MATTER OF 1- 11
In SECTION 316(b) Proceedings
A-8768702
Decided by Acting Regional Commissioner January 14, 1900
Approved by Assistant Commissioner January 22, 1960

Pesidence for naturalization—Study abroad under fellowship maintained by
Public Health Service qualifies applicant for section 316(b) of 1952 act.

An alien who will study abroad under a Special Research FellOwship Award
established and maintained by the Public Health Service is eligible to preserve reaideuce fnr naturalization under section 316(h) of the 1952 at as a
person employed by or under contract with the Government of the United
States.
BEFORE THE REGIONAL COMMISSIONER

Discussion: The alien has tile. 1 an application for the benefits of
section 316(b) of the Immigration and Nationality Act, to cover his
absence from the United States from March 5, 195'3, to March 5,
1961, while studying at the Lister Institute, London, England, and
at the University of Cambridge, Cambridge, England. The district
director has granted the application upon the ground that the applicant may properly be held to he employed by or under contract with
the Government of the United States within the meaning of section
316(h), and has certified the case to this office.
The applicant was lawfully admitted to the United States for
permanent residence on October 26, 1954. Since, that date he has
been absent from the United States on only one occasion, namely
from December 30, 1954, to October 28, 1957, on which latter tint(
he was readmitted to the United States as a returning legal resident
He has the uninterrupted period of at least one year of physica
presence and residence in the United States, pursuant to his lawfu
admission, which is required by the section of law under which hi
application has been submitted.
While abroad the applicant will be studying under a Special R,(
search Fellowship Award established and maintained by the Pubt
Health Service, Department of Health, Education and Welfar
United States Government, the establishment and maintenance
such fellowships being provided for by Public Law 655, 80th Co .
- gres.Onofthavwdpurseilatopvdef
ships for and to use qualified persons, with a background such
that possessed by the applicant, in the conduct of further resear
-

520

and investigation for the improvement of the health of the people
of the United States.
The Special Research Fellowship Award granted the applicant
was bestowed upon him foliolAing his application therefor and following the. approval of his application by the Surgeon General,
Department of Health, Education and Welfare. The record establishes that such scholarships are awarded to qualified research scientists who have demonstrated research accomplishment or research
potential beyond the postdoctoral level and who desire specialized
training for a specific problem.
The applicant will receive a stipend of $5,500 annually, which
amount is considered by the Department of Health, Education and
Welfare to be a salary. He will receive a further sum of $422 in
the form of a travel allowance.
In passing upon the question of whether the applicant will be considered an employee or a student, the Department of Health, Education and Welfare has indicated the applicant must more appropriately be considered a student, since he will he receiving advanced
cardiovascular research training, although, because of his already
high degree of training, he will probably occasionally assist in
teaching. However, the award letter supplement furnished the applicant incident to the award granted him described his fellowship
in terms of being "official work" and mentions his entering "on
duty." That letter further advises that "official work must begin
within the inclusive dates stated in the award letter" and directs
that "90% of a fellow's time must be spent in research and/or academic work"; that "they must not devote more than 10% of the
working time available during the fellowship term to teaching and
lecturing." The award letter referred to still further sets forth the
procedure to be followed by a fellow desiring to change his sponsoring institution. Likewise mentioned therein is the fact that the
vacation period is "not to exceed one month." A report on work
accomplished during the fellowship is set forth as a requisite and
advance notice is required of the fellow who desires to resign before
the completion of the fellowship.
The sole issue involved in this case is the matter of whether the
applicant may be considered to be employed by or under contract
with the Government of the United States.
Webster's New International unabridged dictionary defines "employment" as "that which engages or occupies; that which consumes
time or attention; also, an occupation, profession, or trade; service;
as agricultural employments." Black's Law Dictionary defines "employment" in the following terms: "The act of hiring, implying a
request and a contract for compensation * * *."
, 4 I. & N. Dec. 196, 203, it was determined that
In hatter of R
521

an applicant who was employed by the Air Transport Command,
and who was also employed at the United States Consulate, was
performing duties warranting a conclusion that he was employed
by or under contract with the Government of the United States
within the meaning of section 307(b) of the Nationality Act, which
latter provision of law similarly provided for the preervation of
residence. by one so engaged abroad. In the decision here cited,
reference is also had to two unreported decisions which are pertinent
in the present case. The first of these two latter decisions refers to
a civilian guard at a post exchange, who was neither within the
Civil Service nor in the employ of the United States Army, and
whose wages were met solely from exchange profits, but who was
held to be "in the employ of or under contract with the Government
of the United States." The second such decision refers to the case
of a USO entertainer who, although not a Civil Service employee
or a member of the Armed Forces, was nevertheless held to be "in
the employ of or under contract with the Government of the United
States." In the last case here referred to the following statements
were made concerning the matter of what constitutes employment:
The source of whatever compensation they receive does not affect the capacity in which they actually serve.
Employ means "to use, to have in service, to cause to be engaged in doing
something," it does not mean to hire, but to use whether unr'er hire or not.

It would appear that the purpose for which the applicant is abroad
clearly brings his assignment within the definition of "employment"
as set forth above. His time and attention will be almost entirely,
if not entirely, absorbed in carrying on his research activities under
the fellowship granted him by the United States Government,.
Further, he must adhere to restrictions no less confining than an
actual contract if he is to maintain eligibility under the fellowship
accorded him.
If a subject, may he regarded as being employed by or under contract with the Government of the United States when the Government pays his compensation only indirectly, which conclusion has
already been reached in other cases, then it would seem that it mus
surely be held that a subject is similarly engaged when he receive
funds in the form of a salary directly from the Government.
In the light of the foregoing, it is concluded that the applican
must be regarded as being employed by or under contract with th
Government of the United States within the contemplation of sectio
316 (b) of the Immigration and Nationality Act.
Order : It is ordered that the decision of the district directo
finding the applicant to be employed by or under contract with ti
Government of the United States within the meaning of section 3
(b) of the Immigration and Nationality Act be and is herel
approved.
522


Cite as 27 I&N Dec. 557 (BIA 2019)

Interim Decision #3955

Matter of Magdaleno ANDRADE JASO, Respondent
Matter of Carmina CARBAJAL AYALA, Respondent
Decided May 31, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeal
An Immigration Judge has the authority to dismiss removal proceedings pursuant to
8 C.F.R. § 239.2(a)(7) (2018) upon a finding that it is an abuse of the asylum process to
file a meritless asylum application with the U.S. Citizenship and Immigration Services for
the sole purpose of seeking cancellation of removal in the Immigration Court.
FOR RESPONDENTS: Marcos Favela, Esquire, Phoenix, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Attorney

Brent Landis, Senior

BEFORE: Board Panel: MALPHRUS, MULLANE and LIEBOWITZ, Board Members.
MALPHRUS, Board Member:

In a decision dated October 24, 2017, an Immigration Judge granted a
motion filed by the Department of Homeland Security (“DHS”) to dismiss
the respondents’ removal proceedings without prejudice. The respondents
have appealed from that decision. The appeal will be dismissed.
On August 1, 2015, the respondents, through counsel, filed applications
for asylum with the U.S. Citizenship and Immigration Services (“USCIS”).
On the advice of counsel, the respondents did not appear at their asylum
interview. As required by 8 C.F.R. §§ 208.14(c)(1) and 1208.14(c)(1)
(2018), the USCIS referred their applications to the Immigration Court for
adjudication in removal proceedings. At the first master calendar hearing
before the Immigration Judge on October 7, 2015, the respondents, through
this same attorney, immediately withdrew their asylum applications and
applied for cancellation of removal.
On December 12, 2016, the DHS filed a motion to dismiss the notices to
appear without prejudice. In support of the motion, the DHS argued that
circumstances of the case had changed to such an extent that continuation of
the proceedings was no longer in the best interest of the Government. The
DHS noted the questionable manner in which the respondents and their
attorney changed the requested form of relief at their first opportunity in
Immigration Court after failing without explanation to appear at their asylum
557

Cite as 27 I&N Dec. 557 (BIA 2019)

Interim Decision #3955

interview before the USCIS. The Immigration Judge found that they filed
meritless asylum applications, “affirmatively elected” not to appear at their
asylum interview, and “deliberately declined” to petition the USCIS to
reschedule their interview. He further determined that this conduct by the
respondents and counsel constituted an abuse of the asylum process.
The DHS has broad discretion to initiate removal proceedings by
issuing, serving, and filing a Notice to Appear (Form I-862), which vests
jurisdiction over an alien’s removal proceedings with the Immigration Court.
See 8 C.F.R. § 1003.14(a) (2018) (providing that removal proceedings
“commence” when the DHS files a notice to appear with the Immigration
Court); see also section 239(a) of the Immigration and Nationality Act,
8 U.S.C. § 1229(a) (2012); Matter of Ordaz, 26 I&N Dec. 637, 641 (BIA
2015) (noting that the DHS has the sole discretion to commence removal
proceedings).
The DHS may unilaterally cancel a notice to appear before jurisdiction
vests with an Immigration Judge. See 8 C.F.R. §§ 239.2(a), 1239.2(a)
(2018). However, once jurisdiction vests, the DHS may move for dismissal
only for certain specified reasons, including where the “[c]ircumstances of
the case have changed after the notice to appear was issued to such an
extent that continuation is no longer in the best interest of the government.”
8 C.F.R. §§ 239.2(a)(7), (c), 1239.2(c); see also Matter of S-O-G- & F-D-B-,
27 I&N Dec. 462, 465–66 (A.G. 2018); Matter of W-B-C-, 24 I&N Dec. 118,
122 (BIA 2007).
The language of 8 C.F.R. §§ 239.2 and 1239.2 “marks a clear boundary
between the time prior to commencement of proceedings, where a [DHS]
officer has decisive power to cancel proceedings, and the time following
commencement, where the . . . officer merely has the privilege to move
for dismissal of proceedings.” Matter of G-N-C-, 22 I&N Dec. 281, 284
(BIA 1998). “By this distinction, the regulation presumably contemplates
not just the automatic grant of a motion to [dismiss], but an informed
adjudication by the Immigration Judge or this Board based on an evaluation
of the factors underlying the [DHS’s] motion.” Id.
An Immigration Judge has the authority to grant a DHS motion to dismiss
removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7) upon a finding that
it is an abuse of the asylum process to file a meritless asylum application with
the USCIS for the sole purpose of seeking cancellation of removal in the
Immigration Court. See Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45
(BIA 2012) (stating that an Immigration Judge may terminate proceedings in
“specific circumstances consistent with the law and applicable regulations”).
The record supports the Immigration Judge’s finding that the respondents’
conduct constituted such an abuse. The asylum applications they submitted
to the USCIS lacked merit, were filed for the sole purpose of securing a
558

