Interim Decision #2485

MATTER OF BLAB

In Deportation Proceedings
A-18487421
Decided by Board August 2, 1974 and October 31, 1974
Decided by Attorney General March 10, 1976
(1) Although ilunily ties will ordinarily result in favorable exercise of administrative
discretion under section 245 of the Immigration and Nationality Act, they neither must
nor should do so where it appears that the alien has engaged in a course of deception
designed to produce those very ties.
(2)Where respondent in application for nonimmigrant visitor's visa made misleading and
incomplete statementd to the consular officer concerning his intentions in coming to the

United States, the whereabouts of his parents and the nature of his employment in the
Philippines, even though such misrepresentations did not amount to fraud or misrepresentation within the meaning of section 212(a)(19) of the Aet (Matter of S— and BC , 0 I. & N. Dec. 486 (A.G. 1051)), relief under section e.45 was denied notwithstand—

the fact that respondent has a U.S. citizen spouse, because such equity does not
overcome the adverse impact of respondent's misrepresentations in applying for entry
into the United States.
(3) Matter of Arai, 13 L & N. Dec. 494 (BIA 1970) reaffirmed.
ing

CHARGE:
Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor—
remained longer than permitted

ON BEHALF OF RESPONDENT:
John M. Weir, Esquire

ON BEHALF OF SERVICE:
Sam Bernsen
General Counsel
Paul C. Vincent
Appellate Trial Attorney

483 Castro Street

San Francise), California 94114

BEFORE THE BOARD
(August 2, 1974)
On April 18, 1973, an immigration judge found • the respondent
deportable as charged, granted him the privilege of voluntary departure, ordered his deportation to the Republic of the Philippines, in the
event of his failure to depart when and as required, denied Ida application for permanent residence status under section 245 of the Immigration and Nationality Act, in the exercise of administrative discretion,
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Interim Decision #2485
and certified the case to us for final decision. The immigration judge's
decision will be affirmed.
The respondent, a 38-year-old male native and citizen of the Philippines, was admitted to the United States at Honolulu, Hawaii, as a
visitor, on or about September 21, 1970. On November 13, 1972, he was
granted the privilege of departing voluntarily from the United States on
or before November 28, 1972, without the issuance of an order to show
cause. He failed to depart within the specified time. His deportability
under section 241(a)(2) of the Immigration and Nationality Act has been
established by clear, convincing, and unequivocal evidence.
On March 18, 1973, the respondent married a woman who obtained
United States citizenship a month later, and who, thereafter, filed a visa
petition to accord him immediate relative status. That petition was
approved.
At the hearing before the immigration judge, the respondent applied
for adjustment of his status to that of a permanent resident, under
section 245 of the Immigration and Nationality Act. The immigration
judge denied that relief in the exercise of administrative discretion, but
granted the respondent's alternative application for the privilege of
voluntary departure.
The respondent was adopted by a couple when he was only one and a
half years old (Tr., p. 23). His adoptive parents have resided in the
United States for many years (Tr., p. 22). They are United States
citizens. In his correspondence with them, he discussed with them the
matter of a visa petition to be filed by them on his behalf after his entry
into the United States (Tr., p. 22). When he filed his nonimmigrant visa
application with the American Consul in Manila he disclosed none of the
foregoing facts. On the contrary, he stated in his application that
neither of his parents was in the United States, and that he planned to
stay in the United States for 35 days. For the benefit of the American
Consul he described himself as a "supervisor" with Star-Lite Philippines, Inc. (Exhibit 3, Visa Application, Form FS-257a). Actually, he

was doing some contract work for that company (Tr. p. 27) after a
regular eight-hour working day with the Mitsui Corporation which
employed him as a draftsman (Tr., p. 25).

The record further shows that the respondent came to the United
States from the Philippines to get away from his family, that is, from his
wife and their four minor children (Tr., p. 18). He came here with the
intention to divorce his wife (Tr., p. 19), to remarry in the United States
(Tr., p. 19), and to stay here. When he applied for his nonimmigrant visa
with the American Consul he stated that his purpose was to take a
"pleasure trip" (Exhibit 3, Form FS-257a). He did not reveal his true
plans.
The respondent's adoptive parents filed a fourth-preference visa peti627

Interim Decision #2485 .
tion for him. However, during the times here pertinent, no visa numbers were available for natives of the Philippines who were within the
fourth-preference class. Eventually, the respondent's adoptive parents
withdrew thia visa petition which they had filed on his behalf (Tr., p. 21).
They have had no contacts with him for at least a year (Tr., p. 11).
The respondent has managed to carry out his preconceived plans. He
went to Nevada for two months (Tr., p. 16), secured a divorce from his
wife, who was, and still is, in the Philippines, and married his present

wife, who was then a lawful permanent resident of the United States.
The immigration judge is convinced that that kind of conduct should
preclude the granting of adjustment of status. Not finding any unusual
and appealing circumstances present, he denied the application for
section 245 relief. We fully agree.
We are quite aware of the difficulties which confront immigration
judges in matters of this kind. As in all other matters which involve the
exercise of administrative discretion, the immigration judge's decision
will depend, and must be based, on the facts of the particular case. In
voicing his concern, this immigration judge has added that the respondent's case is one of many in which aliens are proceeding in a similar
fashion, abandoning their families and causing tribulations to their
dependents. While the facts of record amply support the denial of this
respondent's application for section 245 relief, we emphasize that no
decision' should ever rest, or even give the slightest appearance of
resting, upon generalizations derived from evaluations of the actions of
members of any group of aliens. Every adjudication must be on a
case-by-case basis. Were we to promulgate overly strict guidelines, we
would, in erect, infringe upon the immigration judge's discretionary
authority. Thus, the guidelines which we adopted have of necessity
been general, and'not specific.
In Matter of Ortiz-Prieto, 11 I. & N. Dec. 317 (BIA 1965), we emphasized that:
.. the applicable statute does not contemplate that all aliens who meet the required
legal standardi will be granted adjustment of status to that of a permanent resident
since the grant of an application for adjustment of status is a matter of discretion and of
administrative grace. not mere eligibility; discretion must be exercised by the Attorney
General even though statutory prerequisites have been met."
In Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970), we attempted to
clarify the language which we had used in Ortiz-Prieto, supra. We
stated the following:
"It is difficult and probably inadvisable to set up restrictive guide lines for the exercise
of discretion. :Problems which may arise in applications for adjustment must of necessity
be resolved on an individual bisis. Where adverse factors are present in a given
application, it may be necessary for the applicant to offset these by a showing of unusual
or even outstanding equities. Generally, favorable factors such as family ties, hardship,
628

Interim Decision #2485
length of residence in the United States, etc., will be considered as countervailing
factors meriting favorable exercise of administrative discretion. In the absence of
adverse factors, adjustment will ordinarily be granted, still as a matter of discretion."

It appears that there is a need for further clarification.
Whenever an alien applies for discretionary relief in

immigration
matters, he bears the burden of showing why administrative discretion
should be favorably exercised. Thus, an alien who, at a hearing held
before an immigration judge, applies for adjustment of his status to that
of a lawful permanent resident, has the burden of establishing that the
requested relief should be granted in the exercise of discretion, 8 qR
242.17(d); Chen v. Foley, 385 F.2d 929 (C.A. 6, 196'7), cert. denied 393
T.J.S. 838; Thomaidis v. INS, 431 F.2d 711 (C.A. 9, 1970), cert. denied
401 U.S. 954; Matter of Ortiz-Prieto, supra.
Where an alien and the alien's spouse have been living apart for many
years, the marriage has existed, in name only, the alien visits in. the
United States, enters into a bona fide marriage with an American citizen
or lawful permanent resident after a divorce from the foreign spouse,
and becomes the beneficiary of an approved visa petition, and there are
no adverse factors present, the alien's application for adjustme4t of
status is not likely to present any problems. However, those are not thefacts in the case that is now before us; Here the respondent's scheme
precludes the favorable exercise of admims
' • trative discretion. The provisions of the Immigration and Nationality Act are supposed to favor
the reuniting of families. It would be unreasonable .to ascribe to Congress an intention to promote the breakup of aliens' marriages abroad.
We reject, as erroneous, any interpretation of the Arai standards which
would require a grant of adjustment of status in every case in which the
alien has succeeded in negotiating a marriage to a United States citizen
or to a lawful permanent resident alien. Specifically, we emphasize that
immigration judges are not required to disregard the abandonment of an
alien's spouse and children in every case in which the alien has, in this
country, divorced the spouse, and has remarried here. Remarriage in
this country does not excuse all else. Matter of Tayeb, 12 I. & N. Dec.
739 (BIA 1968).
Even the privilege of voluntary departure is not to be had for the
mere asking. Under the provisions of section 244(e) of the Immigration
and Nationality Act, an alien who applies for that privilege has to
"establish to the satisfaction of the Attorney General that he is, and his
been, a person of good moral character for at least five years immediately preceding his application for voluntary departure under this
subsection." In Matter of Gamboa, 14 L & N. Dec. 244 (BIA 1972), we
mentioned a few of the factors which will be considered when an application for the privilege of voluntary departure has been made. , Adjustment of status is a much higher form of discretionary relief than a grant
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Interim Decision #2485
of voluntary departure. While the provisions of section 245 of the Act,
unlike those of section 244(e), do not specifically require that the alien
have been a :person of good moral character during a certain period of
time, an alien's . good moral character or lack thereof is an important
factor.

