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Interim Decision #3825

Matter of Martin CHAIREZ-Castrejon, Respondent
Decided February 11, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) With respect to aggravated felony convictions, Immigration Judges must follow the
law of the circuit court of appeals in whose jurisdiction they sit in evaluating issues of
divisibility, so the interpretation of Descamps v. United States, 133 S. Ct. 2276 (2013),
reflected in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), applies only insofar as
there is no controlling authority to the contrary in the relevant circuit.
(2) Because the United States Court of Appeals for the Tenth Circuit has taken an
approach to divisibility different from that adopted in Matter of Chairez, the law of the
Tenth Circuit must be followed in that circuit.
FOR RESPONDENT: Skyler Anderson, Esquire, Taylorsville, Utah
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Associate Legal Advisor

Donald W. Cassidy,

BEFORE: Board Panel: PAULEY, GREER, and MALPHRUS, Board Members.
PAULEY, Board Member:

The Department of Homeland Security (“DHS”) moves for partial
reconsideration of Matter of Chairez, 26 I&N Dec. 349 (BIA 2014). The
respondent opposes the motion. The motion will be granted in part, Matter
of Chairez will be vacated in part, and the record will be remanded to the
Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Mexico and a lawful permanent
resident of the United States, was convicted in 2012 of felony discharge of
a firearm in violation of section 76-10-508.1 of the Utah Code, for which
he was sentenced to an indeterminate term of imprisonment not to exceed
5 years. Based on that conviction, the Immigration Judge found the
respondent removable from the United States as an alien convicted of (1) a
“crime of violence” aggravated felony under sections 101(a)(43)(F) and
237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1101(a)(43)(F) and 1227(a)(2)(A)(iii) (2012), and (2) a firearms offense
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Interim Decision #3825

under section 237(a)(2)(C) of the Act. The respondent appealed that
decision to the Board.
On July 24, 2014, after hearing oral argument and receiving
supplemental briefs from the parties, we sustained the respondent’s appeal
in part, dismissed it in part, and remanded the record to the Immigration
Judge for consideration of the respondent’s eligibility for relief from
removal. More precisely, we held that the DHS had not carried its burden
of proving the aggravated felony charge by clear and convincing evidence
but had met its burden of proof on the firearms offense charge.
On August 25, 2014, the DHS filed a motion requesting that we
reconsider the portion of Matter of Chairez in which we found that the
DHS had not carried its burden of proving the respondent’s removability on
the aggravated felony charge. In the wake of that initial filing, the DHS has
also submitted several supplemental pleadings in which it identifies
emergent legal authority bearing on the issues raised in the motion.

II. ANALYSIS
To qualify as an aggravated felony under section 101(a)(43)(F) of the
Act, an offense must be a “crime of violence” within the meaning of
18 U.S.C. § 16 (2012). That is, it must be an offense that either has the
“use” of violent “physical force” as an “element” or is a felony that, by its
nature, presents a substantial risk that violent physical force will be used
against another in the course of its commission.
Relying on his understanding of Descamps v. United States, 133 S. Ct.
2276 (2013), the Immigration Judge found that section 76-10-508.1(1)(a) of
the Utah Code is “divisible” vis-à-vis this “crime of violence” definition
because it encompasses not just the offenses of “intentional” and
“knowing” discharge of a firearm, which are categorical crimes of violence,
but also the “reckless” discharge of a firearm, which is not a crime of
violence under the reasoning embodied in United States v. Zuniga-Soto,
527 F.3d 1110, 1122−24 (10th Cir. 2008). 1 See also United States
v. Castleman, 134 S. Ct. 1405, 1414 n.8 (2014) (observing that “the Courts
of Appeals have almost uniformly held that recklessness is not sufficient”
to satisfy the “use” of physical force requirement of 18 U.S.C. § 16) (listing
cases). Accordingly, the Immigration Judge reviewed the respondent’s
A person violates section 76-10-508.1(1)(a) of the Utah Code when he “discharges a
firearm in the direction of any person or persons, knowing or having reason to believe
that any person may be endangered by the discharge of the firearm.” According to
section 76-2-102 of the Utah Code, “intent, knowledge, or recklessness shall suffice to
establish criminal responsibility.”
1

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Interim Decision #3825

conviction record under the modified categorical approach and determined
that the elements of the respondent’s particular offense of conviction
involved the “knowing” discharge of a firearm. He therefore concluded
that the respondent was convicted of a crime of violence aggravated felony
and was removable on that ground.
A. Matter of Chairez
In Matter of Chairez, we held that the approach to divisibility employed
in Descamps is applicable in removal proceedings with regard to the
aggravated felony ground of removability charged in this case; we also
found that section 76-10-508.1 of the Utah Code is a divisible statute
relative to the crime of violence definition. Matter of Chairez, 26 I&N
Dec. at 352−54. Unlike the Immigration Judge, however, we concluded
that the disjunctive phrasing of the statute’s mental state component—
providing that the offense could be committed intentionally, knowingly, or
recklessly—was not sufficient to establish that the crime was divisible into
three separate offenses. Our conclusion was based on the following
interpretation of the approach to divisibility announced in Descamps:
[A] criminal statute is divisible, so as to warrant a modified categorical inquiry,
only if (1) it lists multiple discrete offenses as enumerated alternatives or defines a
single offense by reference to disjunctive sets of “elements,” more than one
combination of which could support a conviction; and (2) at least one, but not all,
of those listed offenses or combinations of disjunctive elements is a categorical
match to the relevant generic standard.

Matter of Chairez, 26 I&N Dec. at 353 (citing Descamps v. United States,
133 S. Ct. at 2281, 2283). Moreover, by the term “element,” we
understood the Descamps Court to mean “those facts about the crime which
‘[t]he Sixth Amendment contemplates that a jury—not a sentencing court—
will find . . . unanimously and beyond a reasonable doubt.’” Id. (quoting
Descamps v. United States, 133 S. Ct. at 2288 (citing Richardson v. United
States, 526 U.S. 813, 817 (1999))).2
Based on this reading of Descamps, we concluded that section
76-10-508.1(1)(a) of the Utah Code, which does not define a categorical
crime of violence because it encompasses some “reckless” conduct, “can be
‘divisible’ into three separate offenses with distinct mens rea only if Utah
2

As we noted in Chairez, Federal criminal defendants have a constitutional right to
unanimous jury verdicts. However, this requirement does not extend to the States unless
they choose to impose it, and not all States do. Matter of Chairez, 26 I&N Dec. at 353
n.2.

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law requires jury unanimity regarding the mental state with which the
accused discharged the firearm.” Matter of Chairez, 26 I&N Dec. at 354.
Upon examining Utah law, we further concluded that the DHS had not
demonstrated that intent, knowledge, and recklessness were alternative
“elements” of the offense defined by section 76-10-508.1(1)(a) within the
meaning of Descamps. Instead, we determined that it was at least as likely
that intent, knowledge, and recklessness were simply alternative “means”
by which the statute’s mens rea element could be satisfied. Id. at 354−55
(citing Richardson v. United States, 526 U.S. at 817 (discussing the
distinction between alternative “elements” and alternative “means”), and
Schad v. Arizona, 501 U.S. 624, 636 (1991) (plurality opinion) (same)).
Accordingly, we held that the modified categorical approach was
inapplicable and that the DHS had not established the aggravated felony
charge of removability.
B. Motion to Reconsider
In its motion to reconsider, the DHS maintains that we misinterpreted
Descamps by treating statutory divisibility as a “threshold” requirement,
which must be established prior to use of the modified categorical
approach. Relying on footnote 2 of the Descamps majority opinion and the
September 2014 decision of the United States Court of Appeals for the
Tenth Circuit in United States v. Trent, 767 F.3d 1046 (10th Cir. 2014), the
DHS contends that Descamps permits a modified categorical inquiry
whenever the language of the statute of conviction lists alternative statutory
phrases, some of which define conduct that would trigger an immigration
consequence and some of which do not.
“A motion to reconsider is a ‘request that the Board reexamine
its decision in light of additional legal arguments, a change of law, or
perhaps an argument or aspect of the case which was overlooked.’” Matter
of O-S-G-, 24 I&N Dec. 56, 57 (BIA 2006) (citations omitted). The
arguments submitted in support of the DHS’s motion constitute a proper
request for reconsideration under these standards. We will therefore
address the motion on the merits.
As we explained in our prior decision, the application of the categorical
and modified categorical approaches is not a matter upon which we receive
deference from the courts of appeals. Instead, we defer to circuit law and
“going forward we are . . . bound to apply divisibility consistently with the
individual circuits’ interpretation of divisibility under Descamps.” Matter
of Chairez, 26 I&N Dec. at 354. In other words, our interpretation of
Descamps is to be followed only by those Immigration Judges who sit
within the jurisdiction of a court of appeals that has not yet explained how
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Interim Decision #3825