Cite as 27 I&N Dec. 557 (BIA 2019)

Interim Decision #3955

hearing on their cancellation applications before an Immigration Judge, and
were withdrawn after the DHS commenced removal proceedings. The
respondents have not disputed the Immigration Judge’s findings in this
regard on appeal, and they do not assert that they currently have a colorable
asylum claim.
Instead, they argue that the DHS has not demonstrated any change in
circumstances that occurred after their notices to appear were issued, noting
that their failure to appear for the asylum interview occurred before the DHS
issued the notices to appear. However, the respondents’ withdrawal of their
asylum applications at the first master calendar hearing constitutes a change
in circumstances that occurred after the issuance of the notices to appear.
Moreover, the series of actions by the respondents after applying for asylum
changed the circumstances in their case “to such an extent that continuation
[of the proceedings was] no longer in the best interest of the government.”
8 C.F.R. § 239.2(a)(7). Therefore, the DHS’s motion was based on a valid
ground for dismissal under 8 C.F.R. §§ 239.2(a)(7) and (c). See also 8 C.F.R.
§ 1239.2(c).
The respondents also argue that by dismissing their proceedings without
adjudicating their applications for cancellation of removal, the Immigration
Judge violated their right to due process. However, the desire to regularize
their status through discretionary relief, such as cancellation of removal,
does not entitle them to the commencement and continuation of removal
proceedings. See Mendez-Garcia v. Lynch, 840 F.3d 655, 666 (9th Cir. 2016)
(“No statute or regulation requires the government to take action on [the
aliens’] applications within a set period, nor does cancellation of removal
‘give rise to a “substantive interest protected by the Due Process Clause.”’”
(citations omitted)).
Finally, the dismissal of proceedings in this case was without prejudice.
8 C.F.R. § 1239.2(c). The respondents have not been ordered removed, and
there is no indication that they are in imminent danger of removal. If the
DHS places the respondents in proceedings by issuing new notices to appear,
they may, at that time, pursue any form of relief from removal for which they
may be eligible, including cancellation of removal.
The Immigration Judge properly granted the DHS’s motion to dismiss the
proceedings without prejudice. Accordingly, the respondents’ appeal will be
dismissed.
ORDER: The appeal is dismissed.

559


Interim Decision #1718

MATTER OF

Inson

In Deportation Proceedings
A-14769757

Decided by Board Marchh, 16, 1967
Respondent, who married a native and citizen of Italy subsequent to being issued
an immigrant visa on March 24, 1986 as the 16-year-old unmarried daughter
of a fifth preference quota immigrant and prior to her entry into the United
States on July 17, 1986 upon presentation of that visa, is deportable under
section 241 (a) (1) of the Immigration and Nationality Act as one who at
entry was not of the status specified in her immigrant visa, and she is ineligible
for the benefits of sections 211 (c) and (d) of the Act, these sections having
been deleted by the Act of October 8, 1965, or for the benefits of section 241(f)

of the Act, as amended, since she is no longer a "child" within the meaning of
section 101(b) (1) of the Act.
CHARGE:
Order: Act of 1952—Section'241 (a) (1) [8 U.S.C. 1251(a) (1)]—Excludable at
time of entry, not of the status specified in immigrant
visa.
On Batteage

OF

REarounarrr

On

BEHALF OF SKEW=

R. A. Vielhaber

Samuel Tapper, Esquire
49 Pearl Street
Hartford, Connecticut 06103
(oral argument)

Apellate Trial Attorney
(Oral argument)

This case comes forward on appeal from an order entered by the
special inquiry officer on November 9, 1966 granting the respondent's
request that she be permitted to depart voluntarily from the United
States in lieu of deportation and directing that if she fails to depart
when and as required that she be deported from the United States to
Italy, the country of her nativity and citizenship, on the charge set
forth in the order to show cause.
The respondent, a 19-year-old married female, native and citizen of Italy, has resided continuously in the United States since
her admission for permanent residence at New York, New York on
July 17, 1966 at which time she had in her possession and presented for inspection Quota Immigrant Visa No. 4988, classifies156

Interim Decision #1718
tion P5-3, issued on the basis of a visa petition approved in behalf of her father by the United States Vice Consul at Naples,
Italy on March 24, 1966, valid until July 23, 1966. The visa bears
the notation that the respondent was in possession of a valid passport issued in her name by the authorities at Benevento, Italy on
November 20, 1965. Deportation proceedings were instituted against
the respondent on October 11, 1900. A hearing in deportation proceedings was held at Hartford, Connecticut on November 9, 1966 at

which time the respondent and counsel admitted the truth of the
first five allegations set forth in the order to show cause.
There is no merit to counsel's argument to the effect that since
the respondent was issued an immigrant visa as the unmarried child
of a fifth Preference immigrant on March 24, 1966 she was entitled
to be admitted to the United States in such status on July 17, 1966.
The respondent freely and voluntarily agreed to submit to a question—and—answer statement before an officer of the Service on October
4, 1966. She was advised that any statement she made must be given
-freely and voluntarily and may be used against her, or any other
person, in an immigration and naturalization proceeding. When asked
if she understood, she replied, "Yes." (Es. 2, p. 1) The aforementioned statement was taken in the Italian language through a qualified interpreter. The respondent testified that her maiden name was
Teresa Salvatore, born in San Lorenzo, Italy on September 16, 1949;
that she was living with her parents, Giuseppe and Luiggia Salvatore,
at the family home in West Haven, Connecticut. The respondent's
testimony reveals she was admitted to the United States as a fifth
preference alien on July 17, 1966 as the unmarried child of her
alien father with an immigrant visa issued to her in Naples, Italy
on March 24, 1966. The respondent testified that when the aforementioned visa was issued to her by the United States Consul in
Naples, Italy she was informed she was being issued a fifth preference visa as the unmarried child of an alien admissible to the
United States for permanent residence under section 203(a) (5) of
the Immigration and Nationality Act.
The respondent testified that when she was admitted to the United
States for permanent residence under section 203(a) (5) of the Immigration and Nationality Act on July 17, 1966, her true and correct
name was Teresa. Iesee since she was the spouse of a native, citizen and
resident of Italy. The record reflects the respondent was married to
Angelo Iesce in San Lorenzo, Italy on April 17, 1966. She testified she
decided to marry Angelo Iesce in March 1966 shortly after she was
issued an immigrant visa in her maiden name on March 24, 1966; that
she met •her husband in August 1965 and had kept steady company
157

Interim Decision #1718
with him from that time until their marriage on April 17, 1966. The
respondent testified she was engaged to marry Angelo Iesce on
March 24, 1966, the date she was issued a visa at Naples, Italy under
section 203(a) (5) of the Act; that she did not tell the United States
Consul at Naples, Italy she was engaged to be married at the time the
aforementioned visa. was issued to her. The respondent testified that she
has continued to use the name of Teresa Salvatore, her maiden name,
since her admission to the United States because her passport and visa
were issued in her maiden name; that she never informed the immigrant officer at the time of her admission to the United States at New
York, New York on July 17, 1966 that she was married and her correct name was then Teresa Iesce (p. 4, Ex. 2). The respondent's testimony reveals that she did. not accompany her father and the rest of
her family to the United States in May 1966 because she was ill; that
she and her husband lived together in a husband and wife relationship
from the date of their marriage in April 1966 until her departure from
Italy for New York on July 17, 1966.
The record establishes that the respondent executed and filed on
behalf of her husband, Angelo Iesee, a petition to classify status of alien
relative for issuance of an immigrant visa; that she signed this document under the name of Teresa. Iesce and filed it with the Service at
Hartford, Connecticut on August 10, 1966. Attached to the aforementioned petition is a certificate showing that the respondent was
married to Angelo Iesce in the town of Lorenzo, Italy on April 17,
1966 (Ex. 4). The respondent at the deportation hearing identified the
aforementioned statement secured from her at Hartford, Connecticut
on October 4, 1966 (Ex. 2). She testified that she initialed pages 1, 2, a
and 4 and signed her name on page 5; that everything she said in the"
aforementioned statement was true and correct as of the time she made
it (p. 4, It). The record reflects an immigrant visa under the nonpreference portion of the quota for Italy was not available to the respondent
on March 24, 1966, the date she was issued the fifth preference quota
immigrant visa, or on April 17,
the date of her marriage in Italy
(United. States Department of State Visa Office Bulletin Nos. 158 and
161). It was conceded during the deportation hearing that a nonpreference quota immigrant visa under the quota to Italy was not
available in March 1966. Counsel at the deportation hearing conceded
that as of the date her father was admitted to the United States for
permanent residence in May 1966 and at the time the respondent was
issued her quota immigrant visa in March 1966 visas were unavailable.
under the nonpreference portion of the Italian quota (p. 9). On the
basis of the evidence present in this record, the respondent is subject to
deportation under the provisions of section 241(a) ( ) of the Immigra-

law,

158

Interim Decision #1718
Lion and Nationality Act, in that, at the time of entry, she was within
one or more of the classes of aliens excludable by the law existing at
the time of such entry, 'to wit, aliens who are not of the status specified
in the immigrant visa, under section 203(a) of the Immigration and
Nationality Act, as amended.
The respondent is precluded. from having her immigrant status adjusted under sections 211 (o) and (d) of tho Immigration and Nationality Act, since these sections were deleted when section 211 of the
Immigration and Nationality Act (8 U.S.O. 1181) was amended by
section 9 of Public Law 89-236 on October 3, 1965. Likewise, the benefits of section 241(f) of the Immigration and Nationality Act are not
available to the respOndent since she is not the spouse, parent or child
of a -United States citizen or of an alien lawfully admitted for permanent residence. The terra "child" is defined in section 101(b) (1) of
the Immigration and Nationality Act. The respondent at the time her
immigrant visa was issued to her on March 24, 1966 was a child as defined in section 101 (b) (1) (A) of the Act. Section 201(e) of the Immigration and Nationality Act, among other things, states that nothing
in section 204(e), supra, shall be construed to entitle an immigrant in
behalf of whom a petition under this section is approved to enter the
-

United States as a preference immigrant under section 203(a) of the
Act if upon arrival at a port of entry into the United States he is
found not to be entitled to such classification. The respondent at the
time of her arrival in the -United •States was married: to a native and
citizen of Italy and was not entitled to classification under the fifth
preference portion of 'the quota for Italy as the unmarried child of an
alien entitled to said classification. Moreover, it is a well-established
principle of law that a minor child becomes emancipated when he or
she marries, Accordingly, the respondent was not eligible for admission to the United States at the time of her arrival at New York, New
York on July 17, 1966 as the unmarried child of an alien father who
was the fifth preference quota immigrant brother of a United States
citizen. The special inquiry' officer's decision is dispositive of the 'remaining points raised by counsel on appeal.
After carefully considering all the evidence of record, together with
counsel's exceptions on appeal, the decision of the special inquiry officer
will be affirmed. On this record the respondent has been granted the
maximum discretionary relief available in the premises. Accordingly,
the following order will be entered.
ORDER: It is ordered that the appeal be dismissed.