Adjustment of status under section 245 of the Act was not designed to
supersede the regular consular visa-issuing processes or to be granted
in non -meritorious cases. Chen v. Foley, supra. An applicant who meets
the objective prerequisites for adjustment of status is in no way entitled
to that relief. Jarecha v. INS, 417 F.2d 220 (C.A. 5, 1969). That relief is
extraordinary inasmuch as it dispenses with ordinary immigration procedures. Chen v. Foley, supra. We therefore held in Matter of OrtizPrieto, supra, and affirm, that the extraordinary discretionary relief
provided in section 245 of the Act can only be granted in meritorious
cases, and that the burden is always upon the alien to establish that his
application for that relief merits favorable consideration. See also Santos v. INS, 375 F.2d 262 (C.A. 9, 1967); Diric v. INS, 400 F.2d 658 (C.A.
9, 1968), cert. denied 394 U.S 1015.
In Matter cfArdi, supra, at page 496, we had stated the following: "In
the absence of adverse factors, adjUstment will, ordinarily be granted,
still as a mat:4r of discretion." That stateinent should not be misinterpreted as im?Iying that adjustment of status must be granted in the
absence of major adverse factors, or that the Service has the burden of
showing that the alien is not entitled to adjustment of status. Adjustment of statue pursuant to section 245 of the Immigration and Nationality Act may be granted where the alien has established that
favorable exercise of discretion is warranted.
The immigration judge's decision was correct. It will be affirmed.
ORDER: The decision of the immigration judge denying the respondent's application for permanent resident status under section 245 of the
Immigration and Nationality Act is affirmed.

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
without expense to the Government within 30 clays from the date of this
order or any extension beyond that time as may be granted•by the
district director, and under such conditions as the district director shall
direct.
Further order: In the event of the respondent's failure to depart when
and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings, and the following order
shall thereupon become immediately effective: the respondent shall be
deported from the United States to the Republic of the Philippines on
the charge contained in the order to show cause.
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Interim Decision #2485
Maurice A. Roberts, Chairman, Dissenting:
I respectfully dissent from the decision of the majority. In the guise of
"clarification", the Board today recedes from the general (and, in my
view realistic) criteria laid down in Matter of Arai, 13 I. & N. Dec. 494
(MA! 1970). In doing so, it opens the door to the vague standards which
prevailed in our pre-Arai formulations. In my estimation, denial of
section 245 adjustment is not warranted on this record, either on the
basis articulated by the immigration judge or on the somewhat different

rationale advanced by the majority of this Board.
The respondent is a 40-year-old, married male alien, a native and
citizen of the Philippines, who was admitted to the United States as a
nonimmigrant visitor on or about September 21, 1970 and remained
longer than permitted. He left behind in the Philippines his wife and
four minor children. He and his wife had had various differences and
before he left the Philippines he had made up his mind to divorce her in
the United States, as there is no divorce in the Philippines (Tr. pp. 11,
18, 19, 20). On arrival, he stayed with his adoptive parents, United
States citizens, who had adopted him in the Philippines when he was a
year and a half old. A few weeks after arrival, he met Rufina Agcaoili, a
native of the Philippines, who was then a permanent resident and is now
a citizen of the United States_ She became his "girl friend," and after
obtaining a divorce from his wife in Reno, Nevada, respondent and
Rufina were married on March 18, 1973. The bona fides of that marriage
is not disputed' (Tr. p. 35). On the approval of Rufina's immediate
relative visa petition in his behalf, the respondent became eligible for
adjustment of status under section 245 of the Immigration and Nationality Act.
At the deportation hearing, respondent's deportability was not seriously disputed and he applied for section 245 adjustment. The immigra-

tion judge apparently found him to be statutorily eligible for the relief
sought, but denied it in the exercise of discretion and certified his

decision to the Board for review. The immigration judge apparently
concluded' that the respondent had had a preconceived intent to remain
here when he applied for his nonimmigrant visa. This adverse factor, he
concluded, was not sufficiently counterbalanced by "unusual and appealing , circumstances" to warrant a grant of relief. The precise basis for his
unfavorable exercise of discretion was stated as follows (opinion, pp.
2-3):
This type of case, and there are many of them, distresses me more than any other
kind I am required to hear. The word has gotten around that if an alien marries a citizen
or permanent resident he can stay. Indeed, in the instant case, the respondent admitted.
that when he came to the United States it was with the intention of divorcing his wife
and remarrying so he would not have to leave. Consequently each time I am confronted
with an application for permanent residence in such a case, I feel that if I grant it, my
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Interim Decision #2485
decision will serve to encourage other aliens to desert their families abroad and that, in
part, I will be responsible. I am cognizant of the fact if an alien is forced to leave the
United Staten, it will result in a hardship to his wife here, but I cannot overlook the
tribulations to which he has subjected his overseas family.
If applications in such cases were to be denied except where there are unusual and
appealing circumstances present, it might help to ameliorate the problem. However, it
is not one that acting individually, I can resolve. It is more a policy question to which the
Board of Immigration Appeals should address itself. Accordingly, although I shall deny
the application because I do not find any unusual or appealing circumstances present, I
shall certify the case to the Board of Immigration Appeals for final decision.
The immigration judge's failure to make specific fact findings leaves
me somewhat in the dark as to just what he meant when he referred to
"[Oils type of case" and "such cases", in which he believes denial of
relief should be the rule. I can only infer that the immigration judge
concluded that respondent's case followed the factual pattern of many
other cases which he had adjudicated and which had distressed him. In
those pattern cases, presumably, the alien without justification disrupted an otherwise viable marriage and deserted his wife and children
in the Philippines with the intent of coming to the United States in the
guise of a nonimmigrant visitor, obtaining a quick divorce here, and
promptly marrying a United States citizen whose visa petition in his
behalf would pave the way for section 245 adjustment. If the immigration judge thus appraised the respondent's situation, the record does not
support the appraisal.
On the record, it is not at all clear, that the break-up of respondent's
first marriage was attributable to fault on respondent's part. The record
does not clearly develop who was at fault. The respondent testified that
he and his first wife had had "varying differences" and that he came to
the United States "to avoid trouble with her family" (Tr. p. 11); that
"she prefers to live with her parents and I don't like it so I have to
leave—live away from them" (Tr. p. 18); that his relationship with his
former wife in the Philippines was not very good (Tr. p. 20); that his
return to her would cause him the same "mental anguish" (Tr. p. 21).
Conceivably, the break-up .of the marriage could have been attributable
to fault on the part of respondent's wife. Conceivably, the respondent
may have been fully justified as a matter of law in leaving her. Consequently, unless we are to say that it is completely immaterial that the
wife may have been solely responsible for the failure of the marriage, if
this question is one which is relevant in the grant or denial of discretionary relief, it should have been developed of record. Certainly, the
evidence does not support a finding that the respondent without justification disrupted an otherwise viable marriage for the purpose of achieving permanent residence in the United States.
Similarly, the record does not support the notion that the respondent
deserted and failed to support his children. The respondent testified

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that he sent money periodically to his wife and children in the Philippines (Tr. pp. 13-15). The divorce decree required him to send $25
monthly for the support of each child and $50 for his first wife. He
testified he complied fully (Tr. pp. 14-15) and the immigration judge did
not accept the trial attorney's suggestion that respondent be required to
submit cancelled checks to prove such . compliance (Tr. p. 15). The
immigration judge apparently concluded that discretionary denial was
warranted even if respondent could prove compliance. The immigration
judge justified his disregard for the hardship to respondent's citizen wife
because "I cannot overlook the tribulations to which he has subjected his
overseas family" (Opinion, p. 3). The record is devoid of evidence of such
tribulations.
In thus making fact findings and drawing conclusions based on matters outside the administrative record, the immigration judge repeated
a pattern already manifested in other cases involving Filipino applicants
for section 245 adjustment. In Matter of Salvador, file A-17207299
(unreported), the same immigration judge stated:
"By now, everyone dealing with such matters is aware that aliens from the Philippines
engage in any fraud to get here and will do anything to stay. Attorneys have
repeatedly informed me that 'when they are consulted by aliens who have been told to
leave the United States they inform them that unless they are married to citizens or
permanent residents, nothing can be done for them. The advice sivenby such attorneys
is quite accurate and results in cases like this.
In the San Francisco district we have been inundated with cases of aliens who have
obtained their visitor's visas by fraud and who have gotten married after they were told
they must leave the United States. When an alien enters into a marriage forced by the
knowledge that he must otherwise return to the Philippines, it may reasonably be
inferred that such marriage will last only long enough for permanent resident status to
be acquired. There may be a hardship to a spouse to require an alien to leave the United
States in those few cases where the marriages are bona fide; but this should not be the
overriding consideration. The Board of Immigration Appeals has recognized that unless
there is adherence to the policy of requiring departure, effective administration of the
immigration laws can be seriously impeded. Matter of AI, 3 I. & N, Dec. 490.
The inning
' ration laws should not be administered in such fashion as to encourage an
alien to perpetuate a fraud on the Government so he can get here and then, instead of
punishing him, reward him with permanent resident status. It will only assure that
more and more aliens will engage in such frauds. Indeed, it has long since produced that
result. The saddest of these eases are those like the instant one in which the adininistration of the law has caused aliens to forsake their wives and children in the Philippines."
will

See also Matter of Macapinlae, file A-18988654 (unreported), in which
the same immigration judge stated:
"By now, everyone dealing with such matters is aware that aliens from the Philippines
will engage in any fraud to get here and will, do anything to stay. Attorneys have
repeatedly informed me that when they are consulted by aliens who have been told to
leave the United States they inform them that unless they are married to citizens or
permanent residents, nothing can be done for them. The advice given by 'such attorneys
is quite accurate and results in cases like this.

