Interim Decision #2073

MATTER OF RAMIREZ
In Visa Petition Proceedings
A-19660733
Decided by Board March, 11, 1971
Legitimation of beneficiary, who was born out of wedlock, was not accomplished by act of acknowledgment of paternity by the U.S. citizen petitioner in Louisiana in 1970 when he had legitimate children, since, under
the law of Louisiana, a parent cannot legitimate his natural child by notarial act of acknowledgment when there exist on the part of such parent
legitimate ascendants or descendants.

The petitioner appeals the decision of the District Director denying this visa petition filed to accord the beneficiary immediate
relative status as the child of a United States citizen. The District Director determined that the petitioner failed to establish
that he married the beneficiary's mother or otherwise legitimated
he beneficiary in accordance with the provisions of section
01 (b) (1) (C) . We affirm that decision.
The petitioner is a native of Honduras who became a naturalcitizen on March 4, 1964. The beneficiary, a native and citien of Honduras, was born on February 5, 1954 in Tela, Atlanda, Honduras, and resides in Honduras. The petitioner never
iarried the beneficiary's mother. The beneficiary's birth certifiate presented in support of this petition does not mention the faier's name but lists the mother as unmarried and the beneficiary
her illegitimate son. No evidence was presented of acknowlIgement by the father at the time of birth registration.
The petitioner's residence is in New Orleans, Louisiana. In
ipport of the petition, the petitioner submitted an Act of Aclowledgement executed on October 4, 1970 at New Orleans, Louiana, wherein he acknowledges that he is the father of the benejary, that he did not marry the beneficiary's mother, and that
e beneficiary was born out of wedlock. The petitioner is presitly married. He has eight legitimate children of this present
arriage and two others by a prior marriage.

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Section 101(b) (1) (C) defines the term "child" to mean a child
legitimated under the law of the child's residence or domicile, or
under the law of the father's residence or domicile, whether inside or outside of the United States. Under the Civil Code of Honduras, although there are other legal requirements, legitimation
can only be accomplished through the marriage of the child's natural parents.' It is, therefore, clear that the beneficiary is not the
legitimated child under the law of the place of his residence because there was no marriage of the natural mother with the natural father.
The Louisiana Revised Civil Code provides for the legitimation
of a child born out of wedlock by the subsequent marriage of the
natural parents provided the child was formally or informally acknowledged as their child by them before or after the marriage. 2
Morev,antulfhmoerastpwlgime
by a notarial act of acknowledgment, but only the offspring of
parents who, at the time of conception, could have contracted
marriage can be legitimated in that manner. However, a parent
cannot legitimate his natural child by notarial act of acknowledgment, when there exist on the part of such parent legitimate
ascendants or descendants. 3 The fact that this petitioner has at
least eight legitimate descendants precluded him from accomplishing the beneficiary legitimation through a notarial act of acknowledgment under the laws of Louisiana.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.

Code of Honduras, Title XIV, Articles 205-208,276 and 277.
The
Louisiana Revised Civil Code, Article 198.
3 Id. Article 200.

2

667


Interim Decision #2786

MATTER OF POON
In Deportation Proceedings
A-22196991
Decided by Board March 13, 1980

(1) Possessory offenses under the Dangerous Drugs Ordinance of Hong Kong are not
offenses of strict liability, but carry the requirement of mens rea. Compare Matter of
Davis, 16 I&N Dec. 748 (BIA 1979); Lennon v. INS, 527 F2d 187 (2 Cir. 1975).
(2) Section 8(1)(a) of the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong,
does not impose strict liability for the possession of morphine or opium and a
conviction under that section does result in excludability under section 212(a)(23) of
the Act.
(3) An alien convicted under a statute prohibiting possession of narcotic drugs or
marijuana and providing a defendant with the opportunity to attempt to prove as a
defense that his possession wao unknowing and innocent, is subject to deportation as
one excludable at the time of entry 'under section 212(a)(23) of the Act.
CHARGE:

Orden Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1.251(a)(1)]—Excludable at time of entry
under sec. 212(a)(23) [8 U.S.C. 1182(a)(23)]—convicted of possession of narcotics
ON BEHALF OF RESPONDENT:

Jack Wasserman, Esquire
1707 H Street, N.W.
Washington, D.C. 20006

BY:

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated May 24, 1979, the immigration judge found the
respondent deportable as charged under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as an alien excludable at the time of entry under section 212(a)(23) of the Act, 8 U.S.C.
1182(a)(23). The respondent appeals. The appeal will be dismissed.
The respondent is a 37-year-old native of China and citizen of Hong
Kong. He entered the United States on April 24, 1977, at Chicago,
Illinois, as a visitor for pleasure and was authorized to remain until
January 5, 1978. On January 12, 1078, an Order to Show Cause was

issued charging the respondent with deportability under section
241(a)(1), as an alien in violation of section 212(a)(23) of the Act at the
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time of his entry. The Service was in possession of two conviction
records for the respondent dated March 18, 1974, and April 11, 1974.
The respondent had been convicted of possessing a dangerous drug
contrary to and in violation of section 8(1)(a) of the Dangerous Drugs
Ordinance, Chapter 134, Laws of Hong Kong, to wit .4 grams of salts of
esters of morphine on the first occasion and .3 grams of opium on the
second occasion.
A deportation hearing was held on March 8, 1978. The respondent
admitted the allegations in the Order to Show Cause, but denied
deportability in that he had been convicted under a statute which "did
not require guilty knowledge on the part of the accused to be proven as
is mandated in the deep-rooted requirement of knowledge and intent
in our legal system."
Pursuant to the immigration judge's request that the respondent
and the Service produce any relevant material prior to his decision, the
Service requested an opinion from the Library of Congress, Far Eastern Law Division, on the issue of mens rea, guilty knowledge, under the
Dangerous Drugs Ordinance of Hong Kong. The Library of Congress
advised the Service that possessory offenses under the Dangerous
Drugs Ordinance were not offenses of strict liability, but carried the
requirement of menu roe. The burden of proving that guilty knowledge,
however, is not upon the prosecution in Hong Kong. Pursuant to an

evidentiary presumption, the defendant has the onus of disproving
that he had such guilty knowledge. Numerous cases were cited which
discussed the defendant's burden and the requirement of guilty knowledge under section 8(1)(a) of the Dangerous Drugs Ordinance, the
same section under which the instant respondent had been convicted.
The Service submitted a copy of this opinion from the Library of

Congress to the immigration judge along with its memorandum of law.
On appeal, the respondent, through his counsel of record, raises the
same argument raised at the deportation hearing. He contends that
a plea to mere possession without knowledge cannot sustain
deportability.

To sustain a finding of deportability based upon a conviction prior to

entry for the illicit sale or possession of narcotic drugs or marijuana,
the statute under which the respondent was convicted must require
"guilty knowledge" on the part of the accused. See Lennon v. INS, 527
F.2d 187 (2 Cir. 1975).
The court in Lennon v. INS, id., found that the respondent had been
convicted under a law which made guilty knowledge irrelevant and,
therefore, did not render the convicted alien excludable.
In a later case in which the Board applied Lennon, we found that
Chapter 223, section 25(5) of the Statute Law of the Bahama Islands
did require guilty knowledge, and we distinguished that case from
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Interim Decision #2786
Lennon. Matter of Pasguini, 15 I&N Dec. 683 (BIA 1976), eV, Pasguini v. INS, 557 F.2d 536 (5 Cir. 1977). The Bahamian Law contained a

provision that illegal possession would be found unless the person
could "prove the same was deposited there without his knowledge or
consent..."