159


Cite as 27 I&N Dec. 509 (A.G. 2019)

Interim Decision #3950

Matter of M-S-, Respondent
Decided by Attorney General April 16, 2019
U.S. Department of Justice
Office of the Attorney General
(1) Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), was wrongly decided and is overruled.
(2) An alien who is transferred from expedited removal proceedings to full removal
proceedings after establishing a credible fear of persecution or torture is ineligible for
release on bond. Such an alien must be detained until his removal proceedings conclude,
unless he is granted parole.

BEFORE THE ATTORNEY GENERAL
The Immigration and Nationality Act (“INA” or “Act”) provides for
several types of removal proceedings, including “full” proceedings
conducted by immigration judges and “expedited” proceedings conducted by
the front-line immigration enforcement officers of the Department of
Homeland Security (“DHS”). Lara-Aguilar v. Sessions, 889 F.3d 134,
137-38 (4th Cir. 2018); INA §§ 235(b)(1), 240, 8 U.S.C. §§ 1225(b)(1),
1229a. Generally, aliens placed in expedited proceedings must be detained
until removed. INA § 235(b)(1)(B)(iii)(IV). But some aliens who start in
expedited proceedings—namely, those who establish a credible fear of
persecution or torture—are transferred to full proceedings.
Id.
§ 235(b)(1)(B)(ii); 8 C.F.R. § 208.30(f). The question here is whether, under
the Act, aliens transferred after establishing a credible fear are eligible for
release on bond. 1
In Matter of X-K-, the Board of Immigration Appeals (“Board”) held that
only some aliens transferred after establishing a credible fear are subject to
mandatory detention. 23 I&N Dec. 731, 736 (BIA 2005). Specifically, the
1

This opinion does not address whether detaining transferred aliens for the duration of
their removal proceedings poses a constitutional problem, a question that Attorney General
Sessions did not certify and that is the subject of ongoing litigation. See Rodriguez v. Hayes,
No. 2:07-cv-3239 (C.D. Cal.). For the reasons stated in the Department of Justice’s briefs
in that case, aliens who have never been admitted into the United States do not have a
presumptive constitutional entitlement to be released into the country. See Resp’tsAppellants’ Suppl. Br. 28–40, Rodriguez v. Marin, Nos. 13-56706 and 13-56755 (9th Cir.
Aug. 10, 2018); Resp’ts-Appellants’ Suppl. Reply Br. 20–26, Rodriguez v. Marin, Nos. 1356706 and 13-56755 (9th Cir. Aug. 30, 2018).

509

Cite as 27 I&N Dec. 509 (A.G. 2019)

Interim Decision #3950

Board concluded that “arriving” aliens—such as those “attempting to come
into the United States at a port-of-entry,” see 8 C.F.R. § 1001.1(q)—must be
detained, but all other transferred aliens are eligible for bond. 23 I&N Dec.
at 736.
Matter of X-K- was wrongly decided. The Act provides that, if an alien
in expedited proceedings establishes a credible fear, he “shall be detained for
further consideration of the application for asylum.” INA § 235(b)(1)(B)(ii).
The Act further provides that such an alien may be “parole[d] into the United
States . . . for urgent humanitarian reasons or significant public benefit.” Id.
§ 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). There is no way to apply those
provisions except as they were written—unless paroled, an alien must be
detained until his asylum claim is adjudicated. The Supreme Court recently
held exactly that, concluding that section 235(b)(1) “mandate[s] detention
throughout the completion of [removal] proceedings” unless the alien is
paroled. Jennings v. Rodriguez, 138 S. Ct. 830, 844–45 (2018). The Act’s
implementing regulations support that interpretation.
The respondent here was transferred from expedited to full proceedings
after establishing a credible fear, and an immigration judge ordered his
release on bond. Because the respondent is ineligible for bond under the Act,
I reverse the immigration judge’s decision. I order that, unless DHS paroles
the respondent under section 212(d)(5)(A) of the Act, he must be detained
until his removal proceedings conclude.

I.
A.
Under section 235 of the Act, all aliens “arriv[ing] in the United States”
or “present in the United States [without having] been admitted” are
considered “applicants for admission,” who “shall be inspected by
immigration officers.” INA § 235(a)(1), (3). In most cases, those inspections
yield one of three outcomes. First, if an alien is “clearly and beyond a doubt
entitled to be admitted,” he will be permitted to enter, or remain in, the
country without further proceedings. Id. § 235(b)(2)(A). Second, if the alien
is not clearly admissible, then, generally, he will be placed in “proceeding[s]
under section 240” of the Act—that is, full removal proceedings. Id. Third,
if the alien is inadmissible on one of two specified grounds and meets certain
additional criteria, DHS may place him in either expedited or full
proceedings. Id. § 235(b)(1)(A)(i); see Matter of E-R-M- & L-R-M-, 25 I&N
Dec. 520, 524 (BIA 2011).

510

Cite as 27 I&N Dec. 509 (A.G. 2019)

Interim Decision #3950

This case concerns aliens subject to expedited removal. To qualify for
expedited removal, an alien must either lack entry documentation or seek
admission through fraud or misrepresentation. INA § 235(b)(1)(A)(i)
(referring to id. § 212(a)(6)(C), (a)(7)). 2 In addition, the alien must either
be “arriving in the United States” or within a class that the Secretary of
Homeland Security (“Secretary”) has designated for expedited removal. Id. 3
The Secretary may designate “any or all aliens” who have “not been admitted
or paroled into the United States” and also have not “been physically present
in the United States continuously for the 2-year period immediately prior to
the date of the determination of inadmissibility.” Id. § 235(b)(1)(A)(iii). To
date, the Secretary (and previously the Attorney General) have designated
only subsets of that class. See Notice Designating Aliens Subject to
Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and
Nationality Act, 67 Fed. Reg. 68,924 (Nov. 13, 2002); Designating Aliens
for Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004) (“2004
Designation”). The designated group at issue here encompasses aliens who
(i) “are physically present in the U.S. without having been admitted or
paroled,” (ii) “are encountered by an immigration officer within 100 air miles
of any U.S. international land border,” and (iii) cannot establish “that they
have been physically present in the U.S. continuously for the 14-day period
immediately prior to the date of encounter.” 2004 Designation, 69 Fed. Reg.
at 48,880.
For an alien originally placed in expedited proceedings, the removal
process varies depending upon whether the alien indicates either “an
intention to apply for asylum” or “a fear of persecution or torture.” 8 C.F.R.
§§ 235.3(b)(4), 1235.3(b)(4)(1); see INA § 235(b)(1)(A)(ii). If the alien does
not so indicate, the inspecting officer “shall order the alien removed from the
United States without further hearing or review.” INA § 235(b)(1)(A)(i). If
the alien does so indicate, however, the officer “shall refer the alien for an
interview by an asylum officer.” Id. § 235(b)(1)(A)(ii). That officer assesses
2

Section 235(b)(1)(F) of the Act excepts from expedited removal any “native or citizen
of a country in the Western Hemisphere with whose government the United States does
not have full diplomatic relations and who arrives by aircraft at a port of entry.” For many
years, that provision applied to Cuban nationals, but that is no longer the case. See
Eliminating Exception to Expedited Removal Authority for Cuban Nationals Encountered
in the United States or Arriving by Sea, 82 Fed. Reg. 4902, 4904 (Jan. 17, 2017) (“[T]he
statutory provision categorically barring the use of expedited removal for certain aliens
who arrive by aircraft at a U.S. port of entry no longer applies to Cuban nationals, as the
United States and Cuba have reestablished full diplomatic relations.”).
3
Although the Act refers to the “Attorney General,” Congress has since authorized the
Secretary to exercise that power. See 6 U.S.C. § 202(3); 8 C.F.R. § 235.3(b)(1)(ii) (2002).

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whether the alien has a “credible fear of persecution or torture,” 8 C.F.R.
§ 208.30(d)—in other words, whether there is a “significant possibility” that
the alien is eligible for “asylum under section 208 of the Act,” “withholding
of removal under section 241(b)(3) of the Act,” or withholding or deferral of
removal under the Convention Against Torture (“CAT”), 4 8 C.F.R.
§ 208.30(e)(2)–(3). If the alien does not establish a credible fear, the asylum
officer “shall order the alien removed from the United States without further
hearing or review.” INA § 235(b)(1)(B)(iii)(I). But if the alien does establish
such a fear, he is entitled to “further consideration of the application for
asylum.” Id. § 235(b)(1)(B)(ii). 5 By regulation, that “further consideration”
takes the form of full removal proceedings under section 240 of the Act.
8 C.F.R. §§ 208.30(f), 1208.30(g)(2)(iv)(B). Thus, if an alien originally
placed in expedited removal establishes a credible fear, he receives a full
hearing before an immigration judge.
Section 235 of the Act expressly provides for the detention of aliens
originally placed in expedited removal. Such aliens “shall be detained
pending a final determination of credible fear.” INA § 235(b)(1)(B)(iii)(IV).
Aliens found not to have a credible fear “shall be detained . . . until removed.”
Id. Aliens found to have such a fear, however, “shall be detained for further
consideration of the application for asylum.” Id. § 235(b)(1)(B)(ii). Like all
aliens applying for admission, however, aliens detained for further
consideration of an asylum claim may generally be “parole[d] into the United
States . . . for urgent humanitarian reasons or significant public benefit.” Id.
§ 212(d)(5)(A). Accordingly, the Act’s implementing regulations assume
that aliens in expedited proceedings will be detained, but provide that, if an
alien establishes a credible fear, “[p]arole . . . may be considered . . . in
accordance with section 212(d)(5) of the Act and [8 C.F.R.] § 212.5.”
8 C.F.R. § 208.30(f).
Section 236 of the Act addresses, more generally, the detention of aliens
in removal proceedings. Once an alien has been arrested pursuant to an
immigration warrant, DHS “may continue to detain the arrested alien” or
“may release the alien on” “bond of at least $1,500” or “conditional parole.”
INA § 236(a)(1)–(2), 8 U.S.C. § 1226(a)(1)–(2). DHS and Department of
4

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
5
Under DHS and Department of Justice regulations, “[a]n asylum application shall be
deemed to constitute at the same time an application for [statutory] withholding of removal”
and CAT relief. 8 C.F.R. §§ 208.3(b), 1208.3(b); see also id. §§ 208.16, 1208.16. This
opinion employs the regulations’ definition of “application for asylum.” Relatedly, as used
in this opinion, the term “asylum claim” encompasses a claim for asylum, statutory
withholding of removal, or CAT relief.