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Interim Decision #2485
In the San Francisco District we have been inundated with cases of aliens who have
obtained their visitor visas by fraud and who have gotten married after they were told
that they must leave the United States. When such an alien marries it is undoubtedly a
continuation of the fraud and the 'marriage lasts only long enough for permanent
resident status to be acquired. There may be a hardship to a spouse to require an alien
to leave the Uni ;ad States in those few cases where the marriages are bona fide; but this
should not be the overriding consideration. The immigration laws should not be administered in such fashion as to encourage an alien to perpetrate a fraud on the
government so ne can get here and then, instead of punishing him, reward him with
permanent resident status. It will only insure that more and more aliens will engage in
such frauds. Inc eed, it has long since produced that result. The saddest of these cases
are those like the instant one in which the administration of the law has caused the
desertion of wives and children in the Philippines. In this ease there was fraud in
obtaining the visitor's visa, a wife and eight children in the Philippines were deserted,
and the respondent married after he was told to leave the United States. He should be
deported."

In Mar Gong v. Brownell, 209 F.2d 448 (C.A.9, 1954), in reversing a
judgment and remanding for new findings, the court stated (at app. 450,
453):
"What has canoed thin court considerable difficulty in the application of the rule just
mentioned, is the fact that the trial court in directing the preparation of findings in favor
of the defendant, filed an extensive opinion which creates the impression that the •
findings are predicated upon considerations other than the evidence given in this
particular cam.• (p. 450).

*****
"The situation here is in many respects similar to that which confronted us in
Takehara v. Miles, supra, in which we reversed ajudgment of the trial court denying a
similar application for adjudication of citizenship for the reason that we were convinced
that the trial court in making its findings had done so in reliance upon considerations
which in our opinion should have carried no weight in that particular case. Similarly we
think that the ccurt here should not have given weight to its experiences, unfortunate
as they may has e been, in other cases, in arriving at its findings with respect to the
appellant. Each case should be allowed to stand upon its own bottom." (p. 453).

It seems to me that the immigration judge here, in exercising administrative discretion unfavorably to the respondent, improperly gave
weight to his experiences in other cases involving Filipinos in arriving
at his findings with respect to the respondent. The immigration judge's
conclusion that the respondent left his wife without cause and deserted

his children is not supported by the evidence of record. Reversal would
be warranted on this basis even if there were no other. But there is
another.
I call attention to the immigration judge's foregoing lapse, not in
disparagement of the immigration judge, who is a keen observer and a
good lawyer, but to underscore the need for objective standards in
exercising administrative discretion. Mere eligibility for the relief
sought is, of course, merely one of the elements; discretion must still be

exercised. The immigration judges (and the members of this Board on
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appeal) wield awesome power in exercising administrative discretion.
Where, as here, a deportable alien is married in good faith to a United
States citizen wife and is eligible to have his status adjusted so that he
can remain here with her permanently, our discretionary determination
can either permit them to remain united or tear them apart. There are
thirty-one immigration judges throughout the United States and five
members of the Board. Unless some objective standards are laid down
for the exercise of administrative discretion, decisions could be based on
our own unfettered and subjective notions. An intolerant immigration
judge could deny relief to aliens whose cultural patterns, moral standards, or life style differed from his own. A hostile or xenophobic
immigration judge could vent his spleen on aliens he personally considered offensive without articulating the actual basis for his decision.
Unless standards are laid down which are not illusory and can be
uniformly applied, we depart from even-handed justice and the rule of
law.
The criteria which we have announced from time to time in our
reported pre-Arai decisions have not been meaningfully adequate and
have been the subject of extensive criticism. See, e.g., Sofaer, Judicial

Control of Informal Discretionary Adjudication and Enforcement, 72
Col. L. Rev. 1293 (1972); Ameeriar v. INS, 438 F.2d 1028 (C.A. 3,
1971).

We held at an early date that an alien to whom a nonquota visa was
available abroad and who entered as a nonimmigrant with the intention
of obtaining section 245 adjustment, thereby circumventing the consular
visa-issuing process, should be denied adjustment in the exercise of
discretion, Matter of Garcia-Castillo, 10 I. & N. Dec. 516, 790 (BIA,
1964). Where the intention to remain here permanently was formulated
after nonimmigrant entry, we authorized adjustment, Matter of Barrios, 10 I. & N. Dec. 172 (BIA 1963). In the face of circumvention of the

consular visa-issuing process, we held that "substantial equities" should
should be favorably exercised, Matter of
Rubio-Vargas, 11 I. & N. Dec. 167 (BIA 1965). In Matter of OrtizPrieto, 11 I. & N. Dec. 317 (BIA 1965), we went further and sustained
the denial of relief in the exercise of discretion to an eligible alien who
had acted in good faith because there were no "outstanding equities" in
his case. In Matter of Leger, 11 I. & N. Dec. 796 (BIA 1966), we stated,
"There must be outstanding equities" in his case. In Matter of Leger, 11
I. & N. Dec. 796 (BIA 1966), we stated, "There must be outstanding
equities, in a general meritorious case, to warrant [the grant of adjustment]." In Matter of Ramirez, 12 I. & N. Dee. 78 (BIA 1967), we held
that section 245 adjustment "should only be granted in meritorious
cases."
Because of growing discontent with the illusory standards theretofore
be required before discretion

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announced, a more meaningful criterion was attempted in Matter of
Arai, 13 I. & N. Dec. 494 (BIA 1970). Clarifying and modifying the
language of Matter of Ortiz-Prieto, supra, we set forth the following
superseding guide-lines:,
"It is difficult and probably inadvisable to set up restrictive guide lines for the
exercise of discretion. Problems which may arise in applications for adjustment of status
must of necessity be resolved on an individual basis. Where adverse factors are present
in a given application, it may be necessary for the applicant to offset those by a showing
of unusual or oven outstanding equities. Generally, favorable factors such as family
ties, hardship, length of residence in the United States, etc., will be considered as
countervailing factors meriting favorable exercise of administrative discretion. In the
absence of adverse factors, adjustment will ordinarily be granted, still as a matter of
discretion," (Emphasis supplied).
These standards have proved to be generally satisfactory. Most of the
immigration judges have evinced little difficulty in accepting them (as
they are bound to do) and in applying them. I see no sound reason to
recede from those standards, in the guise of "clarifying" them, and going
back to the former illustory standards. The Board today affirms (Opinion, p. 7) the Ortiz-Prieto holding that section 245 relief can only be
granted in "meritorious" cases. A requirement that a case be "meritorious" is illusory unless the term is defined. Without further guide lines to
determine which case is meritorious and which case is not, it is left to
each immigration judge to make this value judgment of the basis of his
own subjective notions.
Thus, one immigration judge may consider a case lacking in merit if
the alien has divorced his spouse abroad, regardless of who was at fault.
Another may find an absence of merit only if the break-up of the
marriage was attributable to the alien applying for section 245 relief.
Another may focus instead on the bona-fides of the marriage to the
United States citizen spouse and the effect upon that marriage of the
alien's enforced departure. Conceivably, some immigration judge might
conclude that a case is meritorious if the grant of section 245 adjustment

will help to ir aintain the integrity of the American marriage, even
though the alien's prior conduct was such as would, standing alone,
warrant denial. In my estimation, it is more in keeping with the Congressional intent underlying such remedial measures to focus on the
needs of the American family.
The favorable exercise .of administrative discretion in behalf of a
section 245 applicant whose prior conduct may have been less than
acceptable does not necessarily constitute approval of such conduct.
Good moral character is not a statutory prerequisite to the issuance of
an immigrant 'Ilea or to entry into the United States. Neither is good

moral character a statutory requirement for section 245 eligibility. We
have held that in determining whether to exercise administrative dis636

Interim Decision #2485
cretion favorably in behalf of an eligible alien, we may properly consider
his moral character as a relevant factor. The courts have sustained us in
this view. It by no means follows, however, that the favorable exercise
of discretion constitutes an endorsement of all the alien's prior conduct.
If that were so, we could hardly grant relief to any alien whose prior
conduct we consider immoral or otherwise improper.
In granting discretionary relief to an eligible alien who has otherwise
erred, we do so despite his transgression. Far from approving his
misconduct, our grant of relief is a discretionary determination that
there are factors present which, on balance, warrant forebearance even
in the face of the adverse factors. That was the consideration underlying
the rule we enunciated in Matter of Arai, supra, which I have underscored in the excerpt quoted above. I think that was a good rule and that
it is a mistake to recede from it in favor of the vague and illusory
standard that the case be "meritorious."
The respondent is living with and supporting his United States citizen
wife. This was not a contrived, last-minute relationship. The respondent
and his wife met shortly after his arrival in 1970 and were married on
March 18, 1973, shortly after his divorce from his first wife. The bonafides of the marriage is not disputed. Respondent is contributing $150 a
month for the support of his children and former wife in the Philippines.
If he were outside the United States now, he could readily obtain an
immigrant visa and return to the United States for permanent residence, since an immigrant visa is immediately available to him. Thus, at
a minimum, the net effect of denying section 245 relief will be to require
the expenditure of funds needed for a round trip to the Philippines and
for the respondent's maintenance there pending issuance of the visa.
With stated exceptions not here applicable, section 245 was designed to
obviate the need for such departure and return by an alien to whom a
visa is thus readily available. The respondent's departure will disrupt,
temporarily at least, his marriage to a United States citizen and will cost
much money. It will not, in any event, restore him to his family in the
Philippines. Such a harsh result is not required to vindicate the integrity of our visa-issuing process.
The Board today not only reestablishes the vague pre-Arai standards
but asserts a new and regressive notion: "The provisions of the Immigration and Nationality Act are supposed to favor the reuniting of
families." (Opinion, p. 6; emphasis in original). This novel hypothesis,
with its emphasis on reuniting, downgrades the notion that the immigration laws are also intent on uniting (i.e., not separating) existing
family units. The implication is that Congress was concerned only with
relief for aliens abroad who already had an American family member
(i.e., reuniting an already-existing family) and not with aliens already
here whose American family member was acquired after entry. The
637

