been no substantial violation of the
conditions of the bond.
ORDER: It is ordered that the bond not be declared breached
but that it be cancelled since the alien deported himself from this
country on July 5, 1968.

565


Interiin Decision #1584

Marrer or Koyazsa
In Visa Petition Proceedings
LOS-N-4466
Decided by Hegionat Vommissioner September #8, 1960

Petition, by. the owner and operator of a 700-acre farm specializing in row”
crops, to accord beneficiary nonimmigrant classification under section 101
(8) Gd) (4) (41), Mmigration and Nationality Act, as am Industral tcaluee
in modern methods of agriculture applicable to the growing of varied vege-
table crops, is denfed since the proposed training program ia unrealistic be-
cause excessive in length (24 months), repetitious, and would consist prin-

+ cipal of actual on tho job cspontones,

This case is before the regional commissioner on appeal from the
district director’s decision denying the petition on the following
grounds:

You presently employ four Japanese industrial (agricultural) trainees; two
having been in your employ since October 3, 1963, and two since February 27,
1964. These trainees were admitted to the United States as tae penencianes
of your petitions approved for a one year training program to enable them to
return to Japan with modern United States farming methods, You have
prolonged thelr stay in the United States to the present time, far exceeding
the une year progiam approved. Nou have failed to establish that you have a
bona fide training program to be concluded within a definite period of time, in-

bor, any training received being incidental thereto. In addition, the present
Program-you have submitted is unrealistic in that it is excessive in length snd

Fepetitions.

‘The petitioner, doing business 1s Koyama Farms, is owner and’
operator of a well-established farm in the State of California. This
farm consists of 700 acres under cultivation. The petitioner special-
izes in what are ordinarily referred to as “row crops” and his need
for workers fluctuates with the various harvests. When interviewed
in August 1965, the petitioner was employing 85 workers including
the four trainees referred to in the district director’s order. Eighty-
three other workers were employed on the farm but they were ac-
tually employees of a contractor who performed the service of lettuce,
cutting and thinning.

404
Interim Decision #1534: _

‘The enefelary fs 21-yeur-vld alive and citizen of Japon pros-
ently residing in Japan. ae

The petitioner proposes to train the heneficiary in modern methods
of growing, harvesting, and marketing of varied vegetable crops.
‘This training is to be accomplished by actual observation and par-
ticipation in the day to day activities of the farm. An outline of 2
training program covering a period éf 24 months has been submitted.
This program covers all the various tasks involved in the operation
of a large “truck” farm and is divided into various periods of time
covering each phase. In addition to the “learning by doing” phases
of the program, an additional period of one month is assigned for
visits to local schools, Farm Bureay meetings, and the Soil Conser-

- yation Office. The petitioner has trained foreign agricultural workers
in the past and presently has four such trainees.

‘When interviewed by a representative of thio Sorvieo in Auguat
1965, the petitioner stated the beneficiary will be employed 8, 10, or
12 hours a day, six or seven days a week depending upon the need
for workers, and that the training will be by actual experience gained
by working in the fields in the same manner as other workers on the
farm. He will be paid $1.40 per hour with no extra compensation

for overtime. The petitioner stated no field trips are planned for the :

beneficiary but that he hopes the beneficiary will be able to make
some field trips on week ends. He proposes to have the beneficiary
attend night school closses in English. The petitioner makes no
dictinotion botwoon the trainers and ather amplaynes except that,

the trainees are supervised by himself or other Japanese speaking ”

supervisory persons. :
“In his brief on appeal, the petitioner contends the district director
- violated 8 CFR 103.2(b) (2) in that he considered derogatory evi-
dence of which he was not aware. Petitioner was certainly aware
of his past-actions concerning the foreign agricultural trainees in his .
employ and could not reasonably believe that the district director
would ignore these actions in considering the instant petition. :
The training program in question extends over a period of two
years. The majority of the crops involved mature over a relatively
short period. In fact the training program contains the statement
that the 700 acres is actually farmed approximately three times year-
ly. In view of the foregoing, it is self-evident that many of the
phases-of training will be repetitious. While it is conceded that
practical experience will increase  person’s efficiency in any line of
endeavor, the intent of the statute involved here is to train rather
than to guin experience, The Service pusilion wiveruing the Tenth

425.
Riterim Decision 461584 -

of wit agricultural training program is w-muiter of f public gevurd ue
* Iset forth in Matter of Saunders; Int. Dec, No. 1866, :

[A careful review of the entire record reveals the district director's
decision’ to deny the petition -was correct, No. evidence has-been _
submitted that warrants disturbing that decision. - The appeal will *
“he dismissed.