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Justice regulations provide that, when reviewing an “initial custody
determination” made by DHS, an “immigration judge is authorized to
exercise the authority in section 236 of the Act . . . to detain the alien in
custody, release the alien, and determine the amount of bond, if any, under
which the respondent may be released, as provided in [8 C.F.R.] § 1003.19.”
8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1). Section 1003.19, in turn, expressly
limits the availability of bond for certain enumerated classes of aliens. Id.
§ 1003.19(h)(2)(i). One of those classes is “[a]rriving aliens,” id.
§ 1003.19(h)(2)(i)(B), which includes aliens “attempting to come into the
United States at a port-of-entry,” id. § 1001.1(q). But section 1003.19 does
not mention the classes of aliens that have been designated for expedited
removal.
B.
Against that statutory and regulatory backdrop, the Board held in Matter
of X-K- that, except for arriving aliens, all aliens transferred from expedited
to full proceedings after establishing a credible fear are eligible for bond.
23 I&N at 736. The Board assumed that the respondent there was covered
by the Secretary’s 2004 Designation and had been placed in expedited
removal. Id. at 733 & n.3. After the respondent established a credible fear,
DHS had transferred him to full proceedings for further consideration of his
asylum claim, and determined that the respondent would be detained for the
duration of those proceedings. The respondent appealed that custody
determination to an immigration judge, who ordered that the respondent be
released on bond. On appeal, DHS argued that aliens originally placed in
expedited proceedings were not eligible for bond, even if they were later
transferred to full proceedings.
The Board rejected DHS’s argument. The Board observed that, with
respect to aliens in expedited removal, “[t]he Act provides for . . . mandatory
detention . . . ‘pending a final determination of credible fear.’” Id. at 734
(quoting INA § 235(b)(1)(B)(iii)(IV)) (emphasis in original). But with
respect to detention after a credible-fear finding, the Board concluded that
“[t]he Act is silent” and “provide[s] no specific guidance.” Id. In reaching
that conclusion, the Board did not mention section 235(b)(1)(B)(ii) of the
Act, which expressly provides that an alien found to have a credible fear
“shall be detained for further consideration of the application for asylum.”
The Board then turned to the Act’s implementing regulations. Those
regulations, the Board noted, impose a “requirement that aliens who had
initially been screened for expedited removal” and then had a “positive
credible fear determination” be “placed in full section 240 removal
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proceedings.” 23 I&N Dec. at 734 (citing, inter alia, 8 C.F.R. § 1208.30(f)
(2004)). The Board reasoned that immigration judges may “exercise the
general custody authority of section 236 of the Act,” including the authority
to grant bond, “over aliens in section 240 removal proceedings.” Id. (citing,
inter alia, 8 C.F.R. § 1236.1(c)(11), (d)). The only exceptions are for
“specified classes of aliens . . . specifically excluded from the custody
jurisdiction of Immigration Judges by 8 C.F.R. § 1003.19(h)(2)(i)(B).” Id.
at 735. That regulation expressly excludes “arriving aliens,” but does not
mention aliens who have been designated for expedited removal. Id.
Drawing a negative inference from the regulation, the Board concluded that
arriving aliens transferred from expedited to full proceedings after
establishing a credible fear are ineligible for bond, but that all other aliens so
transferred are eligible. Id.
C.
The respondent here is a citizen of India. He traveled to Mexico and
crossed illegally into the United States. He was apprehended within hours
about 50 miles north of the border. DHS placed him in expedited removal
proceedings.
After the respondent claimed a fear of persecution in India, DHS referred
him for an asylum interview. The asylum officer determined that the
respondent lacked a credible fear, but, at the respondent’s request, DHS
reconsidered and reversed its determination. DHS then transferred the
respondent to full proceedings. Upon his transfer, DHS issued the
respondent a Notice to Appear (DHS Form I-862) and a Notice of Custody
Determination (DHS Form I-286), the latter of which informed the
respondent that, “pending a final administrative determination in your case,
you will be . . . [d]etained by the Department of Homeland Security.”
The respondent requested that an immigration judge review that custody
determination.
Without mentioning section 235(b)(1)(B)(ii), the
immigration judge held that the respondent “is not subject to mandatory
detention.” Matter of M-S-, Order on Motion for Custody Redetermination
at 2 (Immig. Ct. July 18, 2018). The immigration judge ordered that the
respondent be released if he could produce a valid Indian passport and post
a bond of $17,500. Id. at 3. The respondent appealed to the Board, arguing
that his bond should be reduced.
While that appeal was pending, the respondent again requested
immigration-judge review of his custody, as permitted by regulation. See
8 C.F.R. § 1003.19(e). The respondent argued that, because the Indian
consulate had denied his request for a replacement passport, he should not be
required to produce one. A different immigration judge agreed, but increased
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the respondent’s bond to $27,000. Matter of M-S-, Order on Motion for
Custody Redetermination at 2 (Immig. Ct. Sept. 17, 2018). The respondent
posted that amount and was released on September 27, 2018. The Board,
apparently unaware of that development, decided the respondent’s appeal the
next day, affirming the first immigration judge’s bond order. Matter of M-S-,
slip. op. at 1 (BIA Sept. 28, 2018). Neither the respondent nor DHS appealed
the second immigration judge’s order. 6 The respondent’s case remains
pending.

II.
The question presented is whether aliens who are originally placed in
expedited proceedings and then transferred to full proceedings after
establishing a credible fear become eligible for bond upon transfer. I
conclude that such aliens remain ineligible for bond, whether they are
arriving at the border or are apprehended in the United States.
The text of the Act mandates that conclusion. Section 235(b)(1)(B)(ii)
provides that, if an alien in expedited proceedings establishes a credible fear,
he “shall be detained for further consideration of the application for asylum.”
“The word ‘shall’ generally imposes a nondiscretionary duty.” SAS Inst.,
Inc. v. Iancu, 138 S. Ct. 1348, 1354 (2018). And the word “for” often means
“with the object or purpose of” or “throughout.” 6 Oxford English
Dictionary 23, 26 (2d ed. 1989). Granted, “for” can also mean “in
preparation for or anticipation of.” Id. at 24. But that latter definition makes
little sense in light of surrounding provisions of the Act. See, e.g., Rodriguez,
138 S. Ct. at 844–45 (recognizing that defining “for” to mean “until the start
of” “makes [no] sense in the context of the statutory scheme as a whole”
(emphasis in original)). If section 235(b)(1)(B)(ii) governed detention only
“in preparation for”—that is, until the beginning of—full proceedings, then
another provision, section 236, would govern detention during those
proceedings. Section 236, however, permits detention only on an arrest
warrant issued by the Secretary. INA § 236(a). The result would be that, if
an alien were placed in expedited proceedings, DHS could detain him
6

All three decisions below—both bond orders and the Board’s decision—pose the same
threshold, legal question: whether the respondent became eligible for bond after
establishing a credible fear and being transferred to full proceedings. I certified this case
to answer that question, and I have authority to answer it by reviewing either the Board’s
decision or the second bond order. See 8 U.S.C. § 1103(g)(2) (authorizing the Attorney
General to “review such administrative determinations in immigration proceedings . . . as
[he] determines to be necessary for carrying out” the Act). My decision therefore has the
effect of reversing the second bond order.