Interim Decision #2485
cases do not support this thesis. See, e.g., INS v. Errico, 385 U.S. 214
(1966). The statute there involved was liberally construed in light of the
Congressional policy of uniting families. It is interesting to note that
both aliens there involved acquired their American families after entry.
The statutory provision there involved, section 241(f) of the Act, is not
discretionary but mandatory. It bars the deportation of aliens who
obtained visas or entry by fraud if they have the necessary familial ties
to American citizens or legally resident aliens. Can it be imagined that
Congress intended to be less generous in the case of an American citizen
whose alien spouse already has visa eligibility?
Congress has indicated its desire to keep family units together by
allowing otlerwise ineligible aliens to enter or remain in the United
States with close relatives who are citizens or resident aliens. The
Board now twists this beneficient policy into one that results in the
denial of relief to eligible aliens in order to force them to join (or to
discourage them from leaving) their family members abroad. Whatever
dubious validity such a policy might have in cases where the eligible
alien is still free to rejoin his family members abroad, it can have no
justification in a situation such as the present one, where the family tie
abroad has 'seen completely severed and the alien is now part of a bona
fide American family unit. I find it hard to believe that Congress
intended the immigration laws to be enforced in such a way as to break

up the American family unit out of compassion for the disrupted foreign
family unit, especially when it is clear, in a realistic sense, that the
foreign family unit cannot again be made whole. Such a result is destructive. It injures the American citizen without at the same time helping
the disrupted family abroad. Congress could never have intended such a
result.
For the ±bregoing reasons, I would sustain the appeal and grant
respondent's application for adjustment under section 245.
Louisa Wilson, Member, Dissenting!

I concur in the opinion of the Chairman and would sustain the appeal
and grant the respondent's application for adjustment of status under
section 245 of the Immigration and Nationality Act.
BEFORE THE BOARD

(October 31, 1974)
The Board being evenly divided as to the nature of the order to be
entered on the Service's motion, the motion will be denied without
opinion. The Chairman believes that the case should be referred to the

Attorney General for review under 8 CFR 3.1(h)(ii).
ORDER: The motion is denied.
638

Interim Decision #2485
Further order: The record is referred to the Attorney General for
review pursuant to 8 CFR 3.1(h)(ii).
BEFORE THE ATTORNEY GENERAL
(March 10, 1976)

This matter was referred to me for review pursuant to 8 CFR §
by the then Chairman of the Board of Immigration
Appeals. In the proceedings below, respondent was found to have
overstayed his nonimmigrant visitor's visa and, accordingly, -to be
deportable under Section 241(a)(2) of the Immigration and Nationality
Act (hereinafter referred to as the "Act"), 8 U.S.C. § 1251(a)(2). He was
granted permission by the immigration judge to depart voluntarily from
the United States in lieu of deportation. During his hearing before the
immigration judge, respondent submitted an - application under Section
245 of the Act, 8 U.S.C. § 1255, for adjustment of his status to that of an
alien lawfully admitted for permanent residence based upon his marriage to an American citizen. That application was denied as a matter of
discretion. The Board of Immigration Appeals unanimously agreed that
respondent was deportable and, in a divided decision, affirmed the
immigration judge's denial of Section 245 relief: In the event respondent
failed to depart when and as provided, the Board ordered him deported _
The respondent, Pedro Calija Blas, is a 41-year-old male citizen of the
Philippines. He was admitted to the United States as a nonimmigrant
visitor on or about September 21, 1970. The length of stay proposed in
his visa application was thirty-five days. On November 13, 1972, respondent was granted the privilege of departing voluntarily from the
United States on or before November 28, 1972, without the issuance of
an order to show cause, but failed to depart within the specified time.
When respondent came to the United States, he left behind in the
Philippines a wife and four minor children. He and his wife had had
various differences and, before leaving the Philippines; he decided to
obtain a divorce in the United States (Tr. at 11, 18, 19, 20), there being
no provision for divorce in the Philippines. He further hoped to remarry
in the United States following his divorce. and to remain in this country
(Tr. at 19).
On his arrival, respondent stayed with his adoptive parents, United
States citizens, who had adopted him in the Philippines when he was a
year and a half old. The deportation hearing developed that he had
communicated with them _prior to coming to the United States with a
view to having them submit a petition for his permanent residence (Tr.
at 18, 20, 22). Although the record is unclear, it appears that they did
file a petition to accord him immediate relative status which was approved on May 31, 1972. This petition, however, appears never to have
2.1(h)(ii)(1975)

639

Interim Decision #2485
matured into adjustment to permanent resident status,' and because of
disagreement growing out of his upcoming divorce and remarriage, his
adoptive parents subsequently withdrew their petition, and approval
was revoked cn November 8, 1972.
A few weeks after arrival, respondent met Rufina Agcaoili, a native

of the Philipp ines, who was then a permanent resident and is now a
citizen of the United States. She became his "girl friend." In early 1973, respondent ob.:ained a divorce from his wife in Reno, Nevada. On March
18, 1973, respondent and Rufina were married. The bona fides of that
marriage is nct in question (Tr. at 35). Respondent's present wife has
filed an immediate relative visa petition in his behalf, and that petition
has been approved.
When he applied for his visitor's visa, respondent stated that the
purpose of his visit was simply a "pleasure trip." He gave no indication
of his intention to obtain a United States divorce while here, nor of his
intention to visit his adoptive parents. He stated in his application that
his "parents" were not in the United States, and that he was employed
as a "Supervisor" by Starlite-Philippines, Inc. in Manila. While respondent's natural parents were not in the United States, his adoptive
parents, as noted above, were, and he intended to visit them. Furthermore, the record reveals that while respondent did contract work for
Starlite at theta, he worked a regular eight hour day as a draftsman for
-

the Mitsui Corporation. While none of these facts, if revealed, would
legally have barred his entry into the United States as a visitor, his
misrepresentations taken together created the impression that his ties
to the Philippines were significantly stronger than they were in fact.
Inasmuch as those ties would bolster the likelihood that respondent
would leave the United States and return to the Philippines when his
visa expired, Lis failure to disclose fully the facts relating to his background and intentions may have enhanced the likelihood that a nonimmigrant visa would be issued.
The omissions discussed above, my view of the quality of which will

be elaborated upon infra, are serious when viewed in light of the
totality of the circumstances of this case. However I conclude that they
do not amount to fraud or willful misrepresentation of a material fact so
as to preclude eligibility for a. visa under Section 212(a)(19) of the Act, 8
U.S.C. 1182(a)(19). See Matter of 3— and B—C—, 9 I. & N. Dee. 436
(A.G. 1961). Therefore, I find respondent eligible for adjustment of
status under Section 245.
While respondent meets the statutory requirements for adjustment of
status, the immigration judge, and the Board on appeal, denied that
The Board of 1:mmigration Appeals found that during the times here pertinent the
fourth preference quota for the Philippines into which the petition of his step-parents put
respondent was oversubscribed.

640

Interim Decision #2485
relief in the exercise of administrative discretion. The appropriateness
of the Board's decision is now before me.
The Board has held that Section 245 does not contemplate. . . that all aliens who meet the required legal standards will be granted adjustment of
the grant of an application for adjustment of
status is a matter of discretion and of administrative grace, not mere eligil3ility;
discretion must be exercised by the Attorney General even though statutory prerequisites have been met.
status to that of a permanent resident since

Matter of Ortiz Prieto, 11 I. & N. Dec. 317 (BIA 1965); see Santos V.
INS, 375 F.2d 262 (C.A. 9, 1967). Discretion does not, however, imply a

decision without standards or that standards perceived as generally
applicable should remain the private beacon of the decision-maker.
Rather when a balance of positive and adverse factors can be struck in
general terms which, while retaining flexibility, provides both a
touchstone for future decision-making and a focus for future argument
by parties involved, such a determination should be expressed, disseminated, and maintained unless and until subsequently shown to be
unworkable or unjust. See Sofa,er, Judicial Control of Informal Discretionary Adjudication and Enforcement, 72 Colum. L. Rev. 129p (1972);
Roberts, The Exercise of Administrative Discretion Under the Immigration Laws, 13 San Diego L. Rev. 144 (1975); Davis, Administrative
Law Taut (1972) Ch. 4. Such guidelines were advanced by the Board
with respect, to Section 245 petitions in Matter of Arai, 13 I. & N. Dec.

494 (BIA 1970):
It is difficult and probably inadvisable to set up restrictive guide lines for the exercise
of discretion. Problems which may arise in applications for adjustment of status must of
necessity be resolved on, an individual basis. Where adverse factors are present in a
given application, it may be necessary for the applicant to offset these by a showing of
unusual or even outstanding equities. Generally, favorable factors Such as family ties,
hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence
of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion.