it understands divisibility to operate after Descamps. When the court does
explain its interpretation in a precedent decision—in sentencing cases, if
not in immigration cases—then that circuit’s law should be followed.
In its motion to reconsider, the DHS argues that in cases arising in the
Tenth Circuit, the approach to divisibility we adopted in Chairez has been
superseded by the broader approach taken in United States v. Trent, 767
F.3d 1046. We agree and conclude that we must revisit the divisibility
question in this case.
In Trent, the Tenth Circuit acknowledged that a statute is divisible
under Descamps only if it is broken down into “alternative elements” or
“potential offense elements,” but it concluded that the Descamps Court did
not understand the term “element” to mean only those facts about a crime
that must be proved to a jury unanimously and beyond a reasonable doubt.
United States v. Trent, 767 F.3d at 1058−61. Instead, the Trent court
concluded that a statute is divisible within the meaning of Descamps
whenever it employs “alternative statutory phrases.” Id. at 1060−61 (citing
Descamps v. United States, 133 S. Ct. at 2285 n.2).
Applying Descamps consistently with Trent, we conclude that the
offense defined by section 76-10-508.1(1)(a) of the Utah Code is divisible
into three separate offenses with distinct mens rea, namely, intent,
knowledge, and recklessness. And while the reckless discharge of a firearm
is not a crime of violence under United States v. Zuniga-Soto, 527 F.3d at
1124, we conclude that the offense is a crime of violence under 18 U.S.C.
§ 16 when committed intentionally or knowingly.
To be precise, one who intentionally or knowingly discharges a firearm
in the direction of any person or persons, knowing or having reason to
believe that any person may be endangered by the discharge of the firearm,
has necessarily committed an offense that has the deliberate use or
threatened use of violent physical force against the person or property
of another as an element within the meaning of 18 U.S.C. § 16(a).
See United States v. Ramon Silva, 608 F.3d 663, 669−74 (10th Cir. 2010)
(holding that “apprehension causing” aggravated assault under New
Mexico law, “which requires proof that a defendant purposefully threatened
or engaged in menacing conduct toward a victim, with a weapon ‘capable
of producing death or great bodily harm,’” has the threatened use of violent
physical force against the person of another as an element within
the meaning of 18 U.S.C. § 924(e)(2)(B)(i) (2006)); United States
v. Hernandez, 568 F.3d 827, 830−31 (10th Cir. 2009) (holding that
knowingly discharging a firearm at or in the direction of one or more
individuals in violation of Texas law has the threatened use of violent
physical force against the person of another as an element within the
meaning of 18 U.S.C. § 924(e)(2)(B)(i)).
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Interim Decision #3825

Likewise, a person who intentionally or knowingly discharges a firearm
in the direction of another human being necessarily disregards the
substantial risk that he will use violent physical force against the other
person within the meaning of 18 U.S.C. § 16(b). See Quezada-Luna
v. Gonzales, 439 F.3d 403, 406 (7th Cir. 2006) (holding that the Illinois
offense of aggravated discharge of a firearm, which is committed whenever
a person knowingly or intentionally “[d]ischarges a firearm at or into a
building he or she knows or reasonably should know to be occupied,” is a
crime of violence under both 18 U.S.C. § 16(a) and § 16(b)).
Since section 76-10-508.1(1)(a) of the Utah Code is a divisible statute
within the meaning of Tenth Circuit law, it was proper for the Immigration
Judge to employ the modified categorical approach in order to ascertain
which mental state the respondent was convicted of possessing. The
respondent’s signed plea agreement is admissible for purposes of the
modified categorical analysis, United States v. Zuniga-Soto, 527 F.3d at
1119−20 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)), and it
contains a clear stipulation that he “knowingly discharged a firearm in the
direction of any person.” That stipulation formed the factual basis for the
respondent’s no contest plea and establishes that he was convicted of a
categorical crime of violence—that is, knowingly discharging a firearm in
the direction of any person or persons, knowing or having reason to believe
that any person may be endangered by the discharge of the firearm.
Moreover, since the respondent was sentenced to a term of imprisonment of
at least 1 year as a result of that conviction, the offense qualifies as an
aggravated felony under section 101(a)(43)(F) of the Act. We therefore
agree with the Immigration Judge that the respondent is removable from the
United States under section 237(a)(2)(A)(iii), and we vacate the part of our
prior decision in Matter of Chairez that is to the contrary.3
3

The DHS encourages us to reconsider the interpretation of Descamps embodied in our
original decision in this case. As discussed in Matter of Chairez, we adopted a different
approach to divisibility for immigration purposes under our precedent decision in Matter
of Lanferman, 25 I&N Dec. 721 (BIA 2012). However, because we are not granted
deference on this issue, our reading of Descamps led to the analysis in Chairez that we
believe we are constrained to follow. Accordingly, Immigration Judges should continue
to follow the interpretation of divisibility under Chairez absent applicable circuit court
authority to the contrary. Since Descamps was issued, circuit courts have taken
essentially two approaches to divisibility. Compare Omargharib v. Holder, No.13-2229,
2014 WL 7272786, at *4 (4th Cir. Dec. 23, 2014), Rendon v. Holder, 764 F.3d 1077,
1084−88 (9th Cir. 2014), and United States v. Estrella, 758 F.3d 1239, 1245−48
(11th Cir. 2014), with United States v. Trent, 767 F.3d at 1058−61, United States
v. Carter, 752 F.3d 8, 17−18 (1st Cir. 2014), and United States v. Marrero, 743 F.3d 389,
395−97 (3d Cir. 2014). But see Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014).

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Interim Decision #3825

In our previous decision, we remanded for the Immigration Judge to
further consider the respondent’s eligibility for relief from removal. We
will again remand the record for that purpose.

III. CONCLUSION
In conclusion, the DHS’s motion to reconsider is granted in part.
Applying Tenth Circuit standards, we concur with the Immigration Judge’s
determination that the respondent is removable as an alien convicted of an
aggravated felony and will vacate the part of our decision that is to the
contrary.4 Accordingly, the respondent’s appeal will be dismissed in part.
Furthermore, the record will be remanded for consideration of the
respondent’s eligibility for relief from removal.
ORDER: The Department of Homeland Security’s motion to
reconsider is granted in part, and Matter of Chairez, 26 I&N Dec. 349
(BIA 2014), is vacated in part.
FURTHER ORDER: The respondent’s appeal is dismissed in part.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

4

Moreover, for the reasons stated in our prior decision, we reaffirm that the respondent
is also removable as an alien convicted of a firearms offense under section 237(a)(2)(C)
of the Act.

484


Interim Decision #1411

MAL lax OF MARTINEZ-TORRES

Application for PERMISSION TO REAPPLY
A-6618013

Decided by Regional Commissioner October 16,1964
Application for permission to reapply for admission, pursuant to section 212(a)
(17), Immigration and Nationality Act, is denied, in the exercise of discretion, to an alien convicted of a law relating to illicit traffic in marijuana (26
U.S.C. 4744(1)), since he is mandatorily excludable from the United States
under section 212(a) (23) of the Act and no purpose would be served in granting the application.

This case is before the Regional Commissioner on appeal from the
District Director's decision denying the application as a matter of
discretion.
The applicant is a 51-year-old male, a native and citizen of Mexico.
He is married to a native and citizen of Mexico who resides in Mexico.
The applicant has no children.
The applicant was last deported from the United States on January 2, 1962 at El Paso, Texas under the provisions of section 241 (a)
(11) of the Immigration and Nationality Act in that "he at any time
has been convicted of a violation of any law or regulation relating to
the illicit traffic in marihuana. (26 U.S:C.'4744(1) )." The record
in this ease contains a record of criminal proceedings wherein the applicant was convicted and sentenced in the United States District Court
at El Paso, Texas for violation of 26 U.S.C. section 4744(1), in that
he was a transferee of a quantity of marijuana without paying the tax
thereon as required by law, and as a result of such conviction was on
December lb, 1961 sentenced by the court to a term of two years imprisonment, and the execution of the sentence was suspended for a period of two years, the defendant (applicant) being placed on probation for that term.
As the applicant is mandatorily inadmissible to the United States
under the provisions of section 212(a) (23) of the Immigration and
Nationality Act as one who has been convicted of a law relating to
the illicit traffic in marijuana (26 U.S.C. 1744(1) ), no purpose would
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Interim Decision 40411
be served in granting his application for permission to reapply for admission into the United States. Accordingly, the District Director's
action in denying the application as a matter of administrative discretion was proper and the appeal will be dismissed.
ORDER : It is ordered that the appeal be and the same is hereby
dismissed.