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without a warrant, but, if the alien were then transferred to full proceedings,
DHS would need to issue an arrest warrant to continue detention. That
simply cannot be what the Act requires. Instead, I read section
235(b)(1)(B)(ii) to mandate detention (i) for the purpose of ensuring
additional review of an asylum claim, and (ii) for so long as that review is
ongoing. In other words, section 235(b)(1)(B)(ii) requires detention until
removal proceedings conclude.
Several amici would read section 236 of the Act to render transferred
aliens eligible for bond. That section provides that, once an alien is arrested
pursuant to an immigration warrant, DHS “may continue to detain the
arrested alien” or “may release [him] on” “bond of at least $1,500” or
“conditional parole,” unless he has committed certain crimes. INA
§ 236(a)(1)–(2), (c). The amici therefore read section 236 to render all noncriminal aliens eligible for bond. Yet section 235 (under which detention is
mandatory) and section 236(a) (under which detention is permissive) can be
reconciled only if they apply to different classes of aliens. See Fifty-Six Hope
Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1081 (9th Cir. 2015)
(concluding that “permissive and mandatory [provisions] are in harmony, as
they apply to different situations”). For purposes of the respondent’s case, I
need not identify the full universe of aliens covered by section 236(a). It
suffices to find that section 236(a) provides an independent ground for
detention that does not limit DHS’s separate authority to detain aliens
originally placed in expedited removal, who, after the credible-fear stage,
“shall be detained” either for further adjudication of their asylum claims or
for removal. See INA § 235(b)(1)(B)(ii) (an alien placed in expedited
removal who demonstrates a credible fear “shall be detained for further
consideration of the application for asylum”); id. § 235(b)(1)(B)(iii)(IV) (an
alien placed in expedited removal who does not demonstrate a credible fear
“shall be detained . . . until removed”). I do not read section 236(a) to
authorize granting bond to aliens originally placed in expedited proceedings,
even if they are later transferred to full proceedings after establishing a
credible fear.
The conclusion that section 235 requires detention does not mean that
every transferred alien must be detained from the moment of apprehension
until the completion of removal proceedings. Section 212(d)(5)(A) of the
Act separately provides that “any alien applying for admission” may be
“parole[d] into the United States . . . for urgent humanitarian reasons or
significant public benefit.” Aliens with “serious medical conditions,” for
example, are generally eligible for parole. 8 C.F.R. § 212.5(b)(1). An alien’s
term of parole expires “when the purposes of such parole . . . have been
served,” at which point the alien must “return or be returned to . . . custody.”
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INA § 212(d)(5)(A). This provision grants the Secretary the discretion to
parole aliens under its terms.
In light of that express exception to mandatory detention, the Act cannot
be read to contain an implicit exception for bond. Under the negativeimplication canon, “expressing one item of [an] associated group or series
excludes another left unmentioned.” NLRB v. SW Gen., Inc., 137 S. Ct. 929,
940 (2017) (alteration in original). Section 212(d)(5)(A) expressly states that
aliens applying for admission—which includes aliens originally placed in
expedited proceedings—may be released on parole. That suggests that those
aliens may not be released on bond. And that suggestion is particularly
strong here given that the Act expressly provides that aliens in the separate
class covered by section 236(a) are eligible for both “bond of at least $1,500”
and “conditional parole.” INA § 236(a)(2)(A)–(B). See, e.g., Loughrin v.
United States, 573 U.S. 351, 358 (2014) (“We have often noted that when
Congress includes particular language in one section of a statute but omits it
in another—let alone in the very next provision—this Court presume[s] that
Congress intended a difference in meaning.” (alteration in original) (internal
quotation marks omitted)).
The Supreme Court recently interpreted the Act in the exact same way.
In Jennings v. Rodriguez, a class of aliens in removal proceedings—
including aliens transferred from expedited to full proceedings after
establishing a credible fear—argued that the Act did not permit their
“prolonged detention in the absence of . . . individualized bond hearing[s].”
138 S. Ct. at 839 (internal quotation marks omitted). The class
acknowledged that section 235(b)(1)(B)(ii) provides that a transferred alien
“shall be detained for further consideration of the application for asylum.”
The class argued, however, that “the term ‘for’ . . . mandates detention only
until the start of [full] proceedings.” Id. at 844 (emphasis in original). Once
those proceedings begin, the class continued, section 236 applies, under
which transferred aliens are generally eligible for bond and thus entitled to
bond hearings. Id. at 845. The Court rejected that argument as “incompatible
with the rest of the statute.” Id. If the class were right about when sections
235 and 236 apply, “then the Government could detain an alien without a
warrant at the border, but once removal proceedings began, the [Secretary]
would have to issue an arrest warrant in order to continue detaining the
alien.” Id. But “that makes little sense.” Id. In evaluating whether
transferred aliens are eligible for bond, the Court also considered section
212(d)(5)(A)’s parole exception. “That express exception to detention,” the
Court reasoned, “implies that there are no other circumstances under which
aliens detained under [section 235(b)] may be released.” Id. at 844 (emphasis
in original). For those reasons, the Rodriguez Court held, as I do here, that
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the Act renders aliens transferred from expedited to full proceedings after
establishing a credible fear ineligible for bond.
Although Rodriguez did not address the Act’s implementing regulations,
those regulations support the conclusion that transferred aliens are ineligible
for bond. First, 8 C.F.R. § 208.30(f) provides that, if an alien is either a
“stowaway” or in expedited proceedings, and he establishes a credible fear,
he must be transferred to, respectively, “proceedings under [8 C.F.R.]
§ 208.2(c)” or full removal proceedings. In either case, after the transfer,
“[p]arole of the alien may be considered only in accordance with section
212(d)(5) of the Act and [8 C.F.R.] § 212.5.” 8 C.F.R. § 208.30(f). The
regulation makes no mention of bond.
In Matter of X-K-, the Board drew a negative inference based upon
8 C.F.R. § 1003.19’s expressly rendering “arriving aliens” ineligible for
bond but not addressing other categories of aliens who are subject to
expedited removal. 23 I&N Dec. at 734–35. But as explained above, the
Board did not discuss section 235’s detention requirement at all and therefore
overlooked the implications that provision has upon the appropriate
interpretation of section 236. Section 1003.19(h)(2)(i) thus does not provide
an exhaustive catalogue of the classes of aliens who are ineligible for bond.
The Secretary recognized that very point in designating the class at issue
here. The Secretary explained that, “[u]nder Department of Justice
regulations, immigration judge review . . . is permitted only for bond and
custody determinations pursuant to section 236.” 69 Fed. Reg. at 48,879.
And “[a]liens subject to expedited removal procedures . . . (including those
aliens who are referred after a positive credible fear determination . . . for
proceedings under section 240 of the Act)” are covered by section 235, not
section 236. Id. Thus, the Secretary concluded, even without adding the
designated aliens to section 1003.19’s list of bond-ineligible classes, the
designated aliens “are not eligible for bond [or] for a bond redetermination
hearing before an immigration judge.” Id. I agree with that interpretation,
which ensures that the regulation remains consistent with the statute. 7
In conclusion, the statutory text, the implementing regulations, and the
Supreme Court’s decision in Rodriguez all lead to the same conclusion: that
7

In Matter of X-K-, the Board never suggested that, if an alien designated for expedited
removal established a credible fear, then DHS could terminate his expedited proceedings
and initiate full ones, thereby rendering him eligible for bond. And for good reason: DHS’s
authority under Matter of E-R-M- & L-R-M- expires once an asylum officer (or
immigration judge) makes a final credible-fear determination, at which point the alien
“shall be detained” either for further adjudication of his asylum claim or for removal. INA
§ 235(b)(1)(B)(ii), (b)(1)(B)(iii)(IV).

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all aliens transferred from expedited to full proceedings after establishing a
credible fear are ineligible for bond. Matter of X-K- is therefore overruled. 8

III.
Here, despite the respondent being bond ineligible, the second
immigration judge ordered DHS to release him on a bond of $27,000. The
respondent posted that bond in September 2018, and was released from
custody. I reverse the order granting bond to the respondent. I order that,
unless DHS paroles the respondent under section 212(d)(5)(A) of the Act, he
must be detained until his removal proceedings conclude.

8

Because Matter of X-K- declared a sizable population of aliens to be eligible for bond,
DHS indicates that my overruling that decision will have “an immediate and significant
impact on [its] detention operations.” DHS Br. 23 n.16. DHS accordingly requests that I
delay the effective date of this decision “so that DHS may conduct necessary operational
planning.” Id. Federal circuit courts have discretion to delay the effective dates of their
decisions, see Fed. R. App. P. 41(b), and I conclude that I have similar discretion. I will
delay the effective date of this decision for 90 days so that DHS may conduct the necessary
operational planning for additional detention and parole decisions.

519


Interim Decision 44435

Mew= OP REM .
In Visa Petition Proceedings
NYO-N-15M

Decided by Regional Commissioner Janicary 12,1965
acrobatic
dancer, are ineligible for classification under section 101(a) (15) (H) (I),
Immigration and Nationality Act, as aliens of distinguished merit and ability
since the -evidence does not establish that they have played starring or
leading roles or have been prominently featured by name as entertainers,
or that they have been acknowledged as eminent by recognized critics or
other experts in the field of entertainment.

Beneficiaries, who are entertainers, comedian ventriloquist and

•

This matter is before the Regional Commissioner on an appeal
from the decision of the District Director denying the petition
to accord the beneficiaries nonimmigrant status under section
101(a) (15) (H) (i) of the Immigration and Nationality Act.

The petitioner is a theatrical agent and producer who seeks to
import the beneficiaries temporarily for bookings through his office
as entertainers. The beneficiaries are natives and citizens of France.
Their address is given as Montreal, Canada. The male alien, aged
52, is described, as an "international comedian ventriloquist (the man
with the speaking hand)". His wife assists him and is also a ballet
dancer.
To qualify for classification under this section of the law, these
entertainers must be persons of distinguished merit and ability, and
further, must be coming to the United States to perform services
requiring such merit and ability.
The evidence submitted as to the personal qualifications of the
• beneficiaries consists of
(1) Publicity release of Bob Bellamy and Company, vocal impressionist,
ventriloquist, gags and comedy.
(2) Publicity release of Betty Gromer, "acrobatic dancer in Spanish
style, the only artist in Europe performing somersaults while playing castanets;,,
(3) Photographs, and
65

Interim Decision #1435
(4) Clippings from unnamed and undated publications showing appearances of the couple as entertainers at cafes, restaurants, a music hall,
hotels, and civic celebrations.

These documents do not establish that the beneficiaries have played
starring or leading roles, that they have been prominently featured
by name as entertainers, nor that they have been acknowledged as
eminent by recognized critics or other experts in the field of entertainment. It is concluded that the petitioner has failed to establish
that the beneficiaries are eligible for classification under section
101(a) (15) (H) (1) as persons of distinguished merit and ability.

is unnecessary, therefore, to consider whether the engagements
obtained or to be obtained by the petitioner in their behalf require
persons of such merit and ability. The appeal must be dismissed.
It

It is ordered that the appeal be and the same is hereby dismissed.

66


_Intel= Decision vim

MATTER or lAvoin
In Deportation Proceedings
A-10767234
Decided by Board July 31,1988
(1) Evidence that respondent engaged in repeated homosexual acts 12 to 24
times a year over a period of 11 years preceding his entry into the United
States establishes under the clear, convincing and unequivocable standard of
Woodby v. Immigration and Naturalization Service, 385 U.S. 276, that he was
a homosexual at entry; accordingly, he is deportable as one who was excludable at entry Gs a person afflicted with ;a/Allopathic personality.
(2) Mine to advise respondent of his right to counsel at the time the preliminary sworn statement was made by him does not render such statement
inadmissible in evidence in deportation proceedings since there is no right to
. counsel during the taking or a statement is the investigskivi stage.
CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 7251 (a) (1)3—Excludable
at time of entry—atilieted with psychopathic personality.
ON BEHALF OF RESPONDENT :

ON Baffair or SERVICE :
Stephen M. &oft
Trial Attorney
(Brief Bled)

Norman Leonard, Esquire

1182 Market Street
. ,
San Francisco, California. 94102
(Brief filed)

The case comes forward on appeal from the order of the special
inquiry officer dated May. 20, 1968 ordering that the respondent be
deported to Canada on the charge in the order to show cause.
The record relates to a native and citizen of Canada, 44 years old,
male, single; who entered the United States for permanent residence
on January 26, 1960. The facts of the case relating to 'the ground of
excludability were discussed in prior orders.of the special inquiry officer and of this Board concluding with the order of this Board on May
28, 1965 dismissing the appeal from the order of deportation entered
by the special inquiry officer on March 11, 1965. Pursuant to an order
entered by the court on January 25, 1968 in the case of Ls voie v. Immigration and Naturalization Service (No. 20, 220) remanding the case
821

Interim Decision #1890
for its reconsideration in the light of the standards laid down in
Woodby v. Immigration and Naturalization Service, 385 U.S. 276, and
further ordering that the remand be without limitation upon the
authority of the Commission [Board) to consider other issues should
the Commission [Board) so desire, this Board on March 4, 1968
granted the Service motion for reconsideration and reopening in the
light of the order of the Court of Appeals in this case pursuant to
its order.
In Woodby v. Immigration and .Naturalization Service, 385 U.S.
276, the Supreme Court held that no deportation order could be
entered unless it was found by clear, unequivocal and convincing evidence that the facts alleged as grounds for deportation were true.
Counsel submitted a brief in which he sets forth the issues in the case
as follows: (1) Does the evidence in the light of the IV voclby standards
support a finding that respondent was afflicted with a psychopathic
personality at the time of his entry; and (2) was respondent denied
due process of law, or was the statute violated, when incriminatory statements, later used in evidence against him, were obtained

from him at a time when he was without counsel and had not been
advised that he had a right to counsel.