‘ORDER: It is ordered that tha, Appeal be and the same is hereby
dismissed. we


Interim Decision #2040

MATTER OF CAMPBELL

In Visa Petition Proceedings
A-17642157
Decided by Board April 17, 1970
Petition to accord beneficiary fifth preference classification as the stepsister
of petitioner is denied, since petitioner and beneficiary, who do not have a
natural parent in common, are not sisters of the whole or half blood and,
therefore, do not come within the purview of section 203(a) (5) of the Immigration and Nationality Act.
ON BEHALF OF SERVICE:

ON BEHALF OF PETITIONER:
Pro se

R.. A. Vielhaber
Appellate Trial Attorney

This matter presents an appeal from a decision of the District
Director denying a visa petition filed by petitioner to accord the
beneficiary status as a stepsister under section 203 (a) (5) of the
Immigration and Nationality Act on the ground that petitioner
and beneficiary do not have a common parent. The question
raised in this appeal is whether, in the absence of any definition
of the term "brother and sister" for purposes of section
203(a) (5), Congress intended to grant fifth preference classification in cases, such as the instant, where a petitioner and •beneficiary do not have a parent in common. Our study of this issue persuades us that stepbrothers and stepsisters cannot be included
within the term "brothers and sisters" as it applies in section
203 (a) (5) of the Immigration and Nationality Act and we therefore affirm the District Director's decision.
The petitioner, native of England, born October 11, 1926, is a
naturalized citizen of the United States. Petitioner's birth certificate shows that she was born to one Eileen Wallace and R. Wallace. The beneficiary is a native of Dublin, Ireland and her birth
certificate shows that she was born to Kathleen Mary Campbell
and Alfred William Stewart Campbell on May 18, 1935. A marriage certificate presented by petitioner shows that petitioner's

552

Interim Decision #2040
father, a widower, and beneficiary's mother, a widow, were married on May 19, 1945.
We agree with the District Director that the term "brother and
sister" for purposes of section 203(a) (5) does not include relationships such as the instant, where there is no parent common to
both petitioner and the beneficiary. While the Immigration and
Nationality Act does not specifically define the term "brother and
sister," we find ample illustration for our holding that the term
applies only to consanguineous relationships.' The term "brother
and sister" under the provision of National Service Life Insurance Act designating permissible beneficiaries has been construed
in its plain, ordinary and popular sense as including only brothers and sisters by the whole blood and by the half blood, Woodward v. United States, 167 F.2d 774 (8 Cir., 1948); Strunk v.
United States, 80 F. Supp. 432 (E.D. Ky., 1948) ; Beach v. United
States, 79 F. Supp. 747 (N.D. Ohio, 1946); Droney v. United
States, 59 F. Supp. 154 (D.C., 1945). The term "step" when used
as a prefix in conjunction with a degree of kinship, such as a
stepchild or stepsister, usually denotes a relationship by affinity,
one repugnant to a blood relationship.'
We have traditionally held that for purposes of preference classification the term "brother and sister" includes relationships by
the whole blood and by the half blood, where the parties have
one natural parent in common, Matter of De F—, 6 I. & N. Dec.
325 (BIA, 1954) ; Matter of C—, 6 I & N. Dec. 786 (BIA, 1955).
In an unreported decision (Matter of Lewandowski, A-1214417
(June 15, 1961) ), we held that the term "brother and sister" did
not extend to relationships where the parties did not have a natural parent in common In that case, the petitioner's father married the beneficiary's mother and the relationship was created
through marriage only. Since Congress has not defined the term
"brother and sister" for purposes of section 203 (a) (5) of the
1 Black's Law Dictionary, 4th ed. at p. 1557, defines sister as: "A woman
who has the same father and mother with another, or has one of them only;
in the second, half sister."
The term brother is defined therein at page 242: "One person is a brother
of the whole blood to another, the former being a male, when both are born
from the same father and mother. He is a brother of the 'half blood' to that
other (or half brother) when the two are born to the same father by different mothers or by the same mother to different fathers."
2 Black's Law Dictionary, 4th ed. at p. 1584: "The term 'children' has been
generally held not to include 'stepchildren' where the former appears in devises or bequests, 95 C.J.S. 2d Wills, Section 654; the term 'stepchildren' has
not been included within the meaning of 'children' in wrongful death statutes, 25 C.J.S. 2d Death, Section 34 (2)."

553

Interim Decision #2040
Immigration and Nationality Act, we hold that the terms must
be applied in their plain and ordinary meaning.
The provisions of section 101(b) (1) (B) of the Act, which
define the term "child" as including a "step-child" under the conditions specified therein, obviously have no applicability here.
Accordingly, we hold that petitioner and the beneficiary, related
by affinity, are not sisters of the whole or half blood, and therefore do not come within the scope of section 203 (a) (5) of the
Immigration and Nationality Act.
ORDER: The appeal is dismissed.