Procedurally, this statement by the Board does not establish rigid rules
which deny to immigration judges the flexibility necessary to . carry out
their duty to analyze sensitively the competing factors in each particular
case. It does, however, call for an explanation when certain considerations which would ordinarily be' regarded as significant are not
dispositive. In requiring such an explanation, the Arai standard
adopted by the Board attempts to move toward greater equity in the
exercise of discretionary adjustment authority.
Substantively, with regard to the spousal relation at issue here, the
standard is consistent with the special solicitude which the courts, in
other contexts, have found appropriate in treating marital affairs. Cf.
Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Loving v. Virginia,
641

Interim Decision #2485
388 U.S. 1, 12 (1967). Likewise Congress has indicated that in the area
of immigration law, close family ties are to be accorded special significance. See Sections 201, 203, 212(i), 241(f) of the Act, 8 U.S.C. §§ 1151,
1153, 1182(i), 1251(f). Although adjustment is not necessarily available
on a simple showing of eligibility, that showing, particularly where

eligibility carries with it its own strong equities, as with immediate
relative status, can have a positive influence on the exercise of discretion and in the absence of adverse circumstances should prevail. 2
Although an application for adjustment based on immediate relative
status is thus initially appealing, the quality of the case presented can be
undercut. Most damaging, of course, is the presence of factors raising
doubts as to the bona fides of the underlying relationship between the
alien and the citizen. No substantial factors of this nature appear in this
case. The record is as assessed by the immigration judge:
From what I can see of this case, the marriage is apparently a bona fide one. In that
respect it *lifers from a number that I've had. I believe we have no cause at least to
suspect that the marriage is not a bona fide one.

(Tr. at 35).
The immigration judge and a majority of the Board, however, have
advanced two other policy considerations believed by both to outweigh
any equities favoring preservation of respondent's present marriage
through adjustinent of his status. The record does indicate that respondent entered the United States with the intention of divorcing his wife
who remained in the Philippines. It also indicates that he came to this
country harbouring hopes that arrangements could be made which
would allow him legally to stay. Specifically, he hoped that either remarriage to an American citizen or an adjustment petition filed by his
adoptive parents would lead to permanent residence (Tr. at 19-20). The
immigration judge and the majority of the Board found that in pursuing
his plans, respondent did not reveal relevant facts to the American
Consul at the time of his visa application. The judge and a majority of
the Board were of the opinion that to grant adjustment under these
circumstances would be to condone fraud in the visa process and to
promote the abandonment of a foreign spouse -and children.
Primary emphasis in both the trial judge's opinion and in the prevailing appellate opinion is placed upon the view that adjustment on the
facts of this case would constitute unjustified complicity in the abandonment of respondent's former wife and children. But a denial of
adjustment will not restore Blas to his family. He is now legally divorced. He has been away from the Philippines for more than four
2 As pointed out in Chairman Roberts' dissent in this case, the equities in preserving a
current bona fide marriage are no less simply because that marriage occurred after entry
into the United States.

642

Interim Decision #2485
years. The foreign family unit cannot again be made whole, and responsibility for precipitation of its dissolution is by no means clear. In sum,
this record does not support denial of adjustment for the purpose of
vindicating respondent's former marriage. 3
Although both the immigration judge and a majority of the appellate

board relied primarily on the effect of adjustment upon the foreign
marriage, both made findings concerning, and offered as a subsidiary
ground for denial of adjustment, respondent's misleading responses in
seeking his initial visitor's visa. These factual distortions, noted above,
served, and appear to have been intended to serve, to mislead immigration officials concerning the true nature and purpose of respondent's
desire to enter the United States. I conclude therefore that those
responses, in the context presented by this case, warrant denial of
respondent's Section 245_ application.
In reaching this conclusion, I am mindful of the general balance struck
by Congress in the deportation context between the equities of immediate relative status and the deleterious systemic consequences of
condoning fraud in the procurement of entry documents. Section 241(f)
of the Immigration and Nationality Act, 8 U.S.C. § 1251(f), states:
The provisions of this section relating to the deportation of aliens within the United
States on the ground that they were excludable at the time of entry as aliens who have
sought to procure, or have procured visas or other documentation, or entry into the
United States by fraud or misrepresentation shall not apply to an alien otherwise
admissible at the time of entry who is the spouse, parent or a child of a United States
citizen or of an alien lawfully admitted for permanent residence.

While this provision offers no relief to those whose fraud concealed an
independent substantive ground for deportation, it does waive deportation based on the act of fraud itself when after-acquired family ties are
raised. Reid v. INS, 420 U.S. 619 (1975).
Section 241(f) is not, of course, specifically applicable to Section 245
adjustment determinations. Furthermore, on the peculiar facts of this
case, it is my opinion that it does not control the exercise of my discretion. Here the misleading omissions which occurred, while not rising to
the level of actual fraud, were in furtherance of a concerted plan calculated to produce the equity which respondent now asserts should
support favorable exercise of administrative discretion—to wit, an
American marriage. Such conscious construction of an equity must in
the nature of things dilute the quality of that equity and abate its ability
to counterbalance the adverse impact of actions committed to produce
it. Although family ties will ordinarily result in favorable exercise of
Section 245 administrative discretion, it is my opinion that they neither
3 As all five members of the Board of Immigration Appeals were quick to point out, only
the facts of this case are relevant to its decision. Generalizations concerning any group of
aliens or judgments formed on the basis of factsin other cases are altogether out of place.

643

Interim Decision #2485
must nor should do so where it appears that the alien has engaged in a
course of deception designed to produce those very ties. Since this case
presents no alternative affirmative equities sufficient to overcome the
' adverse impact of respondent's misrepresentations in applying for entry
to this country, the denial of respondent's Section 245 application was
appropriate.

For the reasons stated above, the order of the Board of Immigration
Appeals denying respondent's application for permanent resident
status, permitting respondent to depart voluntarily from the United

States, and, should respondent fail to. so depart, providing for his
deportation :s affirmed.


Interim Decision #2834

MATTER OF YIR-HSIUNG

WANG

In Deportation Proceedings
A44957191

Decided by Board November 5, 1980
(1) The Board of Immigration Appeals has no appellate jurisdiction over a District
Director's denial of pre-hearing voluntary departure or his denial of a respondent's
post-hearing request for an extension of his voluntary departure period, and any
challenges to such denials must be raised in Federal Court. See 8 C.F.R. 242.5(b) and
244.2
(2) The voluntary departure of a respondent from the United States pursuant to an
immigration judge's order after the District Director's denial of his request for an
extension of the voluntary departure period imparts a finality to the deportation
proceedings and results in the alien's departure being considered "in pursuance of
law." See section 101(g) and 106(e) of the Immigration and Nationality Act.
(3) The respondent, who voluntarily departed from the United States accompanied by
counsel, could not thereafter successfully move to reopen the prior deportation
proceedings to raise issues which should have been presented prior to departure.
Mendez v. INS, 563 F.2d 956 (9 Cir. 1977), distinguished.
CHARGE:
Orden Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant student—
remained longer than permitted
ON BEIIALF OF RESPONDENT:
Frank S. Pestana, Esquire
Kidwell & Pestana
4214 Beverly Boulevard
Suite 223
Los Angeles, California 90004

ON BEHALF OF SERVICE:

Gerald S. Hurwitz
Appellate Trial Attorney
William F. Nail
Trial Attorney

Br: Milhollan, Chairman; Maniatie, Appleman, and Maguire,

Board Members

The respondent appeals from the October 29, 1979, decision of the
immigration judge denying his motion to reopen deportation proceedings. The appeal will be dismissed.
The respondent is a 29-year-old native and citizen of China. He first
entered the United States in March 1966 as a nonimmigrant student.
He departed the United States for short periods in 1971 and 1974. He
apparently reentered on both occasions in a nonimmigrant student
565

Interim Decision #2834
status. In February 1977, the respondent's United States citizen
brother filed a visa petition on his behalf that was approved in
September 1977. In August 1977, the respondent married a lawful
permanent resident, who also filed a visa petition on his behalf. This
"second preference" visa petition was approved in February 1978.
The respondent had worked without Service permission in 1977 and
was ineligible for adjustment of status under the provisions of section
-

245 of the Act, 8 U.S.C. 1255_ See section 245(e)(2). The approved

"second-preference" visa petition, therefore, was forwarded to the
United States Consulate at Winnipeg, Canada, for processing. The
consulate apparently declined to accept jurisdiction over the case
unless the Service would provide assurances that the respondent would
be permitted to remain in the United States pending the processing of
the application for permanent residence. The District Director having
jurisdiction over the respondent's case, however, refused to grant
"voluntary departure prior to commencement of hearing," the
procedure under which certain aliens are permitted to remain in the
United States until visa processing is completed at a consulate. See 8
C.F.R. 242.5 (1977); Operations Instruction 242.10(a)(1) (1977). This
decision was discretionary and, by regulation, no administrative appeal was permitted from the denial. See 8 C.F.R. 242.5(b) (1977).
An Order to Show Cause was Issued In May 1978 charging the

respondent with being deportable under section 241(a)(2) as an "overstayed" student. At proceedings held on July 25, 1978, the respondent,
who was represented by counsel, conceded deportability. He was
granted some 3 months in which to voluntarily depart from the United
States, the sole discretionary relief requested. No appeal was taken
from this decision. Subsequent to the deportation hearing, the respondent sought an extension of the voluntary departure period so
that the processing of the visa in Winnipeg could be accomplished. The
District Director, who had declined to grant such relief prior to the
issuance of the Order to Show Cause, continued in his refusal. This

discretionary decision not to extend the voluntary departure period
was within the sole jurisdiction of the District Director and was not
reviewable administratively. See 8 C.F.R. 244.2 (1977). On October 27,
1978, the last day of the voluntary departure period granted by the
immigration judge, the respondent, accompanied by counsel, departed
from the United States to Mexico.
On November 11, 1978, the respondent apparently reentered the
United States without inspection. Thereafter, on April 10, 1979,
through counsel, he moved to reopen the July 1978 deportation
proceedings. The respondent sought either the opportunity to apply for

suspension of deportation pursuant to section 244(a)(1) of the Act, 8
U.S.C. 1254(a)(1), or an additional grant of voluntary departure so that
566