In another case involving a conviction under section 3(1) of the
Narcotics Control Act of Canada, R.S.C. 1970 C. N-1, we found that
section required guilty knowledge before a conviction could be
rendered. Matter of Awadh, 15 I&N Dec. 775 (ETA 1976).
Most recently, in Matter of Davis, 16 I&N Dec. 748 (BIA 1979), the
Board found that section 21(1)(a) of the Poisons Act of Australia, Act
Number 31 of 1966, imposed strict liability for the sale of opium or
Indian hemp. Therefore, a conviction under that section did not result
in a conviction for illicit sale under section 241(a)(11) of the Act.
The instant respondent was convicted under section 8(1)(a) of the
Dangerous Drugs Ordinance of Hong Kong. That section reads as
follows:
(1) Save under and in accordance with this Ordinance or a license granted by the

District Director thereunder, no person shall—
(a) have in his possession ... a dangerous drug,
••• -

(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty
of any offense and shall be liable on conviction on indictment or on summary conviction to a fine of $10,000 and to imprisonment for 3 years.

The requirement of guilty knowledge under this provision is subject to
certain evidentiary presumptions. Section 47 provides:
(1) Any person who is proved to have had in his possession or custody or under his
control—
(a) anything whatsoever containing a dangerous drug,

-•
shall, until the contrary is proved, be presumed to have had such drug in his
possession_

(a) Any person who is proved or presumed to have had a dangerous drug in his
possession shall, until the contrary is proved, be presumed to have known the nature of
such drug.

The rulings of the Hong Kong courts presented by the Library of
Congress indicate that courts, do not find an accused guilty of possession without conscious knowledge by the possessor of the fact of such
possession. Tsui Sheung, et at. v. Regina, [1968] H.K.L.R. 171. The
burden of proof is always on the prosecution to establish the guilt of a
defendant beyond all reasonable doubt, even in cases where a presumption is raised by statute. Chan Sui-Shing v. Regina, [1974] H.K.L.R. 499.

The effect of the presumption, therefore, is to impose upon the accused
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the burden to rebut the presumption.
A similar burden to disprove guilty knowledge was imposed upon the
respondent under Bahamian Law in Matter of Pasquini, supra.
"Granting that the defense, rather than the prosecution, bears the
burden (and must prove lack of knowledge), the statute nevertheless
differs markedly from one under which a defendant who honestly
believed he possessed aspirin tablets could be convicted if the tablets in
fact contained heroin." Pauquini v. INS, at 539. Therefore, an alien
convicted under a statute prohibiting possession of narcotics or
marijuana and providing a defendant with the opportunity to attempt
to prove as a defense that his possession was unknowing and innocent,
is subject to deportation as one excludable at the time of entry.

We are satisfied that the Service has met its burden in establishing
the respondent's deportability by clear, convincing, and unequivocal
evidence. Woodby v. INS, 385 U.S. 276 (1966). The Service has submitted sufficient evidence of the Hong Kong Ordinance and its interpretation by the courts. Compare Matter of Davis, supra. Further, the
respondent has had an ample opportunity to consider the information
supplied by the Library of Congress and has failed to refute the case
law interpretation of the ordinance. Accordingly, the appeal will be
dismissed.
ORDERS The appeal is dismissed.

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Interim Decision #3893

Matter of L-E-A-, Respondent
Decided May 24, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Whether a particular social group based on family membership is cognizable depends
on the nature and degree of the relationships involved and how those relationships are
regarded by the society in question.
(2) To establish eligibility for asylum on the basis of membership in a particular social
group composed of family members, an applicant must not only demonstrate that he or
she is a member of the family but also that the family relationship is at least one central
reason for the claimed harm.
FOR RESPONDENT: Mei F. Chen, Esquire, San Jose, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: George R. Martin, Associate
Legal Advisor
BEFORE: Board Panel: GREER, MALPHRUS, and LIEBOWITZ, Board Members.
GREER, Board Member:

In a decision dated September 10, 2013, an Immigration Judge found the
respondent removable and denied his applications for asylum and
withholding of removal and his request for protection under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res.
39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
(1984) (entered into force June 26, 1987; for the United States Apr. 18,
1988). The respondent has appealed from that decision. The appeal will
be dismissed in part and the record will be remanded for further proceedings.
The question in this case is whether the respondent, who claims
membership in a particular social group composed of his family, has
established eligibility for asylum under section 208 of the Immigration and
Nationality Act, 8 U.S.C. § 1158 (2012). We conclude that while family
may be a particular social group, membership in such a group does not
necessarily establish a nexus to a ground protected under the Act. Rather,
the respondent must demonstrate that the family relationship is at least
one central reason for the claimed harm to establish eligibility for asylum
on that basis.
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Interim Decision #3893

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United
States for the first time in 1998 and departed under a grant of voluntary
departure in May 2011. That same month, the respondent returned to his
parents’ home in Mexico City, Mexico. Previously, members of La Familia
Michoacana, a criminal cartel, had approached the respondent’s father,
who owned a store that sold groceries and general merchandise in the
neighborhood. The cartel members asked if they could sell drugs in the
store, which the cartel viewed as a favorable distribution location. The
respondent’s father refused to allow the cartel to sell drugs in his store.
About a week after the respondent returned to Mexico, he was running
an errand with his cousin and a nephew when they heard gunshots coming
from inside a car. A week later, the respondent was approached by the same
car. Its four occupants identified themselves as members of La Familia
Michoacana. They asked if he would sell drugs for them at his father’s store
because they liked the store’s location. The respondent declined, and the
cartel members indicated that he should reconsider.
The following week, the respondent was again approached by the car.
The four occupants, who were wearing masks, tried to grab him and put him
in the car, but he was able to get away. Soon after, the respondent left for
the border and was ultimately successful in crossing into the United States.
Members of La Familia Michoacana contacted the respondent’s father and
claimed to have kidnapped the respondent, which his father was able
to confirm was untrue. The respondent’s father still operated the store, but
he began paying “rent” to La Familia Michoacana, which made it no longer
profitable. The respondent’s family members who live in Mexico, including
his parents, have not been subjected to additional incidents of harm.
The respondent believes that he was targeted by members of La Familia
Michoacana because of his membership in the particular social group
comprised of his father’s family members, and he asserted a fear
of persecution in the future on this basis. The Immigration Judge found the
respondent credible, but she concluded that La Familia Michoacana was
interested in distributing illegal drugs at the store and increasing its profits,
rather than being motivated to harm his father’s family members based
on their membership in the family itself. In particular, the Immigration Judge
found that the persecutor’s motive related to ownership of the store and,
notably, that if the store were to be sold, they would target the new owner.
On appeal, the respondent argues that he experienced harm rising to the
level of persecution based on his membership in the particular social group
of his father’s family and that he has a well-founded fear of harm on this
basis in the future if returned to Mexico.
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Interim Decision #3893

We requested supplemental briefing in this case, and the respondent, the
Department of Homeland Security (“DHS”), and amici curiae responded.
Both parties agree that the immediate family unit of the respondent’s father
qualifies as a cognizable particular social group. They also agree that
if family membership is a central reason for persecuting an asylum applicant,
nexus may be established. In addition, the respondent argues that the
Immigration Judge did not make complete findings of fact with regard to his
application for protection under the Convention Against Torture. The amici
curiae generally support the arguments of the respondent. 1