777


Interim Decision #1455

MAT= or Qum

Application for Permission to Change Schools
A-12232159
Decided by District Director Mora 16, 1965
Application. for permission to change schools pursuant to 8 CPR 214.2(f) is
denied, in the exerclee of :discretion, to an alien who came to the United

States in 1960 as a graduate student, thereafter studied entirely in the field
e of political science and sociology and'receired an M.A. degree in sociology,

since be has accomplished the purpose for which he came to this country
:and the course of study he now seeks to follow —busdness administration —is

not related thereto.

Discussion: The applidant is a citizen of China by birth in Hankow, China, Qciober 29t '1935. entered
•
the United States
September 24, 1960 as a nonimmigrant student under the provisions
of -section 101(a) (15) (F) and section 214 of the Immigration and
Nationality Act.. He has been granted extensions vf.stay, the last

of which will expire March 28, 1965.
The applicant came to the United States initially to attend the
University of Washington at the Fall quarter 1960. The Form 1 20,
Certificate of Eligibility, stated he was to study' in the "Department
- of Far Eastern of the Graduate School." He did not register at that
school,. however, but instead 'registered at Kansas State University'
to take "Graduate• work in. Political Science 'leading- toward the
Master of Science degree." 'As Form 1-20 was not issued, by Kansas
State University until January 6, 1961, the required Service . authority to transfer schools was not approved until January 23, 1961.
In the meantime the Service had been attempting to locate the alien
as he had failed to register at the University of Washington and
his whereabouts were.) unknown.
On •June 14, '196lis notification was•received from Kansas State
University that the applicant, had terminated his studies there in
February 1961, and that his ereabouts, were unknown. In September 1061 lie registered for study at the University California ••
-

138'-

Interim Decision #1455.
.
at Los Angeles in the "College of Letters and Sciences, Political
Science major." The file does not disclose in what activity the
applicant was engaged between February 1961 and September 1961;
Authority to transfer schools again was not requested in advance as
required by regulation.
On October 1,.1962 an application for extension of stay -was received from the applicant showing that he was then enrolled at the
University of Oregon. He again had not applied in advance for authority to transfer schools. The application showed he had been
in attendance at that school during the Winter and Spring terms,
1962, in the field of• Political Science, and that at the Winter term
1961 he received credit for six hours work completed, having with• drawn from one three-hour course.
When applying for extcmcion of stay on October 19, 1982, the
applicant stated he was registered in the field of Sociology, and that
he had received credit for six hours work in the Spring term, 1962,
and had again withdrawn from a three-hour course. When he
applied for extension of stay January 6, 1963 it was stated he had
received credit for six hours work in the Fall term, 1962, and had
again withdrawn from a third course carrying three credit hours.
On June 14, 1964 the applicant received his- M. A. degree in
Sociology. He has now submitted Form 1-20 from. Woodbury College; LQs Angeles, California, with a request to transfer to that
school. The form shows he will register in the field of Business
Administration. The record establishes that the applicant came to the United
States on September 24, 1960 as a graduate student. He has since
studied entirely in the field of Political Science and Sociology. He

has received an M. A. degree in Sociology, and has therefore accomplished the purpose for which he came to the United States. He
now seeks permission to transfer to a new school to start study in
Business Administration; a field completely unrelated to the course
which he came to the United States to study.
As the applicant has accomplished the purpose for which he came
to the United States, and as the course of study he now seeks to
follow is totally unrelated thereto, the application -will be denied,
as a. matter of discretion.
ORDER: It is ordered that the application to transfer schools be
denied.

189


MATTER

or I

-

In DEPORTATION Proceedings
A-7205042
October 1, 1958
Commissioner's Motion November 6, 1958
Decided by Board February 5, 1959
Decided in, Board

Deportability—Entry without Inspection by falsely claiming United States; riti.
enship—Exemption under section 7, Act of September 11, 1957.
Discretionary grant of documentary waiver under section 211(b) of the Immigration and Nationality Act and the application of section 7 of the Act of
September 11, 1957, relieve permanent resident alien from deportability
based on entry without inspection by falsely claiming United states citizenship.
DEPORTABLE: Act of 1952—Section 241 (a ) (1 ) 10 U.S.G. izoi. (n) (1 )7—imotti
grant without visa—Section 212(a) (20) of the act [8 U.S.C.
1182(a)(20)].
BEFORE THE BOARD
(October 1, 1958)

Discussion: The respondent is an 11-year-old single male, a
native of Scotland and national of Great Britain, who repeatedly
entered the United States in 1956 and 1957 by representing himself
to be a citizen of the United States. He last entered on a nonspecified date m October 1957. On the occasions of his entries, he
would have been admissible upon the presentation of an Alien Registration Card. An Alien Registration Card had been issued to him
but he had lost it and had taken no steps to have it replaced. He,
therefore, represented himself to be a citizen to gain entry on
return from visits to Canada.
From the facts, it is clear that at the time of his entry the respondent was inadmissible as one who was not in possession of
the appropriate documents, and as one who sought to enter by fraud
or misrepresentation. After he had gained entry, he was deportable
on the ground that he had entered without inspection and an one
who had been inadmissible at time of entry. The special inquiry
officer ruled that the grounds not based on lack of documents all
stem from the fact that the respondent sought to enter by fraud
or misrepresentation and were encompassed by the first sentence of
143

section 7 of Public Law 85-316 (Act of September 11, 1957). He
held that the respondent being relieved from liability to deportation because of the entry without inspection was admissible except
for the lack of documents. Exercising section 211(b) of the Immigration and Nationality Act, the special inquiry officer granted
a waiver of the documentary requirements which existed at the time
of the respondent's numerous entries.
We believe that the action of the special inquiry officer was proper.
Public Law 85-316 is remedial and should be interpreted as far as
possible to permit adjustment or status without requiring family

separations. Under the first sentence of section 7 of Public Law
85-316, Congress intended to give lawful residence to a person who
fell within its terms. Under section 211(b) of the.. Tuunipration
and Nationality Act (8 U.S.C. 1181(b)) the Attorney General is
authorized to admit without documents an alien lawfully admitted
for permanent residence who departed from the United States
temporarily. Utilizing both these provisions at the same time, it
becomes proper to terminate proceedings without requiring the respondent to depart from the United States and apply for a waiver
of grounds of inadmissibility under the last part Of section 7 and
the provisions of section 5 of Public Law 85-316. However, the
situation presented here must be distinguished from one where the
discretion to exercise section 211 (b) will not he exercised. In such
a case, the alien must be considered inadmissible at the time of
entry because of the lack of documents. This will prevent the alien
from coming within the terms of section 7, for the section requires
that the alien have been admissible in all respects except for the
fact that fraud had been committed. Then, when a waiver of
documents is not granted, the charge of entry without inspection
would be sustained.
Order: It is ordered that no change be made in the order of
the special inquiry officer terminating proceedings.
BEFORE THE CENTRAL OFFICE
(November 6, 1958)

Discussion: The respondent was lawfully admitted to the United
States for permanent residence on June 2,-1949, and he thereafter
reentered this country upon numerous occasions by falsely claiming
United States citizenship. By decision dated October 1, 1958, the
Board concluded that immigration status could be adjusted by the
grant of a waiver of documents under section 211(b) of the Immigration and Nationality Act and by utilizing the provisions contained in section 7 of Public Law 85-316 approved September 11,

1957, with respect to liability to deportation because of the entry
without inspection. The Service contends that section 7 of Public
144

