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Matter of Emmanuel LAGUERRE, Respondent
Decided January 20, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Because the identity of the “controlled dangerous substance” possessed is an element of
the crime of possession of a controlled dangerous substance under section 2C:35-10(a)(1)
of the New Jersey Statutes Annotated, the statute is divisible with respect to the specific
substance possessed, and the record of conviction can be examined under the modified
categorical approach to determine whether that substance is a controlled substance under
Federal law.
FOR RESPONDENT: Timothy R. Block, Esquire, Edison, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kyle T. Simpson, Associate
Legal Advisor
BEFORE: Board Panel: WILSON and GORMAN, Appellate Immigration Judges.
Concurring Opinion: O’CONNOR, Appellate Immigration Judge.
GORMAN, Appellate Immigration Judge:

In a decision dated August 10, 2020, an Immigration Judge granted the
respondent’s motions to terminate his removal proceedings. The Department
of Homeland Security (“DHS”) has appealed from this decision. 1 The DHS’s
appeal will be sustained, the removal proceedings will be reinstated, and the
record will be remanded to the Immigration Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Haiti who was admitted to the
United States as a lawful permanent resident. On March 8, 2007, the
respondent was convicted of possession of a controlled dangerous substance
in violation of section 2C:35-10(a)(1) of the New Jersey Statutes Annotated.
Based on this conviction, the DHS charged him with removability under
section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(B)(i) (2018), as a respondent convicted of a violation of a State
1

The Board heard oral argument in this case and the parties submitted supplemental
briefing. We acknowledge with appreciation the briefs and oral arguments prepared by the
representatives of both parties.

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law “relating to a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)).” The respondent filed a motion
to terminate proceedings, arguing that the DHS could not demonstrate by
clear and convincing evidence that his offense involved a controlled
substance under Federal law. The DHS filed an opposition to the
respondent’s motion to terminate and, based on the respondent’s conviction
for stalking, lodged an additional charge of removability under section
237(a)(2)(E)(i) of the Act, as a respondent convicted of a crime of stalking.
The respondent subsequently filed a motion to terminate with respect to this
additional charge of removability. The Immigration Judge found the
respondent was not removable under either charge and granted the
respondent’s motions to terminate.
On appeal, the DHS challenges the Immigration Judge’s decision to
terminate proceedings, arguing that the respondent’s conviction for
possession of a controlled dangerous substance in violation of section
2C:35-10(a)(1) of the New Jersey Statutes Annotated is a conviction for
a controlled substance violation that renders him removable as charged under
section 237(a)(2)(B)(ai) of the Act. 2 Whether the respondent’s drug
conviction renders him removable as charged is a legal question we review
de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2021).

II. ANALYSIS
To determine whether the respondent’s New Jersey drug offense renders
him removable, we employ the categorical approach to determine whether
the elements of his New Jersey statute of conviction match those of the
generic definition of an offense relating to a controlled substance set forth at
section 237(a)(2)(B)(i) of the Act. Moncrieffe v. Holder, 569 U.S. 184, 190
(2013). To categorically match this generic definition, the respondent’s
conviction must have necessarily involved, as an element, a substance listed
under the Federal Controlled Substances Act. See Mellouli v. Lynch, 575
U.S. 798, 813 (2015); Matter of P-B-B-, 28 I&N Dec. 43, 45–46 (BIA 2020).
However, if the respondent’s State statute of conviction is categorically
overbroad, we must consider whether it is divisible—that is, whether it “sets
out one or more elements of the offense in the alternative.” Descamps
v. United States, 570 U.S. 254, 257 (2013). If the statute is divisible, we may
employ a modified categorical approach, which permits us to examine the
respondent’s record of conviction to determine “what crime, with what

2

The DHS does not appeal the Immigration Judge’s determination that the respondent is
not removable under section 237(a)(2)(E)(i) of the Act.

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elements, [he] was convicted of.” Mathis v. United States, 136 S. Ct. 2243,
2249 (2016).
At all relevant times, section 2C:35-10(a) provided, in relevant part, as
follows:
It is unlawful for any person, knowingly or purposely, to obtain, or to possess,
actually or constructively, a controlled dangerous substance or controlled substance
analog . . . . Any person who violates this section with respect to:
(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III
or IV other than those specifically covered in this section, is guilty of a crime of
the third degree . . . .

The parties do not dispute the Immigration Judge’s determination that the
New Jersey schedules include dextrorphan, while the Federal schedules do
not. Because there is a mismatch between the controlled substances in the
New Jersey and Federal schedules, the dispositive issue in this case is
whether the identity of the controlled dangerous substance involved in a
violation of section 2C:35-10(a)(1) is an “element,” rendering the statute
divisible and susceptible to a modified categorical inquiry, or merely an
alternative “means” of violating the statute. Mathis, 136 S. Ct. at 2253
(distinguishing between statutory “elements” and the “alternative means of
fulfilling one (or more)” of those elements). 3
“‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the
things the ‘prosecution must prove to sustain a conviction.’” Id. at 2248
(citation omitted). “At a trial, [elements] are what the jury must find beyond
a reasonable doubt to convict the defendant,” and “at a plea hearing, they are
what the defendant necessarily admits when he pleads guilty.” Id. However,
“means” merely “spell[] out various factual ways of committing some
component of the offense,” which a jury is not required to find and
a defendant is not required to admit. Id. at 2249. In other words, “elements”
must be “necessarily found” by a jury or “necessarily admitted” to by
a defendant, whereas “means” or “non-elemental fact[s]” are “not necessary
to support a conviction.” Id. at 2255 (citations omitted).
In Mathis, the Supreme Court set forth three inquires for determining
whether items listed in an alternatively phrased statute are “elements” or
“means.” First, the Court instructed adjudicators to ascertain whether there
3

We note that these “elements” versus “means” inquiries can be exceedingly
complicated, and we must make them in an increasing number of cases, both in published
decisions, see, e.g., Matter of Dikhtyar, 28 I&N Dec. 214, 216–17 (BIA 2021); Matter of
P-B-B-, 28 I&N Dec. at 46–47; Matter of Gonzalez Lemus, 27 I&N Dec. 612, 613 (BIA
2019); Matter of Chairez, 27 I&N Dec. 21, 23 (BIA 2017), and in scores of unpublished
decisions.