II. ANALYSIS
A. Family as a Particular Social Group
We agree with the parties that the members of an immediate family may
constitute a particular social group. We have long recognized that family ties
may meet the requirements of a particular social group depending on the facts
and circumstances in the case. Matter of C-A-, 23 I&N Dec. 951, 959 (BIA
2006) (“Social groups based on innate characteristics such as sex or family
relationship are generally easily recognizable and understood by others
to constitute social groups.”), clarified by Matter of M-E-V-G-, 26 I&N Dec.
227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014);
Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) (stating that “kinship
ties” is a common, immutable characteristic), modified on other grounds,
Matter of Mogharrabi, 19 I&N Dec. 439, 441 (BIA 1987); see also Vumi
v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (acknowledging the Board’s
long-standing recognition of family members as a possible particular social
group). The circuit courts have also held that family may constitute
a particular social group. See Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir.
2015); Crespin-Valladares v. Holder, 632 F.3d 117, 124−25 (4th Cir. 2011);
Al-Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009); Ayele v. Holder,
564 F.3d 862, 869 (7th Cir. 2009); Gebremichael v. INS, 10 F.3d 28, 36 (1st
Cir. 1993); see also Ramirez-Mejia v. Lynch, 794 F.3d 485, 492−93 (5th Cir.
2015).
A determination whether a social group is cognizable is a fact-based
inquiry made on a case-by-case basis, depending on whether the group is
immutable and is recognized as particular and socially distinct in the relevant
society. See Matter of M-E-V-G, 26 I&N Dec. at 242; Matter of W-G-R-,
26 I&N Dec. at 211–12, vacated in part and remanded on other grounds by
Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016). Not all social groups that
involve family members meet the requirements of particularity and social
1

We acknowledge and appreciate the briefs submitted by the parties and amici curiae.

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Interim Decision #3893

distinction. See, e.g., Jie Lin v. Ashcroft, 377 F.3d 1014, 1028 (9th Cir. 2004)
(recognizing that “some attenuated family links will not per se suffice to
confer ‘particular social group’ membership”); Matter of S-E-G-, 24 I&N
Dec. 579, 585 (BIA 2008) (holding that a group comprised of “‘family
members,’ which could include fathers, mothers, siblings, uncles, aunts,
nieces, nephews, grandparents, [and] cousins” of “Salvadoran youth who
have been subjected to recruitment efforts by MS-13 and who have rejected
or resisted membership in the gang” is too amorphous to constitute a
cognizable particular social group), clarified by Matter of M-E-V-G-, 26 I&N
Dec. 227, and Matter of W-G-R-, 26 I&N Dec. 208. We agree with the
DHS’s argument that the inquiry in a claim based on family membership will
depend on the nature and degree of the relationships involved and how those
relationships are regarded by the society in question.
Because the facts of this case present a valid particular social group, we
need not further address the circumstances regarding family status that would
or would not support finding that a family is a particular social group.
An applicant for asylum has the burden to establish a cognizable particular
social group, his membership in that group, and persecution or fear of
persecution on account of his membership in that group. Matter of W-G-R-,
26 I&N Dec. at 223. In consideration of the facts of this case and the
agreement of the parties, we have no difficulty identifying the respondent,
a son residing in his father’s home, as being a member of the particular social
group comprised of his father’s immediate family. The key issue we must
consider is whether the harm he experienced or fears is on account of his
membership in that particular social group.
B. Nexus
An asylum applicant’s membership in a family-based particular social
group does not necessarily mean that any harm inflicted or threatened by the
persecutor is because of, or on account of, the family membership. See, e.g.,
id. at 218 (“[W]e must separate the assessment whether the applicant has
established the existence of one of the enumerated grounds (religion, political
opinion, race, ethnicity, and particular social group) from the issue of nexus.
The structure of the Act supports preserving this distinction, which should
not be blurred . . . .”). A persecution claim cannot be established if there
is no proof that the applicant or other members of the family were targeted
because of the family relationship. See Matter of N-M-, 25 I&N Dec. 526,
530 (BIA 2011) (stating that an applicant “must provide some evidence that
an alleged persecutor is motivated by a victim’s protected trait”). If the
persecutor would have treated the applicant the same if the protected
characteristic of the family did not exist, then the applicant has not
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Interim Decision #3893

established a claim on this ground. See id. at 531 (explaining that
an applicant “must demonstrate that the persecutor would not have harmed
the applicant if the protected trait did not exist”).
Moreover, under section 208(b)(1)(B)(i) of the Act, membership in the
particular social group must be “at least one central reason” for the
persecutor’s treatment of the applicant. See Matter of J-B-N- & S-M-,
24 I&N Dec. 208, 212 (BIA 2007). The protected trait, in this case
membership in the respondent’s father’s family, “cannot play a minor
role”—that is, “it cannot be incidental [or] tangential . . . to another reason
for harm.” Id. at 214.
The question of a persecutor’s motive will involve a particularized
evaluation of the specific facts and evidence in an individual claim. See
Matter of N-M-, 25 I&N Dec. at 532 (“A persecutor’s actual motive is
a matter of fact to be determined by the Immigration Judge . . . .”).
Immigration Judges should consider both direct and circumstantial evidence
regarding a persecutor’s motive, id., and may make reasonable inferences
based on the evidence in the record. See Matter of D-R-, 25 I&N Dec. 445,
453 (BIA 2011), remanded on other grounds, Radojkovic v. Holder, 599
F. App’x 646 (9th Cir. 2015). While some scenarios will present a clear
answer, others will require a more nuanced evaluation.
It is clear that nexus would be established based on family membership
where a persecutor is seeking to harm the family members because of an
animus against the family itself. For illustrative purposes, we consider
the well-known historical scenario of the Bolshevik assassination of
Czar Nicholas II, his wife, Czarina Alexandra, and their five children after
he abdicated the throne in 1917. The immediate family, as well as other
family members, were killed between 1918 and 1919. See Romanov,
19 Encyclopædia Britannica, Inc. 553−54 (1971). While there were political
reasons why they were endangered and killed, it would be difficult to say
either that these individuals did not form a particular social group or that their
family membership was not at least one central reason for their persecution.
This is a classic example of a persecutor whose intent, for at least one central
reason, was to overcome the protected characteristic of the immediate
family. 2
2
In Matter of Acosta, 19 I&N Dec. at 222, our original definition of persecution included
“harm or suffering . . . inflicted upon an individual in order to punish him for possessing a
belief or characteristic a persecutor sought to overcome.” However, in Matter of Kasinga,
21 I&N Dec. 357, 365 (BIA 1996), we clarified that a punitive intent is not required and
held, instead, that the focus is only whether the persecutor intended to “overcome [the
protected] characteristic of the victim.” Cf. Pitcherskaia v. INS, 118 F.3d 641, 646 (9th
Cir. 1997) (“Neither the Supreme Court nor this court has construed the Act as imposing a
requirement that the alien prove that her persecutor was motivated by a desire to punish or
inflict harm.”).