554


Interim Decision #2555

MATTER OF CALILA.0

In Visa Petition Proceedings
A-31174M6

Decided by Board February 7, 1977
(1) Beneficiary was admitted to the United States as the immediate relative spouse of a
United States citizen (beneficiary's second wife) under section 201(b) of the Immigration
and Nationality Act. Deportation proceedings were instituted against him under section
241(a)(1) and section 241(c) of the Act after his United States citizen wife submitted
sworn statements to the Service that the beneficiary had paid her to marry him and
arrange his entry into the United States. Prior to final determination of his deportability, beneficiary divorced both his first and second wives and married the present
petitioner who filed two immediate relative visa petitions under section 201(b) of the
Immigration and Nationality Act in his behalf. The second visa petition was denied on
the ground that the beneficiary had been previously accorded nonquota status on the
basis of a marriage entered into for the purpose of evading the immigration laws in
violation of section 204(c) of the Act.
(2) Notwithstanding the fact that the beneficiary possessed lawful permanent residence at
the time the second visa petition was filed by this third wife, the District Director had the
authority to consider the second petition.
(3) Matter of Concepcion, Interim Decision 2529, is not controlling in this case because
in that proceeding the marriage was based on falsified documents, whereas in this
proceeding the marriage actually took place. Therefore, section 204(c) applies.
(4) Where the District Director relied on the statements of the beneficiary's second wife to
the effect that they had been married solely for the purpose of circumventing the
immigration laws in rendering his decision and concluding that section 204(c) of the Act
was controlling in this case, and the record does not indicate that petitioner was made
aware of this derogatory evidence prior to entry of the decision as required by 3 C.F.R.
103.2(b)(2). the record will be remanded to the District Director to afford petitioner an
opportunity to rebut the adverse evidence.
ON BEHALF OF PETITIONER: William E. Thompson, III, Esquire
Suite 205, Hawaiian Savings Building
925 Bethel Street
Honolulu, Hawaii 96813

BY: 1VIilhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

In a decision dated April 19, 1976, we dismissed the appeal from a
decision of a District Director denying the visa petition filed by the
petitioner on behalf of the beneficiary as her spouse -under section 201(b)
of the Immigration and Nationality Act. The petitioner has moved for
104

Interim Decision #2555
reopening of the proceedings and reconsideration of our prior decision.
Oral argument will be denied; the motion will be granted and the record
remanded to the District Director for further proceedings.
The record indicates that the beneficiary, a native and citizen of the
Philippines, has been married at least three times: to Rufina Rarama in
1969, to 'Ulna Herrera in 1971, and to the present petitioner, Cres Cabo

Paa, in 1975. As a result of his marriage to Vilma Herrera, a United
States citizen, the beneficiary was admitted to the United States as a
lawful permanent rt;,si dent. He subsequently divorced both his first and
second wife before marrying the present petitioner. The record contains
a sworn statement by the beneficiary outlining the sequence of his
marriages and divorces as well as a sworn statement by his second wife
stating, in effect, that the beneficiary had paid her to marry him and to
arrange his entry into the United States. An Order to Show Cause was
issued to the beneficiary in 1974 charging him under sections 241(a)(1)
and 241(e) of the Act with having been excludable at entry into the
United States and with having procured his immigrant visa by fraud.
Prior to a final determination of his deportability, the beneficiary
married the present petitioner and a second visa petition was filed in his
behalf. Relying in part on the aforementioned sworn statements, the
District Director concluded that the beneficiary had previously been
accorded nonquota status on the basis of a marriage entered into for the
purpose of evading the immigration laws in violation of section 204(c) of
the Act and, therefore, denied the petition.
Counsel for the petitioner first argues that, inasmuch as the beneficiary was already a lawful permanent resident at the time of the
District Director's decision, the very status he would ultimately be
accorded should the visa petition be approved, the District Director was
without jurisdiction to consider the petition. Such a contention is clearly
incorrect.
We note that at the time the visa petition was filed, deportation
proceedings against the beneficiary had been initiated and that he has
since filed an application under section 245 of the Act to adjust his status
to that of a permanent resident alien. Such a procedure is clearly
permitted by the Act. Tibke v. INS, 335 F.2d 42 (2 Cir. 1964). In order
to be eligible for adjustment of status, the alien must be the beneficiary
of a valid unexpired visa petition filed in accordance with 8 C.F.R. 204
and approved to accord such status. See 8 C.F. R. 245.2(b). Therefore,
inasmuch as the approval of a visa petition is a prerequisite to a grant of
adjustment, it is clear that, despite the fact the beneficiary possessed
lawful permanent resident status at the time the visa petition was filed,
he may be the recipient of a second visa petition. The District Director
clearly had the authority to consider the petition.
Citing our recent decision in Matter of Concepcion, Interim Decision
105

Interim Decision #2555
2529 (BIA September 8, 1976), counsel next argues that because the
beneficiary was already married to Rttfina Rarama at the time of his
"marriage" to Vilma Herrara, no marriage in fact existed upon which it
could be determined that the beneficiary obtained nonquota status for
the purpose of evading the immigration laws. In short, he maintains

that the

marriage to Vilma Herrera never existed.