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is a State court decision that “definitively answers the question.” Id. at 2256.
Second, the Court instructed adjudicators to determine if the “statute on its
face” resolves the issue. Id. Lastly, “if state law fails to provide clear
answers,” the Court instructed adjudicators to “peek” at the record of
conviction, including the “indictment and correlative jury instructions.” Id.
at 2256–57. If the conviction record “reference[s] one alternative term to the
exclusion of all others,” that supports a determination that the “statute
contains a list of elements, each one of which goes toward a separate crime.”
Id. at 2257.
A. State Case Law
Relying on State v. Edwards, 607 A.2d 1312 (N.J. Super. Ct. App. Div.
1992), the Immigration Judge found that the specific controlled dangerous
substance underlying the respondent’s conviction constitutes a “means” of
violating section 2C:35-10(a)(1), rather than an “element” of the statute. The
Immigration Judge’s reliance on Edwards was understandable because the
decision contains language stating that “the nature of the [controlled
dangerous substance], like the quantity, is not an element of the offense,” and
that “[t]he particular substance possessed is relevant only for grading and is
not part of the description of the prohibited conduct in the definition of the
offense.” Id. at 1313. However, when these statements are considered in the
context of the specific issue the court in Edwards analyzed, it becomes much
less clear whether the case “definitively answers” the “elements” versus
“means” question. Mathis, 136 S. Ct. at 2256. The issue in Edwards, 607
A.2d at 1313, was whether the State was required to prove that the “defendant
knew precisely what controlled dangerous substance was possessed,” as
opposed to knowing that the substance possessed was a controlled dangerous
substance.
The court in Edwards held that the State was only required to prove that
the defendant knew she possessed a controlled dangerous substance. In so
holding, the court relied on State v. Torres, 563 A.2d 1141 (N.J. Super. Ct.
App. Div. 1989). In that case, the court held that the State was not required
to prove that a defendant knew the specific quantity of drugs he or she
possessed under New Jersey’s statute criminalizing possession with intent to
distribute a controlled dangerous substance. Instead, the court stated, “[T]he
jury must find that [the] defendant manufactured, distributed, dispensed or
possessed the relevant quantity or quality of [controlled dangerous
substance] by proof beyond a reasonable doubt.” Id. at 1145. This language
indicates that the quantity or quality of a controlled dangerous substance is
an “element” of the statute, as contemplated by Mathis, 136 S. Ct. at 2248,
which specifically defined “elements” as those things “the jury must find
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beyond a reasonable doubt to convict the defendant.” However, in the very
next sentence, the court in Torres, 563 A.2d at 1145, “further [held] that the
quantity and quality are not elements of the offense and, therefore, the State
need not prove and the jury need not find that the defendant knew the quantity
or the quality of the controlled dangerous substances involved.”
(Emphasis added.)
Our review of Edwards and Torres, which were decided more than
20 years before Mathis, suggests that those State decisions did not give the
term “element” the precise meaning and significance the Supreme Court did
in Mathis. This is evident from the statements in Torres that even though
a jury must find a defendant possessed the relevant quantity or quality of
a controlled dangerous substance “by proof beyond a reasonable doubt,” that
quantity or quality “are not elements of the offense.” 563 A.2d at 1145. It
is difficult to reconcile these statements with the Supreme Court’s definition
of an “element” in Mathis. Considering the context in which Edwards and
Torres used the term “element,” including the specific legal questions at
issue in those cases, we conclude that both decisions are ambiguous at best
in resolving whether the identity of the controlled dangerous substance
possessed is an “element” of the respondent’s statute of conviction or
a “means” of violating that statute. Accordingly, we conclude that New
Jersey does not have a published case that “definitively answers” whether the
identity of the controlled dangerous substance possessed is an “element” of
section 2C:35-10(a)(1). Mathis, 136 S. Ct. at 2256.
We nevertheless find it significant that the New Jersey Supreme Court
has upheld convictions for separate counts of possession of a controlled
dangerous substance in violation of section 2C:35-10(a)(1) where the
defendant possessed multiple controlled dangerous substances during
a single act. See, e.g., State v. Evans, 193 A.3d 843, 845–46, 852 (N.J. 2018)
(reinstating the defendant’s conviction for a count of possession of heroin
and a count of possession of cocaine, which were discovered during a search
incident to arrest); State v. Mann, 2 A.3d 379, 382, 386 (N.J. 2010)
(reinstating conviction for possession of cocaine and ecstasy, which were
seized during a single incident). If the identity of the controlled dangerous
substance was a “means” of committing the offense as opposed to an
“element,” these New Jersey Supreme Court decisions sustaining multiple
counts of possession of a controlled dangerous substance would violate the
constitutional prohibition against double jeopardy.
As we noted in a similar case, “[t]he Double Jeopardy Clause . . . provides
that no person may be tried more than once ‘for the same offense.’” Matter
of P-B-B-, 28 I&N Dec. at 48 (quoting Currier v. Virginia, 138 S. Ct. 2144,
2149 (2018)). For purposes of double jeopardy, offenses are “considered
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separate and distinct . . . if they involve distinct ‘elements.’” Id. (quoting
Currier, 138 S. Ct. at 2153).
In Matter of P-B-B-, 28 I&N Dec. at 45, this Board determined that the
identity of the drug possessed was an “element” of attempted possession of
a dangerous drug for sale under section 13-3407 of the Arizona Revised
Statutes. We found support for our determination in an Arizona case that
“upheld a defendant’s conviction for multiple counts of possession of
a dangerous drug under section 13-3407 where he possessed
methamphetamine and other dangerous drugs—namely, clonazepam and
diazepam.” Id. at 47 (citing State v. Tavasci, No. 1 CA-CR 07-0643, 2008
WL 2315690, at *2 (Ariz. Ct. App. June 3, 2008)). We observed that “if the
identities of the specific substances underlying the defendant’s offense . . .
were not alternative ‘elements’ of section 13-3407, . . . the court’s decision
to sustain multiple counts of possession of a dangerous drug would have
violated the constitutional prohibition against double jeopardy.” Id.
at 47–48; see also Matter of Gonzalez Lemus, 27 I&N Dec. 612, 614–15
(BIA 2019) (holding that where a State has “prosecuted as separate offenses
a single act involving . . . multiple controlled substances. . . . the elements of
proof required as to” an offense involving one drug “are not the same as those
essential” to proving an offense involving a different drug
(emphasis omitted)).
We applied similar reasoning in Matter of Dikhtyar, 28 I&N Dec. 214
(BIA 2021), where we concluded that the identity of the controlled substance
possessed is an “element” of section 58-37-8(2)(a)(i) of the Utah Code. We
relied, in part, on State v. Karren, 438 P.3d 18, 19–21 (Utah Ct. App. 2018),
where a Utah court “upheld a defendant’s conviction for two counts of
possession of a controlled substance under section 58-37-8(2)(a)(i) where he
was arrested after methamphetamine and marijuana were discovered in his
backpack.” Matter of Dikhtyar, 28 I&N Dec. at 220–21. We observed that
[t]he respondent has not explained how, given the prohibition against double
jeopardy, a defendant could be convicted of multiple counts of possession of
a controlled substance where the defendant committed a single act of possession
involving separate substances, if the identity of the specific controlled substance
possessed was simply an alternative means of committing the offense, rather than an
element of section 58-37-8(2)(a)(i).

Id. at 221. Given the elements-based test for double jeopardy, the New Jersey
Supreme Court cases cited above support our view that the identity of the
controlled dangerous substance possessed is an “element” of the
respondent’s statute of conviction.
In support of his argument that the controlled dangerous substance
possessed is a “means,” rather than an “element,” of section 2C:35-10(a)(1),
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the respondent argues that New Jersey has convicted a defendant of
possession of a controlled dangerous substance based on an indictment that
listed multiple controlled dangerous substances under each count.
Specifically, he cites State v. Gibson, 722 A.2d 960, 962 (N.J. Super. Ct.
App. Div. 1999), where a defendant had been convicted of one count of
possession of “cocaine and/or heroin” and a second count of possession of
“cocaine and/or heroin” with the intent to distribute. 4
We are not persuaded that Gibson supports the respondent’s argument
that the identity of the controlled dangerous substance possessed is a “means”
of violating section 2C:35-10(a)(1). The court in Gibson reversed the
convictions in that case and remanded for a corrected judgment. It also noted
that a “special verdict can reveal whether the jurors found defendant
possessed one or both substances.” Id. at 966 n.2. However, since there was
no special verdict in that case, the court concluded both counts “must merge”
because it did “not know if the jury found that defendant possessed heroin,
cocaine, or both.” Id. at 966. Therefore, while New Jersey may charge
a defendant with multiple controlled dangerous substances in the same count,
Gibson indicates that the jury is still required to identify which particular
controlled substance, or substances, was or were possessed, when
a defendant is convicted of separate counts of possession, relating to the
possession of a one or more substances.
B. Statutory Language
Having considered the relevant State court decisions, we next apply the
second step in the Mathis inquiry: examining the language of the State
statute of conviction. The Immigration Judge observed that the only
disjunctive language in section 2C:35-10(a)(1) with respect to the specific
controlled dangerous substance is the phrase a “controlled dangerous
substance, or its analog, classified in Schedule I, II, III or IV other than those
specifically covered in this section.”
We conclude that the structure of section 2C:35-10(a)(1) does not clearly
resolve whether the controlled dangerous substance is an “element” or
“means” of the offense. While section 2C:35-10(a) is broken into different
subsections providing different punishments, the particular subsection the
respondent was convicted under, (a)(1), classifies all possession offenses of
controlled dangerous substances listed under schedules I, II, III, and IV as

4

We note that Gibson is the only published case the respondent cites in support of this
argument.

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crimes of the third degree. 5 However, to the extent that the specific
controlled dangerous substance involved must be identified to determine
under which subsection of section 2C:35-10(a) a defendant was convicted,
this supports our finding that the identity of the substance is an “element.”
See Matter of P-B-B-, 28 I&N Dec. at 47 (stating that where a statute sets
forth “statutory alternatives carry[ing] different punishments,” depending on
the identity of the substance, these alternatives “must be elements” (quoting
Mathis, 136 S. Ct. at 2256)).
The DHS also argues that section 2C:35-10(a)(1) is similar to the
Pennsylvania drug statute that was found to be divisible in United States
v. Henderson, 841 F.3d 623 (3d Cir. 2016). In that case, the United States
Court of Appeals for the Third Circuit, in whose jurisdiction this case arises,
examined title 35, section 780-113(a)(30) of the Pennsylvania Consolidated
Statutes and the penalty provision at section 780-113(f)(1) of the
Pennsylvania Consolidated Statutes.

5
At the time of the respondent’s conviction, section 2C:35-10(a) of the New Jersey
Statutes Annotated provided as follows:

a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess,
actually or constructively, a controlled dangerous substance or controlled substance
analog, unless the substance was obtained directly, or pursuant to a valid prescription
or order form from a practitioner, while acting in the course of his professional
practice, or except as otherwise authorized by P.L. 1970, c. 226 (C.24:21-1 et seq.).
Any person who violates this section with respect to:
(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III
or IV other than those specifically covered in this section, is guilty of a crime of
the third degree except that, notwithstanding the provisions of subsection b. of
N.J.S.2C:43-3, a fine of up to $35,000.00 may be imposed;
(2) Any controlled dangerous substance, or its analog, classified in Schedule V, is
guilty of a crime of the fourth degree except that, notwithstanding the provisions
of subsection b. of N.J.S.2C:43-3, a fine of up to $15,000.00 may be imposed;
(3) Possession of more than 50 grams of marijuana, including any adulterants or
dilutants, or more than five grams of hashish is guilty of a crime of the fourth
degree, except that, notwithstanding the provisions of subsection b. of
N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or
(4) Possession of 50 grams or less of marijuana, including any adulterants or
dilutants, or five grams or less of hashish is a disorderly person.
Any person who commits any offense defined in this section while on any property
used for school purposes which is owned by or leased to any elementary or secondary
school or school board, or within 1,000 feet of any such school property or a school
bus, or while on any school bus, and who is not sentenced to a term of imprisonment,
shall, in addition to any other sentence which the court may impose, be required to
perform not less than 100 hours of community service.