Interim Decision #2834
processing of the visa in Winnipeg could be accomplished. The immigration judge denied the motion on October 29, 1979, because the
respondent had departed from the United States pursuant to his order
in the earlier proceedings. He noted that if the Service desired to
proceed against the respondent, the issuance of a new Order to Show
Cause would be required.
The respondent appeals from this denial of the motion to reopen.
Through counsel, it is submitted that the immigration judge erred in

refusing to reopen the deportation proceedings. The underlying basis
of the appeal, however, is a challenge to the District Director's refusal
to grant the respondent pre hearing voluntary departure in 1977, his
refusal to advise the consulate in Winnipeg that the respondent would
be permitted to remain in the United States until processing of the visa
application was completed, his decision to issue the Order to Show
Cause in May 1978, and his refusal after the deportation proceedings to
extend the respondent's voluntary departure period.' The respondent
submits that his "coerced departure" in October 1978 cannot provide a
-

proper basis to deny reopening of the deportation proceedings.

We concur in the immigration judge's finding that the October 1978
departure of the respondent, who has been represented by counsel
throughout these proceedings, imparted a finality to the deportation
proceedings predating his departure and results in his departure being
considered "in pursuance of law." See section 101(g) of the Act, 8 U.S.C.
1101(g). See also 8 C.F.R. 3.2 and 3.4; Mrvica v. Esperdy, 376 U.S. 560,
563 64 (1964); Matter of Palma,14 I&N Dec. 486 (BIA 1973). The finality
that results from such a departure prevents the Service from relying
on the prior deportation order to force a new departure (i.e., new
deportation proceedings are required once a respondent departs and
then illegally reenters). Similarly, the respondent loses his right to
contest the lawfulness of the proceedings once he elects to depart. See
section 106(c) of the Act, 8 U.S.C. 1105a(c). Were this not the case,
respondents subject to deportation orders would in effect be encouraged to depart and reenter illegally as such actions would preclude
the Service from relying on the prior adjudicated order, but in no way
-

diminish the alien's ability to have such proceedings administratively

and judicially reviewed.
We note that this case is clearly distinguishable from Mendez v.
INS, 563 F.2d 956 (9 Cir. 1977), where the United States Court of
Appeals for the Ninth Circuit concluded that a respondent's deportation "was effected by procedurally defective means" because his coun' The respondent submits that the District Director improperly declined to grant the
requested relief because the respondent refused to cooperate with the Federal Bureau of
Investigation and the Central Intelligence Agency to the extent those agencies desired.

567

Interim Decision #2834
sel was not given required notice of the order to his client to appear for
deportation. That case involved not only a challenge to the proceedings
underlying the deportation order, but also an attack on the manner in
which the order was enforced.
Here, the respondent conceded deportability at proceedings in July
1978. Accompanied by counsel, he voluntarily departed in October
1978. His departure was no more "coerced" than any other departure
by a deportable alien who desires to remain in this country, but cannot
convince a District Director to extend the voluntary departure period.
The motion before us in fact does not relate to the manner of enforcement of the deportation order, but instead to the basis of the order and
to the District Director's rationale for refusing to allow the respondent
to remain until his visa could be processed in Canada. These matters,
however, should have been contested prior to departure.' Further, as
the proceedings became final on the respondent's departure, they
cannot now be reopened to provide the opportunity to apply for additional administrative relief from deportation.
ORDER, The appeal is dismissed.

The respondent, through counsel, prior to his departure neither moved to reopen the
deportation proceedings nor challenged those decisions of the District Director, which
were not administratively appealable, in Federal Court.

568


Interim Decision #1343

Me nn or KINNEY

In DEPORTATION Proceedings
A-5585866
Decided by Begird May 20, 1064
Respondent's conviction of obtaining goods under false pretenses in violation
of section 8 General Statutes of Connecticut, 1949 Revision (C.G.S.A.
section 58-382), is not a conviction of a crime involving moral turpitude.
Cmiu
Order: Act of 1952—Section 241(a) (4) (8 U.S.C. 1251(a) (4)]—Two crimes
after entry: breaking and entering (three counts) and larceny (three
counts) (1957) ; obtaining goods under false pretenses (1958).

This is an appeal by the trial attorney from the decision of the
special inquiry officer holding that the respondent was not deportable
upon the ground stated above. The question presented on the appeal
is whether respondent's conviction for obtaining goods under false
pretenses is a crime involving moral turpitude. The appeal will be
dismissed.
The respondent, a 38-year-old single male, native and citizen of
Canada, was admitted to the United States for permanent residence
on October 8, 1942, he last entered the United States about the summer
of 1947 after a brief visit to Canada. His deportation is sought on
the ground that he had been convicted of two crimes after entry. In
1957 he was convicted on three counts of breaking and entering and on
three counts of larceny, all, the special inquiry officer found, arising
out of a single scheme. Respondent was fined $72.
On June 23, 1958 respondent was convicted at Manchester, Connecticut for obtaining goods under +al% pretenses in violation of section
8698, General Statutes of Connecticut, 1949 Revision (C.G.S.A., Section 53-362). The special inquiry officer held that the crime defined
did not involve moral turpitude because intent to defraud was not an
element; the Service contends the special inquiry officer is in error.
Section 8698, General Statutes, reads as follows: Any person who
knowingly makes or causes to be made, either directly or indirectly
548

Interim Decision #1343
or through any agency, any false statement in writing, with intent that
it shall be relied upon, concerning the financial condition or means or
ability to pay of himself or of any other person for whom he is acting
or of any firm or corporation in which he is interested or for which he
is acting, for the purpose of procuring, for his own benefit or for
the benefit of such person, firm or corporation, the delivery of personal
property, the payment of cash, the marring of a loan or credit, the
extension of a credit, the discount of an account receivable or the making, acceptance, discount, sale or endorsement of a bill of exchange
or promissory note, or who, knowing that a false statement in writing
concerning the financial condition or means or ability to pay of himself
or of any such person, firm or corporation has been made, procures,
upon the faith thereof, for his own benefit or for the benefit of such
person, firm or corporation, any such delivery, payment, loan, credit,
extension, discount, making, acceptance, sale or endorsement, shall be
fined not more than two thousand dollars or imprisoned not more than
five years or both.
The special inquiry officer, pointing out that Connecticut has a "false
pretense" statute (section 8696, 1949 Rev.; C.G.S.A.-53-360) in
which an "intent to defraud" is expressly made an essential element,

and that the "intent to defraud" is neither an expressed element of section 8698, nor one the courts have found there by implication, concluded that the crime could be committed without an intent to defraud
(one could obtain goods by false representation and yet intend to pay
for them) and held therefore that moral turpitude was noninvolved. The trial attorney believes that since section 8698 requires the false
statement to be made with intent that it be relied upon; the crime is one
involving moral turpitude. The intent to which moral turpitude
adheres, is the intent to do evil or work fraud this intent is absent
—

in section 8698. The intent that the false statement be relied upon is

not necessarily an intent to do evil or work fraud because as the
special inquiry officer has pointed out, one who intends that there be
reliance upon his false statement may nevertheless also intend to pay
for the goods he is attempting to obtain (Natter of 5—, 2 L & N. Dec.
353, 357-362; see, State v. Taylor,183N.W. 998 (Sup. Ct. S.D. 1921) ).
The fact that a person convicted under section 8698, intended to commit
fraud, does not make a conviction under the section one involving
moral turpitude. It is well settled that if a crime, as defined, does not
inherently involve moral turpitude, then no matter how immoral the
alien may have been in the particular instance, he cannot be deemed to
have been convicted of a crime involving moral turpitude. "It is the
moral obliquity of the crime and not of the individual that is the test
under the law" (Matter of E—, 2I. & N. Dec. 134, 145). The Service
cases do not establish that an intent to defraud is an essential element
549

Interim Decision #1343
of a conviction under section 8698: State v. Penley, 27 Conn. 587
(1858) involved a law which required an intent to defraud; Sallies v.
Janson, 85 Conn. 77 (1911) was a civil action to recover damages for
fraud. Other cases cited are not pertinent.
Since the Service has failed to establish that the conviction in question involves moral turpitude, the appeal of the trial attorney must be
dismissed.

ORDER: It is ordered that the appeal of the trial attorney be and
the same is hereby dismissed.