Law 85-316 has no application to deportability by reason of entry
without inspection.
In legal contemplation, there is no distinction between an entry
without inspection resulting from a surreptitious entry and one
resulting from a false claim to United States citizenship (United
States ex rel. Volpe v. Smith, 62 F.2d 808 (C.C.A. 7, 1933), affirmed
289 U.S. 422). Neither the Immigration Act of 1917 nor the present Immigration and Nationality Act of 1952 contains express
language covering an entry by falsely claiming citizenship. The
charge is founded upon the premise that one who enters by falsely
claiming citizenship eyadoc all inspection as an alien under the immigration laws and, therefore, enters without inspection (Matter of
1 I. & N. Dec. 385 (1943)).
A substantial distinction exists between gaining entry by fraud
or willful misrepresentation and gaining entry without inspection.
The applicant for admission who admits alienage is inspected as to
his physical, mental, and moral qualifications for admission to the
United States even though he may have deceived the examining officer as to some material element. However, a citizen is accorded
no inspection under the immigration laws and he consequently is
not examined as to tho s e prerequisites.
No other false or fraudulent representation can accomplish its
unlawful purpose so effectively as the false claim to citizenship
which prooludeo any luspootinn under the immigration laws, precludes determination as to whether the applicant is diseased, criminal, insane, or subversive, and prevents inquiry into compliance
with the quota provisions of the law (United States as rel. Volpe
v. Smith, 62 F.2d 808 (C.C.A. 7, 1933), affirmed 289 U.S. 422;
Williams v. United States, 186 Fed. 479 (C.C.A. 2, 1911); Ex parte
Greases, 222 Fed. 157 (D.C. Cal., 1915)). This misrepresentation
achieves not only the fraudulent procurement of a document or
entry but the complete absence of any inspection of the applicant
as an alien in order to determine admissibility.
Congress waived only the misrepresentation or fraud and not any
grounds of excludability concealed thereby (Matter of S—, 7
I. & N. Dec. 715). It would be inconsistent and contrary to the
congressional purpose to hold that a false claim to citizenship
which precludes all inquiry into admissibility is waived but that
the statutory provision has no application unless the alien is "otherwise admissible." Nothing contained in Public Law 85-316 supports the view that a surreptitious entry or any entry accomplished
by evasion of inspection was intended to be waived.
Analysis of other provisions of the immigration laws will also
demonstrate that the entry without inspection charge based upon
a false claim of citizenship is not within the contemplation of
145

section 7 of Public Law 85-316. Section 7 waives only those provisions of section 241(a) of the Immigration and Nationality Act
which relate to the deportation of aliens on the ground that they
were excludable at the time of entry because they sought to procure
or procured documentation or entry by fraud or misrepresentation.
However, entry without inspection as defined by section 241(a) (2)
is a ground of deportation and not a ground of exclusion. Unless
entry is actually effected, there is no charge under section 241(a)
(2).
Iu Matter of M— , 5 I. & N. Dee;. 042 (1954), the alien had
gained entry by falsely claiming citizenship and applied for a
waiver under section 212(c) of the Immigration and Nationality
Act. Despite the fact that inadmissibility under section 212(a) (12)
of the Immigration and Nationality Act may be waived by the exercise of the discretion contained in section 212(c), relief was denied
because the charge in section 241(a) (2) is solely a ground of deportation and not a ground of exclusion. (See also Matter of T—,
5 I. & N. Dec. 389.) The first portion of section 7 of Public Law
85-316 relates to the same class of persons described in section
212(a) (19) and to no others. tionsequently, there is no more justification to apply section 7 to a deportation charge predicated upon
section 241(a) (2) than to apply section 212(c). Section 7 requires
termination of proceedings only with respect to aliens who were

excludable on specified grounds at time of entry and not to one
deportable after entry by reason of entry without inspection.
The order to show cause in this case contains no charge under
section 241(a) (2) although upon numerous occasions during 1916
and 1957 the respondent gained entry without documents by falsely
claiming citizenship Tn qualify fora waiver of documents under
section 211(b) of the Immigration and Nationality Act, the alien
must establish that he previously was lawfully admitted for permanent residence. However, an alien who gained entry by falsely
claiming citizenship is illegally in the United States and is not
eligible for a waiver of documents with respect to subsequent entries (Matter of A—, 7 1. & N. Dec. 518; Matter of H—, 6 I. &.
N. Dec. 738 (1955)). Since the respondent cannot qualify for a
waiver of documents, the inclusion of the additional charge based
upon the entry without inspection would appear to be superfluous.
By reason of his entry without inspection, the respondent is not
eligible for a waiver of documents and the documentary charge is
sustained.
It should be noted that the respondent herein is not permanently
debarred from the United States by reason of his entry upon a false
claim of citizenship (Matter of M , 6 I. & N. Dec. 752 (1955)).
146

His immigration status may be readily adjusted by departure and
reentry with an immigrant visa.
The respondent herein is deportable from the United States by
reason of his entry withnnt inspection. Section 7 of Public Law
85-316 is applicable only to persons who were excludable from the
United States at time of entry and may not be utilized to waive a
ground of deportation predicated upon section 241(a) (2) of the
Immigration and Nationality Act. An alien deportable for entry
without inspection is not eligible for a waiver of documents with
respect to subsequent entries. In view of the foregoing, respondent is deportable on the charge contained in the order to show cause.
Motion is hereby made that the Board of Immigration Appeals
reconsider and withdraw the order dated October 1, 1958, terminatmg proceedings and that an order he entered finding the respondent deportable on the charge contained in the order to show cause.
BEFORE THE BOARD
(February 2, 1999)

Discussion: The Service asks that the Board order of October 1,
1958, terminating proceedings be withdrawn and that the respondent

be ordered deported on the charge stated above. The motion will
be denied.
Respondent, an 18-year-old single male, a native of Scotland and
national of Great Britain, was admitted to the United States f or
permanent residence in 1949. He entered the United States on several occasions in 1956 and 1957 by representing himself to be a
citizen of the United States. He had been issued an Alien Registration Card which would have authorized his admission but the card
had been lost while he was in high school and he took no steps
to have it replaced. The special inquiry officer terminated proceedings. We approved the action. We held that at the time the respondent sought entry he was inadmissibibe as one who did not
have the appropriate documents and as one who sought to enter by
fraud or misrepresentation. Under section 211(b) of the Immigration and Nationality Act (8 U.S.C. 1181(b)), we approved the
special inquiry officer's waiver of the documents needed at the time
of respondent's entries. The pertinent portion of section 7 of P.L.
85-316 requires termination of deportation proceedings where the
deportation is sought of an alien who would have beep admissible
except for the fuel that he made a misrepresentation to secure entry.
We held that section 7 would eliminate any matters that arose out
of the fact that respondent entered by misrepresenting his nationality.
The actual charge which is the basis for deportation proceedings
alleges only that the respondent had been excludable at the time of
147

entry because he did not have a visa. However, we pointed out that
at the time of entry the respondent was excludable not only on the
documentary ground, but also on the ground that he was in the close
of those who seek to enter by fraud or misrepresentation, and that
after he had gained entry the respondent also became deportable as
one who had been inadmissible at the time of entry '(for lack of
documents, and as one who sought to enter by fraud or misrepresentation) and on the additional ground that he had entered without inspection. We may add that he is also deportable as one who
is in the United States in violation of law (section 241(a) (2), Immigration and Nationality Act, 8 U.S.C. 1251(a) (2)).
The Service bases much of its case on the fact that respondent is
subject to deportation on the charge that he had entered without
inspection. "Entry without inspection" is the term describing either
an entry made by a false and misleading statement as to United
States citizenship or one made surreptitiously (Matter of CV—, 1 I. & N. Dec. 385). Our discussion has no bearing whatsoever with an alien who entered surreptitiously. The respondent did
enter nn a. claim to tinitArl Status citizenship. The charge "entry
without inspection" could have been sustained. The Service position
is that section 7 cannot bring about termination of proceedings where
the charge of "entry without inspection" is sustained. The Service
reasons that the "entry without inspection" charge is not based on
the fact that the alien was excludable at the time of entry as one
who sought to procure documents or entry by fraud, whereas the
pertinent portion of section 7 speaks only of the deportability of an
alien who was excludable at the time of entry as one who sought or
did procure documents or entry by fraud or misrepresentation. The
Service analyeia overlooka the fact that the alien is deportnhle upon

a ground which does bring him within the language of section 7.
The charge which does bring the respondent within the scope of
section 7 arises out of the fact that an alien who seeks to enter by
fraud or misrepresentation is excludable for that reason (section
212(a) (19), Immigration and Nationality Act, 8 U.S.C. 1182(a)
{19)). At the time the respondent made application to enter, he was
excludable as one seeking to enter by fraud or misrepresentation
(Matter, of C—V------, 1 I. & N. Dec. 385). After he made entry
as a result of false statements, he became deportable as one who had
been excludable at the time he applied fur admission because he had
been in the class of those who seek to enter by fraud or misrepresentation (section 241(a) (1), Immigration and Nationality Act).
This charge is in the terms of one of the classes described in section
7. The section should, therefore, apply. The basic wrong is the
application to enter made in the terms described by section 7. The
fact that respondent is also deportable upon another charge arising
148