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Section 780-113(a)(30) prohibits “the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled substance by
a person not registered under this act, . . . or knowingly creating, delivering
or possessing with intent to deliver, a counterfeit controlled substance.” The
penalty provision, in turn, provides, in pertinent part, that “[a]ny person who
violates clause . . . (30) of subsection (a) with respect to . . . [a] controlled
substance or counterfeit substance classified in Schedule I or II which is
a narcotic drug, is guilty of a felony and upon conviction thereof shall be
sentenced to imprisonment not exceeding fifteen years.” 35 Pa. Stat. and
Cons. Stat. § 780-113(f)(1) (West 2021) (footnote omitted).
The Third Circuit found that section 780-113(f)(1) “disjunctively
incorporates all of the ‘controlled substances classified in Schedule I or II’
as the substances for which a defendant may receive a maximum sentence of
fifteen years for possession with intent to deliver.” Henderson, 841 F.3d
at 626–27 (citation omitted). The court observed that “[i]n order to identify
the ‘substances classified in Schedule I or II,’ Section 780-113(f)(1)
cross-references Section 780-104 of [the statute], which provides an
exhaustive list of controlled substances that fall within each schedule of
prohibited drugs.” Id. at 627. The court found the statute’s cross-reference
to an exhaustive list of specific substances “creat[ed] several alternative
elements; not separate means of commission.” Id. at 630.
We agree with the DHS that like the Pennsylvania statute at issue in
Henderson, section 2C:35-10(a)(1) of the New Jersey Statutes Annotated
similarly cross-references an exhaustive list of substances. In particular, the
statute cross-references schedules I, II, III, and IV of the New Jersey drug
schedules, which provide a finite list of controlled dangerous substances.
While not clear evidence that the identity of the controlled dangerous
substance possessed is an “element” of the respondent’s State statute of
conviction, the Third Circuit’s determination that a similarly-structured
statute is divisible supports our conclusion that the identity of the controlled
dangerous substance is an “element” of section 2C:35-10(a)(1). 6
6

Other circuits have found that the identity of the specific substance is an “element” of
statutes that cross-reference drug schedules containing an exhaustive list of substances.
For example, the First Circuit concluded in Swaby v. Yates that a Rhode Island drug statute
was “divisible by the type of drug,” in part, because the statute assigned “‘different
punishments,’ based on the class of a drug, and then ‘exhaustive[ly]’ list[ed] the individual
drugs by type on the state drug schedules.” 847 F.3d 62, 68 (1st Cir. 2017) (first alteration
in original) (citations omitted). Likewise, the Ninth Circuit in Coronado v. Holder
determined that a California drug statute was divisible because it “identifies a number of
controlled substances by referencing various California drug schedules and statutes and
criminalizes the possession of any one of those substances,” effectively creating “‘several
different . . . crimes,’ and not separate ‘means of commission.’” 759 F.3d 977, 985 (9th

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Citing Hillocks v. Att’y Gen. U.S., 934 F.3d 332 (3d Cir. 2019), the
respondent argues that his statute of conviction is indivisible because section
2C:35-10(a)(1) is not alternatively phrased; it instead merely requires
possession of a controlled dangerous substance or controlled substance
analog without alternatively listing the substances it criminalizes. We find
Hillocks to be distinguishable and disagree with the respondent that his
statute of conviction is not alternatively phrased.
In Hillocks, the court addressed whether a conviction for criminal use of
a communication facility in violation of title 18, section 7512(a) of the
Pennsylvania Consolidated Statutes was a conviction for an aggravated
felony for illicit trafficking of a federally controlled substance under section
101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2018). The
Pennsylvania statute provided as follows:
A person commits a felony of the third degree if that person uses a communication
facility to commit, cause or facilitate the commission or the attempt thereof of any
crime which constitutes a felony under this title or under [35 Pa. Stat. and Cons. Stat.
§ 780-101 et seq.], known as The Controlled Substance, Drug, Device and Cosmetic
Act. Every instance where the communication facility is utilized constitutes
a separate offense under this section.

18 Pa. Stat. and Cons. Stat. § 7512(a) (West 2015) (footnote omitted). The
court found that section 7512(a) was indivisible, in part, because the statute
“does not have enumerated categories that suggest alternate elements.”
Hillocks, 934 F.3d at 344.
By contrast, section 2C:35-10(a)(1)
cross-references four enumerated drug schedules in the alternative,
suggesting that the specific identity of the substances listed in each schedule
are alterative “elements.”
Finally, we agree with the DHS that the relevant legislative history
supports our view that the New Jersey Legislature intended the identity of
the controlled dangerous substance possessed to be a statutory “element” of
section 2C:35-10(a)(1). In its declaration of policy and legislative findings
with regard to the Comprehensive Drug Reform Act of 1987, the Legislature
stated: “[I]t is the policy of this State to distinguish between drug offenders
based on the seriousness of the offense, considering principally the nature,
quantity and purity of the controlled substance involved . . . .” N.J. Stat. Ann.
§ 2C:35-1.1(c) (West 1987).

Cir. 2014) (citations omitted). But see Johnson v. Barr, 967 F.3d 1103, 1109 (10th Cir.
2020) (concluding that although a Colorado drug statute setting forth “alternative schedule
groupings carry[ing] different punishments . . . . may be divisible as to the particular
schedules, [it] is indivisible as to the identity of the particular controlled substance”).

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C. Record of Conviction
Because New Jersey case law and the language of the statute of
conviction support our finding that the identity of the controlled dangerous
substance possessed is an “element” of the statute, but do not “provide clear
[or definitive] answers,” we may “peek” at the respondent’s record of
conviction “for ‘the sole and limited purpose of determining whether” the
controlled dangerous substances listed in section 2C:35-10(a)(1) are
“element[s] of the offense.’” Mathis, 136 S. Ct. at 2256–57 (second
alteration in original) (citation omitted).
The indictment in the respondent’s case reflects that he was charged with
possessing the controlled dangerous substance of cocaine. Because this
charging document “referenc[es] one alternative [controlled dangerous
substance] to the exclusion of all others,” the Mathis “peek” supports our
view that the identity of the controlled dangerous substance possessed is an
“element” of section 2C:35-10(a)(1), as opposed to a “means” of violating
the statute. Id. at 2257.

III. CONCLUSION
We therefore conclude that the identity of the specific controlled
dangerous substance possessed is an “element” of section 2C:35-10(a)(1).
Thus, the statute is divisible with respect to the identity of the specific
substance possessed, and we may examine the respondent’s record of
conviction under a modified categorical analysis to determine whether that
substance is a controlled substance under Federal law. See Matter of
Dikhtyar, 28 I&N Dec. at 222; Matter of P-B-B-, 28 I&N Dec. at 50; Matter
of Gonzalez Lemus, 27 I&N Dec. at 616. As noted, the conviction record
reflects that the respondent was convicted of possessing cocaine, which is
a federally controlled substance. See 21 U.S.C. § 812, schedule II(a)(4)
(2018). As a consequence, the respondent’s conviction for possession of a
controlled dangerous substance under section 2C:35-10(a)(1) of the New
Jersey Statutes Annotated is a conviction for a controlled substance violation
that renders him removable as charged under section 237(a)(2)(B)(i) of the
Act. Accordingly, the DHS’s appeal from the Immigration Judge’s decision
to terminate these proceedings is sustained, the respondent’s removal
proceedings are reinstated, and the record is remanded to allow the
respondent to apply for any relief for which he may be eligible.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
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FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

CONCURRING OPINION: Blair T. O’Connor, Appellate Immigration
Judge
I join the excellent majority opinion and its conclusion that the identity
of the controlled dangerous substance is an element of New Jersey drug
offenses. I write separately to note the inordinate complexity of the legal
question we have just answered. While the Supreme Court indicated that the
“threshold inquiry [of] elements or means” would be “easy . . . in many”
cases, Mathis v. United States, 136 S. Ct. 2243, 2256 (2016), we
unfortunately have not found that to be so in practice. Instead, our experience
time and time again has been that “[w]hat [should be] a simple matter
[instead has become] a time-consuming legal tangle.” Id. at 2264 (Breyer,
J., dissenting). Our determination here is a case in point. Cocaine is the only
substance listed on the indictment to which the respondent pled guilty. Yet,
rather than simply acknowledging a simple fact which is plainly before us—
that the respondent stands convicted of possessing cocaine, a federally
controlled substance—the categorical approach requires us to engage in an
extremely complicated analysis of whether the identity of the controlled
substance possessed is an element or means of violating section
2C:35-10(a)(1) of the New Jersey Statutes Annotated. Only if it is an element
can we then refer to the indictment to which the respondent pled. This entire
process would leave the casual observer shaking his or her head. But for
immigration adjudicators, trying to navigate through legal minefields such as
this is an all too common occurrence.
All of this is apparently necessary to “preclud[e] the relitigation of past
convictions [by Immigration Judges] long after the fact.” Moncrieffe
v. Holder, 569 U.S. 184, 200–01 (2013). But that is not an actual concern in
many immigration cases involving criminal issues, including this one, where
the record of conviction that is already before the Immigration Judge clearly
indicates that the respondent was convicted of the generic offense. There is
nothing to relitigate in a case such as this. Yet, rather than taking a minute
to acknowledge the evidence that is already before them, Immigration Judges
(and the Board) are required to engage in “an endless gauntlet of abstract
legal questions.” United States v. Chapman, 866 F.3d 129, 137 (3d Cir.
2017) (Jordan, J., concurring) (citation omitted). The fact that we do so in
civil proceedings, where the respondent has no right to a jury trial under the
Sixth Amendment, is all the more remarkable. See Pereida v. Wilkinson, 141
448

Cite as 28 I&N Dec. 437 (BIA 2022)

Interim Decision #4035

S. Ct. 754, 767 (2021) (“Sixth Amendment concerns are not present in the
immigration context.”).
I point all this out to emphasize that determinations like this are far from
easy, and they consume precious time and resources for an immigration court
system that is already facing an unprecedented backlog of cases. Performing
a modified categorical analysis in a case such as this is far less “onerous than
deciding whether a particular statute provides separate elements of a crime
or alternative means of committing the offense.” Matter of Chairez, 27 I&N
Dec. 21, 25 (BIA 2017) (Malphrus, concurring). Yet here we are. As was
recently acknowledged by Judge Park of the United States Court of Appeals
for the Second Circuit, “the categorical approach perverts the will of
Congress, leads to inconsistent results, wastes judicial resources, and
undermines confidence in the administration of justice.” United States
v. Scott, 990 F.3d 94, 126 (2d Cir. 2021) (en banc) (Park, J., concurring)
(collecting cases). There must be a better path forward.