550


Interim Decision #2008

MATTER OF VILANOVA-GONZALEZ

In Section 246 Proceedings
A-12046344

Decided by Board October 17, 1969
(1) When there is a conflict of testimony in rescission proceedings under
section 246 of the Immigration and Nationality Act, there must be an
evaluation of all the evidence and a finding made with regard to its credibility before the clear, unequivocable and convincing burden of proof test
of Woodby v. Immigration and Naturalization Service, 385 U.S. 276,
comes into play.
(2) A claim of prejudicial and unfair hearing accorded by the substituted
special inquiry officer is rejected where a de novo review of the entire record fails to reveal any error on the part of the special inquiry officer with
regard to his rulings as to the admissibility of the proffered evidence.
Section 241(f) of the Act, by its very terms, and the Supreme Court decision in Immigration and Naturalization Service v. Errico-Scott, 385 U.S.

(3)

214 (1966), are -limited solely to a deportation proceeding and are not applicable to rescission proceedings under section 246 of the Act.
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

R. A. Vielhaber
Appellate Trial Attorney
Nathan Levine
Trial Attorney
(Brief filed)

Deyan Ranko Brashich, Esquire
20 East 46th Street
New York, New York 10017
Harry Wallach, Esquire
110 East 42d Street
New York, New York 10017

The respondent appeals from a decision and order entered by
the special inquiry officer on October 11, 1968 rescinding the adjustment of his nonimmigrant status to that of a permanent resident alien which was granted on June 23, 1960. Counsel on appeal
maintains that the special inquiry officer's decision and order is
not supported by evidence which is clear, unequivocal and convincing. Counsel also urges error in that there was prejudice and
bias on the part of the special inquiry officer.
The record relates to a native and citizen of Spain who last entered the United States at the port of New York on February 9,
1960. He was admitted as a nonimmigrant visitor for business

399

Interim Decision #2008
and authorized to remain in the United States until July 1, 1960.
He married a citizen of the United States on February 24, 1960.
A visa petition for nonquota status filed by the citizen wife was
approved on May 20, 1960 and his application for status as a permanent resident alien was approved on June 23, 1960.
The respondent's citizen wife obtained a divorce from him in
the State of Alabama during August of 1961. A notice of intention to rescind the respondent's adjustment of status was served
upon him on October 27, 1964. The special inquiry officer on May
3, 1965 after hearing entered an order rescinding the respondent's adjustment of status pursuant to the provisions of section
246 of the Immigration and Nationality Act. The Board of Immigration Appeals affirmed in an order entered on August 20, 1965
and on November 1, 1965 denied a motion for rehearing, reargument and reconsideration of the Board's order of August 20,
1965. Deportation proceedings were instituted by the service of
an order to show cause on September 7, 1965. The Board on May
16, 1966 dismissed an appeal from the special inquiry officer's
order of January 3, 1966 finding the respondent deportable as
Charged in the order to show cause but granting the privilege of
voluntary departure in lieu of deportation, with a further order
that if he failed to depart when and as required, he be deported
;o Spain.
A petition for judicial review pursuant to 8 U.S.C. 1105a(a)
vas thereafter filed with the United States Court of Appeals for
he Second Circuit and on March 29, 1968, the respective parties
ntered into a stipulation that the matter of the rescission of the
espondent's adjustment of status be remanded for further conideration in light of the Supreme Court's decision in Woodby v.
NS, 385 U.S. 276 (1966). The Woodby case (supra) holds
hat no deportation order may be entered unless it is found by
lear, unequivocal and convincing evidence that the facts alleged
s grounds for deportation are true. We noted in our opinion of
uly 18, 1968, remanding the case to the special inquiry officer
)r further proceedings, that the Courts of Appeals for the Third
nd Ninth Circuits have held that the Woodby rule of clear, uneuivocal and convincing evidence is equally applicable to rescison proceedings under section 246 of the Act, Waziri v. INS, 392
'.2d 55 (9 Cir., 1968) ; Rodriques v. INS, 389 F.2d 129 (3 Cir.,
968). Prior to the special inquiry officer's decision now before us
appeal, counsel for the respondent and the trial attorney enred into a stipulation dated September 9, 1968 that the matter
submitted to the special inquiry officer on the original record
,

400

Interim Decision #2008
without a reopening of the hearing and without further testimony.
The special inquiry officer in his original decision of May 3,
1965 (p. 15) found that:
. the Service has borne its burden of establishing by a preponderance
of credible evidence that is reasonable, substantial and probative, that the
respondent entered into a marriage with Edith Ivette Garces on February
24, 1960, solely for the purpose of obtaining nonquota status under the immigration laws without intent to enter into a bona fide marital relationship
with Edith Ivette Garces and it is found that the respondent was not eligible for the adjustment of status granted to him on June 23, 1960.

The special inquiry officer after an overall reevaluation and reconsideration of all of the evidence adduced during the rescission
proceeding now finds that the testimony of the respondent's former spouse and her mother is far more credible than that of the
respondent and his witnesses. He concludes that there is clear,
unequivocal and convincing evidence of record that the respondent was ineligible for adjustment of status on June 23, 1060 because his marriage on February 24, 1960 to Edith Ivette Garces,
a United States citizen, was a sham entered into with no intent to
be a valid and subsisting one and that it was solely for the purpose of enabling the respondent to adjust his immigration status
in the United States and circumvent the immigration laws (p. 4,
special inquiry officer's opinion, October 11, 1968).
On this appeal, counsel maintains that the hearings accorded
the respondent by the special inquiry officer were prejudicial and
grossly unfair. The substance of counsel's argument on the issue
of a fair hearing is the charge that the respondent was prejudiced by the fact that the original special inquiry officer assigned
to the case had testified in a criminal proceeding in which the respondent was a defendant and that this factor created bias and
prejudice which carried over to the special inquiry officer who
completed the hearing. Counsel also maintains that the special inquiry officer did not adhere to the remand order of the Court of
Appeals for the Second Circuit in that he did not truly reconsider
the matter before him in light of Woodby (supra) but merely
gave and rendered a pro forma perfunctory revision of his previous biased and prejudiced decision.
The basis for counsel's claim that the special inquiry officer did
not truly reconsider the matter before him is the fact that there
is only a span of 22 working days between the signing of the
stipulation and the special inquiry officer's decision of October 11,
1968. Counsel states:
It is strange that the Special Inquiry Officer, among all of his other duties

401

Interim Decision #2008
and pressing hearings, could either recall totally the matter heard more
than three [3] years before, or thoroughly and conscientiously go through a
record, which by his own admission, is more than two hundred and seventy
four [274] 1 pages, plus various exhibits and briefs. This is completely inconsistent with the posititon of the former Special Inquiry Officer, who on
March 18, 1965, stated on the record that he could not remember anything
whatsoever concerning his testimony and extraordinary appearance before
the District Court in this matter.

Counsel argues that this "proves conclusively" that the special inluiry officer did not comply with the remand order of the Court
)f Appeals as set forth in the stipulation (pp. 6 and 7, counsel's
)rief of February 24, 1969).
We are unable to determine on the record before us the extent
o which the special inquiry officer reconsidered the original recrd of testimony pursuant to the stipulation entered into between
ounsel and the trial attorney on September 9, 1968. To render
he special inquiry officer's decision unfair and biased, however,
le defect complained of must have been such as might lead to a
enial of justice, De Souza v. Barber, 263 F.2d 470 (9 Cir., 1959),
!rt. denied 359 U.S. 989 (1959). This Board has plenary power
make a de novo review of the record and based on such a reew make its own independent findings on questions of fact and
w irrespective of those made by the special inquiry officer, Matr of B—, 7 1. & N. Dec. 1 (A.G., 1956) ; De Lucia v. INS, 370
2d 305, 308 (7 Cir., 1966), cert. denied 386 U.S. 912 (1967);
ivar v. INS, 368 F.2d 1006 (9 Cir., 1966), cert. denied 388 U.S.
5 (1967).
We have carefully reviewed the entire record. We find no basis
• counsel's claim that the hearings accorded the respondent by
substituted special inquiry officer were prejudicial and unfair
:ause he succeeded a special inquiry officer who had disqualified
aself because of prior testimony in a criminal proceeding in
ich the respondent was a defendant. This practice is commonce in both administrative and judicial proceedings. If counsel's
ument were to prevail it would be impossible for any special
uiry officer or judge in a judicial proceeding who happens to
In associate in the same tribunal to qualify for completion of a
ceeding. A review of the 243 pages of testimony during which
substituted special inquiry officer presided fails to reveal any
)r on his part with regard to his rulings as to the admissibilof the proffered evidence. We have carefully noted the objec'he special inquiry officer in his opinion of October 11, 1968 stated, "The
TI of hearing constitutes some 253 pages of testimony." We find this
)er to be correct.