In a sworn statement to a Service investigator on August 30, 1961
the respondent admitted that he was a homosexual ; that is, by his own
interpretation, a. person whose sexual urges are directed to members
of his own sex; that during the years 1946, 1947 and 1948 he had no
more than a dozen experiences at most; that after 1948 these experiences occurred approximately once or twice a month except for 1960,
when he did not have any homosexual experiences at one period of
time for a period of five months; that for the last two years (preceding the sworn statement) he had approximately five or six homosexual
experiences. In his sworn statement he stated that he bad intercourse
with females about two dozen times during the time he was in the
Navy (up to 1945) and approximately seven or eight times after he
left the Navy; that the last sexual experience with a female occurred
approximately three years prior to the making of the statement.
The case of Bautilier v. Immigration and Naturalization Service,
387 U.S. 118, 18 L.Ed 2nd 661 (1967), is remarkably similar on the
facts. In that case the alien had a long-continued but somewhat less
active history of homosexual relations prior to his entry into the
United States and had also engaged in heterosexual relations on
several occasions. The court held that the Congress used the phrase
"psychopathic personality" not in the clinical sense, but to effectuate
its purpose to exclude from entry all homosexuals and other sex perverts. Participating in a continued course of conduct, consisting of

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Interim Decision #1890
homosexual relations about three or four times a year during a period
over sir years prior to his entry, constitutes being afflicted with psychopathic personality as certified by United States Public Health Service
doctors within the meaning of section 212(a) (4) of the Act. When the
alien first presented himself at the border for entrance, he was already
afflicted with homosexuality; the pattern was cut, and under it he was

not admissible. The court observed that section 212 (a) (4) of the Immigration and Nationality Act does not impose the regulations or sanctions on their postentry conduct and that the constitutional requirements relevant to the "void for vagueness" doctrine were inapplicable.
In the instant case, we find that "the evidence, that the respondent
engaged in repeated homosexual acts 12 to 24 times a year over a
period of 11 years which preceded his entry into the United States,
clearly, unequivocally and convincingly establishes that he was a homosexual at the time of entry. Evidence as to postentry conduct added
nothing to the finding of inadmissibility but was merely corroborative
but does not constitute a basis for the finding of inadmissibility or
exchidability as a person of the class of . aliens afflicted with psychopathic personality at the time of entry and excludable as such.
The second issue raised by counsel was that at the time of the interrogation by an agent of the Immigration. and Naturalization. Seivice
he was without counsel and was not advised of his right to counsel
which deprived him of due process and also violated the applicable
statute. However, the cases citedbyebifinde arose in criminal prosecutions. Deportation is a civil .proceeding. The statement in question
was not obtained by coercion, duress or other improper action on the
part of the investigator but was voluntarily made and the respondent
has never denied the truth of the statement. When he gave hisitatement he was not in custody. Failure to advise the respondent of his
right to counsel at the time the preliminary sworn statement was made
by him does not render such statement inadmissible in evidence in deportation proceedings since there is no right to counsel during the
staking of a statement in the investigative stage. Woodby v. Immigration and Naturalization Service, 385 U.S. 276; Nason v. Immigration
and Naturalization Service, 370 F. 2c1 865 (2d Cir. 1967) ; Pang v.
Immigration and Naturalization Service, 368 F. 2d 687 (3d Cir. 1966) ;
Ben Huil v. Immigration. and Naturalization Service, 349 F. pd 1014
(9th Cir. 1965) ; Matter of Steele, Lit. Dee. No. 1752.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

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Interim Decision #3876

Matter of Gordon Ndok TIMA, Respondent
Decided November 1, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(1)(H) (2012), cannot waive an alien’s removability under section
237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude, even if
the conviction is based on the underlying fraud.
FOR RESPONDENT: Matthew John Archambeault, Esquire, Philadelphia, Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY: John B. Carle, Assistant
Chief Counsel
BEFORE: Board Panel:
Temporary Board Member.

COLE and MALPHRUS, Board Members; GELLER,

COLE, Board Member:

This case is before us on remand from the United States Court of
Appeals for the Third Circuit for further consideration of the respondent’s
eligibility for waivers under sections 212(h) and 237(a)(1)(H) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1182(h) and 1227(a)(1)(H)
(2012). Tima v. Att’y Gen. of U.S., 603 F. App’x 99 (3d Cir. 2015). The
respondent’s appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Cameroon who was admitted
to the United States as a student on August 24, 1989. On September 22,
1994, his status was adjusted to that of a conditional permanent resident
based on his marriage to a United States citizen. 1 The respondent was
convicted on January 26, 1996, of making materially false statements
regarding his marriage in violation of 18 U.S.C. § 1001 (1994). On
1

The record reflects that the respondent’s first marriage to a United States citizen,
which was the basis for his conditional permanent resident status, ended in divorce on
January 17, 1997. On March 21, 1997, the respondent entered into his second marriage
with another United States citizen.

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January 9, 2008, the Department of Homeland Security (“DHS”)
commenced removal proceedings with the filing of a notice to appear,
alleging that the respondent adjusted his status based on his marriage to a
United States citizen, that he was convicted of making materially false
statements regarding his marriage, and that his marriage was entered into
solely for the purpose of obtaining immigration benefits. The respondent
was charged with removability under sections 237(a)(1)(G)(ii) and (2)(A)(i)
of the Act as an alien who has committed marriage fraud and who has been
convicted of a crime involving moral turpitude, respectively. On April 29,
2010, the DHS terminated the respondent’s conditional permanent resident
status as of September 23, 1996.
The DHS then lodged an additional charge of removability under
section 237(a)(1)(D)(i) of the Act that the respondent’s conditional
permanent resident status had been terminated. During the proceedings, the
respondent admitted, through counsel, that he adjusted his status to that of a
lawful permanent resident on a conditional basis. The respondent denied
the allegations that he engaged in and was convicted of marriage fraud and
that he married to obtain immigration benefits. He also denied the charges
of removability. Ultimately, the Immigration Judge found that the record
supported all of the allegations that the respondent had denied.
On April 19, 2010, the respondent filed a motion to terminate
proceedings. He subsequently filed a prehearing brief, arguing that he was
entitled to apply for a waiver of his marriage fraud under section
237(a)(1)(H) of the Act, which permits an Immigration Judge to waive
certain grounds of inadmissibility relating to fraud at the time of an alien’s
admission or adjustment of status. He later filed a brief arguing that if he
were granted the fraud waiver under section 237(a)(1)(H), he would be
eligible for adjustment of status based on his current marriage to a United
States citizen. The DHS opposed the respondent’s motion and contested
his eligibility for the waiver.
On October 27, 2010, the Immigration Judge issued an interlocutory
decision denying the motion to terminate and pretermitting the application
for a fraud waiver under section 237(a)(1)(H). In her decision, the
Immigration Judge found that the respondent’s conditional permanent
resident status was automatically terminated, leaving him with no lawful
permanent resident status. The Immigration Judge also determined that the
respondent’s conviction for making materially false statements regarding
his marriage is for a crime involving moral turpitude, and she sustained the
charge under section 237(a)(2)(A)(i) of the Act. She also found the
respondent ineligible for a fraud waiver under section 237(a)(1)(H) because
he was not charged with removability under section 237(a)(1)(A) of the Act
as being inadmissible at time of adjustment of status.
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Interim Decision #3876

On June 25, 2012, the Immigration Judge sua sponte reopened her
interlocutory order finding the respondent ineligible for a section
237(a)(1)(H) fraud waiver and held that, pursuant to this waiver, the
respondent is entitled to waive the marriage fraud charge under section
237(a)(1)(G)(ii) of the Act. She declined to make a discretionary
determination regarding this waiver application because she concluded that
even if she granted the waiver, the respondent would remain removable on
the other charges. The Immigration Judge determined that the respondent
was removable under section 237(a)(1)(D)(i) because the termination of his
conditional permanent resident status was automatic by “operation of the
law” for failure to file a Petition to Remove Conditions on Residence (Form
I-751) and therefore was not the result of any underlying fraud. She also
found him removable under section 237(a)(2)(A)(i) for his crime involving
moral turpitude, which cannot be waived by section 237(a)(1)(H) of the
Act. The respondent appealed from the Immigration Judge’s decision.
We dismissed the appeal on August 27, 2013. We agreed with the
Immigration Judge’s determination that the respondent is ineligible for a
waiver under section 237(a)(1)(H) of the Act because his conditional
permanent resident status terminated when he failed to file a Form I-751,
citing Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995), aff’d, Gawaran
v. INS, 91 F.3d 1332 (9th Cir. 1996) (finding that an alien whose
conditional permanent resident status had been terminated for failure to
file a Form I-751 was ineligible for waiver of deportability based on
inadmissibility grounds relating to fraud). The respondent filed a petition
for review of our decision.
Before the Third Circuit the respondent argued that the fraud waiver
applies to the charge under section 237(a)(1)(D)(i) for failure to file a Form
I-751. According to the respondent, termination of his status for failure to
file the form is related to the underlying fraud because he was convicted of
marriage fraud prior to the 2-year anniversary of his conditional permanent
resident status, so he should not have been required to file a meritless Form
I-751 in order to be eligible for the waiver. The respondent further asserted
that we erred in pretermitting his application for a waiver under section
237(a)(1)(H), because if the waiver were granted with respect to the
marriage fraud under section 237(a)(1)(G)(ii) of the Act, it must also
operate to waive removability under sections 237(a)(1)(D)(i) and
237(a)(2)(A)(i) since those charges directly resulted from the underlying
fraud. Finally, he claimed that we erred in holding that his conditional
permanent resident status terminated upon his failure to file the Form I-751
because his status had already terminated when the Attorney General
determined he had committed marriage fraud. The respondent also argued
for the first time before the Third Circuit that he is eligible for a waiver
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Interim Decision #3876