Counsel's reliance on Matter of Concepcion is misplaced. There we
held, for purposes of section 204(c), that no marriage is entered into
when the preference status as a spouse of a lawful permanent resident is
accorded on the basis of falsified documents rather than actual marriage.
Although the beneficiary had profited from the determination that a
marriage existed in the same way as if she had entered into a sham
marriage, the marriage did not exist and we held that section 204(c) did
not apply. Matter of Concepcion is clearly distinguishable from the
present case. Here, according to the sworn statements of the beneficiary and his second wife, an actual marriage was performed. Therefore, we conclude that a marriage was indeed entered into and that
section 204(c) does apply. See Ferrante v. INS, 399 F.2d 98 (6 Cir.
1968).
Lastly, counsel argues that the District Director failed to give the
petitioner prior notice of his intention to deny the petition.
8 C.F.R. 103.2(b)(2) states, in pertinent part, that:
... If the decision will be adverse to the . . . petitioner on the basis of derogatory
evidence considered by the Service and of which the . . . petitioner is unaware, he shall
be advised thereof and offered an opportunity to rebut it and present evidence in his
behalf before the decision is rendered . . .

In rendering his decision and concluding that section 204(c) applied to
the facts of this case, the District Director relied substantially on the
sworn statement of the beneficiary's second wife to the effect that they
had never lived together as man and wife and that they had been
married solely for the purpose of circumventing the immigration laws.
Apparently this statement was made with regard to the beneficiary's
pending deportation hearing. Although such proceedings had been initiated at the time of the District Director's decision, it appears that the
proceedings were not concluded until subsequent to the denial of the
visa petition. It is not clear from the record that the petitioner was made
aware of the derogatory evidence prior to entry of the decision as
required by 8 C.F.R. 103.2(b)(2). Matter of Arteaga Godoy, 14 I. & N.
Dec. 226 (BIA 1972). Therefore, we will remand the record to the
District Director for the purpose of affording the petitioner an opporturay to rebut the adverse evidence. Should such evidence be successfully
rebutted, the District Director could then consider whether the marxi age between the beneficiary and the present petitioner was entered
into in good faith.
-

106

Interim Decision #2555
ORDER: The record is remanded to the District Director for further
proceedings consistent with the above opinion, and for entry of a new
decision.

107


Interim Decision #1598

3/MEE OF BADBADA.

In Visa Petition Proceedings
A-14709834
' co3 by RogionaZ*Cometraaaionor Marek 15, 1966
Dead

Since an auto mechanic technician is not a member of -the professions and his
skills cannot be equated with exceptional ability in the sciences or arts within
the meaning of section 203(a) (3), Immigration and Nationality Act, as
amended by P.L. 89-236, he is ineligible for third preference classification.

DISCUSSION: This case comes forward on appeal from the decision of the District Director who denied the petition on 'February 11,
1966 as follows:
The occupations of vehicle maintenance and automotive technician are not
occupations listed as requiring a member of one of the professions, and further
you have not established that you are a member of one of the professions.
The Dictionary of Occupational Titles, 1965, Volume 1, Definitions of Titles,
Third Edition, lists both these occupations under the general category of
.

"Automobile Services."

-

The denial of your petition, submitted by yourself to classify you as a member of one of the professions, will not prejudice the adjudication of a sixth preference petition, should a prospective employer desire to petition in your behalf.
Sixth preference petitions must be submitted by a prospective employer, with

the required fee, a certification from the United States Department of Labor,
Bureau of Employment Security, and documents attesting to your skills and
.abilities."

The petitioner is a 39-year-old. married male, a native and citizen
-of the Philippines residing in Pasay City, Philippines, with his wife
.and minor child, also natives of the Philippines.
On February 12, 1966 the petitioner filed an application to des.sify himself as a 'member of the professions entitled to preference
under section 203(a) (3) of the ImMigration and Nationality Act.
He plans to seek work as an auto mechanic technician in auto maintenance and air ground equipment in the San Francisco area. In
support of his petition, he has presented Form ES-575A. establishing
that he is a specialist in the overhaul of auto transmissions, aircraft
654 .

Interim Decision *1598
generator sets, timing lights, motor compression, hydraulic systems,
valve adjustments, and voltage regulations. He has presented certificates and commendations attesting to his training and efficiency.
He claims 18 years' experience as an auto mechanic and has presented
written evidence to establish that he has been occupied in this type

of work for over 8 years. His qualifications as an auto mechanic
have been established..
Section 101(a) (32) of the Act defines the term profession as
follows:
The term "profession" shall include but not be limited to architects, engineers,
lawyers, physicians, surgeons, and teachers in elementary or secondary schools,
colleges. academies or seminaries.