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Interim Decision #3893

However, if animus against the family per se is not implicated, the
question becomes what motive or motives cause the persecutor to seek to
harm members of an individual’s family. In other words, is the persecutor’s
motive for harming the applicant his or her family status or another factor?
The answer to this question depends on the reasons that generate the dispute.
There are other circumstances where the evidence establishes that one
central reason for the applicant’s harm was his or her family status. These
often arise in cases where the family status is connected to another protected
ground, particularly where there is a political motive, aside from dynastic
succession, that is intertwined with or underlies the dispute. See, e.g., Ayele,
564 F.3d at 869−72 (regarding a claim of membership in a particular social
group based on the applicant’s family, which had been targeted because of
political affiliation and ethnicity); Vumi, 502 F.3d at 154−56 (regarding a
claim based on membership in the family of a person suspected of
participating in the assassination of the former president of the Democratic
Republic of Congo); Gebremichael, 10 F.3d at 35−36 (holding that the
applicant had established persecution on account of his family because he
was accused of aiding the escape of his brother, whom the Ethiopian
Government regarded as an enemy).
However, nexus is not established simply because a particular social
group of family members exists and the family members experience harm.
Thus, the fact that a persecutor has threatened an applicant and members of
his family does not necessarily mean that the threats were motivated by
family ties. See Marin-Portillo v. Lynch, 834 F.3d 99, 102 (1st Cir. 2016)
(finding that the persecutor, who was jailed for murdering the applicant’s
father, threatened the applicant and his family in order to retaliate or to
deter them from seeking revenge against him, rather than because of their
family membership). An applicant cannot establish a claim simply by
showing that he and some other family members faced similar harm. See,
e.g., Perlera-Sola v. Holder, 699 F.3d 572, 576 (1st Cir. 2012) (stating that
the “‘kinship’ criterion . . . applies only where the motivation for persecution
is kinship and not because multiple family members happen to be persecuted
for a common reason but the animus is not kinship”).
Further, the fact that a persecutor targets a family member simply as
a means to an end is not, by itself, sufficient to establish a claim, especially
if the end is not connected to another protected ground. See, e.g.,
Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir. 2013) (“If
someone suffers harm on grounds that are associated with group membership
but also apply to many others, then the harm is not because of membership
in a particular social group . . . .”). Circumstances such as these may indicate
that family membership was not at least one central reason that the applicant
was harmed. Ramirez-Mejia, 794 F.3d at 493 (concluding that “the evidence
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Interim Decision #3893

that gang members sought information from [the applicant] about her
brother, without more, does not support her claim that the gang intended to
persecute her on account of her family”).
For example, in Cambara-Cambara v. Lynch, 837 F.3d 822 (8th Cir.
2016), the applicants were wealthy landowners, and gang members targeted
various members of their family in Guatemala, making extortionate
demands. The Immigration Judge and the Board determined that no nexus
between the harm and their status as family members had been established.
The court affirmed, stating that the applicants “provided no proof that the
criminal gangs targeted members of the family because of family
relationships, as opposed to the fact that, as prosperous businessmen, they
were obvious targets for extortionate demands.” Id. at 826. Similarly, in
Ayala v. Holder, 683 F.3d 15, 17 (1st Cir. 2012), the applicant claimed that
she was harmed based on her membership in a particular social group
comprised of “a family that opposed guerilla warriors.” But the court
disagreed with her argument, stating that “there is no evidence to support the
claim that guerillas targeted [the applicant’s] family members on account of
their membership in the family.” Id. 3
According to the facts found by the Immigration Judge in this case, the
cartel attempted to coerce the respondent’s father into selling contraband in
his store. When he refused, the cartel approached the respondent to sell its
product because he was in a position to provide access to the store, not
because of his family membership. The Immigration Judge’s findings in this
regard are not clearly erroneous. 4 See Matter of D-R-, 25 I&N Dec. at 453.
As the Immigration Judge determined, the respondent was targeted only
as a means to achieve the cartel’s objective to increase its profits by selling
drugs in the store owned by his father. See Ramirez-Mejia, 794 F.3d at
492−93. Therefore, the cartel’s motive to increase its profits by selling
contraband in the store was one central reason for its actions against the
respondent and his family. Any motive to harm the respondent because he
was a member of his family was, at most, incidental. 5 In this regard, we point
3

We recognize that the United States Court of Appeals for the Fourth Circuit has
addressed the interplay of family as a particular social group and nexus in a series of cases
where it found that the applicants satisfied the nexus requirement. See, e.g., Cruz
v. Sessions, 853 F.3d 122, 129−30 (4th Cir. 2017); Hernandez-Avalos v. Lynch, 784 F.3d
944, 949−50 (4th Cir. 2015). While it is not clear how the Fourth Circuit would apply that
precedent to the facts here, this case does not arise in the Fourth Circuit.
4
This case illustrates the importance of complete findings of fact regarding motive, which
the Immigration Judge made here. See Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002).
5
We accept the parties’ position that a separate, independent inquiry into the motivation
of a persecutor towards the respondent’s father, as the defining or primary family member,
is not part of the nexus calculus. Nonetheless, the scope of the motive inquiry necessarily

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out that the evidence does not indicate that the persecutors had any animus
against the family or the respondent based on their biological ties, historical
status, or other features unique to that family unit. See Cambara-Cambara,
837 F.3d at 826 (finding no proof that the applicants’ family was different
from any other family that experienced gang violence). Notably, the
Immigration Judge also found that the cartel would have gone after any
family who owned a business there. In fact, after the respondent departed
for the United States, the cartel coerced his father into paying “rent” to them.
This conduct constitutes criminal extortion and further indicates that the
cartel’s motivation was not based on the family relationship.
It is significant that the cartel directly asked the respondent to sell their
drugs in the store. This act bears no tie to an enumerated ground but is rather
a direct expression of the cartel’s motive to increase its profits by selling
contraband in the store. Accordingly, the Immigration Judge’s finding that
the gang was not motivated to harm the respondent based on family status is
not clearly erroneous.

III. CONCLUSION
We conclude that the respondent did not establish that his membership in
a particular social group comprised of his father’s family members was at
least one central reason for the events he experienced and the harm he
claims to fear in the future. Accordingly, the respondent’s appeal from the
Immigration Judge’s denial of his application for asylum will be dismissed.
However, we agree with the respondent that the Immigration Judge did
not make complete findings of fact needed to assess his claim under the
Convention Against Torture. We will therefore remand the record for that
purpose. Since we are remanding the record for further proceedings
regarding the respondent’s request for protection under the Convention
Against Torture, the parties may also address on remand the significance, if
any, of Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017).
ORDER: The appeal is dismissed in part.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

encompasses the context in which a family member is identified for harm and how that
relates to the interest in the applicant. We view this as a single inquiry.

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Matter of Keon RICHMOND, Respondent
Decided July 28, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A false claim to United States citizenship falls within the scope of
section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(C)(ii)(I) (2012), where there is direct or circumstantial evidence that
the false claim was made with the subjective intent of obtaining a purpose or
benefit under the Act or any other Federal or State law, and where United States
citizenship actually affects or matters to the purpose or benefit sought.
(2) There is a distinction between achieving a “purpose” and obtaining a “benefit” under
section 212(a)(6)(C)(ii)(I) of the Act.
(3) Avoiding removal proceedings qualifies as a “purpose” within the meaning of section
212(a)(6)(C)(ii)(I) of the Act.
FOR RESPONDENT: Ryan Muennich, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sue Chen, Senior Attorney
BEFORE:
Members.