449


MATTER OF

5--

In DEPORTATION Proceedings
A-8364783
Dceidrd by Mara ,July' 21, 1959

Excludability—Afflicted with psychopathic personality—Homosexual—Crime involving moral turpitude—Michigan—Gross indecency, section 338, Michigan
Penal Code.
(1) A homosexual is within the class of persons afflicted with psychopathic
personality as contemplated by section 212(a) (4) of the 19,52 act when he
has engaged in homosexual activities on many occasions over a period of
time and his behavior is not a response to unusual circumstances such as
au all male environment.
(2) Violation of section 338. Michigan Penal Code, gross indecency, held to
involve moral turpitude despite absence of statutory definition of the crime.
CHARGES:

Order: Act of 1052—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excluaanie
at time of entry as afflicted with psychopathic personality.
Lodged: Act of 1952—Section 241(a) (1) [8 . 1T.S.C. 12-51(a) (1)]—Excludable
at time of entry as having admitted commission of crimes involving moral turpitude; namely, gross indecency and crime against
nature (Michigan).
BEFORE THE BOARD

Discussion: Respondent. is a 33-year-old unmarried male alien, a
native and national of Canada, whose last entry into the United
States was at Detroit, Michigan, on August 15, 1958, when he entered
as a returning resident. Respondent was admitted for permanent
residence at. Detroit on August 27, 1952. The special inquiry officer
found respondent not deportable on the charge stated in the order
to show cause, but found him deportable on the lodged charge. The
alien appeals from the special inquiry officer's decision, contesting
the finding that he is deportable on the lodged charge.
The examining officer appeals from so much of the special inquiry
officer's order as finds the respondent deportable on the lodged
charge only, contesting the special inquiry officer's conclusion that
the respondent. is not subject to deportation under section 241(a) (1)
of the immigration and Nationality Act as a person afflicted with
a psychopathic personality under section 212(a) (4) at time of
409

entry. It is the conclusion of the Board that the alien is deportable
on both charges.
On April 12, 1958, respondent was arrested in Detroit for "accosting and soliciting" a male police officer to perform an unnatural
sex act (oral perversion), in violation of section 448, Michigan
Penal Code. On his plea of guilty, he was convicted and sentenced
to pay a fine in lieu of a jail term. Thereafter on June 19, 1958,
respondent made a sworn statement to an immigration investigator,
following the usual warning that "any statement you make must
be of your own free will and may be used as evidence in any
deportation or other proceedings." The alien stated that he was
willing to make the statement under oath. It is this statement (exh.
2) which forms the basis for the lodged charge.
Respondent was asked if he understands the meaning of the word
homosexual, and he said, "Yes, I understand the meaning of the
word, yea." He stated he had homosexual tendencies since he was
15 or 16 years of age and described the manner and nature of his
indulgence. He stated that he had engaged in such acts with other
male persons for "practically four years." He admitted frequenting
locations known to be gathering places for homosexuals, admitted
acts of sodomy, stated that he had engaged in such activities sometimes two or three times a month and sometimes not as often. The
definitions of "gross indecency," section 338, and "sodomy," section,
153, Public Acts of 1931, Michigan, were read to respondent, and
he was asked if he admitted the commission of these crimes prior
to his last entry into the United States on April 1, 1957. Respondent answered, "Yes," to each of these questions.
After the time of 'making the statement, respondent went to
Ca.nada with his father and mother and returned on August 15,
1958. An order to show cause dated October 31, 1058, was served
on respondent, and the hearing was commenced. on November 10,
1958. Respondent denied that he was afflicted with a psychopathic
personality. He admitted that the sworn statement of June 19,
1958, was .made by him and that all the information contained in
the record of that statement was true and correct. He admitted
having been interrogated by Dr. P L , M.D., Psychiatric
Consultant, of the United States Public Health Service. Dr. L
issued a Class A medical certificate certifying that respondent was
efflictecl with "sociopathic personality disturbance, sexual deviation
(homosexuality) - (psychopathic personality with pathologic 9C7111
ality)" at, the time of his last entry. Exhibit 2 and the medical
certificate, exhibit 3, were introduced in evidence, and there was no
objection by respondent or counsel.
At a continued hearing Dr. L
testified that during his 45minute: interview with respondent the facts elicited by him were
410

sufficient to support the certificate he in ned. He recited much the
same information as that set forth in exhibit 2, but in greater deon what he based his diagnosis of a
tail. Counsel asked Dr. L
psychopathic personality in the case of respondent, and Dr. L------repl ied
* the main piece of evidence * * is the predominant homosexual in-

terests that he clearly aiiinifezit. unit has manifested for a series of years. * * *
in addition to this, * * * he was quite accepting of tins kind of sexual adjustment and was generally speaking concerned largely with the legal consequences
of his predicament rather than any moral or ethical or religious consequences
of his adjustment and behavior.

Dr. L— testified that he considered the time he spent with
respondent sufficient for the purpose of immigration procedure. That
is, he did not prescribe an y treatment. and his examination was not
for the purpose of planning treatment or for determining whether
respondent could be successfully treated.
, a physician practicing psychiatry in Detroit, MichiDr. A
gan, and offering extensive qualifications, testified in respondent's
behalf. He saw respondent nine or ten times in his office and testified that he had thoroughly examined respondent and had formulated
a theory or concept of respondent's personality and condition, which
he recited. Dr. A stated that from a psychiatric viewpoint
he does not believe respondent to be a homosexual, but states that
his diagnosis is "psycho s exual infantilism." Dr. testified
that respondent indulged in the "infantile sexual life'' only when
he was under the influence of alcohol which relieved him of his
inhibitions. Dr. A was asked by the examining officer, "Did
this respondent relate to you a history of homosexual conduct?"
Dr. A replied in the affirmative and read from his notes a
resume of respondent's background, including the fact - that his
first "experience" was in 1954; that he had, engaged in such activities
about once a month since that time, both as the active and passive
partner; and that he claims to have been under the influence of
alcohol on every occasion that he engaged in active homosexuality.
Dr. A stated that he diagnoses respondent as a neurotic rather
than a psychopathic personality, and as a person afflicted With psychosexual infantilism rather than as a homosexual, because lie has
anxieties, fears and concerns about himself, because he de.sirec3 to
cure himself, and because he has actually entered into a relationship
with a woman. In Dr_ A
's terminology, a psychopath has no
such desires and seeks no such help. Dr. A
also testifipd that
in all of these incidents respondent was "lured," and that definitely
in the circumstance of the last arrest "luring" had been present.
The psychiatrist ranged over a wide area of hypothetical unrelated to the instant case. The hearing became primarily a diseuEsion of the legal meaning of the term "psychopathic personality."
411

Dr. L
replied:

was asked to define a psychopathic personality, and

I believe the term "psychopathic personality" is essentially a descriptive
term referring to individuals who manifest poor judgment, inability to learn
from experience, antisocial and dissocial trends in their life pattern, lack of
adherence to the usual social and moral standards * * * does not follow, generally speaking, the usual moral and social code * * * although this same
person is fully cognizant of the nature of his activities and he is fully responsible for them in the sense that he knows what he is doing and the
consequences of his acts.

The term "psychopathic personality" is defined for us in the
legislative history of the statute and in the Manual for Medical
Examination of Aliens, issued by the United States Department of
Health, Education, and Welfare, Public Health Service, Washington, D.C., chapter 6, Mental Diseases and Defects, which states, section A, p. 6-1:
1. General.
a. The purpose of this section is to take up separately various excludable
(class A) mental conditions with the object of clarifying the meanings of the
terms, and to furnish criteria that will help the examiner determine the proper
classification of mental conditions according to the terms contained in the law
and regulations.
h. A description of the various types of mental illness will be found in the
Diagnostic and Statistical Manual, Mental Disorders (Committee on Nomenclature and Statistics, American Psychiatric Ass'n., Washington, D.C.,

1952.) *

*.

6. Psychopathic personality.
a. The legal term "psychopathic personality" is equivalent to the medical
designation "personality disorder," which may he broadly defined as follows:
"These disorders are characterized by developmental defects or pathological
trends in the personality structure, with minimal subjective anxiety and little
or no distress. In most instances, the disorder is manifested by a lifelong
pattern of action or behavior (acting out), rather than by mental or emotional symptoms." * * *
b. Under this legal category will be classified those applicants who are diagnosed as sexual deviates. (p. 6-5)

The Senate Committee Report No. 1137 (82d Cong., 2d
January 29 1952) reporting for the Committee on the Judiciary on
the bill which became the Immigration and Nationality Act of
1952 comments:
Existing law does not specincal y provide tor the exclusion of homosexuals
and sex perverts. The provisions of S. 716 which specifically excluded homosexuals and sex perverts as a separate excludable class does not appear in
the instant bill. The Public Health Service has advised that the provision
for the exclusion of aliens afflicted with psychopathic personality or a mental
defect which appears in the instant bill is suff iciently broad to provide for
the exclusion of homosexuals and sex perverts. This change of nomenclature
is not to be construed in any way as modifying the intent to exclude all aliens
who are sexual deviates. (Emphasis supplied.)

412

The House Committee on the Judiciary submitted :Report No.
1365 (Sid Cong.. 2d sees., February 14, 1952) which includes at
page 46 the report of the Public Health Service on the medical
aspects of this legislation. The latter report discusses the term
"psychopathic personality" as follows:
Some comments should be evnressed regarding the term "psychopathic personality." Although the term "psychopathic personality," used in classifying
certain types of mental disorders, is vague and indefinite, no more appropriate expression can be suggested at this time. The conditions classified within
the group of psychopathic personalities are, in effect, disorders of the per.onality. They are characterized by developmental defects or pathological
trends in the personality structure manifest by lifelong patterns of action or
behavior, rather than by mental or emotional symptoms. individuals with
such a disorder may matlifes,t a diturhanCe of intrinsic personality patterns,
exaggerated personality trends, or are persons ill primarily is terms ofs ociety
and the prevailing culture. The latter or sociopathic reactions are frequently
symptomatic of a severe underlying neurosis or psychosis and frequently include those groups of indivlauala euffprinz from addiction or sexual deviation.
Until a more definitive expression can be devised, the term "pr±schopnthie personality" should be retained.