under section 212(h) of the Act, which waives, inter alia, inadmissibility
under section 212(a)(2)(A)(i)(I) based on conviction for a crime involving
moral turpitude.
In its opposition, the Government argued that the Third Circuit did not
have jurisdiction to hear the respondent’s petition because he neither
challenged his removability for having been convicted of a crime involving
moral turpitude nor sought a waiver under section 212(h) of the Act during
the proceedings. The Government also argued that the respondent did not
exhaust his administrative remedies and that his conviction for a crime
involving moral turpitude remains an independent ground for removal that
cannot be waived under section 237(a)(1)(H).
The Third Circuit found that the Government’s arguments were
misplaced because it is immaterial whether the respondent challenged the
crime involving moral turpitude determination or sought a waiver under
section 212(h) of the Act. According to the court, “[T]he overarching legal
issue of whether a fraud waiver can extend to the [crime involving moral
turpitude] charge and to the Form I-751 charge was preserved . . . .” Tima,
603 F. App’x at 102.
The Third Circuit declined to decide whether section 237(a)(1)(H) can
waive a charge of removability under section 237(a)(1)(D)(i) relating to the
respondent’s failure to file the Form I-751 and concluded that we erred in
applying Gawaran, 91 F.3d 1332, to the facts of this case. Since the
respondent had already pled guilty to entering into a sham marriage to
obtain immigration benefits before the Form I-751 was due, the court found
that he would have had to commit perjury on the form if it were timely
filed, because it required him to declare under penalty of perjury that his
marriage was not entered into for the purpose of obtaining immigration
benefits. The court held that under the specific facts of this case, we could
not rely on the respondent’s failure to file the Form I-751 as a basis for his
removal under section 237(a)(1)(D)(i) of the Act, regardless of whether the
section 237(a)(1)(H) fraud waiver would extend to that charge.
The Third Circuit also declined to consider the respondent’s contention
that his removability for having been convicted of a crime involving moral
turpitude under section 237(a)(2)(A)(i) of the Act can be waived under
section 237(a)(1)(H). The court remanded the record with instructions for
us to consider the respondent’s eligibility for a section 237(a)(1)(H) waiver
of his removability under section 237(a)(2)(A)(i), along with his eligibility
for a waiver under section 212(h) of the Act. The section 212(h) claim was
not raised before the Immigration Judge or the Board, but the Third Circuit
found that because the respondent sought a fraud waiver for the charge of
removability based on his conviction for a crime involving moral turpitude,

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Interim Decision #3876

it is proper for us to consider whether a waiver under either section 212(h)
or 237(a)(1)(H) is applicable to that charge.

II. ISSUES
In this case, we must decide whether the provisions of section
237(a)(1)(H) of the Act can be used to waive an alien’s removability under
section 237(a)(2)(A)(i) for having been convicted of a crime involving
moral turpitude where the conviction is based on the underlying fraud. We
must also address whether the respondent is eligible for waivers of
inadmissibility under section 212 of the Act.

III. ANALYSIS
In his brief on remand, the respondent argues that he is eligible for a
section 237(a)(1)(H) waiver, which can waive his removability under
section 237(a)(2)(A)(i) of the Act. He also claims that he is eligible for a
section 212(h) waiver. Additionally, for the first time, the respondent
contends that he is eligible for a waiver under former section 212(c) of the
Act, 8 U.S.C. § 1182(c) (1994), for his crime involving moral turpitude
because a section 237(a)(1)(H) waiver leaves “intact his lawful status.”
A. Waiver of Deportability Under Section 237(a)(1)(H) of the Act
According to the respondent, the plain language of section 237(a)(1)(H)
provides a waiver for all grounds of inadmissibility or removability
resulting from the fraud that rendered an alien inadmissible at the time of
admission or adjustment of status. He further asserts that since his
removability under section 237(a)(2)(A)(i) for having been convicted of a
crime involving moral turpitude directly resulted from materially false
statements regarding his marriage made at the time of his adjustment of
status, he is eligible for a section 237(a)(1)(H) waiver of that charge. Based
on our reading of the plain language of section 237(a)(1)(H), we conclude
that it cannot waive removability under section 237(a)(2)(A)(i) of the Act.
Section 237(a)(1)(H) of the Act provides, in pertinent part, that “[t]he
provisions of this paragraph relating to the removal of aliens within the
United States on the ground that they were inadmissible at the time of
admission as aliens described in section 212(a)(6)(C)(i), whether willful or
innocent, may, in the discretion of the Attorney General, be waived . . . .”
(Emphasis added.) The phrase “this paragraph” refers only to section
237(a)(1) of the Act. See Vasquez v. Holder, 602 F.3d 1003, 1011 (9th Cir.
2010) (construing the section 237(a)(1)(H) waiver as covering those
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Interim Decision #3876

grounds of inadmissibility set out under section 237(a)(1) of the Act);
Matter of Fu, 23 I&N Dec. 985, 987–88 (BIA 2006) (discussing Congress’
intent in enacting section 237(a)(1)(H)). The respondent’s conviction for a
crime involving moral turpitude is a ground for removal under section
237(a)(2) of the Act—not section 237(a)(1).
Accordingly, section 237(a)(2)(A)(i) of the Act defines a ground of
removability that is “legally distinct” from the grounds for removal
contained in section 237(a)(1). Gourche v. Holder, 663 F.3d 882, 886 (7th
Cir. 2011). In particular, the respondent’s eligibility for a section
237(a)(1)(H) waiver depends not on whether that provision can waive the
fraud underlying his conviction but on whether it can waive his
removability under section 237(a)(2)(A)(i), which renders an alien
removable for having been convicted of a crime involving moral turpitude.
See id.
As a result, even though the respondent’s crime involving moral
turpitude charge under section 237(a)(2)(A)(i) of the Act is based on his
conviction for marriage fraud, this charge of removability cannot be waived
by section 237(a)(1)(H) of the Act. See Fayzullina v. Holder, 777 F.3d
807, 815–16 (6th Cir. 2015) (holding that section 237(a)(1)(H) only waives
charges of removability under section 237(a)(1) and does not reach a
charge of removability under section 237(a)(2)(A)(i), even if it is premised
on a conviction for the underlying fraud); Taggar v. Holder, 736 F.3d 886,
890–91 (9th Cir. 2013) (holding the same with respect to a charge of
removability under section 237(a)(3)(B)(iii) of the Act); Gourche, 663 F.3d
at 886–87 (same); El Shaer v. U.S. Att’y Gen., 331 F. App’x 974, 974 (3d
Cir. 2009) (same). 2
The respondent’s argument is further undermined by the fact that
section 237(a)(2)(A)(i) includes all convictions for crimes involving moral
turpitude, not just those based on an alien’s fraud at the time of his
adjustment of status or admission, which is a much narrower subset of
offenses. Thus, if we were to accept the respondent’s argument that section
237(a)(1)(H) of the Act waives his removability under these circumstances,
an Immigration Judge would be required to look at an alien’s actual
conduct to determine whether it was, in fact, based on the relevant fraud
and therefore could be waived by section 237(a)(1)(H). Such an approach
is in tension with the Supreme Court decisions in Mathis v. United States,
2

We note that the question presented here is analogous to the one we decided in Matter
of Bustamante, 25 I&N Dec. 564, 570 (BIA 2011). In that case, we held that a waiver
under section 212(h) of the Act cannot waive a removable offense that bars an alien from
establishing eligibility for cancellation of removal under section 240A(b)(1)(C) of the
Act, 8 U.S.C. § 1229b(b)(1)(C) (2006).

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Interim Decision #3876

136 S. Ct. 2243, 2248, 2251 (2016), Descamps v. United States, 133 S. Ct.
2276, 2288 (2013), and Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).
In those cases, the Supreme Court held that criminal convictions must
be treated as relating to the least of the defendant’s actions prohibited by
the relevant statute without evaluating the defendant’s underlying conduct.
Requiring an Immigration Judge to determine whether a respondent’s
removability for having been convicted of a crime involving moral
turpitude can be waived by looking at the underlying circumstances to
ascertain whether the conduct involved fraud would therefore appear to be
contrary to binding Supreme Court precedent, which prohibits
consideration of such circumstances. Consequently, we conclude that the
respondent’s removability under section 237(a)(2)(A)(i) cannot be waived
by section 237(a)(1)(H).
B. Waiver of Inadmissibility Under Section 212(h) of the Act
Notwithstanding the respondent’s contentions on remand, he is
ineligible for a section 212(h) waiver of his removability under section
237(a)(2)(A)(i) of the Act for having been convicted of a crime involving
moral turpitude because he is not an arriving alien seeking to waive a
ground of inadmissibility or an alien in removal proceedings seeking to
waive inadmissibility in conjunction with an application for adjustment of
status. See Matter of Rivas, 26 I&N Dec. 130, 132–33 (BIA 2013) (holding
that a waiver of inadmissibility under section 212(h) of the Act is not
available on a “stand-alone” basis to an alien in removal proceedings
without a concurrently filed application for adjustment of status); Matter of
Abosi, 24 I&N Dec. 204, 205–06 (BIA 2007) (holding that an arriving alien
seeking to return to the United States after a trip abroad need not apply for
adjustment of status in conjunction with a section 212(h) waiver); see also
8 C.F.R. § 1245.1(f) (2016) (providing that an adjustment of status
application is “the sole method of requesting the exercise of discretion
under [section 212(h)] of the Act, as [it relates] to the inadmissibility of
an alien in the United States”). Moreover, the respondent is not eligible for
a nunc pro tunc waiver under section 212(h) of the Act. See Matter of
Rivas, 26 I&N Dec. at 134 (concluding that a nunc pro tunc waiver is
unavailable and cannot be used to avoid the requirement that an adjustment
application be filed concurrently with a section 212(h) waiver request).
C. Waiver of Inadmissibility Under Section 212(c) of the Act
Finally, the respondent asserts that granting the fraud waiver would
leave his lawful permanent resident status “intact” and would render him
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Interim Decision #3876

eligible for a waiver of his removability for having been convicted of a
crime involving moral turpitude under former section 212(c) of the Act.
However, because his claim for section 212(c) relief is being raised for the
first time on remand, the issue is not properly before us.
In any event, the respondent conceded before the Third Circuit that his
conditional permanent resident status terminated when the Attorney
General determined that he had committed marriage fraud. Tima, 603
F. App’x at 102. Under these circumstances, we find no merit to the
respondent’s argument that he is eligible for section 212(c) relief. See, e.g.,
Matter of Lok, 18 I&N Dec. 101, 105–06 (BIA 1981) (recognizing that an
alien is no longer statutorily eligible for a section 212(c) waiver following
the termination of his lawful permanent resident status).