Board Panel:

COLE, GUENDELSBERGER, and MALPHRUS, Board

COLE, Board Member:

This case is before us on remand from the United States Court of
Appeals for the Second Circuit for further consideration of the respondent’s
inadmissibility under section 212(a)(6)(C)(ii)(I) of the Immigration
and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (2012), and his
eligibility for adjustment of status under section 245(a) of the Act, 8 U.S.C.
§ 1255(a) (2012). Richmond v. Holder, 714 F.3d 725 (2d Cir. 2013). The
respondent’s appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Trinidad and Tobago who was
admitted to the United States on May 3, 2001, as a nonimmigrant visitor.
He was convicted on May 3, 2005, of assault in the second degree under

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section 120.05(3) of the New York Penal Law. This conviction was
overturned by the New York State Appellate Division on January 17, 2007.
The Department of Homeland Security (“DHS”) initiated removal
proceedings on January 5, 2007, charging that the respondent is removable
as a nonimmigrant who overstayed his visa and an alien convicted of an
aggravated felony under sections 237(a)(1)(B) and (2)(A)(iii) of the Act,
8 U.S.C. §§ 1227(a)(1)(B) and (2)(A)(iii) (2006). In a hearing before the
Immigration Judge on March 13, 2007, the respondent conceded that he
was removable for overstaying his visa, denied the aggravated felony
charge, and sought adjustment of status based on an approved immigrant
visa petition filed by his United States citizen spouse.
The DHS argued that the respondent was ineligible for adjustment of
status because he was inadmissible under section 212(a)(6)(C)(ii)(I) of the
Act based on his prior false claim to United States citizenship. 1 The DHS
submitted evidence that in 2005, the respondent was interviewed by two
DHS officers on two separate occasions while in State custody and that,
during both interviews, the respondent swore that he was a United States
citizen, having been born in Brooklyn, New York. 2
The respondent admitted that he was interviewed by DHS officers but
testified that he had no idea why he was being interviewed. In this regard,
the respondent also testified that he had no fear of being deported because
his mother had told him he was a United States citizen. Although the
respondent admitted that he used a Trinidadian passport to enter the United
States, he claimed that he could not read at that time and therefore did not
know that the passport was issued by Trinidad and Tobago.
The Immigration Judge sustained the overstay charge of removability
under section 237(a)(1)(B) of the Act but determined that the DHS had not
established the respondent’s removability under section 237(a)(2)(A)(iii)
for conviction of an aggravated felony. The Immigration Judge also found
the respondent ineligible for adjustment of status because he determined
that the false claims to United States citizenship he made to the DHS
officers were to obtain a “benefit” pursuant to section 212(a)(6)(C)(ii)(I) of
1

Section 212(a)(6)(C)(ii)(I) of the Act provides as follows:
Any alien who falsely represents, or has falsely represented, himself or herself to
be a citizen of the United States for any purpose or benefit under this Act
(including section 274A) or any other Federal or State law is inadmissible.

(Emphasis added.)
2
The DHS obtained a copy of the respondent’s Trinidadian passport and birth
certificate, and the respondent was indicted for making a false claim to United States
citizenship in violation of 18 U.S.C. § 911 (2000). These charges were later dismissed.

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the Act. According to the Immigration Judge, the false claim “completely
exempt[ed] the respondent from further scrutiny or investigation by
Immigration Officers and would of course be the complete defense to any
Immigration related proceedings seeking to remove the respondent from the
United States.” The Immigration Judge also did not find the respondent’s
claim that he believed he was a United States citizen to be credible in light
of the circumstances of his admission to the United States, contradictory
information in a presentence report, and the lack of corroborating testimony
from his mother. 3 The Immigration Judge therefore ordered the respondent
removed to Trinidad and Tobago.
The respondent appealed. We dismissed his appeal, affirming the
Immigration Judge’s finding that the respondent is ineligible for adjustment
of status. We found no clear error in the Immigration Judge’s adverse
credibility finding as to the respondent’s claim that he had a good faith
belief that he was a United States citizen. We held that the respondent’s
false claim to citizenship to avoid being placed in removal proceedings had
been made for a “purpose or benefit” under the Act and rendered him
inadmissible under section 212(a)(6)(C)(ii)(I). 4 The respondent filed a
petition for review of our decision with the Second Circuit, and on April
30, 2013, the court vacated our decision and remanded the proceedings for
us to provide an authoritative analysis of section 212(a)(6)(C)(ii)(I).
Richmond, 714 F.3d at 729−31. 5

II. ISSUES
In this decision, we will (1) interpret the meaning and scope of the
phrase “for any purpose or benefit under this Act . . . or any other Federal
3

The Immigration Judge also denied the respondent’s motion to suppress the statements
that he had provided to the DHS officers during his interviews while in State custody.
4
To qualify for adjustment of status, an alien must demonstrate that he is “admissible to
the United States for permanent residence.” Section 245(a)(2) of the Act; 8 C.F.R.
§ 1240.8(d) (2016) (“The respondent shall have the burden of establishing that he or she
is eligible for any requested benefit or privilege . . . .”). “Because applicants for
adjustment of status are ‘assimilated to the position’ of aliens seeking entry into this
country, such aliens must show that they are ‘clearly and beyond doubt’ [not
inadmissible].” Crocock v. Holder, 670 F.3d 400, 403 (2d Cir. 2012) (per curiam)
(citations omitted).
5
The Second Circuit affirmed the Immigration Judge’s finding that the respondent’s
claim that he believed he was a United States citizen when he made his statements to the
DHS was not credible. Richmond, 714 F.3d at 729. In his petition for review, the
respondent did not contest the denial of his motion to suppress the statements he made to
the DHS officers. Id. at 728 n.2. This issue is therefore not before us.

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or State law” under section 212(a)(6)(C)(ii)(I) of the Act; (2) decide if there
is a distinction in this provision between achieving a “purpose” and
obtaining a “benefit”; and (3) determine whether avoiding removal
proceedings qualifies as such a “purpose” or a “benefit.”

III. POSITIONS OF THE PARTIES
The respondent argues that the plain language of the statutory phrase
“for any purpose or benefit under this Act . . . or any other Federal or State
law” in section 212(a)(6)(C)(ii)(I) of the Act was intended to encompass
only those false claims to United States citizenship made to obtain or
achieve “identifiable” purposes or benefits enumerated in the Act, or any
other Federal or State law, such as obtaining a passport, a Federal student
loan, or employment. He contends that avoiding a negative legal
consequence—such as removal proceedings—is not enumerated in the Act
and is therefore not a cognizable “purpose or benefit.” He also argues that
to hold otherwise would render the phrase “purpose or benefit” in section
212(a)(6)(C)(ii)(I) of the Act mere surplusage because all false claims to
citizenship carry with them the benefit of avoiding potential removal
proceedings.
In addition, the respondent asserts that a false claim to citizenship need
not be material to the “purpose or benefit” being sought. Even assuming
that it must be material, the respondent contends that all false claims made
to the DHS to avoid removal proceedings are immaterial because the DHS
conducts independent investigations of citizenship claims. Finally, the
respondent argues that a false claim must be made knowingly and with the
subjective intent of achieving or obtaining a cognizable “purpose or
benefit.”
The DHS argues that section 212(a)(6)(C)(ii)(I) of the Act encompasses
any false claim to citizenship that is made with the subjective intent to
achieve a purpose or obtain a benefit “under [the] Act . . . or any other
Federal or State law,” which requires that the purpose or benefit be
actually governed by some law, and the false claim must objectively matter.
In addition, the DHS views the phrase “purpose or benefit” as broadly
encompassing not only false claims made to obtain “affirmative or positive
benefits” under the Act and any other Federal or State law but also
misrepresentations made to avoid negative legal consequences—including
removal proceedings under the Act.