We are, of course, bound by the definition of psychopathic personality in the 1952 act, as it appears in the legislative history and
the Manual for the Medical Examination of Aliens, as set forth
above. Dr. _A— described what he considered to be a psychopathic
personality, but it is clear that his definition is different from that
decreed for us by the authorities quoted above.
The special inquiry officer read to Dr. A
from House Report
No. 1365, quoting the. Public Health Service definition of "psychoagreed with this
pathic personality" and asked whether Dr. A
replied that he did not entirely
discussion and concept. Dr. A
agree with it, that "in the light of clinical experiences, you cannot
make a universal conclusion, so to speak. You have to treat each
case individually and not in the form of a statistic. * * * We want
to put them into definitions, into classes, and into laws * * '*, and
when we deal with human beings, it's impossible * * if we keep
in mind the quantitative factor, then we can understand whether
or not he approximates the degree of what in the old times they
used to call psychopathic personality, or the degrees of what I
choose to term psychosexual infantilism." Dr. A— came around
to stating that he disagreed with the terminology of the Act and
prefers to use a term of his own, "psychosexual infantilism." The
term psychopathic personality used in the Act, and defined for us
in the legislative history of the Act, is not one we can use or reject,
or substitute a term we prefer. If we were to accept Dr. A — 's
definition of the term it seems apparent that almost no one would
be. classified as a psychopathic personality, because his definition
contemplates a person who is incurable and refuses to seek treat-

ment. If one has refused to seek treatment ; it is impossible to say
he is incurable. Only a person who had submitted to extensive
treatment and had not benefited thereby would come within Dr.
A 's definition. It is our opinion that the application of the law
was not intended to be so narrowed. The definition of psychopathic
personality offered by Dr. L was more nearly akin tb the standard prescribed by the law and the legislative history of the law.
and Dr.
A difference of opinion also exists between Dr. L
stated that it
A
as to the definition of a homosexual. Dr. L
is a difficult thing to define, that no single distinction allows people
to be characterized into two groups, one being heterosexual or
normal and the other being homosexual or abnormal, but that, to
the best, of his ability, "Homosexuals are those individuals who
manifest characteristically a preference both in their overt sexual
activity and in their mental or psychic sexual fantasies * * * a
preference for the same sex. * * * According to the Manual for
Medical Examination of Aliens and the nomenclature of the American Psychiatric Association, most homosexuals would be considered
as sociopathic personalities with sexual deviation. I couldn't say
categorically that all homosexuals would fall in this category because I haven't seen all homosexuals. I'm sure there might be some
exceptions." Dr. L stated that a homosexual who might not be
a psychopathic personality might be one who had occasional or isolated homosexual experience, or who responded with homosexual
behavior when he was in an all male environment such as the
Army or in prison. He denied, in response to a question of counsel,
that there was any similarity between such situations and a hypothetical situation posed by counsel where "an arresting officer makes
himself available by means of what we have legally defined as an
entrapment." Dr. L
also stated that lie does not feel that there
is any such thing as a psychoneurosis causing homosexuality.
The meaning of "homosexual" is discussed in United States v.
Flores-Rodriguez. 237 F.2d 405 (C.A. 2, 1956), although the case
arose under the 1917 act. The court there concluded that the alien,
a convicted and admitted homosexual, came under the term "mentally
defective" as also used in section 212(a) (4) of the 1952 act, and concluded that Congress did not intend to admit "a sex deviate so
afflicted with such a defect of mentality as to publicly solicit an
unnatural act." The concurring decision of Circuit Judge Frank
quoted the Senate Report and the Public Health Service Report
referred to above. "Psychiatrists have differing perspectives when
they are (a) classifying patients, (b) diagnosing patients with reference to possible 'cure,' and (c) discussing the legal 'responsibility'
of those accused of crime. A psychiatrist with one perspective may
use a psychiatric term in a manner different from another psy—

414

chiatrist with another different perspective,' said Judge. Frank.
He believed the 1917 act may not have included sex deviates, but
there was no question in the minds of any of the Court that the
1952 act does include such persons.
The record shows that respondent is definitely within the class
of "homosexuals," as the term is commonly understood, and within
's psychiatric parlance
the contemplation of law. Within Dr. A
respondent may not be a true homosexual, but the record establishes that he is not a young boy, that lie has been engaged in these
activities for some years, on many occasions, and with many part
ners. This is not a case of a psendoliomosexual, as described by
both specialists, who engaged in such activities because he found
himself in unusual circumstances. If this man is not a homosexual, we would find it difficult to hold that anyone is a homosexual. Since Congress unquestionably intended to include homosexuals in the class of aliens afflicted with a psychopathic personality, we can make no finding except that respondent is subject to
deportation under section '241(a) (1) of the Immigration and Nationality Act in that, at the time of entry, he was within a class
of aliens excludable by the law existing at the time of such entry, to wit, an alien afflicted with a psychopathic personality under
section 212(a) (4) of the Act.
Counsel's basis for his appeal with regard to the second charge
2 I. & N. Dec. 285, 287 (B.I.A., March 1,
is Matter of J
1945; Sol. Gen., May 29, 1945). The J
case establishes the
rules to be observed in finding that an alien has admitted the commission of a crime involving moral turpitude. Respondent made a
binding admission under the rules of the J case. The Solicitor
General's restatement of the elements of a binding admission, 2
I. & N. Dec. 285 at 288, contains the repeated admonition that the

admission must. be "clear," but there is no provision in the formula
that, the elements of an admission must occur in any particular
sequence. The alien was advised of the acts committed by him
which were stated to constitute gross indecency and sodomy. Respondent clearly and repeatedly admitted the acts which constitute
the essential elements of the crime. His admission was unequivocal.
There is no question that the crimes of gross indecency between
male persons and sodomy are crimes involving moral turpitude
by the language of the Michigan statutes, and the decisions of this
Board, and under such court decisions as are available. As long
ago as February 26, 1944, the Board held that a violation of section 338 of the Michigan Penal Code involves moral turpitude, as
the offense of fellatio is comprehended within the definition of the
statute (Matter of S
, unreported, 56152/594). The decision of
the special inquiry officer cites Matter of 1i7
, 5 I. & N. Dec. 578
415

(B.I.A.. Dec. 23, 1953), wherein, on reconsideration, the Board found
that a statement by an alien under oath to a Service officer that he
had been a person of homosexual habits and that he had been
addicted to practicing masturbation with other male persons was
an unequivocal admission of the commission of the crime of gross
indecency in violation of that section of the Michigan statute; that
the element of moral turpitude was present; and that the alien was
deportable on the basis of his competent and binding admission.
Most recently, we decided in Matter of 11-- ,.(Nov. 29, 1956, 7
I. & N. Dec. 359), that the offense of gross indecency in violation
of section 206 of the Canadian Criminal Code, practically identical
to the statute here under consideration, is a crime involving moral
turpitude, citing cases. We considered similar statutes of other
States where the acts were not defined by statute, or even set out
in the record of conviction because of their obscenity and grossness,
and we found that the absence of definition as to the nature of the
crime in the Canadian statute did not prevent a conclusion that an
-admission of the commission of the crime involved moral turpitude
when the conduct admitted by respondent was vile, depraved and
•contrary to the tenets of society. Holdway v. Barber (D.C., N.D.
Calif., 1957), unreported, upheld our decision in Matter of H
supra, agreeing that the conviction involved moral turpitude. A
similar statute, wherein the offense is not defined, is considered in
Matter of Z , 7 I. & N. Dec. 253.
Following the lodging of the second charge the special inquiry
officer granted an adjournment of the hearing for the purpose of
permitting counsel and respondent to meet the lodged charge. At
the reopened hearing, December 19, 1958, counsel asked respondent
if he knew at the time he made the statement of June 19, 1958,
what the terms "gross indecency" and "crime against nature" or
"sodomy" were, and if he could have defined the meaning of these
terms. The alien stated that he did not know what they meant at
the time he made the statement and that. he could not define the
terms then nor now. He stated that he did not know what the
special inquiry officer was talking about when he read the Michigan
statutes relating to these offenses. At the time he made his statements of June 19, 1958, not only did the respondent answer the
-questions of the investigator, but when he was asked whether or
not he had at any time engaged in acts of sodomy, and the investigator defined these acts for him, the alien volunteered, "I have
done that to somebody but I never let them do it to me." The
special inquiry officer concluded that from his observation of the
respondent during the hearing, from respondent's demeanor and
manner of response, the special inquiry officer believed him to be
mentally alert, observant , and of sufficient understanding to com-

416

prebend the questions put to him, and found that respondent's
testimony that he did not understand the investigator is unworthy
of belief. Our reading of the record leads us to the same conclusion. it should be remembered that this alien is from Canada and
does not have the handicap of dissimilarity of language that exists
in many of these cases.
Counsel complains that respondent's statement is not used as evidence of an offense, but that the statement itself constitutes the
very grounds for deportation. That is the effect of this peculiar
provision of the immigration laws. The subsection providing for
the "admission of the commission of a crime" was present in the
1907 act and was carried over into the 1910, 1917 and 1952 acts..
(Senate Committee Report No. 1515, 81st Cong., 2d sess., p. 350.)
The fact that an alien can make an admission which, in itself,
renders him deportable, even though he may not have been convict e d of the. precise crime which he admits, may be unique and seem
severe, but it has been part of the immigration statutes for many
years. It is because of its severity that the rules of the
case, supra, were established and are adhered to.
We have sustained the use of preliminary statement given by the
alien voluntarily in Matter of P , 5 I. & N. Dec. 306; Matter of
4 I. & N. Dec. 475; Matter of P— , 4 I. & N. Dec. 684, and.
decisions discussed therein. The present regulation, 8 CFR 242.14,z'
is the equivalent of the old regulations, 8 CFR 150 and 151, set forth
in footnotes 1 and 2 to Matter of F , 4 I. & N. Dec. 475.
Sehoeps v. Carmichael, 177 F.2d 391 (C.A. 9, 1949), held a recorded
statement of an alien made under oath was admissible under the
regulation, and referred to the regulation as "sensible." Exhibit a
shows that respondent was informed that any information he gives
should be voluntary, that it might be used by the Government in
any proceeding that might be instituted against him. He was
asked if he was willing to make such a statement. He was placed
under oath and informed as to the meaning and penalties for
perjury. These warnings and admonitions serve to preserve his_
constitu tional rights, The failure to advise him of the right to
counsel at the taking of a preliminary statement does not render
the hearing unfair or invalidate the use of the statement. We
find nothing in the record upon which to base a finding that his
statement was not free and voluntary.
.