out of his false statements is no more material than the fact that a
person who is deportable as one who was excludable because he had
procured a document by fraud (a ground of deportation which is
terminated by ,acetiou 7), is filso deportable on grounds not mentioned in section 7; namely, that he did not have a visa (section
241(a) (1)), or that he is in the United States in violation of a law
of the United States (section 241(a) (2), Immigration and Nationality Act, 8 U.S.C. 1251 (a) (2)), (the very section which also
contains the charge concerning entry without inspection), or that he
committed perjury by his false statements (section 212(a) (9), Immigration and Nationality Act, 1182(a) (9), and section
241 (a) (1 ) , Immigration and Nationality Act).
There is another reason equally valid for holding that section 7
controls even though a grown' of deportation is not rrouchod in the
terms of the section. We have held that section 7 applies even where
a charge is not based on the very language of section 7 and section
241(a) (1) of the Immigration and Nationality Act relating to the
obtaining of entry by fraud or misrepresentation. In order to
carry out the intent of Congress, we have found it necessary to
interpret ti, first part of section 7, insofar as it relates to fraud or
misrepresentation, as describing in general terms aliens whose documentation or entry was procured by fraud or misrepresentation, regardless of the section of the statute under which they were deportable. On the basis of such reasoning We interpret the section
to include not only the procurement of a document by fraud but
also, even though it is not mentioned in section 7, any perjury
which may have been committed in connection with the fraudulent
procurement of documents (or entry). The intent of Congress was
clearly to save from deportation those aliens who were admissible
except for the feet that they had made fraudulent statements. Therefore, any ground of inadmissibility based upon the fact that the
fraudulent statement existed is excused. The fact that the misrepresentation in a particular case may give rise to a ground of deportation such as the lack of a proper document or entry without
inspection does not change the basic fact that documentation was
procured by fraud or that entry was procured by fraud. Substance, not shadow, must prevail. This is remedial legislation with
the primary purpose of preventing family separation (Matter of
7 1. Sr. N. Dec. 715).
SAlthough the eerricc argues Chet it was not congressional intent
to excuse a misrepresentation which concealed the fact that the person concerned was an alien, we see no reason why a misrepresentation as to citizenship is in a different category than any other material misrepresentation which is excused by the act. In both cases
only the misrepresentation is excused, no qualitative ground of de149

portation is excused. There is no reason for treating one misrepresentation differently from another insofar as the general class deceribod by eootion :210(1)(10) of the Trerniffratien and Nationality
Act is concerned. Applying the rule to this case, we must conclude that section 7 would apply. The respondent's representation
that he was a citizen is excused and so would any chaige based on
what he had done in establishing that he was a citizen. Of course,
any qualitative ground of inadmissibility arising out of the commission of criminal or subversive acts is not waived, and the existence of such grounds would make respondent one who was not otherwise admissible at the time of his entry, and, therefore, one who
did not come within the terms of section 7. Such grounds of inadmissibility tlonot ealat here.

The Service states that the waiver of documents was not effective
to cure the documentary deficiency which existed in this case. The
first sentence of section 7 removes the illegal entries as a ground of
deportability. The waiver under section 211(b) for each entry removes the deportable charge based upon the lack of a document.
Matter of A—, 7 I. & N. Dec. 518, and Matter of H—, 6 I. & N.
Dec. 738 (1955), cited in the motion, are not to the contrary. In both
cases the aliens had made illegal entries which could not be cured
because section 7 was not in existence.
The motion points out that respondent is not permanently do
barred from the United. States by reason of his entry upon the misrepresentation but may depart from the United States readily and
reenter with an immigrant visa. The poor economic condition of
the respondent and his father makes it a matter of hardship for him
to depart and obtain an immigrant visa. Moreover, the Service position would establish a principle which would be applicable to an
individual who could not readily enter Canada but might have to
go to a far distant country to obtain a visa. There is no reason to
limit tho administrative authority which the statute gives. There
is a positive need for such administrative power. Safeguards in its
exercise exist since there must have been a lawful admission for
permanent residence and, where documents are needed, a discretionary waiver of documentary requirements.
Order: It is ordered that the motion be and the same is hereby
denied.

159


Interim Decision #2694

MATTER OF DAWSON

In Exclusion Proceedings
A-21010716
Decided by Board March 28, 1979
(1)An applicant for recordation of lawful admission for permanent residence pursuant to
section 214(d) of the Immigration and Nationality Act must comply with the adjustment
procedures outlined in 8 C.F. R. 245.2(d).
(2)Before an application for benefits under section 214(d) warrants approval, the applicant
must present competent evidence that a bona fide marriage was celebrated within 90
days of arrival and that he/she is otherwise admissible.
(3)An immigration judge in exclusion proceedings lacks jurisdiction to grant recordation
of lawful admission for permanent residence pursuant to section Z14(d), inn can he
entertain any waiver of excludability which is submitted in connection with such
application. Matter of Dixon, Interim Decision 2615 (BIA 1977) explained.
(4) Applipant far admission who had previously entered the United States as a nonimmigrant fiancee of a United States citizen whom she married within the prescribed 90-day
period, but whose application for adjustment had been denied for lack of prosecution,
held properly excludable on documentary as well as moral grounds on return from brief
visit to Mexico.
EXCLUDABLE: Act of 1952—Section 212(a)(12) [8 U.S.C. 1182(a)(12)]—Alien who engaged in prostitution
Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant not in
possession of a valid immigrant visa, reentry permit,
border crossing card, or other valid entry document
ON BEHALF OF SERVICE:
E.M. Trominski
Trial Attorney

ON BEHALF OF APPLICANT:
Michael Gene Dawson (Spouse)
1104 Avenue B
Cisco, Texas 76437

BY: Mithollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated October 14, 1977, the immigration judge ordered
the applicant readmitted to the United States as a returning resident.
See section 101(a)(27)(A) of the Immigration and Nationality Act, 8
U.S.C. 1101(a)(27)(A). In so doing, he granted her a section 212(h) of the
Act, 8 U.S. C. 1182(h) waiver of inadmissibility under section 212(a)(12)
of the Act, 8 U.S.C. 1182(a)(12), and held that the charge of inadmissibility under section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), had not
693

Interim Decision #2694
been sustained. The Immigration and Naturalization Service has appealed. The appeal will be sustained.
The applicant is a native and citizen of the Philippines who was
admitted to the United States on January 8, 1977, as a nonimmigrant
fiancee of a United States citizen. See section 101(a)(15)(K) of the Act.
She and her citizen fiance were married in Eastland, Texas, on February
14, 1977, within the 90-day period prescribed by section 101(a)(15)(K)
and section 214(d) of the Act, 8 U.S.C. 1101(a)(15)(K) and 8 U.S.C.
1184(d). On April 12, 1977, the Immigration and Naturalization Service
wrote to the applicant's husband, Michael Gene Dawson, requesting hini
to comply with the recordation requirements provided in the Immigration and Naturalization Service regulations. In response, the applicant
filed Form 1-485 (Application for Status as Permanent Resident) on
April 29, 1977, with the District Director in San Antonio requesting
recordation of lawful admission for permanent residence pursuant to
section 214(d) of the Act. The application was denied on August 10, 197'7,
for lack of prosecution, after the applicant failed to appear for interviews, scheduled for June 28, 1977, and July 18, 1977, or to advise the
Service of the reasons for her absence.' On September 17, 1977, Mrs.
Dawson crossed the border into Mexico without her husband and attempted later the same day to reenter the United States. She was
detained by immigration officials for lack of a proper reentry &raiment

and paroled into the country pursuant to section 212(d)(5) for a deferred
exclusion hearing. Several days later, she was interviewed by Service
officials under oath and admitted that she had practiced prostitution in
the Philippines for approximately one year in 1973-1974. The Service
has charged her with inadmissibility on both documentary and moral
grounds.
Relying on the Board's most recent interpretation of section 214(d)
xequirements, 2 Matter of Dixon, Interim Decision 2615 (BIA 1977), the
immigration judge concluded that Mrs. Dawson, having contracted a
valid marriage with her United States citizen fiance, was not obliged to
go through a formal adjustment of status process in order to acquire
recordation of lawful admission for permanent residence. Under his
theory, once a bona fide marriage is celebrated, the alien receives lawful
' According to the applicant's husband, they did not receive the notices of the interviews (Tr. at 6). Little additional comment was made on the matter, unfortunately. Thu
file indicates only that the notices were mailed to the address given by Mr. Dawson on
Form 1-485 and at the exclusion hearing as his residence.
2 Section 214(d) provides in pertinent part—
In the event the marriage between the said alien and the petitioner shall occur within
three montha after entry and they are found otherwise admissible, the Attorney

General shall record the lawful admission for permanent residence of the alien and
minor children as of the date of payment of the required visa fees.
694

Interim Decision #2694
permanent resident status automatically. Thus, in the applicant's case,
the immigration judge concluded that—
on February 14, 1977 as soon as the applicant married Mr. Dawson she at that point in
time became a resident alien lawfully present in the United States. The request for
medical checks and interviews were [sic] superfluous and the 1-161, green card, should
have been issued automatically upon presentation of evidence of the marriage without
more. (Immigration judge's decision at 3.)