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IV. ANALYSIS
A. Statutory Language
In interpreting statutory language, we review whether it has a plain and
unambiguous meaning by referring “to the [statutory] language itself, the
specific context in which that language is used, and the broader context of
the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997); see also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).
Section 212(a)(6)(C)(ii)(I) was added to the Act by section 344(a) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Division C of Pub. L. No. 104-208, 110 Stat. 3009-546,
3009-637. The amendment was proposed to address abuse in the
employment verification process by aliens, as well as the fraud and abuse
committed by illegal aliens to obtain public services and benefits that are
limited to United States citizens. H.R. Rep. No. 104-828, at 199 (1996)
(Conf. Rep.) (Joint Explanatory Statement), 1996 WL 563320, at *199;
142 Cong. Rec. 24,783 (1996); 142 Cong. Rec. 10,030 (1996); see also
Castro v. Att’y Gen. of U.S., 671 F.3d 356, 368−69 (3d Cir. 2012); Matter
of Bett, 26 I&N Dec. 437, 442 (BIA 2014) (concluding that section
212(a)(6)(C)(ii)(I) of the Act “explicitly encompasses violations of section
274A” of the Act, 8 U.S.C. § 1324a (2012), which delineates the
employment verification process).
Section 212(a)(6)(C)(ii)(I) of the Act contains three components. An
alien is inadmissible under this provision if he or she: (1) “falsely
represents, or has falsely represented, himself or herself to be a citizen of
the United States”; (2) “for any purpose or benefit”; (3) “under th[e] Act
. . . or any other Federal or State law.”
1. False Representation of Citizenship
The plain language of section 212(a)(6)(C)(ii)(I) of the Act that any
alien who “falsely represents, or has falsely represented himself or herself
to be a citizen of the United States,” encompasses any false claim to United
States citizenship present or past, with one exception not applicable here.
See 212(a)(6)(C)(ii)(II) of the Act. Because the Second Circuit upheld the
Immigration Judge’s adverse credibility finding, we need not reach the
parties’ arguments relating to whether a false claim must be made
knowingly to trigger inadmissibility under this provision.

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2. “For Any Purpose or Benefit”
In Kungys v. United States, 485 U.S. 759, 779−80 (1988), the Supreme
Court interpreted the meaning of similar language under section 101(f)(6)
of the Act, 8 U.S.C. § 1101(f)(6) (1988), within the context of a
denaturalization provision, section 340(a) of the Act, 8 U.S.C. § 1451(a)
(1988). Section 101(f)(6) of the Act attaches immigration consequences to
“false testimony for the purpose of obtaining any benefits under th[e] Act.”
The Supreme Court held in Kungys that the use of the phrase “for the
purpose of obtaining any benefits under th[e] Act” requires giving false
testimony “with the subjective intent of obtaining immigration or
naturalization benefits.” Id. at 780.
We adopt the Supreme Court’s interpretation in Kungys to find that an
alien is inadmissible under section 212(a)(6)(C)(ii)(I) of the Act if he or she
makes a false claim to United States citizenship with the “subjective intent”
to obtain a “purpose or benefit” under the Act or any other Federal or State
law. Whether the respondent’s false claim was made with a subjective
intent is a question of fact to be determined by the Immigration Judge.
3. “Under th[e] Act . . . or any other Federal or State Law”
In Kucana v. Holder, 558 U.S. 233, 244−45 (2010), the Supreme Court
interpreted the phrase “specified under this subchapter” in section
242(a)(2)(B) of the Act, 8 U.S.C. § 1252(a)(2)(B) (2006), to mean
“specified in” or “specified by” the particular subchapter of the Act at issue.
The Court found that the word “under” in section 242(a)(2)(B) depends on
other statutory provisions to define its scope. See id. at 245−46. Similarly,
section 212(a)(6)(C)(ii)(I) is dependent on the statutory provisions of the
Act or any other Federal or State law. Therefore, we interpret the phrase
“under this Act . . . or any other Federal or State law” in section
212(a)(6)(C)(ii)(I) to mean that a false claim must be made to achieve a
purpose or obtain a benefit that is governed by one of these laws. We also
agree with the DHS and find that the presence of a “purpose or benefit”
under section 212(a)(6)(C)(ii)(I) must be determined objectively.
B. Scope of Section 212(a)(6)(C)(ii)(I) of the Act
In Richmond, the Second Circuit noted that the statutory language of
section 212(a)(6)(C)(ii)(I) regarding the “purpose or benefit” requirement
cannot be read so broadly that it fails to exclude anything. There must be some
situation in which an alien falsely represents himself to be a citizen for some purpose
that does not fall under federal or state law. Otherwise, the “for any purpose or

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benefit” requirement of § 212(a)(6)(C)(ii)(I) would become surplusage—“a result
that is to be avoided in statutory construction.”

Richmond, 714 F.3d at 729 (quoting Filler v. Hanvit Bank, 378 F.3d 213,
220 (2d Cir. 2004)); see also Castro, 671 F.3d at 368 (expressing the same
concern). The court also observed that although two other circuits had
found instances of false claims to citizenship that fell outside the scope of
the “for any purpose or benefit” requirement of section 212(a)(6)(C)(ii)(I),
ambiguity still existed as to the requirement’s limitations or “which certain
kinds of misrepresentations can be said to fall outside the requirement’s
scope.” Richmond, 714 F.3d at 730. The court noted that ambiguity still
remained as to whether the presence of a “purpose or benefit” is to be
determined objectively, based on whether citizenship status would
“actually affect” the acquisition of a benefit, or subjectively, based on the
effect that the individual making a citizenship claim intends it to have. Id.
The court further opined that the “purpose or benefit” of the
misrepresentation could also be determined using both objective and
subjective tests. Id. In that case, aliens would trigger inadmissibility under
section 212(a)(6)(C)(ii)(I) of the Act only if they misrepresented their
citizenship with the “reasonable intention” of achieving some purpose or
benefit under the Act, or any other Federal or State law. Id.
In Castro, 671 F.3d at 370, the Third Circuit found that the alien’s false
claim to United States citizenship to local police while he was being
arrested for disorderly conduct had not been made for “any purpose or
benefit” under the law because it had not been shown that he was “seeking
a public benefit from the . . . police, in the sense of a benefit created by law
and administered by the police.” Nor was there any objective evidence that
the police could “confer” a benefit on him. Id. at 370−71. The court
additionally noted that “the ‘purpose or benefit’” the Board imputed to the
alien—“minimiz[ing] the risk that the police would report his arrest to
DHS”—was an assumption that was not supported by the evidence. Id. at
370. The police could not bestow an immigration benefit on the alien on
account of his status; nor did the alien’s status affect his arrest for
disorderly conduct. Id. 6
By contrast, where an alien makes a false claim to United States
citizenship directly to DHS officers, the courts have found that such a
misrepresentation has been made to achieve or obtain the “purpose or
6

However, a different result is possible where there is some evidence that a law
enforcement agency would report the alienage of individuals who have been arrested
and booked for a criminal violation. See DHS, Priority Enforcement Program,
https://www.ice.gov/pep.