Section 203(a) (3) of the Act provides for the allotment of immigrant visas "to qualified immigrants who are members of the professions or who because of their exceptional ability in the sciences or
the arts will substantially benefit prospectively the national economy,
cultural interests, or welfare of the United States."
The occupation of auto mechanic technician is not classifiable as
a profession, and the skills required of an auto mechanic technician

cannot be equated with exceptional ability in the sciences, or arts.
Occupations falling within the third preference. classifiCation ordinarily require formal academic preparation, academic degrees, and/or
training, experience, talents, and sldlls in fields. such as science, law,
education, religion and culture.
The petitioner in his brief has conceded that his occupation is not
classifiable as a profession for purpoSes of section 203(a) (3) preference and has requested that his petition be considered for classifica-

tion under section 203(a) (6) of the Act.
Section 203(a) (6) provides for the allotment of immigrant visas
to qualified immigrants who are capable of performing specified
skilled or unskilled labor not of a temporary or seasonal nature for
which a shortage of employable and willing persons exists in the
United States.. Section 212(a) (14) of the Act, as amended,-requires
that an alien described in section 208(a) (6) of the Act obtain a certification from the Secretary of Labor to the effect that there is a
shortage of workers in the United States to perform the work which
the alien is to perform, and that the alien's employment would not
adversely affect wages and working conditions of persons in tile
_United States similarly employed.
It should be further noted that under section 203(a) (3) an alien
may petition for himself and show how he qualifies for performance
of duties of the position but under section 203(a) (6) the petition
must be filed by a, person who desires end intends to employ the
•655

Interim Decision #1.896

•

beneficiary within the United States, id accordance with section 201
(a) of the ImMigration and Nationality Act as amended. Therefore, the alien: in the subject case having expressed a •desire to be
.considered for section 203(a) (6) preference, must first be the belie=
ficiary of a petition filed by a person who desires and intends to
utilize the "services of the- beneficiary in the United States as an auto
mechanic. 6CFR 204.2(g) .provides that a petition for classification
under section 203(a) (6) must be supported by Form ES-575A showing the beneficiary's qualifications, Form ES-675B, the job offer by
the petitioner, and the certification by the Bureau of Employment
Security, Department of Labor showing the unavailability of like
labor in the United States.
The occupation of auto mechanic technician not being-classifiable
as a profession or included in the sciences and arts cannot be considered as an occupation falling within the provisions of section 203
(a) (3), and absent the required Bureau of Employment Security
certification the •District Director, was statutorily precluded from
making a favorable
'
finding that the petition be granted under section
203(a) (6) of the Act. The decision. of the District Director' was
proper. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
•
dismissed.

666


Interim Decision #1436

MA1TER OF ORMOS

In Visa. Petition Proceedings
A-14240454
Decided by District Director January 6, 1965 •

"Urgent need" within the contemplation of section 203(a) (1), Immigration and
Nationality Act, as amended, has not been established where beneficiary's
proposed entry into the 'United States is to become a partner in a plastics

factory and no action has been initiated to establish the factory.

Discussion: The petitioner, the Berkeley Luggage Company
(located at Berkeley, California), is engaged in the retail sales of
.luggage, small leather goods, handbags, wallets, and gift items.
Besides the petitioner, Mr. Rosenzweig, the company employs three" persons: two being sales personnel and one as a stock and monogramming employee. The company was established five years ago
and is expected to gross $70,000 this year.
Services of the beneficiary are desired for the purpose of establish- ,
ing and directing a factory to engage in the manufacturing of plastic items, particularly brief cases, binders, underarm cases, and
handbags made of plastic. If things work out, according to the
petitioner; the beneficiary will become his partner. United States
Employment clearance order submitted with the petition lists the
education and experience requirement as follows: "Ability to direct
one or more persons engaged in plastics manufacturing Minimum
five years' experience in designing, molding and finishing plastic
luggage, including bags, brief cases, purses, wallets."
The beneficiary is a 50-year-old married male, a native of Hungary
and a citizen of Chile, now residing in Montreal, Canada, where
according to the belief of the petitioner, he is employed by- Ornest, Ltd., at Montreal, Canada. The petitioner believes the beneficiary is the owner of Or-Plast, Ltd. If the beneficiary is admitted
into the United States, the petitioner believes the beneficiary may
bring with him a certain amount of equipment that would be necessary in manufacturing plastics at Berkeley, California. The beneficiary is the uncle of the petitioner's wife.
67

Interim Decision #1436
Evidence has been presented that the beneficiary is a skillful
technician in plastics and has been employed in that field in South
America for over 14 years.
In a sworn statement before an officer of this Service at San Francisco, California on November 6, 1964, the petitioner indicated the

beneficiary will set up a factory at Berkeley, California, equip it
and operate the factory and supervise the employees therein. He
will order the supplies, equipment, maintain records, design the products with the petitioner's assistance, will order the molds for the
products, such molds being made according to the specifications of
the design of the petitioner and beneficiary. The petitioner stated
that he would guarantee financial responsibility for the enterprise

and the setting up of the sales organization. He further stated that
"if things work out, he will be my partner". The petitioner intends
to invest $10,000nr $15,000 or perhaps more in the enterprise.
The petitioner has not, as yet, leased property for his anticipated
venture. He stated in his sworn statement of November 6, 1964: "I
will lease this property for this venture, sir, and put up the money,
when this man is here in the United States, here in Berkeley."
In a letter dated at Montreal, Canada on March 20, 1961 addressed
to "Dear Robert" (apparently the petitioner), the beneficiary stated.:
"Referring to our recent correspondence and long distance telephone
calls in regard to starting a new plastics factory in California,"
* * "I am quite able to make the financial investment which you
require to match the money which you will invest. We could form