The immigration judge then held that the applicant is a lawful permanent resident, and that while she should have been issued appropriate
documents reflecting that fact, the lack of them did not render her
inadmissible under section 212(a)(20). He then granted a section 212(h)
waiver of the prostitution ground of inadmissibility 3 and ordered her
readmission to the United States.
On appeal, the Immigration and Naturalization Service argues that
the immigration judge has misapplied Matter of Dixon, supra, and in so
doing has granted relief in excess of his jurisdiction. Both contentions
are unassailable. Matter of Dixon examined one issue—the validity of
an earlier decision, Matter of Harris, Interim Decision 2336 (BIA 1974),
in which the Board had held that neither a terminated nor a nonviable
marriage could support recordation of lawful admission for permanent
residence under section 214(d). InDixon, we overruled Harris, concluding that the "viability" requirement applieablp in adjustment of status
under section 245 of the Act is not relevant in adjustment proceedings
under section 214(d). At no point, however, did we suggest that the
substantive and procedural requirements for section 214(d) relief are
legally insignificant formalities. See Dixon at p. 4.
As the regulations implementing section 214(d) clearly indicate, a
section 214(d) applicant must comply with adjustment procedures before recordation of lawful admission can occur. See 8 C.F.R. 245.2(d). 4
From the language of the statute itself, it is equally obvious that an
' Although the Service did not charge the applicant with visa fraud in connection with
her 1976 application for a K-1 visa, the immigration judge, nut sponte, granted a waiver
pursuant to section 212(i) of the Act in an apparent effort to immunize the applicant from
any future difficulties in that regard.

8 C.P.R. 245_2(d) prilVitIAA!

An application for permanent resident status pursuant to section 214(d) of the Act
shall be filed on Form 1-485 with the district director having jurisdiction over the
applicant's place of residence. A separate application shall be filed by each applicant.
If the application is approved, the district director shall record the lawful admission of
the applicant as of the date of approval. The fee previously paid for filing the
application shall be considered payment of the required visa fees, as of the date of
the approval of the application. The applicant shall be notified of the decision and, if
the application io denied, of the reasons therefor - No appeal shall lie from the denial of
an application by the district director but such denial shall be without prejudice to the
alien's right to renew his application in proceedings under Part 242 of this chapter.

605

Interim Decision #2694
applicant not only must present competent evidence that a bona fide
marriage was celebrated within 90 days of arrival but also that he/she is
otherwise admissible before the application warrants approval. Only
when these two statutory requirements are satisfied, does recordation
become mandatory. Thus, while there is no discretionary element in
214(d) adjustment, as there is in adjustment of status under section 245
of the Act, there is nothing "automatic" about the process either. Compliance with the requirements of the statute and the regulations is not a
formality, as the immigration judge has concluded.

In the case before us, it is clear that Mrs. Dawson had not satisfied
either of the recordation requirements before she crossed the Rio
Grande. First, although she appears to have contracted a valid marriage, documentary evidence of that fact—the marriage certificate—
was not submitted with the Form I-485, apparently because it was not
yet on file with state authorities (Tr. at 8). Second, the applicant's
failure to appear at either of the scheduled interviews prevented immigration authorities from finding that she was otherwise admissible, e.g.
that she was not within any of the classes of individuals who are
excluded from admission under section 212(a) of the Act. We conclude,
therefore, that the applicant has never been accorded the status of
lawful permanent resident and that she is, therefore, not admissible to
the United States as a returning resident under section 101(a)(27)(A).
Inasmuch as an immigration judge lacks authority to grant recordation
in exclusion proceedings, 8 C.F.R. 245.2(d), he is likewise without
jurisdiction to entertain an application for any waiver which must be
submitted concurrently with the recordation application in order to
overcome an existing exlusionary ground. See 8 C.F.R. 245.1(f). Cf.
Matter of DeG—, 8 I. & N. Dec. 325 (BIA 1959; A.G. 1959).
If the applicant wishes to pursue an application for section 214(d)
benefits in accordance with the applicable regulations, she may request
a- stay of exclusion from the District Director pursuant to 8 C.F.R.
237.1. See generally, Matter of C—H—, 9 I. & N. Dec. 265 (R.C. 1961);
Matter of Wong, 12 I. & N. Dec. 407 (BIA 1967).

ORDER: The appeal is sustained. The applicant is ordered excluded
and deported from the United States to the Philippines pursuant to
ections 212(a)(12) and 212(a)(20) of the Immigration and Nationality'

Act

696


MATTER

or B—

In VISA PETITION Proceedings
A-8115379
Decided by Board August 02, 1960
Adoption—Benefits under immigration laws based on natural relationship between parent and child not lost when child is adopted after age 14.
Adult naturalized United States citizen who was legally adopted in this country at are 15 held entitled to confer second preference quota status upon
natural parents. Unless an adopted child acquires immigration rights and
privileges as between himself and his adoptive parents pursuant to an adoption which has conformed to the standards contained in section 101(b)
(1) (E) of the Immigration and Nationality Act, his relationship with his
natural parents remains unchanged for immigration purposes.
BEFORE THE BOARD

DISCUSSION: The case comes forward pursuant to certification

by the District Director, Phoenix District, of his order dated April
14, 1960, approving the visa petitions on behalf of the beneficiaries
for preference status under section 203(a) (2) of the Immigration
and Nationality Act.
The facts concerning the visa application are set forth fully in
the decision of the district director. The petitioner is a native of
Greece, born January 23, 1939, female, single, who was admitted to
the United States for permanent residence on September 19, 1951,
under the provisions of section 3 (b) (4) of the Displaced Persons
Act of June 25, 1948. She became a naturalized citizen of the United
States under the general provisions of the naturalization law on
February 17, 1958, and thereafter filed the instant petitions to accord
manna preference quota status for her natural parents. The father
and mother are natives of Turkey, citizens and residents of Greece,
56 and 45 years old, respectively.
The district director's order reflects that the petitioner (and her
brother) were admitted to the United States as displaced persons
under section 3 (b) (4) of the Displaced Persons Act of 1948 and
were destined to their aunt and uncle, F— and F—B—, residing in
Phoenix, Arizona. Apparently the petitioner's natural parents were
not eligible as displaced persons. The petitioner and her brother
46

were adopted by their aunt and uncle on October 25, 1954, pursuant
to a decree of adoption made on that date by the Superior Court of

Arizona in Maricopa County. It is to be noted that the petitioner
was over 15 years of age when the adoption occurred. In connection
with the appeal, the petitioner advises that the primary purpose of
the adoption was to assure her and her brother a legal guardianship
until such time as the natural parents could be admitted to the
United States and there was no thought of using the adoption as a
means of securing entry permits for the parents; that it was unfortunate that they were not made temporary wards instead of being
adopted; and that the uncle -is now almost completely incapacitated
as a result of multiple sclerosis.
Title 8, section 108, Arizona Revised Statutes, provides that, effective as of the date of entry of the final order of adoption, the
child shall no longer be the child or heir of the natural parents, or
entitled to any of the rights and privileges, or subject to any of the
obligations of a child of its natural parents. Informal advice from
the Chief Deputy County Attorney, Maricopa County, where the
adoption took place, is to the effect that the express purpose of this
section was to wipe out any connection between the child and the
natural parents.
Section 203(a) (2) of the Immigration and Nationality Act as
amended by the Act of September 22, 1959 grants preference quota
status to parents of adult citizens of the United States. Under section 101(b) (2) the term "parent" means a parent only where the
relationship exists by reason of the circumstances set forth in section 101(b) (1) of the Immigration and Nationality Act, as amended.
This section sets forth five categories, including section 101(b) (1) (E),
which was added by the Act of September 11, 1957 and makes
eligible for immigration benefits an adopted child who is defined as:
(E) a child adopted while under the age of fourteen yours if the child has
thereafter been in the legal custody of, and has resided with, the adopting
parent or parents for at least two years : Provided, That no natural parent
of any such adopted child shall thereafter, by virtue of such parentage, be
accorded any right, privilege, or status under this Act. (Emphasis supplied.)