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benefit” of gaining entry or admission into the United States. See
Valadez-Munoz v. Holder, 623 F.3d 1304, 1308−09 (9th Cir. 2010)
(observing that there is a distinction between making a false claim to
citizenship to local police and border patrol agents and noting that the latter
misrepresentation may allow an alien to avoid inspection and “enter [the
United States] without difficulty”).
Another example of the limiting scope of the “for any purpose or
benefit” requirement is evident in Hassan v. Holder, 604 F.3d 915 (6th Cir.
2010). In Hassan, the court held that the DHS had not shown that the
petitioner’s false claim to citizenship on a Small Business Administration
(“SBA”) loan application was made to achieve a purpose or to obtain a
benefit under section 237(a)(3)(D) of the Act, 7 because the DHS had not
“attempted to show the ‘purpose or benefit’” he received, either by
demonstrating “how, if at all, [his citizenship] would affect the loan
application” or by proving that he made the false claim with the subjective
belief that citizenship status affected the application. Id. at 928−29. Cf.
Dwumaah v. Att’y Gen. of U.S., 609 F.3d 586, 589 (3d Cir. 2010)
(upholding the Board’s determination that an individual was removable
under section 237(a)(3)(D) of the Act for falsely claiming citizenship on an
application for a Federal student loan because citizenship was a prerequisite
to such a loan).
Both of these cases involved aliens misrepresenting their citizenship and
seeking benefits under Federal law, but only in Dwumaah was citizenship a
prerequisite to the loan’s approval—in other words, citizenship status
actually affected the student loan application. However, as the court opined
in Richmond, whether citizenship actually affects the purpose or benefit
sought may not be the end of the inquiry—the presence of a “purpose or
benefit” may also be determined subjectively. The court also noted that in
Hassan, 604 F.3d at 928, the Sixth Circuit did not hold that obtaining an
SBA loan cannot qualify as a “purpose or benefit” under the Act, or any
other Federal or State law—only that the DHS, which had the burden of
proof in Hassan, had not shown how the “purpose or benefit” requirement
had been met in that case. Richmond, 714 F.3d at 730.
Based on the foregoing analysis, we conclude that the scope of section
212(a)(6)(C)(ii)(I) of the Act is limited to false claims to United States
citizenship that meet two requirements. First, the Immigration Judge must
find direct or circumstantial evidence demonstrating that the false claim
was made with the subjective intent of achieving a purpose or obtaining a
benefit under the Act or any other Federal or State law. Second, the
7

Section 237(a)(3)(D)(i) mirrors the language of section 212(a)(6)(C)(ii)(I) of the Act
but renders an alien deportable, rather than inadmissible.

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presence of a purpose or benefit must be determined objectively—that is,
the United States citizenship must actually affect or matter to the purpose or
benefit sought. Consequently, not every false claim to United States
citizenship will trigger inadmissibility under section 212(a)(6)(C)(ii)(I).
C. Defining “Purpose” and “Benefit”
In determining whether there is a distinction between achieving a
“purpose” and obtaining a “benefit” under section 212(a)(6)(C)(ii)(I) of the
Act, we observe that Congress drafted the terms “purpose or benefit” in the
disjunctive. As a consequence, we must attribute separate meanings to
these terms. See Garcia v. United States, 469 U.S. 70, 73 (1984) (“Canons
of construction indicate that terms connected in the disjunctive in this
manner be given separate meanings.”).
Because the Act does not define what constitutes a “benefit” or
“purpose” under section 212(a)(6)(C)(ii)(I), we consider legislative history
to help interpret the meaning of these terms. See, e.g., Matter of L-A-C-,
26 I&N Dec. 516, 518 (BIA 2015). As previously noted, section
212(a)(6)(C)(ii)(I) was added to the Act by the IIRIRA with the intent to
prevent unauthorized employment and fraudulent procurement of public
services and benefits by illegal aliens. H.R. Rep. No. 104-828, at 199;
142 Cong. Rec. 24,783 (1996); 142 Cong. Rec. 10,030 (1996).
1. Benefit
Section 212(a)(6)(C)(ii)(I) contemplates that a “benefit” must be
identifiable and enumerated in the Act or any other Federal or State law.
Relevant court decisions finding a cognizable “benefit” under this section
support this interpretation, holding that false claims to citizenship made to
obtain a passport, admission to the United States, and private sector
employment would qualify as “benefits.” See, e.g., Rodriguez v. Gonzales,
451 F.3d 60, 65 (2d Cir. 2006) (holding that a false claim to United States
citizenship made to obtain a passport renders an alien inadmissible under
section 212(a)(6)(C)(ii)(I) of the Act); Matter of Barcenas-Barrera, 25 I&N
Dec. 40, 44 (BIA 2009) (holding same and describing a passport as a legal
“benefit” under Federal law because it facilitates its holder’s entry into the
United States); see also Castro, 671 F.3d at 369 (“As with a passport, it is
relatively straightforward to view obtaining entry to the United States as a
benefit under federal law, such that false claims of U.S. citizenship
made to immigration authorities to obtain entry would satisfy” section
212(a)(6)(C)(ii)); Ferrans v. Holder, 612 F.3d 528, 532 (6th Cir. 2010)
(holding that obtaining private sector employment qualifies as a benefit
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under section 237(a)(3)(D)(i) of the Act); Theodros v. Gonzales, 490 F.3d
396, 402 (5th Cir. 2007) (same); Jamieson v. Gonzales, 424 F.3d 765, 768
(8th Cir. 2005) (stating that “obtaining entry to the country . . . is a ‘benefit’
under the Act”).
Although avoiding removal proceedings may not be an identifiable
“benefit” under the Act, our inquiry does not end, because obtaining a legal
“benefit” can be distinguishable from achieving a “purpose” under the Act.
See Garcia, 469 U.S. at 73.
2. Purpose

The legislative history of section 212(a)(6)(C)(ii)(I) of the Act does not
elucidate the meaning of the term “purpose” in that provision. However,
where the specific question is not answered by the plain language of
the statute, either because the language is silent or is susceptible to
varying interpretations, “it is our duty to resolve any ambiguities and fill
any statutory gaps in a reasonable manner.” Matter of Ordaz, 26 I&N
Dec. 637, 639 (BIA 2015) (quoting Matter of Velasquez-Herrera, 24 I&N
Dec. 503, 508 (BIA 2008)); see also Negusie v. Holder, 555 U.S. 511, 523
(2009).
The term “purpose” in section 212(a)(6)(C)(ii)(I) includes the avoidance
of negative legal consequences—including removal proceedings. In
Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007), the Tenth
Circuit found that an alien’s false claim to citizenship to gain private sector
employment had been made for a “purpose” under the Act because it is
“self-evident that an alien who misrepresents citizenship to obtain private
employment does so, at the very least, for the ‘purpose’ of evading [the
Act’s] prohibition on ‘a person or other entity’ knowingly hiring aliens who
are not authorized to work in this country.” (Emphasis added.) We have
similarly found it to be self-evident that an alien who makes a false claim to
United States citizenship to DHS officers at a port of entry in order to gain
admission to the United States has done so not only to obtain the “benefit”
of entry but also to achieve, at least in part, the “purpose” of evading the
Act’s inspection requirement. See Matter of Pinzon, 26 I&N Dec. 189,
191−92 (BIA 2013) (finding that an alien who made a false claim to
citizenship at the port of entry evaded inspection and was inadmissible
under section 212(a)(6)(C)(ii) of the Act); see also Matter of F-, 9 I&N
Dec. 54, 56 (Reg’l Comm’r, Ass’t Comm’r 1960) (noting that an alien who
makes a false claim to United States citizenship to gain entry to this country
has done so “for the purpose of evading inspection”).
Although aliens who have gained private sector employment and
admission to the United States have obtained “benefits” under the law, this
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Cite as 26 I&N Dec. 779 (BIA 2016)