5 CFR 24234:
(c) Use of prior statcracnis. The special inquiry officer may receive in evidence any oral or written statement which is material and relev a nt to any
issue in the case previously made by the respondent or any other person during any investigation, examination, hearing, or trial.
1

417

Lodging of the additional charge was proper within the regulations?
It is our conclusion that respondent was given a fair hearing;
that he is deportable on both the lodged charge and the charge
set forth in the order to show cause; and that the appeal must be
dismissed.
Order : It is ordered that the appeal of the alien be and is hereby
dismissed.
It is further ordered that the appeal of the examining officer be
sustained, and so much of the special inquiry officer's order as
finds the alien not subject to deportation on the charge stated in
the order to show cause be reversed, and the alien is found to be
subjeet to deportation under section 241(a) (1) of the Immigration

and Nationality Act, in that, at time of entry, he was an alien
afflicted with psychopathic personality under section 219(a) (4) of
the Act.
It is further ordered that the portion of the order of the special
inquiry officer finding the alien deportable on the lodged charge be
and is hereby approved.
28 CFR 242.16 (d) provides, in part:
(d) Additional charges. An examining officer who has been assigned to a
case may at any time during a hearing lodge additional charges of deportability, including factual allegations against the respondent.

418


Interim Decision #2668

MATTER OF TONG
In Deportation Proceedings
A-20938473

Decided by Board August 15, 1978
(1) The word "employment" is a common one, generally used with relation to the most

common pursuits, and therefore ought to be received as understood in common parlance
and includes the act of being employed for one's self.
(2) Unauthorized self-employment as a used car dealer is "unauthorized employment"
within the purview of section 245(c) of the Immigration and Nationality Act (8 U.S.C.
1255(c)) and precluded adjustment of status.
(3)8 C.F.R. 214-2(f)(6) provides that a nonimmigrant student is in violation of his status
whether he engaged in off-campus employment in the United States for an employer or
independently, unless his application to do so has first been approved by the Service.
CHARGE:
Order: Act of 1952—Section 241(a)(9) (8 U.S.C. 1251(a)(9))—Noninuaigrant—Failed to

comply with conditions of status (Order to Show Cause-charge
withdrawn)
Lodged: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2))—Nonimmigrant
student—remained longer than permitted
ON BEHALF OF SERVICE:
Oliver H. Claypooldr.
Trial Attorney

ON BEHALF OF RESPONDENT:
Mary L. Sfasciotti, Esquire
Sfasciotti, Stern & Sfasciotti
5825 Sixth Avenue
Kenosha, Wisconsin 53140

BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

This case presents an appeal from a decision of the immigration judge
on August 8, 1977, finding the respondent deportable on the lodged
charge and granting him the privilege of voluntary departure, with an
alternate order of deportation to Hong Kong. The immigration judge
denied the respondent's application for adjustment of status, pursuant
to the provisions of section 245 of the Immigration and Nationality Act,
as amended. The appeal will be dismissed.
the respondent is an unmarried native and citizen of Hong Kong who
has resided in the United States since August 1971_ He is the beneficiary of a visa petition filed by his lawful permanent resident mother
593

Interim Decision #2668
and approved by the District Director in April 1975. The respondent
was initially authorized to remain here as a student until June 15, 1976.
He was granted the privilege of departing voluntarily by October 26,
1976, without the issuance of an Order to Show Cause, but failed to
leave this country. Deportability has been established by clear, convincing, and unequivocal evidence.
The immigration judge noted the respondent's testimony that he has
been self-employed since he opened a used car dealership known as
Eddie's Auto.Sales on May 1, 1976 (Tr. p. 8), without permission from
the Service (Tr. p. 13). The immigration judge found that the respondent, therefore, is precluded from qualifying for adjustment of status
under the provisions of section 245(c) of the Act. Counsel contends on
appeal that the respondent did not commence his business until one year
after graduation from college in 1975 and was no longer a student in May
1976. Counsel also contends that the immigration judge failed to address
the issue as to whether self-employment constitutes unauthorized employment, as that term appears in section 245, and thereby precludes
adjustment of status to aliens who have engaged in unauthorized employment. The Service contends that the term "employment," in section
245 of the Act, includes within its meaning "self-employment" (p. 8).
Section 245(c) of the Act, as amended by P. L. 94-571, 90 Stat, 2703,
effective January 1, 1977, provides, in pertinent part, "The provisions of
this section shall not be applicable to an alien . . . who hereafter con

tinues in or accepts unauthorized employment prior to filing an application for adjustment of status. . . ." Counsel in her first brief contended
that the respondent's "status approximates an investor and not an
`employee' as that term is commonly used." It is the official position of
the Service, however, that it considers unauthorized self-employment
by a beneficiary of an approved relative visa petition as "unauthorized
employment" within the purview of section 245(c). We are in agreement
with this position.' Cf. Matter of eh,en g , Interim Decision 2623 (BIA
1977). In the latter case, it was noted that on July 18, 1977, the Central
Office of the Service issued an instruction to all field offices whereby
nunc pro tune authorization to accept employment was to be granted to
any alien who was the beneficiary of a visa petition filed before January
10, 1977, and who•could, under 8 C.F.R. 245.2(a)(2), have properly filed
an application for adjustment with that visa petition. In the instant
ease, the respondent cannot possibly benefit from the Service instrac8 C.F.R. 214.2(f)(6) provides, in pertinent part, that a nonimmigrant student is in
violation of his status whether he engages in off-campus employment in the United States
for an employer or independently (i.e. self-employed), unless his application to do so has
first Been appriropyl by tha Serzieo_ (Emphasis supplied.) The word "independently" "as
added effective September 2, 1975 (40 F.R. 32312, 8/1175).

594

Interim- Decision watib
tion because he is a native of Hong Kong and a visa was never immediately available to him before January 10, 1977.
The word "employment" is a common one, generally used with relation to the most common pursuits, and therefore ought to be received as
understood in common parlance. The word "employment" is also defined
as meaning the act of being employed for one's self (30 C.J.S. 682). It
should be self-evident, in view of all of the foregoing, that any and all
types of employment taken without proper authority constitute unauthorized employment.
A nonimmigrant alien has the obligation either to depart at the
expiration of his authorized period of stay, or to obtain a proper extension of that stay. In order to establish an alien's deportability as an
"overstay," the Service need only show that the alien was admitted as a
nonimmigrant ". . . for a temporary period, that the period has elapsed,
and that the nonimmigrant has not departed." See Milande v. INS, 484
F.2d 776 (7 Cir. 1973); Matter of Teberen, Interim Decision 2498 (BIA
1976). It should be clear that the respondent, no longer a student, is an
"overstay" in this country and has remained in the United States illegally.
Upon review of the recur d, we find that the decision of the immigration judge was correct in the circumstances of this case. He granted the

respondent a period of two months for voluntary departure. We have
held that in those eases in which a period exceeding 30"days has been
granted, the respondent will be given 30 days from the date of our
decision in which to depart voluntarily. See Matter of Chowliaris,
Interim Decision 2572 (BIA 1977). The District Director, however, is
authorized to extend that period in his discretion. See 8 C.F.R. 244.2.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is permitted to depart from

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

595


NIATTER OF

C—

In DEPORTATION Proceedings
A-11292572
Decided by Board October 7, 1960
Nonimmigrant status—Criminal conviction per se not considered violation of
nonimmigrant status.
Conviction for dieordcrly conduct does not conctituto violation of nonimmigrant student status where the alien was not incarcerated and continued his
6-762.)
school attendance without interruption. (Modifies Matter of

CHARGE :
Order: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9)1—Failed to
comply with nonimmigrant student status.
13Et'OICE THE BOAKIJ