IV. CONCLUSION
We conclude that section 237(a)(1)(H) of the Act cannot waive an
alien’s removability under section 237(a)(2)(A)(i) for having been
convicted of a crime involving moral turpitude, even where the conviction
is based on the underlying fraud. Therefore, even if the respondent’s
removability based on fraud under section 237(a)(1) of the Act could be
waived by section 237(a)(1)(H), he would remain removable under section
237(a)(2)(A)(i) because of his conviction for a crime involving moral
turpitude. He is ineligible for any other form of relief that he has requested.
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

846


Interim Decision #1964

Marrer of Laqut
In Deportation Proceedings ;
A-14504742
Decided by Board April 28, 1969

Since deportation proceedings are civil rather than criminal in nature, the
calling of respondent as a Government witness to identify certain docu-
ments in the deportation proceedings against her, over objections of her
attorney, does nat constitute a denial of due process, in the absence of a
claim of self-incrimination by respondent.*

CHARGE:

Uraer: Act of 1992—Scelivn 241(a) (8) [8 U.S.C. 1951(0) (2) Nomi
migrant (exchange visitor) remained longer.

ON BEHALP oF RESPONDENT: ON BEHALF OF SERVICE:
Samuel R. Myers, Esquire Irving A. Appleman, Esquire
184 North LaSalle Street Appellate Trial Attorney

Chicago, Illinois 60602

This is an appeal from an order of the special inquiry omcer
dated January 17, 1969, finding the respondent deportable as
charged and granting her the privilege of voluntary departure.
On this appeal, counsel for respondent coulends that the hearing
conducted by the special inquiry officer deprived her of due proc-
ess of law, This contention is based on the fact that the finding of
deportability is predicated on respondent’s own testimony, taken
over her attorney’s objection, when she was called as the Service’s
‘first and only witness. We find no merit to the appeal. é

The record before us reflects the following undisputed facts:
On December 9, 1968, an order to show cause was issued in de-
portation proceedings, charging that Juliana Laqui was subject to
deportation on the above-stated charge, based on the facutal alle-
gations that (1) she is an alien; (2) she is a native and citizen of
the Philippines; (8) she entered the United States at Detroit on
or about October 14, 1967; (4) she was then admitted as an ex-

* Reaffirmed, 422 F.2d 807 (C.A. 7, 1970).

232
Interim Decision #1964

change visitor; (5) she was authorized to remain in the Untied
States until November 8, 1968; and (6) she had remained here
beyond that date.

‘At the hearing before the special inquiry officer, at which she
was represented by counsel, respondent conceded she was the per-
son named in the order to show cause. Her attorney denied the
factual allegations and deportation charge contained in the order
to show cause and: put the Service to its proof. The Service’s trial
attorney thereupon proceeded to question respondent concerning
certain documents which had been marked for identification. Her
attorney objected on the ground that the Service should not bi
permitted to make its case out of respondent's own mouth. The
special Luyuiry ufliver overruled the objoction, Over hor attarnay’s
continuing objections, respondent, identified as relating to her
various documents (Exhibits 2, 8, 4 and 6) which were then re-
ceived in evidence aver objection. These documents clearly, con-
vineingly, and unequivocally establish the truth of the factual al-
legations recited in the order to show cause and confirm her
deportability on the charge laid against her. In an oral decision,
the special inquiry officer found her deportable as charged and
granted her the privilege of voluntary departure.

On appeal, counsel argues in substance that the trend of recent
judicial decisions has been such that deportation proceedings can
no longer be considered strictly civil in nature. In deportation ~
proceedings as in criminal prosecutions, he contends, the Govern-
mont must ostablish its ease hy adducing its own evidence, with-
out calling the. other party to the proceeding as a witness and
using that party’s own testimony to make out its case.

This proposition, though advanced here for the first time in a
Jong while, is not new and has previously been categorically re-
jected. See Caetano v. Shaughnessy, 133 F, Supp. 211 (S:D.N.Y.
1955). In an unbroken line of cases, the courts have held that the
deportation process is civil, not criminal, in nature; and they
have consistently rejected the notion that the constitutional and
other limitations governing criminal prosecutions apply in alien
expulsion proceedings."

1 Fong Yue Ting v. United States, 140 U.S. 698, 780 (1898) ; Zakonaite v.
Wolf, 226 U.S. 272 (1912); Bugajewite v. Adams, 228 U.S. 585 (1918); Bi-
lukumoky v. Tod, 268 U.S. 140 (1998); Mahler v. Mhy, 264 U.S. 32
(1924) ; Harisiades v. Shaughnessy, 242 U.S. 580 (1952) ; Galvan v. Press,
347 U.S. 522 (1954); Marcello v. Bonds, 349 U.S. 302 (1955); Lehmann v.
Carson, 853 U.S. 685 (1957). For recent lower court decisions, see Ben Huie
¥ LNeSy 849 F.2d 1014 (9 Oiry 1066); Durr v. INS. 960 F.9d 27 (9 Cir,
1965) cert, denied 883 U.S. 915; Nason v. INS. 370 F.2d 865 (2 Cir.,

238
Interim Decision #1964

In view of the drastic impact of deportation upon the lives of
the aliens affected, the Supreme Court has prescribed a narrow
Tule of stalulury construction, Fong Haw Fan v. Pholan, 222 U.S.
6 (1948), and has imposed a burden of proof more onerous than
the preponderance rule ordinarily applicable in civil matters,
Woodby v. I.N.S., 885 U.S. 276 (1966). In doing so, however. the
Court made it plain that “a deportation proceeding is not a crimi-
nal prosectuion,” 385 U.S. at 285; and it significantly refused to
exact the burden imposed in criminal cases of proving the essen-
tial facts beyond a reasonable doubt.

In criminal prosecutions, the Government may not call the de-
fendant as a witness because the Fifth Amendment forbids such
a course. No such prohibition applies to civil proceedings, and It
is common practice in civil litigation to call the opposing party as
a witness. See, e. ., Fed. R. Civ. P. 26(a), 38, 36, 48(b). In de-
portation proceedings, as in other civil proceedings, when called
as a witness the respondent has the privilege accorded all wit-
nesses of refusing to supply self-incriminating testimony, Veleros
v. LNS., 287 F.9d 991 (7 Cir., 1967). Absent such a claim of
self-incrimination (and there was no such claim here),? there ap-
pears to be no reason why the testimony of the respondent as a
party to the deportation proceedings should not be adduced by the
Service. .

Congress has specifically empowered special inquiry officers to
take the sworn testimony of “any person touching the privilege
of any alien or person he believes or suspects to be an allen lu...
reside in the United States;” to issue subpoenas requiring the at-
tendance of such witnesses; and to invoke the aid of the courts in
enforcing such subpocnas, eection 285(a) of the Act; see also
section 287(b). These provisions, and their forerunners in prior
statutes, have been construed as applying not only to outside wit-
nesses but also to the person who is himself the subject of the de-
portation proceeding, Loufakis v. United States, 81 F.2d 966 (3
Cir., 1986); Graham v. United States, 99 F.2d 746 (9 Cir., 1988);
Sherman v. Hamilton, 295 F.2d 516 (1)Cir., 1961) cert. denied

1967); Chabolla-Delgado v. I.N.S. 884 F.2d 360 (9 Cir., 1967) cert. denied
998 U.S. 865; Cortez v. N.S. 395 F.2d 965 (5 Cir., 1968) ; Kwai Chiu Yuen
v. LN. 406 F.2d 490 (9 Cir, 1969). The most recent decision, Yiu Fong
Cheung v. ILN.S. (D.C. Cir., March 20, 1969), states at footnote 10, “Since
the expulsion process is not a criminal proceeding there is no right to re-
main mute. at the deportation hearing...”

* Ab the oral argument, councol for the respondent with anmmandable oan.
dor acknowledged (Tr. p.3) that respondent has no basis for such a claim.

234
Interim Decision #1964

869 U.S. 820. It seems clear that Congress did not intend to
shield the alien from becoming an unwilling witness at his own
depurtation hearing.

Tt is true that due process requires that the deportation hear-
ing procedures meet currently prevailing standards of fairness,
Wong Yang Sang v. McGrath, 389 U.S. 88 (1950). We can see

: nothing inherently unfair in requiring a person suspeced of being
an alien to testify as to the true facts, even though his own testi-
mony may lead to his deportation. Indeed, once alienage is estab-
lished, the statute places the burden on the alien to show the
time, place, and manner of his entry and creates a presumption
of deportability if he fails to sustain that burden. See section 291
of the Act.

Effective enforcement of the immigration laws requires that
the true facts be established with a minimum of delay. If the sub-
joct of the inquiry is permitted to remain mute, the Service must
resort to other sources to establish the facts, and this usually takes
additional time, trouble, and expense. We see no valid reason to
impose on the Service this extra burden which confers no corre-
sponding legitimate benefit on the alien or any one else. Delay as
an end in itself, whether achieved by obstructionism or dilatory
tactics, cannot in our view be considered a legitimate object. See
Li Cheung v. Esperdy, 877 F.2d 189 (2 Cir., 1967); Kwong Chau
v. Esperdy, 276 F. Supp. 897 (S.D.N.Y., 1967) ; San Filippo v.
Mulcahey, 168 F. Supp. 877 (D. Mass., 1958).

As wo pointed out in Matter of Aguirre, Interim Decision No.
1940, execution of the special inquiry officer’s order has been
stayed during the pendency of this appeal.

Leer It is ordered that the appeal be and it is hereby dis-
issed.

It is further ordered that, pursuant to the special inquiry
officer’s order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this de-
cision or any extension beyond that date as may be granted by
the District Director; and that, in the event of failure so to de-
part, the respondent shall be deported as provided in the special
inquiry officer’s order.

235