402

Interim Decision #2008
tions raised by counsel for the respondent and find that his position was sustained on at least 48 occasions. We conclude upon a
de novo review that the respondent was accorded a fair hearing
without bias or prejudice on the part of the substituted special
inquiry officer.
The facts germane to the issues before us on appeal have been
heretofore clearly set forth in the special inquiry officer's opinion
of May 3, 1965 and in the opinions of this Board rendered on August 20, 1965 and November 1, 1965. Counsel maintains that the
evidence relied upon by the special inquiry officer is so far removed from the ambit of reasonable doubt that the standard of
clear, unequivocal and convincing evidence cannot be met. He
argues that the Government's two primary witnesses are "proven
and admitted perjurers" who have made statements under oath to
various courts and to several agencies of the Government which
are diametrically opposed to each other and, therefore, "have
proven themselves, beyond a reasonable doubt, to be unworthy of
belief" (p. 4, counsel's brief of February 24, 1969; emphasis supplied). Counsel argues on the other hand that the respondent has
testified consistently and offered unimpeachable witnesses to sustain his position and allegations.
A determination of whether there is clear, unequivocal and convincing evidence that the respondent was ineligible for an adjustment of his status because his marriage to a United States citizen
was not a valid and subsisting marriage for immigration
purposes resolves itself into a determination of whose testimony
is worthy of belief. Credibility involves more than demeanor. It
apprehends the overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it
hangs together with other evidence, Carbo v. United States, 314
F.2d 718, 749 (9 Cir. 1963).
Where the testimony of the respondent and his witnesses is in
direct conflict with the testimony of witnesses presented by the
Government, there must be an evaluation and a weighing of all
the evidence and a finding made with regard to its credibility before the test for burden of proof as set forth in Woodby (supra)
comes into play. Originally, it is the function of the special inquiry officer and on appeal the function of this Board to make an
evaluation and to reach a determination as to whether the evidence is of sufficient quality and substantially to support the rationality of the order of rescission. CF., D'Andrea, v. INS, 335
F.2d 377 (6 Cir., 1964), cert. denied 379 U.S. 999 (1965) ; Matter
of Lugo-Guadiana, 12 I. & N. Dec. 726 (BIA 1968).
403

Interim Decision #2008
We agree with counsel that the testimony of the respondent's
former wife in this proceeding is not consistent with her affidavit
in the divorce proceeding instituted in the State of Alabama (Ex.
4). Contradictory evidence of this nature is typical in a rescission
proceeding. Nevertheless, her testimony that her marriage to the
respondent was arranged for immigration purposes is corroborated by the testimony of h'er mother. On the other hand, the testimony of the respondent is not consistent with that of his witnesses with regard to when he met his former wife, his
subsequent romance with her, when he became employed and who
was present at the marriage. Upon evaluating and weighing the
evidence submitted by both the Government and the respondent,
we find that the testimony of the Government's witnesses is more
credible than that of the respondent and his witnesses. Based on
this finding, we conclude that there is clear, unequivocal and convincing evidence that the facts alleged as grounds for rescinding
the adjustment of the respondent's nonimmigrant status are true.
Counsel urges that the respondent's case is within the purview
of section 241 (f) of the Immigration and Nationality Act which
provides a waiver of deportability in the case of an alien who
was excludable at the time of entry as one who had procured a
visa or entry into the United States by fraud or misrepresentation if such alien is the spouse, parent or child of a United
States citizen or of an alien lawfully admitted for permanent residence. There is a showing of record that the respondent married
another citizen of the United States on June 12, 1965 and it is aleged that he is the father of two minor citizen children born to
this union (see Board's decision of May 16, 1966). Counsel's orpiment that the respondent is exempt from deportation under
section 241 (f) is based on the premise that the Supreme Court in
;he case of INS v. Errico, 385 U.S. 214, 17 L. Ed. 2d (1966)
:.uled that the statute is humanitarian in nature and has for its
Purpose the maintenance of the family unit and if there exists
my reasonable doubt, such doubt should be resolved in favor of
the alien.
We considered a similar argument in Matter of Alemis, 12 I. &
g. Dec. 456 (BIA 1967). We held that section 241(f) by its very
terms and the Supreme Court's decision in Errico (supra) are
imited solely to a deportation proceeding and are not applicable
;o a rescission proceeding under section 246 of the Act. The proTeding before us is not a deportation proceeding. See, also, Ferrante v. INS, 399 F.2d 98, at pp. 104-105 (6 Cir., 1968).
Upon careful reconsideration of the entire record, we adopt the
404

Interim Decision #2008
allegations set forth in the notice to rescind dated October 27,
1964 and served upon the respondent by certified mail as our findings of fact. Based upon these findings of fact, we conclude that
there is clear, unequivocal and convincing evidence that the respondent was ineligible for adjustment of status on June 23, 1960
because his marriage to a United States citizen on February 24,
1960 was a sham entered into solely for the purpose of enabling
the respondent to adjust his immigration status in the United
States and circumvent the immigration laws. The appeal will be
dismissed.
ORDER: It is directed that the appeal be and the same is
hereby dismissed.

405


Interim Decision #2033

MATTER OF KORYZMA •
In Deportation Proceedings
A-14238613
Decided by Board FebrzuLry 20, 1.970
The provisions of section 291(f) of the Immigration and Nationality Act, as
amended, and the Supreme Court decision in Immigration and NaturatizaLion Service v. Er/km-Scott, 385 U.S. 214 (1966), are not applicable to
save from deportation an alien deportable under section 241 (a) (2) of the
Act on an "exchange visitor-remained longer" charge, since fraud is not
ar, essential ingredient of the ground on which deportation is ordered.
[1lfus/cmi v. Immigration and Naturalization Service, 408 F.2d 1196 (C.A.
9, 1969), distinguished.]
CHARGE:
Order: Act of 1952—Section 241(a) ( 2) [8 U.S.C. 1251(a) ( 2) ]—Exchange
visitor—remained longer.
ON BEHALF OF RESPONDENT:
A. W. Hargreaves, Esquire
Fallon, Hargreaves & Bixby
30 Hotaling Place
San Francisco, California 94111
(Brief filed)

ON BEHALF OF SERVICE:

Stephen M. Suffin
Trial Attorney
(Brief filed)

The case comes forward on motion of counsel requesting that
proceedings be terminated or reopened.
The record relates to a native of Austria, born of parents who
were citizens of Poland, 24 years old, male, married, who resided
in Chile since he was approximately four or five years of age.
In 1964 the respondent came to the United States on a student visa. In June 1966 he returned to Chile in order to visit
his parents. The college had changed its policy and had supplied
or sent to the respondent an exchange visitor form under section
101 (a) (15) (J) of the Immigration and Nationality Act. He last
entered the United States on September 11, 1966 as an exchange
visitor.
The alien in this case is also the subject of Interim Decision No. 1998.

514

Interim Decision #2033
On July 30, 1968 the respondent's application for a waiver of
the foreign residence requirement applicable to exchange visitors
was denied and he was granted until September 30, 1968 to de
part voluntarily but failed to depart. Counsel on behalf of the re-

spondent has admitted deportability on the charge contained in
the order to show cause.
The respondent applied for adjustment of status under section
245 of the Immigration and Nationality Act. In our prior order,
we held that absent a waiver contained in section 212 (e) of the
Act, an alien admitted as an exchange visitor cannot have his status adjusted or apply for an immigrant visa until such person
has been physically present in the country of his last nationality
or his last residence, or in another foreign country, for an aggregate of at least two years. The appeal from the decision of the
special inquiry officer granting voluntary departure was dismissed.
In the motion now before us, respondent asks that the deportation proceedings be terminated or reopened on the ground that he
is saved from deportation by the provisions of section 241 (f) of
the Act. Be relies on Muslemi v. INS, 408 F.2d 1196 (9 Cir.,
1969); In re Yuen Lan Hom, 289 F. Supp. 204 (S.D.N.Y., 1968);
and Matter of Lim, Interim Decision No. 1947 (BIA, 1969). The
Service's trial attorney has opposed the motion on the ground
that respondent was not "otherwise admissible" within the meaning of section 241(f) at the time of his last entry because he
lacked the labor certification required by section 212(a) (14) of
the Act; 1 and on the further ground that, according to the respondent's testimony, it does not appear that he made a misrepresentation to the American Consul.
The Muslemi decision, supra., is not in point. The a,.,en in that
case had entered as a nonimmigrant visitor with an undisclosed
intention of remaining permanently. In the deportation proceedings, he was found deportable on a charge under section
241 (a) (1) on the ground that at entry he lacked the visa required
of immigrants by section 212 (a) (20) of the Act. In view of the
fraud involved, the "no visa" charge, and the familial relationship, the court concluded that a situation parallel to INS v. Errico, 385 U.S. 214 (1966), was presented. The respondent, on the
other hand, has been found deportable only on an "exchange visi1

This contention has since been disposed of in the intervening decision in

Godoy v. Rosenberg, 915 F.2d 1266 (9 Cir., 1969), holding that lack of a

labor certification does not keep a qualified alien from being "otherwise admissible" for purposes of section 241(f).

515

Interim Decision #2033
tor-remained longer" charge. Section 241 (f) does not waive deportability on such a ground, Tsaconas v. INS, 397 F.2d 946 (7
Cir., 1968); Ferrante v. INS, 339 F.2d 98 (6 Cir., 1968). The
court in Muslemi, supra, specifically avoided deciding in general
terms that section 241 (f) saves from deportation aliens who have
fraudulently entered the United States as nonimmigrants and
who have the necessary familial ties, regardless of the deportation charge.
Respondent argues in the alternative that he gained entry by
either an intentional or unintentional misrepresentation and therefore a proper deportation charge would be that he was an immigrant at the time of entry. The short answer is that this was not
the charge leveled against him. Fraud was not an essential ingredient of the "remained longer" ground on which he has been ordered deported. An alien may not pull himself up by his own

bootstraps and claim he was guilty of fraud at entry and thereby
eligible for the benefits of section 241(f). See Ntovas v. Ahrens,
279 F.2d 483 (7 Cir., 1960), cert. denied 364 U.S. 826; Tsaconas

v. INS, supra; Ferrante v. INS, supra,.
ORDER: It is ordered that the motion be and it is hereby de-

nied.

516