DISCUSSION: This is an appeal from the special inquiry officer's
order of Jurie 10, 1960, finding respondent deportable on the charge
set forth above. Respondent, a native of Bermuda and subject of
Great Britain, male, unmarried, 21 years of age, last entered the
United States at New York on September 5, 1958, as a nonimmigrant
student. His last extension expired September 4, 190. Respondent.
admits that he was "apprehended" on December 5, 1959, on a charge
of soliciting for lewd and immoral purposes. Exhibits 2 and 3, copies
of records of the Metropolitan Police Department, Washington,
D.C., disclose that respondent was a student at Howard University
at the time of his apprehension; that this was his first arrest ; that
the arrest took place at 1 :00 A.M. in the vicinity of Lafayette Park
in Washington, D.C.; that, having made obscene proposals to a

member of the Metropolitan Police Force, he was arrested and "taken
to the CCB in a patrol wagon."
An information was filed in the Criminal Division of the Municipal
Court for the District of Columbia on December 7, 1959, alleging
that respondent did unlawfully invite, entice, persuade, address for
the purpose of inviting, enticing and persuading an adult person,
to wit, E—M-74--- (police officer), for lewd and immoral purposes.
The Assistant United States Attorney who handled this case appeared and testified at the immigration hearing, stating that this
100

charge was nolle prossed on February 5, 196U, and that respondent
forfeited his collateral of $100 on a substituted charge of "disorderly conduct (sex)." The Assistant United States Attorney
testified that since this was respondent's first offense, and since he
was in the country temporarily as a student and was going to leave
the country when he finished his studies, Mr. Q— felt it was a good
disposition of the matter to permit respondent to plead guilty, in
effect, to a lesser criminal offense.
Exhibits 3 and 6, copied from the Metropolitan Police Department
records, indicate that the substituted charge was "disorderly (pervert)," which differs from counsel's recollection that the substituted
charge was "disorderly (sex)." Mr. Q— stated that in his opinion
"disorderly (sex)" and "disorderly (pervert)" charges would be
the came. The Assistant United States Attorney testified that the
respondent "knew what he was forfeiting to and why"; that it is
unimportant what he actually forfeited to, since he knew what he
was charged with; and that the disposition of the case was to save
the trial, save the court time; and that the nolle pros was contingent on the fact that respondent would forfeit the $100 collateral.
This disposition of the case is indicated by exhibits 5 and 6 (court
and police records).
The special inquiry officer found that respondent's criminal offense constitutes activity inconsistent with and in violation of
the conditions of his nonimmigrant status. He stated that regardless of the name given the offense, it stems from homosexuality, and
that respondent cannot establish good moral character for the past
five years in order to qualify for a grant of voluntary departure.
In oral argument before the Board the Service representative
cited our decision, Matter of A—, 6-762, wherein an alien in the
United States as a temporary visitor for pleasure was arrested
fur "disorderly conduct, loading," under a New York statute

defining disorderly conduct as an "offense" rather than as a crime.
In Matter of A—, supra, the alien was sentenced to 30 days in the
workhouse and served that sentence. The Board found that the
conduct which resulted in his conviction under that section "constituted activity inconsistent with his status as a nonimmigrant
visitor for pleasure." The Service representative seeks to have the
decision in Matter of A—, supra, extended to the present case, stating that it is not a significant distinction that A— was confined for
a period of time in a penal institution and that the alien in the
instant matter was nut confined.
The decision in Matter of A , supra, does not make it sufficiently
clear, perhaps, that we had in mind the fact that when A— was
serving a 30 day term in the workhouse, he was no longer pursuing
the purpose for which he was admitted. He was admitted as a tern—

101

porary "visitor for pleasure" and the jail sentence interrupted his
pursuit of pleasure, and, therefore, he was out of status. It seemed
to us that it was his conviction and confinement which constituted
the activity inconsistent with his status, rather than the criminal
conduct itself.
Respondent was not incarcerated, and while on probation apparently he continued his attendance at Howard University, Washington, D.C., without interruption, except for vacations. There is
nothing to show that he was expelled from college. So far as this
record shows, he has not accepted employment, or in any other way
"failed to abide by all the terms and conditions of his admission or
extension" as a student, as provided by the regulations. His conduct,
while not to be condoned, resulted in a suspended sentence only,
without any interruption of his attendance at school. We find on
this record that respondent maintained the nonimmigrant status
of a student under which he was admitted, and the appeal will be
sustained. 1
ORDER: It is ordered that the appeal be and the same is hereby
sustained.
1 The instant case is similar on its facts to Matter of M—S'—,
A-8953895
(B.I.A., June 24, 1957), and identical with Matter of
A-1349127 (B.I.A.,
December 3, 1959), both unreported, wherein the Board's disposition of the
issue was consistent with the position taken here_ In both those cases the
Board held that the aliens had maintained their student status, since there
was no evidence of intent to abandon it, and they had continued in school
while on probation.

192


Interim Decision #2117

MATTER OF SOUZA
In Visa Petition Proceedings
A-18550615
Decided by Regional Commissioner January 3, 1972
Where the visa petition to accord beneficiary nonimmigrant classification under

section 101(aX15)(K) of the Immigration and Nationality Act, as amended, as
the alien fiancee of the U.S. citizen petitioner, was filed between the date
beneficiary obtained a decree nisi in divorce proceedings against her first
husband and the date that decree became final, the visa petition is denied
since beneficiary's divorce was not absolute and was open to legal challenge
until the latter date; further, instructions on Form I-129F, which, pursuant to
S CFR 103.2, are incorporated into the regulations, require that both the
petitioner and beneficiary must be unmarried at the time the petition is filed.
IN BEHALF OF PETITIONER:

Martin T. Camacho, Esquire
31 State Street
Boston, Massachusetts 02109

This matter is before the Regional Commissioner on appeal from
the denial of the petition to accord the beneficiary nonimmigrant
classification as the fiancee of a United States citizen under
section 101(015)(K) of the Immigration and Nationality Act, as
amended.
The beneficiary is a 23-year-old Portuguese citizen, born in the

Azores, who was admitted to the United States on August 25, 1969
as a temporary visitor for pleasure until December 21, 1969. She
was married on November 27, 1969 to Ronald Souza, a 32-year-old
native-born United States citizen, who filed an immediate relative
petition in her behalf on December 22, 1969. The petition was
approved by this Service on December 30, 1969 and, on February 2,
1970, the alien applied for permanent residence. Her husband
subsequently withdrew his petition on August 8, 1970, stating that
his wife has refused to live with him and had gone to reside with
relatives. The beneficiary's application for adjustment was thereafter denied August 24, 1970 on the ground that an immigrant
visa number was not immediately available to her, and she was
given until September 8, 1970 to depart from the United States.
Her failure to leave resulted in the institution of deportation
1

Interim Decision #2117
proceedings on February 5, 1971. On May 4, 1971, she was granted
the privilege of voluntary departure, with an alternate order of
deportation being entered in the event she failed to leave when
and as required.
The record in this matter further discloses that the beneficiary
subsequently initiated annulment proceedings against her husband based on allegations of fraud, misrepresentation, and nonconsummation of the marriage. The action was dismissed on June
25, 1971 inasmuch as the allegation of fraud had not been sustained.
A libel for divorce was thereafter filed in behalf of the alien in
the Bristol County Probate Court, Bristol, Massachusetts and was
heard on September 14, 1971. A decree nisi was entered in her
favor that date on the ground of cruel and abusive treatment, the
decree to become absolute upon the expiration of six months. The
alien subsequently departed from the United States on October 9,
1971. The instant petition was filed in her behalf on November 10,
1971 by Michael J. Flint, a 20-year-old native-born United States
citizen. The District Director denied this petition on the ground
that the beneficiary is not unmarried and, therefore, is not free to
conclude a valid marriage within ninety days after entry into the
United States.
In connection with the appeal from the District Director's

decision, oral argument was heard at Burlington, Vermont on
December 1'7, 1971. It has been stated by counsel that the statute
merely requires the petitioner and beneficiary be free to conclude
a valid marriage within ninety days after the alien's admission;
that, in the instant case, the petitioner requests the issuance of a
nonimmigrant visa as of January 14, 1972, which will be exactly
four months after the decree nisi was entered in the beneficiary's
favor; that if she is admitted to this country subsequent to
January 14, 1972, she will be free to marry on or after March 14,
1972 when the decree becomes absolute; that such marriage will
be contracted within thirty days thereafter, thus complying with
the ninety-day period specified in the statute; that in the unlikely
event the divorce does not become final and the ,marriage cannot
occur, the law will require the alien to depart from the United
States. It has been asserted that since the beneficiary was the one
who brought the divorce action and the 21-day appeal time has
run out for her former husband, the chances are practically nil
that the decree nisi will be set aside. Counsel has further stated
that the petitioner and beneficiary have met and seen each other;
that, to the hest of his knowledge, they became acquainted after
the divorce action was initiated and knew each other for approxi2

Interim. Decision #2117
mately two months prior to the filing of the petition; that they are
about the same age and very sincere in their desire to marry.
The entire record in this case has been very carefully reviewed
in the light of the representations made on appeal. Section 214(d)
of the Act, as amended, provides in part:
A visa shall not be issued under the provisions of section 1D1(a)(15XK) until the
consular officer has received a petition filed in the United States by the fiancee
or fiance of the applying alien and approved by the Attorney General. The

petition shall be in such form and contain such information as the Attorney
General shall, by regulation, prescribe. It shall be approved only after satisfactory evidence is submitted by the petitioner to establish that the parties have a
bona fide intention to marry and are legally able and actually willing to anwludo

a valid marriage in the United States within a period of ninety days after the
alien's arrival. In the event the marriage with the petitioner does not occur
within three months after the entry of the said alien and minor children, they
shall be required to depart from the United States and upon failure to do so shall
be deported in accordance with sections 242 and 243.... (Emphasis supplied.)

In the matter at hand, the divorce decree nisi dated September
14, 1971 states that "upon and after the expiration of six months
from the entry of this decree it shall become and be absolute
unless, upon the application of any person interested within such
period, the Court shall otherwise order." Deapite counsel's insistence that the chances are extremely remote that the decree will be
set aside, the fact remains that the divorce could be challenged
legally within the six-month period and, if set aside, the alien
would not be free to marry. Moreover, the statute contemplates

that the peitioner and beneficiary be free to marry during all, and
not merely part, of the ninety-day period following the alien's
admission to the United States. This position is supported by the
instructions in Form I-129F which states in pertinent part:
1. Eligibility. A petition may be filed only by an unmarried citizen of the
United _States to classify the status of the alien beneficiary as a
nonimmigrant fiancee or fiance who seeks to enter the United States
solely to conclude a valid marriage with the petitioner within ninety
days after entry into the United States. The beneficiary must also be
unmarried and free to validly marry the petitioner. (Emphasis supplied.)