a partnership and start a factory in Berkeley. If is pleases you, I
could dispose of my machinery here in the East and we could purchase more modern-machinery and equipment when I arrive to (sic)
California. Have you leased the needed. factory space as yet? It
would be wiser, Robert, if you wait for my arrival with my family."
From the record, it is evident that the purpose of the beneficiary's
proposed entry into the United States is to become a partner in a
plastics factory. No action has been taken by the petitioner to initiate proceedings to establish the factory, as he is waiting for the
beneficiary to enter the United States. It is obvious' that there Is
no urgent need for the beneficiary's services at this time, which is a
. requirement under section 203(a) (1) of the Immigration and Nationality Act, if the petition is to be approved.
ORDER: It is ordered that the petition be denied, as it has not
been established that the services of the beneficiary are needed
urgently in the United States as required by section 203(a) (1) of
the Immigration and Nationality Act.
6S


Interim Decision #1986

MATTER OF KIM

In Section 248 Proceedings
A-14800128
Decided by Regional Commissioner June 6,1968
Since section 248 of the Immigration and Nationality Act, as amended, precludes a direct change of nonimmigrant classification from that of
exchange visitor to that of student, application for change of nonimmigrant classification under section 101(a) (15) (A) (ii) to that of student

under section 101(a) (15) (F) (i) of the Act is denied an alien who was
originally admitted as an exchange visitor under section 101(a) (15) (3) of
the Act, because such change would be an indirect change from exchange
visitor to student.

The application was denied by the District Director at Baltimore, Maryland, on April 19, 1968, and is now considered on appeal.
The applicant is a 27-year-old native and citizen of Korea. He
entered the United States on August 29, 1965, as an exchange
visitor under section 101 (a) (15) (J) of the Immigration and Nationality Act, as amended. He participated in Exchange Visitor
Program G—I—I at the University of Maryland. The program is
described as follows:
A program of the United States Department of State, Bureau of Educational and Cultural Affairs, to provide courses of study in American colleges'
and universities for qualified foreign students receiving grants from the
Department, to promote the general interests of International Exchange.

He was responsible for his own expenses while in the United
States but was the recipient of a United States Government
travel grant.
On July 18, 1967, the Embassy of the Republic of Korea notified the Department of State that Mr. Kim had been employed by
the embassy as an administrative assistant and requested a
change of status for him. Accordingly, his nonimmigrant status
was changed on July 28, 1967, from Class J-1 to Class A-2. Mr.
Kim continued his studies at the University of Maryland that
summer by attending night classes and worked at the embassy

316

Interim Decision #1986
during the daytime. When fall classes started, he changed and
worked evenings at the embassy and attended classes during the
day.
He terminated his employment at the embassy and, oh March
8, 1968, submitted an application for change of nonimmigrant
status from Class A-2, foreign government employee, to Class
F 1, full time student. A cousin who resides in the United States
has agreed in an affidavit dated March 6, 1968, to support him
while he is in the United States. This is the application now
under consideration and which the District Director has denied
for the •reason that section 248 of the Immigration and Nationality Act, as amended, does not permit a change of nonimmigrant
classification from Class J-1 to Class F-1. Section 248 of the Act
reads as follows:
-

The Attorney General may, under such conditions as he may prescribe,

authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the
United States as a nonimmigrant who is continuing to maintain that status.
except an alien classified as a nonimmigrant "under paragraph (15) (D) of
section 101(a), or an alien classified as a nonimmigrant under paragraph
(15) (C) of (J) of section 101(a) unless he applies to have his classification
changed from classification under paragraph (15) (C) or (J) to a classification under paragraph (16) (A) or (15) (G) of section 101 (a).

The wording of section 248 is permissive in that it states that
with certain exceptions, the nonimmigrant classification of an
alien in the United States "may" be changed. The exceptions preclude granting a change from a J classification to an F classification. The application here is for a change from Class A-2 to
Class F-1 which is not forbidden by the statute. However, the
applicant entered the United States in Class J 1 and after a
change to Class A-2 and, without leaving the United States, he
seeks another change to Class F-1. This is clearly changing indirectly from a J classification to an F classification. The applicant
in his appeal states that he is not trying to circumvent the law
and the record indicates that he is a bona fide student. The decision required is whether the permissive authority of section 248
should be exercised so as to grant this indirect change of nonimmigrant classification where direct change is forbidden by the
statute. Specifically, we have here the case of a participant in an
exchange visitor program. Such programs have definite objectives. Some have limitations as to the length of time participation
is permitted. All contemplate that the participant will go to a foreign country on completion of the program. To permit an indirect
change from a J classification to an F classification would tend to
-

317

Interim Decision #1986
defeat these restrictions. It was held in the Matter of Enearnado,
10 I. & N. Dee. 620, that a change of nonimmigrant classification
from temporary visitor to student in the ease of an alien who had
recently participated in an exchange visitor program would defeat the intent and purpose of the Mutual Educational and Cultural Exchange Act of 1961.
Upon consideration of the facts here it is concluded that this
alien who came to the United States as the beneficiary of an exchange visitor program should be held to the requirements of the
program notwithstanding that he may have incidentally and temporarily had the classification of a foreign government employee.
The decision of the District Director will, therefore, be affirmed.
This decision does not preclude a return of the applicant to J 1
classification and extension of the time he is permitted to remain
-

in the United States if necessary to complete the objective of his
exchange visitor program.
ORDER: The decision of the District Director at Baltimore,
Maryland, is affirmed and the appeal of the applicant is hereby
dismissed.