Reference to the definition of adopted child discloses that for
immigration purposes an ordinary adoption is not sufficient. It is
necessary, in order to qualify for immigration status or benefit:), that
the child be adopted while under the age of 14 years, thereafter
be in the legal custody of, and reside with, the adopting parent
or parents for at least two years; and the law

ctont.siits

a proviso

that no natural parent of any "such" adopted child shall thereafter
be accorded any right, privilege or status under the Immigration
and Nationality Act. It may be noted at the outset that the adopted
child in this case cbuld not qualify as "such" adopted child as
47

defined for immigration purposes, since the child was adopted when
over the age of 14 years. The fact that the child was regarded as
legally adopted under the laws of the State of Arizona does not have
any significance under federal immigration laws other than that
the adoption must accord with the procedural adoptive requirements
of the state.
Subparagraph (E) of section 101(b) (1) was added to the Immigration and Nationality Act by the Act of September 11, 1957
(71 Stat. 639) which, for the first time, gave formal recognition to
adopted children for the purpose of nonquota or preference status.
The legislative history of this amendatory act first makes reference
to certain administrative decisions of the Attorney General as to the
terms "child" and "stepchild" 1 which the Congress regarded as not

in conformity with the congressional intent and which the new legislation was designed to clarify. The definition of "child" was extended to include adopted children under limited circumstances:
i.e., in those cases where the child was adopted while under the age
of 14 years and had thereafter been in the legal custody of, and had
resided with, the adopting parent or parents for at least two years. 2
It was observed that the term "child" under existing law did not
include adopted children, and the belief was expressed that the
proposed amendment was desirable to prevent hardship in cases
where the child was chargeable to a heavily oversubscribed quota
and would not otherwise be able to accompany his adoptive parents.
It was stated that adequate safeguards were included in the new
legislation to prevent abuses in adoption cases, such as ad hoc and
fraudulent adoptions made for the purpose of circumventing the
immigration laws.' The only reference to the proviso contained in
section 101 (h) (1) (l1) rutting nff any right., privilege nr Oaths

under the Act to a natural parent by virtue of such parentage subsequent to the adoption, is a comment in the Congressional Record
to the effect that a technical amendment to the bill was proposed
to bring this section into accord with section 4 of the bill which
relates to eligible orphans'
The legislative history, therefore, evinces a clear congressional
intent to prevent hardship in the case of a family with adopted
children by according such children recognition for immigration
UntloubLedly MmIter of A—,

1-272, and Hurler of DI—, 3-120.

'The limitation that the child be under 14 years of age overruled Matter
of R—, 5-438, which recognized an adoption for purposes of section 203 (a ) (4) in
a case in which,the beneficiary was adopted when 24 years of age.
a Senate Report No. 1057 to accompany S. 2792 (85th Cong., 1st Secs.) pp. 3,

4; 2 U.S. Code congressional and Administrative News, p. 2020.
' Volume 103, Part 12, Congressional Record, p. 16301 (August 28, 1957).

48

purposes. However, the new legislation prescribed a federal stand-

ard for adoption in order to prevent certain abuses by restricting
eligibility of such adopted children for immigration purposes to
those adopted under the age of 14 years and requiring two years'
custody and residence of the adopted child with the adoptive parents
after tI s adoption. These federal standards laid down by the law
supersede the requirements of the state law which are effective only
insofar as the procedural requirements for adoption are concerned.
In the instant case, the adoption occurred when the petitioner
herein was over 14 years of age. It, therefore, failed to meet the
federal standard for an adoption to be recognized for immigration
purposes. Therefore, for immigration purposes the adoption has
no effect, and may be considered as neither conferring any immigration right, privilege or status as between the parties to the adoption
nor as affecting the natural relationship existing between the parent
and child. Since this relationship bete: _,en parent and child has not
been changed for immigration purposes, the visa petitions may be
approved for second preference status on behalf of the natural
parents.
ORDER: It is ordered that the visa petitions be approved for
preference status under section 203(a) (2) of the Immigration and
Nationality Act on behalf of the beneficiaries.

49
654 317-63


MATTER OP G—Q---

In DEPORTATION Proceedings
A-5176004
Deckled by Board August 1, 1961
Deportability—Communist Party membership—Materiality of personal advocacy or awareness of Party doctrines.

(1) Ruling in Galvan v. Press, 347 U.S. 522 (1954), that support or knowledge or communist rarty's advocacy of force ana violence was not intended to be prerequisite to deportation remains unimpaired by subsequent
judicial decisions. However, inquiry into whether an alien personally advocated violence may be material if it is part of an effort by the alien to
show that his membership was accidental, artificial, or unconsciously in
appearance only, or within Rowoldt.
(2) Respondent's motion to reopen deportation proceedings for purpose of
testifying on issue of personal advocacy and belief in Party's doctrines of
force and violence is denied whete record reflects that respondent refused

to testify on claim of privilege at six deportation hearings in 1956, that he
offered no testimony or evidence at previous reopening obtained at his instance to allow him to establish he was within Rowoldt, and there is uncontrad icted testimony to prove that his membership in the Communist
Party was both voluntary and Meaningful.
DEPORTABLE: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251 (a ) (6)1—After
entry, member of a section, subsidiary, branch, affiliate, or
subdivision of the Communist Party of the United States.
BEFORE THE BOARL

DISCUSSION: This is a motion for reopening of proceedings.
It follows judicial review affirming the finding of cleportability entered by this Board on May 18, 7959. The motion will be denied.
Tho respondent, a 41 your old male, a native and citizen of Mox

ico, has been a resident of the United States since 1920. We found
he was a member of the Communist Party from about 1948 to at
least the end of 1950. At the six deportation hearings held from
April 1956 to July 1956, the respondent refused to testify on a claim
of privilege. At a hearing reopened on his motion so that he could
testify, the respondent offered no evidence on the ground that the
Service had failed to make out a case. Reopening is now requested
so that the respondent may testify that he did not advocate the
376

overthrow of the Government by force and violence and that he
had no knowledge that the Communist Party advocated the overthrow of the Government by force and violence. It is stated that
such testimony was not offered previously because it was not known
that it was admissible and material.
The Service opposes the motion contending that the respondent
has had since 1953 to present the facts and has refused to avail himself of the many opportunities given, including one which was
granted to him at his request after deportation had been ordered,
and that the offer of proof neither contests the existence of membership nor goes to the question of its meaningfulness. The Service, quoting Jimenez v. Barber, 252 F.2d 550, contends that the respondent must take the consequences of the course of defense which
ha pursued and points to the threat which is offered the deportation
process if an alien who has been ordered deported and who has
secured administrative and judicial review can upset deportation
proceedings by asserting his willingness to testify after having refused when he had an opportunity.
The respondent was ordered deported on the basis of his membership in the Communist Party under a statute whose scheme was
explained in Galvan v. Press, 347 U.S. 522, where the Supreme
Court, which had been urged to construe the statute "as providing
for the deportation only of those aliens who joined the Communist
Party fully conscious of its advocacy of violence, and who, by so
joining, thereby committed themselves to this violent purpose,"
ruled that the law "* * * appears to preclude an interpretation
which would require proof that an alien had joined the Communist
Party with full appreciation of its purposes and program." The
Supreme Court stated that "* * * it * * * did not exempt 'innocent'
members of the Communist Party." The conclusion of the Supreme
Court was "that support, or even demonstrated knowledge, of the
Communist Party's advocacy of violence was not intended to be a
prerequisite to deportation. It is enough that the alien joined the
Party, aware that he was joining an organization known as the
Communist Party which operates as a distinct and active political
organization, and that he did s6 of his own free will."
Shortly after the decision in the respondent's case, Raw,"ldt v.
Perfecto, 355 U.S. 115, was decided. The Service had sought the
deportation of Rowoldt who had been a member of the Communist
Party for about a year in 1935. Uncontradicte.d evidence in the
record revealed that Rownldt joined at a time when he had no job
and was concerned primarily with obtaining food, clothing and
shelter. The Supreme Court held that under the facts presented,
Rowoldt's affiliation with the Communist Party may well have been
wholly devoid of any political implications and was, therefore, not

377

"meaningful." After Rowoldt was decided, we received a motion
from the respondent, couched in similar terms to the present motion, asking for reconsideration of the case (which we denied) and
asking for "* * * the right to offer testimony to show that he in
fact can place himself within the framework of the rule laid down
in Rowoldt, which to his knowledge would have been to no avail
prior to the decision of the Supreme Court
*." We reopened
the proceedings to give the respondent an opportunity to bring
himself within the framework of Rowoldt. At the reopened hearing he offered no evidence and refused to testify claiming the Service had failed to make a case.
After the respondent was again found deportable by this Board,
he filed a complaint for judicial review. The district court dismissed the complaint. Appeal to the circuit court was dismissed
on December 8, 1960 (Gastelum-Quinories v. Rogers, 286 F.2d 824,
C.A. D.C.). This motion was filed almost five months later (May
4, 1961). It is the respondent's belief that the court of appeals, in
reviewing the administrative proceedings in his case, ruled that
meaningful association is equivalent to advocacy of the overthrow
of the Government by force and violence; that the court of appeals
believed that the respondent, had been given an opportunity to testify with regard to his personal advocacy, although the respondent
did not have the opportunity for had he offered to testify on this
point the special inquiry officer would have ruled it was not material under Galvan; and that the respondent must now be given an
opportunity to testify on the issue of belief in force and violence
and the Party's advocacy of forceful overthrow.
It requires a far stretch of the imagination to interpret Gastelum
Quinones as modifying either GaLvan, or Rowoldt, making deportation dependent upon proof that the alien or the Party advocated
the forceful overthrow of the Government. The circuit court quoted
language from Galivan setting forth the rule that personal advocacy
of violence was not a prerequisite to deportation, and in its own
words stated: "Under the present Act as interpreted by Gal on
actual personal advocacy of the overthrow of the government by
force and violence is not a prerequisite to deportation; it is enough
for the Government to show membership in the Communist Party."
Bearing in mind that the Supreme Court rejected as a defense
Galvin's claim that "he was unaware of the Party's true purposes
and program" and bearing in mind the reaffirmation of Gahan by
the Supreme Court from time to time, it is our belief that an inquiry into whether an alien personally advocated violence is not
material in a deportation proceeding unless it is part of an effort
by the alien to show that his membership was of a nature described
in Galvan as accidental, artificial, or unconsciously in appearance
only.
878