In accordance with the above instructions, both the petitioner
and the beneficiary must be unmarried and free to validly marry
at the time the petition is filed. It is provided in 8 CPR, 103.2 that
the instructions on applications, petitions and other documents on
prescribed forms are incorporated into the particular section of the
regulations requiring their submission. Under the circumstances
the instant beneficiary, whose divorce is not yet final, does not
meet the regulatory requirement for classification as the fiancee
of a United States citizen. Accordingly, this appeal will be dismissed.
IT IS ORDERED that the appeal be and same is hereby
dismissed.
3


Interim Decision 4t2116

MATTER OF FOTOPOULOS
In Deportation Proceedings
A-17485345
Decided by Board December 23, 1971 as amended January 19,
1972
(1) Respondent, who at the time of admission for permanent residence was
not destined to and had no intention of taking up the employment as a
dye box operator covered by the labor certification then presented, and
who proceeded to another area and obtained other employment, is deportable for lack of a valid labor certification at entry.
(2) There is no authority in the statutory scheme for a nunc pro tunc determination in deportation proceedings of respondent's alleged entitlement
at entry to an automatic labor certification under Schedule C—Precertification List, as a maintenance mechanic. Respondent's admissibility at time
of entry, upon which his deportability now depends, must be judged in the
light of the validity of the labor certification he presented at that time.

CHARGE :
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251]—Excludable by
law existing at the time of entry—Section
212(a) (14) [8 U.S.C. 1182]—coming to perform
skilled or unskilled labor—no valid labor certification.
ON BEHALF OF SERVICE:
Robert A. Vielhaber
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:
Jonathan E. Avirom, Esquire
225 Broadway
New York, New York 10007

This case is before us on appeal from a special inquiry officer's
order of October 23, 1970, granting the respondent the privilege
of voluntary departure, but providing for his deportation from
the United States to Canada, alternatively to Greece, on the
charge contained in the order to show cause, in the event of his
failure to so depart. The special inquiry officer's decision will be
affirmed and the appeal dismissed.
The record relates to a 31-year-old single male alien, a native
and citizen of Greece, who last entered the United States on Jan-

847

Interim Decision #2116
uary 29, 1968. He was then admitted for permanent residence
upon presentation of an immigrant visa supported by a certification from the Secretary of Labor. The latter document showed
that he was destined to Hull Dye & Print Works, Inc., Derby,
Connecticut, for employment as a Dye Box Operator, 40 hours
per week, at a salary of $2.11 per hour, with time and one-half
for overtime. He has, however, never worked for Hull Dye &
Print Works, Inc., since his entry.
Upon entering this country, the respondent proceeded directly
to the home of a cousin in New York City. Shortly after arrival
there, he took employment installing aluminum siding on homes
in the New York area. Thereafter, he obtained employment with
the Continental Confectionery Company, also in the New York
area, which he apparently still pursues. He has never obtained
labor certifications covering either of these positions.
The respondent's primary contention is that the validity of the
labor certification with which he gained entry is immaterial, on
the theory that at the time of entry he was, in fact, entitled to an
automatic labor certification under the Schedule "C" precertification list as a maintenance mechanic, as defined in Exhibit 7. The
special inquiry officer has already rejected this argument, holding
that the United States Consul in Canada and the Immigration
and Naturalization Service at the port of entry were entitled to
pass upon the respondent's claimed qualifications at the time he
applied for his visa and admission into the United States, and
that they were deprived of that opportunity by the respondent's
representations that he was needed by the factory in Derby, Connecticut, and intended to take up residence and employment in
that city. While we agree with the special inquiry officer's reasoning, we think brief additional comment will serve to point up its
legal basis.
Section 212(a) (14) of the Immigration and Nationality Act, 8
U.S.C. 1182, provides generally that every alien coming to the
United States to perform skilled or unskilled labor is required to
be in possession of a labor certification. The statute does specify
certain exceptions to the labor certification requirement, but the
respondent does not fall within any of them. Hence, he was required to present a certification.
The various schedules set up by the Department of Labor are
merely indicative of how a labor certification is obtained, i.e.,
whether an application for such a document has to be referred to
the Labor Department on a case-by-case basis, or whether there
is a shortage of employees which is so acute and well-known in a

848

Interim Decision #2116
particualr area that it can be certified on a mass basis. The latter,
however, does not constitute a waiver of the labor certification requirement. Therefore, there is no authority in the statutory
scheme for the 71202C pro tune determination respondent has, in
effect, requested. Hence, his admissibility at the time must be
judged in the light of the validity of the certification he presented
at that time, as discussed below.
We find no factual or legal support fur the respondent's concomitant contention that the special inquiry officer improperly found
that he was not entitled to a precertified Schedule "C" certification as a maintenance mechanic, because he lacked the necessary
qualifications. In the first place, while the special inquiry officer
did express the opinion that respondent's varied and sporadic experience was not sufficient to qualify him for a labor certification
as a maintenance mechanic under Schedule "C", he then proceeded to set forth the actual basis for his finding of deportability, as outlined above. Secondly, the authority of the special inquiry officer and this Board to determine the validity of labor
certifications is clearly spelled out in Matter of Welcome, Interim
Decision No. 1997 (BIA, 1969), the rationale of which is equally
applicable here.
The sole remaining issue is whether the labor certification the
respondent did present to gain entry was valid. In resolving this
problem we must focus on the moment of his admission, because
he is charged with deportability under section 241(a) (1) of the
Immigration and Nationality Act. The key factor, then, is the
Secretary of Labor's regulation, 29 CFR 60.5, which provides
generally that the requisite labor certification is invalid if the
representations upon which it is based are incorrect. Insofar as
this particular case is concerned, that regulation limits the application of the labor certification under consideration to the position described in the job offer submitted in behalf of the respondent. Thus, the crux of this case is whether, at the time of entry,
the respondent intended to comply with the terms of his admission, viz, to fulfill the obligations of section 212(a) (14)* of the
Immigration and Nationality Act. Specifically, the key question to
be answered is whether, at entry, the respondent was destined to
the certified job with the intention of taking up the specified
employment.' For the following reasons, we are convinced that
the special inquiry officer properly decided this question adversely
to the respondent.
1

Matter of Cardoso, I nterim Decision No. 1963 (BIA, 1969).

849

Interim Decision #2116
The file contains a record of a sworn statement taken from the
respondent on September 12, 1969, in which he admitted that he
was aware of the fact that his lawyer had obtained a petition approved for him to work for the Hull Dye & Print Works and that
he knew he was supposed to work for that concern when he came
to the United States. The only explanation the respondent has
given for his failure to proceed to Derby, Connecticut, and to
take up the employment for which the labor certification had been
issued was his belief that when he came to the United States as
an immigrant he was not forced to work in any particular place.
He stated that when he migrated from Greece to Canada no one
told him he had to go to any particular job and he thought that
the same conditions existed when he emigrated from Canada to
this country. The statement also indicated that when he came to
the United States he was financially in a bad way and that if he
had gone to Derby, Connecticut, he would have had to look for an
apartment or room to sleep in and that he did not have the financial means to do this because he would not have been paid for a
week or so after starting to work. His cousin was in the city of
New York and he went to his cousin instead, and was induced to
take employment in the city of New York by his cousin. His testimony in the course of the hearing before the special inquiry
officer was to the same effect.
We think the circumstances outlined above show clearly, convincingly and unequivocally that the respondent's intention at
entry was not to comply with the certification provision of section
212(a) (14) of the Immigration and Nationality Act. To hold
otherwise would, in our opinion, lead to the absurd result of permitting aliens to take the law into their own hands by using the
labor certification to gain entry into this country so that they
may thereafter accept any employment they can find. We are convinced that the Congress never intended such a possibility when
enacting this legislation. Again, the crux of this case is whether
when the respondent was admitted to the United States he had
the intention of taking up the employment covered by the labor
certification then presented, and we are convinced from the evidence recited that he . did not. It is this element which distinguished the present case from that of Cardoso, supra.
Counsel argues that the last paragraph of our opinion in Matter of Cardoso indicates an alien's post-entry failure to take up
the certified employment may be excusable, under certain circumstances. The inference he would have us draw, of course, is that
this respondent's conduct was justifiable. The factual distinction

850

Interim Decision #2116
between the two cases, however, is readily apparent. In Cardoso
the alien intended at the time of entry to take up existing certified employment, reported to that employment and only failed to
accept it because of conditions subsequent. Here, on the other
hand, the special inquiry officer has found, quite properly on this
record, that the respondent at the time of entry did not intend to
take up the certified employment. Thus, the respondent's postentry failure to take up the certified employment supports the finding that he never intended to fulfill his employment contract in
the first place.
In conclusion, as we have pointed out in Matter of Aguirre, Interim Decision No. 1940 (BTA, 1969), the execution of the special
inquiry officer's order granting the respondent the privilege of
voluntary departure has been stayed during the pendency of this
appeal. Thus, the respondent still has a 30-day voluntary departure period granted him by the special inquiry officer, running
from the date of our decision, within which to depart voluntarily
and thereby avoid the automatic entry of the deportation order
prescribed by the special inquiry officer.
ORDER : It is ordered that the appeal be and the same is
hereby dismissed.
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 decision or any extension beyond that time as may be granted by
the District Director and that, in the event of failure to so depart, the respondent shall be deported as provided by the special
inquiry officer's order.

851