318


Interim Decision #2123

MATTER OF FERNANDEZ
In Exclusion Proceedings

A-13311155
Decided by Board January 17, 1972
(1) Conviction of the offense of transporting forged securities in interstate
commerce in violation of 18 U.S.C. 2314 is conviction of a crime involving moral
turpitude.
(2) A three-year sentence to imprisonment on each of two counts of an offense,
with the sentences to run concurrently, does not constitute "aggregate
sentences to confinement actually imposed" of "five years or more" within the
meaning of section 212(a)(10) of the Immigration and Nationality Act.
(3) A special inquiry officer's refusal to entertain a section 212(h) application for
a waiver of excludability because the applicant was still in prison, was not
improper.
1182(aX9)l—Convicted of
crime involving moral turpitude.
Act of 1952—Section 212(aX10) [8 U.S.C. 1182(aXlO)]—Convicted of
two or more offeliscs for which the aggregate
sentences to confinement actually imposed were
five years or more.

EXCLUDABLE: Act of 1952—Section 212(a)(9) [8

ON BEHALF OF APPLICANT:

Pro se

The applicant is a 35-year-old married male, a native and citizen
of Cuba. He was admitted for permanent residence in 1957. In 1962
he participated in the Bay of Pigs invasion. He married a United
States citizen in 1966. In 1969 he went to Mexico. The Mexican
authorities deported him to the United States on November 9,
1969. He was paroled into the United States at that time. In an
order dated May 4, 1971, the special inquiry officer found the
applicant excludable as charged. From that order the applicant
appeals. The appeal will be dismissed.
The file indicates that the applicant has the following criminal
record. On December 13, 1965 he was convicted in California for
issuing various checks with the intention to defraud, a violation of
section 476a, Penal Code of California, for which offense he received a suspended sentence to 90 days imprisonment. On June 5,
1968 he was convicted in California of the offense of operating a
motor vehicle without the owner's consent, a violation of section
24

Interim Decision #2123
10851, Vehicle Code of California, for which he again received a
suspended sentence to 90 days imprisonment. On April 1, 1970 he
was convicted in the United States District Court for the Southern
District of Florida on two counts of transporting forged securities
in violation of 18 U.S.C. 2314. For this he was sentenced to three
years imprisonment on each count, with the sentences to run
concurrently.
We shall decide this appeal solely with reference to the federal
conviction referred to above. We agree with the special inquiry
officer that the offense of transporting forged and fraudulent
securities in interstate commerce is a crime involving moral
turpitude. As regards the applicant's first two convictions, we find
it unnecessary to make any holding with respect to whether they
involve moral turpitude. In any event, the record before us is
deficient in that it does not contain the text of the relevant
California statutes. The special inquiry officer's order not only
contains no discussion of this point, but it also contains no precise
finding of moral turpitude.
Inasmuch as we accept the special inquiry officer's finding that
the applicant has been convicted of two counts of an offense
involving moral turpitude, we also endorse the special inquiry
officer's holding that the applicant is excludable under section
212(a)(9) of the Act.
The special inquiry officer found that "Adding all these sentences...together you see that the applicant clearly has been

convicted of two or more crimes or offenses and has been sentenced to more than 5 years in jail...." The special inquiry officer
accordingly found him excludable under section 212(a)(10) of the
Act. With this we do not agree. In a previous decision, unfortunately unpublished, we have held that two concurrent three-year
sentences result in an aggregate sentence actually imposed, for
purposes of section 212(a)(10), of only three years, Matter of Rink,
T-367043 (unreported, BIA, September 24, 1954). Therefore, we
reverse the special inquiry officer's finding that excludability

under section 212(aX10) was established.
The special inquiry officer stated that the applicant's deportation into the United States by the Mexican authorities constituted
an "entry." We do not agree since it is well established that an
alien's parole into the United States does not constitute an "entry"
within the meaning of the Immigration and Nationality Act, Lung
May Ma v. Barber, 357 U.S. 185 (1958); Matter ofDabiran, 13 I.&N.
Dec. 587(BIA, 1970).
The record indicates that the applicant has a United States
citizen spouse and a son born in Mexico. The special inquiry officer

noted that the applicant would normally be eligible for considera25

Interim Decision #2123
tion for a waiver of excludability under section 212(h) of the Act.
However, the special inquiry officer refused to entertain an application for such relief because the applicant was still in prison. We
agree with this action of the special inquiry officer. This is without
prejudice to reopening and reconsideration in the event of a
renewed application submitted at such time as the applicant, by
his behavior over a reasonable period of time, is able to demonstrate that a waiver of his excludability is merited as a matter of
discretion and that his admission would not be contrary to the
national safety, security and welfare of the United States.
For the foregoing reasons, the special inquiry officer's order of
excludability is upheld, but only as relates to section 212(a)(9), and
the applicant's appeal will be dismissed. The following order will be
entered.
ORDER: The appeal is dismissed.