In CaBtolum-Quinones the circuit court speaks of permitting an
alien to rebut a presumption of the espousal of the basic tenets of
the Communist Party which arises from the mere fact that the
alien was a member of the Party. Because of the reliance placed
by the circuit court upon Gay= and Rowoldt, and its own statement of the meaning of Galvan, we think that this language concerning the rebutting of the presumption means only that it is
proper to show nominal membership as a defense; i.e., as in Ga
membership that is involuntary, accidental, artificial, or unconciously in appearance only ; or as in Rowoldt, membership for the
purpose of obtaining food and other necessities by one who presumably would just as well have joined the Salvation Army or one
of the major political parties if he Could thereby have obtained
his necessities.
Counsel believes that &Wee v. United Suttee, 260 F.2d 21 (CA. 4,
1958), requires membership to be more than normal before it can
be a ground of deportation. Counsel is of the belief that to be
morn than a normal member one must have devoted all or a substantial part of his time and efforts to the Party. Scales involved
the Smith Act under which to obtain a conviction it is necessary

to show the existence of active and knowing membership held with
the intent of furthering the proscribed purposes of the Party. This
is unlike the deportation law which requires the establishment of
only voluntary membership in an organization which the alien
understood was the political organization known as the Communist
Party. In Scales, the Supreme Court stated that it had interpreted
deportation statutes as requiring "more than the mere voluntary
listing of a person's name on Party rolls." Gah,an is cited as authority. To us, the statement in Scales indicates no more than the
fact that a person who has been a member is not precluded from
explaining that his membership was artificial. In the instant case,
there is uncontradicted testimony to show that a voluntary meaningful membership existed.
The respondent has been given an opportunity to show that his
membership was nominal. He refused to present evidence on this
issue. There is no reason to believe that his membership was
nominal. Execution of the deportation order entered upon the
adminictrative proceedings started in March 1956 should not encounter further delay.

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

379


Interim Decision #2779

MATTER OF' HINOJOSA

In Exclusion Proceedings

A-17299766
Decided by Board February 13, 1980
(1) While an actual entry completed while an alien is excludable results in the loss of the
alien's lawful status in this country, this was not the case here since the applicant did
not abandon his residence when he departed after serving his prison term, and he was
paroled in on his return. Immigration and Naturalization Service motion for reconsideration of Interim Decision 2718 denied. Matter OW—, 7 I&N Dec. 140 (BIA 1956)
reaffirmed. but distinguished from facts of this ease

(2) If an entry occurs while an alien is excludable, and before the alien has completed the
seven years necessary for a waiver under section 212(c) of the Immigration and
• Nationality Act, 8 U.S.C. 1182(c), the alien is ineligible for a 212(c) waiver.
EXCLUDABLE Act of 1952—Sec. 212(0(23) U.S.C. 1182(a)(23)]—Convicted of
marijuana law violation
ON BEHALF or APPLICANT:
ON BEHALF OF EMI=
Laurier B. McDonald, Esquire
Paul W. Schmidt
Pena, McDonald, Prestia & Zipp
Deputy General
600 South Cleaner Avenue
Counsel
P.O. Box 54
Edinburg, Texas 78539
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The Immigration and Naturalization Service has filed a motion for
reconsideration of our decision, dated July 10, 1979, in the abovenamed case. In our decision, we found the applicant statutorily eligible
for a waiver of excludability under section 212(c} of the Immigration

and Nationality Act, 8 U.S.C. 1182(c). We remanded the record to
enable the immigration judge to exercise his discretion on the application, in light of the current facts. The motion will be denied.
In its motion, the Service argues two points. First, it contends that
our analysis of section 212(c)'s "lawful unrelinquished domicile" requirement is faulty. We held, with respect to that requirement, that
the applicant did not lose his lawful unrelinquished domicile on April
3, 1972, when he sought admission to the United States after an act or
event rendering him excludable. Because the applicant was paroled
322

Interim Decision #2779
into the United States on that date, and had therefore made no
"entry," we held that the applicant had not lost his lawful status, as he
would have had he actually "entered" while in an excludable class. In
our decision, we distinguished a prior Board decision, Matter of M—, 7
I&N Dec. 140 (BIA 1956). In Matter of M—, the alien did complete an
entry after the act or event which put her in an excludable class. We
held there that an actual entry completed while an alien is excludable
results in the loss of the alien's lawful status in this country. We
further held that if such an entry occurred before the alien completed
the seven years necessary for a 212(c) waiver, then the alien became
ineligible for that relief.
The Service argues that the importance which our decision places on
an alien's "entry" after he becomes excludable but before he has
accumulated seven years' lawful unrelinquished domicile is "not sensible" and that this construction of the statute "should be rejected."
The Service pointed out that, had the applicant made an entry in
March of 1972, rather than being paroled into the United States, he
would now be ineligible for a 212(e) waiver, as he would not have

accumulated seven years of lawful domicile. (Conversely, had the alien
in Matter of M—, supra, waited another month before seeking admission, she could have applied for section 212(c) relief.) Before reaching
our decision in this case, we carefully considered the arguments now
set forth by the Service. The Service's motion has failed to convince us
that our decision was wrong. No evidence has been presented as to
what specific, practical impact our construction of the domicile requirement will have on the enforcement of the immigration laws, or of
any other adverse effects which we have not considered.
In connection with its principal argument, the Service also contends
that the time after the applicant was paroled into the United States
should not be considered part of his lawful domicile for section 212(c)
purposes. As we said in our decision, the seven years' requirement can
be perfected while an alien is temporarily out of the United States.
Matter of C—, 1 I&N Dec. 631 (BIA 1943; A.G. 1944), is not, contrary to
the Service's statement, distinguishable. The Service alleges that the
applicant in the present case made an application for entry, prior to
accumulating his seven years' domicile, which was denied. This is not
so. When the applicant sought entry in March of 1972, he was paroled
into the country: his application for entry was neither denied nor
granted. Matter of C—, as held in our original decision, remains the
controlling precedent. Cf. Matter of Salmon, Interim Decision 2703
(BIA 1979); Matter of Mosqueda,14 I&N Dec. 55 (R.C. 1972); Matter of
S—, 6 I&N Dec. 392 (BIA 1954; A.G. 1955).
Finally, the Service argues that the circumstances of the respondent's departure from the United States after serving his prison term
323

Interim Decision #2779
indicated that he then abandoned his residence. As we noted in our
original decision, the record reflects that the applicant was not notified, as he should have been, of his options at the time he returned to
Mexico, i.e., to abandon his right of residence, or to defend it in an
exclusion proceeding. The Service's failure to so notify the applicant
should not now be used against him by finding any abandonment of
residence. The record in fact indicates that the respondent never
intended to abandon his lawful permanent residence.

We recognize that our disposition of this case raises several problems, and leaves some issues unresolved. For example, our holding in
this case, and in Matter of M

—

, supra, may encourage an applicant for

212(c) relief who has left the United States to simply remain outside
the country until his seven years of lawful unrelinquished domicile
have accumulated (provided, of course, that he could then still show
that he had not abandoned his United States domicile). Also, questions
may arise with regard to our emphasis on an alien's "entry" in this
case, in light of the decision in Francis v. INS, 532 F.2d 268 (2 Cir.
1976), and this Board's acceptance of that decision in Matter of Silva,

16 MN Dec.26 (BIA 1976).1 Finally, we recognize the potential difficulties which may be caused by our dictum in this precedent decision, to
the effect that an "adjudication" of deportability terminates an alien's
"lawful status."
Despite the problems presented by our prior decision, and the questions it left unanswered, we have decided not to reconsider our decision. The decision we previously reached was adequate to resolve the
problems directly raised in the case, and we leave to another day the
resolution of the problems mentioned here.

ORDER. The motion is denied.

' The court in Francis, supra, held that an alien could be granted a 212(c) waiver
despite the fact that he had not departed the United States, and had hence made no
reentry.

324