26


MATTER OF A
In SECTION 245 Proceedings
A-11726627
Decided by Regional Commissioner May 25, 1960
Approved by Assistant Commissioner June 1, 1960

Adjustment of status—Section 245 of 1952 act—Not warranted where applicant
failed to take advantage of opportunity to apply for visa outside United
States.
(1) An alien crewman who intentionally deserted his vessel in 1958 and who
thereafter departed from the United States upon denial of an application
for adjustment of status has failed to establish that he was a bona fide
nonimmigrant when he reentered as a crewman some five months later and
immediately filed a new application for adjustment of status.
(2) The present application would be denied in any event as a matter of discretion since the applicant made no effort while outside the United States

to obtain a nonquota immigrant visa (for which he was eligible) from an
American consul.
BEFORE THE REGIONAL COMMISSIONER

Discussion: The applicant, a citizen of Greece, horn February
13, 1933, at Piraeus, Greece, is a crewman who was last admitted to
the United States on August 16, 1959, at New York, N.Y., as a nonimmigrant crewman. He was granted a landing permit for the
period of time his ship was in port under the provisions of section
252(a) (1) of the Immigration and Nationality Act. He proceeded
to Baltimore, Maryland, arid on August 24, 1959, filed this application for status as a permanent resident. The District Director at
Baltimore denied the application on the ground that the applicant
was not a. bona tide nonimmigrant at the time of entry and the
applicant has appealed.
The applicant is married to a United States citizen. A visa petition was approved on January 12, 1959, according him nonquota
status. Therefore, an immigrant visa is immediately available to
him. He has established that he is admissible to the United States.
The sole issue to be determined is whether he was admitted to the
United StateS as a bona fide nonimmigrant.
The applicant was admitted to the United States several times
during the years 1952-1955 as a nonimmigrant crewman. From
655

1955 until the spring of 1958 he was unable to sign on a ship
destined to the United States but he finally secured a berth on a
ship in Rotterdam which was destined to Baton Rouge, La. When
the ship arrived in Baton Rouge on July 1, or 2, 1958, he was
granted a landing permit under the provisions of section 252(a) (1)
of the Immigration and Nationality Act and he immediately deserted his ship and went to Baltimore, Md. On December 31, 1958,
he married his present wife and on January 2, 1959, he was apprehended by this Service. On January 5, 1959, he filed an application
for status as a permanent resident. In a sworn statement made
before an officer of this Service on January 2, 1959, the applicant
had testified that he had been trying to get to the United States for
several years and when he signed on the vessel at Rotterdam it was
his intention to desert as soon as the ship arrived in the United
States. Consequently, on January 27, 1959, his application for
status as a permanent resident was denied, and on February 16,
1959, the Regional Commissioner affirmed the decision of the district
director. The applicant was then informed that if he departed
from the United States at his own expense prior to April 5, 1959,
no formal proceedings would be instituted to enforce his departure.
He subsequently departed as a crewman on the SS. Atlantic Grace
on March 23, 1959. He remained outside the United States until
August 16, 1959, when he again applied for admission as a crewman.
The applicant has testified that, although he knew a visa petition
had been approved on January 12, 1959, according him nonquota
status, he made no attempt to secure an immigrant visa while outside the United States. He states that he was on a ship which was
in the Pacific and it was impossible for him to contact an American
consul. Yet he signed on the ship on which he last arrived in the
United States at Vancouver, Canada. There is an American consulate in that city whom he could have contacted had he so desired.
The applicant has testified that it was his intention to depart from
the United States on the ship on which he arrived, but that he went
to Baltimore after arriving at New York, to discuss his case with
his attorney and that his attorney advised him to file this application.
In view of the applicant's statements made on January 2, 1959,
concerning his efforts to gain entry into the United States and his
subsequent application for status as a permanent resident, and in
view of the fact that immediately after gaining admission again as
a crewman he filed another application for status as a permanent
resident, we find that the district director properly held that the
applicant has failed to establish that he was a bona tide nonimmigrant at the time of entry.

Furthermore, had the applicant been able to establish statutory
656

eligibility for status as a permanent resident under section 245 of
the act, favorable exercise of the Attorney General's discretion is
not warranted since, subsequent to his departure after prior denial
of such an application, he made no effort to secure an immigrant
visa in the regular manner even though such a visa was immediately
available to him at an American consulate outside the United States.
Order: It is ordered that the decision and order of the district
director be affirmed.

657