Interim Decision #3867

same conduct can also be characterized as achieving a “purpose” within the
meaning of section 212(a)(6)(C)(ii)(I) of the Act.
In Matter of
Barcenas-Barrera, 25 I&N Dec. at 44, we held that an alien’s false claim to
citizenship on a United States passport application rendered her
inadmissible under section 212(a)(6)(C)(ii)(I) because “[o]btaining a United
States passport is clearly a benefit within the scope of this section.”
Moreover, we found that the alien had applied for the passport because “she
intended to give [it to] her employer as proof that she had authorization to
work.” Id. at 41. Therefore, while obtaining a legal benefit, a passport, the
alien had also made her false claim to citizenship for the “purpose” of
evading the Act’s prohibition on unauthorized employment. See Kechkar,
500 F.3d at 1084. Similarly, while the Eighth Circuit has held that an alien
who makes a false claim to citizenship to immigration authorities has done
so to obtain the benefit of entering the United States, Jamieson, 424 F.3d at
768, we have noted that such a false claim may also be made in order to
achieve “the purpose of evading inspection,” Matter of F-, 9 I&N Dec. at
56.
An alien who makes a false claim to United States citizenship succeeds
in avoiding the negative legal consequences of inspection or removal
proceedings, if at all, because the Act and other Federal laws do not subject
citizens to the same level of scrutiny at the port of entry as aliens, and
because these laws do not render citizens removable. See Matter of Pinzon,
26 I&N Dec. at 191; see also Richmond, 714 F.3d at 730. Accordingly, we
hold that avoiding removal proceedings is “the kind of purpose” covered
by section 212(a)(6)(C)(ii)(I) of the Act. Richmond, 714 F.3d at 730
(emphasis added).

V. APPLICATION TO THE RESPONDENT
The respondent has not met his burden of establishing that he is not
inadmissible under section 212(a)(6)(C)(ii)(I) of the Act. Crocock
v. Holder, 670 F.3d 400, 403 (2d Cir. 2012) (per curiam) (noting that an
alien applying for adjustment of status is “required to prove a negative—
that he did not falsely claim United States citizenship” within the meaning
of section 212(a)(6)(C)(ii)(I) of the Act). The respondent made a false
claim to United States citizenship to DHS officers while he was unlawfully
present in the United States. His claim that he genuinely believed he was a
United States citizen was found to be not credible. Based on this adverse
credibility finding, the Immigration Judge properly determined that the
respondent had the subjective intent to avoid removal proceedings when he
made these misrepresentations. See Matter of D-R-, 25 I&N Dec. 445,
453−54 (BIA 2011) (holding that an Immigration Judge may make
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Cite as 26 I&N Dec. 779 (BIA 2016)

Interim Decision #3867

reasonable inferences based on the evidence and that a choice between two
plausible alternative interpretations of the record is not clearly erroneous).
We therefore conclude that the respondent has not shown that, at the time
of his false claim to United States citizenship, he did not have the
subjective intent to achieve the “purpose” under the Act of avoiding
removal proceedings.
According to the respondent, because DHS officers generally conduct
an independent investigation to verify a claim to United States citizenship,
such a false claim made to a DHS officer does not actually affect whether
an individual would be identified as an alien and placed in removal
proceedings. We are not persuaded by this argument. The respondent’s
misrepresentations were made to DHS officials in the context of an
investigation regarding his immigration status, and as the Immigration
Judge noted, his false claim would “completely exempt the respondent
from further scrutiny or investigation by Immigration Officers.” See
Matter of Pinzon, 26 I&N Dec. at 191 (recognizing “that a United States
citizen is not subject to the same scrutiny and requirements as an alien
during the process of inspection” by immigration authorities (citing Reid
v. INS, 420 U.S. 619, 624−25 (1975))). Since United States citizens are not
removable, we conclude that the respondent has not shown that citizenship
would not actually affect his ability to achieve his intended purpose of
avoiding removal proceedings.

VI. CONCLUSION
The respondent has not met his burden of proving that his false claim to
United States citizenship was not made “for any purpose or benefit” under
the Act and thus does not render him inadmissible under section
212(a)(6)(C)(ii)(I) of the Act. The respondent has not shown that he lacked
the subjective intent to avoid removal proceedings when he made his false
claim to citizenship. Nor did he demonstrate that United States citizenship
does not actually affect removal proceedings under the Act. We therefore
affirm the Immigration Judge’s finding that the respondent is inadmissible
under section 212(a)(6)(C)(ii)(I) of the Act and ineligible for adjustment of
status. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

790


Interim Decision #2152

MATTER

OF BLAIR

In Section 214(d) Proceedings
A-19598072

Decided by Regional Commissioner May 30, 1972
An alien who was admitted to the United States as the fiancee of a United
States citizen upon presentation of a nonimmigrant visa issued under the
provisions of section 101(a)(15XK) of the Immigration and Nationality Act, as
amended, upon the basis of an approved petition filed in her behalf pursuant
to section 214(d) of the Act, and who concluded a valid marriage to the citizen
petitioner within three months after entry, is statutorily eligible for the
creation of a record of lawful admission for permanent residence notwithstanding the death of the citizen petitioner subsequent to the marriage and
prior to the filing of her application for creation of a record of admission for
permanent residence.

The District Director approved the application and certified this
case to me for review and final decision.
The facts in this case are well stated in the District Director's
decision. The applicant is a Japanese national born in Okinawa on
November 19, 1949. On October 26, 1971, her now deceased husband, a citizen of the United States by birth and sergeant in the
United States Air Force, filed a petition in her behalf pursuant to
section 214(d) of the Act to classify applicant as a fiancee under
section 101(aX15)(K) of the Act. The District Director approved the
petition on November 3, 1971 and the applicant was admitted to
the United States as a fiancee on January 1, 1972. She married her
petitioner/husband in Arkansas on February 17, 1972. He was
killed in a military aircraft accident on February 18, 1972. She is
living with parents of her deceased spouse.
This record clearly establishes that applicant was lawfully admitted as a fiancee under section 101(a)(15)(K) and has complied
with all the applicable provisions of section 214(d) which read as
follows:
A visa shall not be issued under the provisions of section 101(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 suhmitted by the petitioner to eatablioh that the
parties have a bona fide intention to marry and are legally able and actually

153

Interim Decision #2152
willing to conclude 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. In the event the marriage between the said alien and the petitioner shall

occur within three months after the entry and they are found otherwise
admissible, the Attorney General shall record the lawful admission for permanent residence of the alien and minor children as of the date of the payment of
the required visa fees. (Emphasis supplied).

The applicant did marry the petitioner within three months
after entry. She is otherwise admissible. Having met these statu-

tory requirements, section 214(d) directs the Attorney General to
record the lawful admission for permanent residence of the applicant as of the date of the payment of the required visa fees. 8 CFR
245.2(d) provides that the District Director shall record the lawful
admission of the applicant as of the date of approval of the
application. It further provides that the fee previously paid for
filing the application shall be considered payment of the required
visa fees, as of the date of approval of the application.
ORDER: It is ordered that the application be approved and that
applicant's lawful admission for permanent residence be recorded
as of May 30, 1972.

154


Interim Decision #1486

MATTER

or MTV "ZARATHUSTRA"

In Fine Proceedings
BAL-10/1.207
Decided by Board July 6, 1965
Liability to tine does not lie under section 254(a) (3); Immigration and Nationality Act, as to sin alien erowman inspected and reftiseeconditional landing privileges who escaped from the hospital, an installation under the supervision of the 'United States Government, to which he bad been removed
by the agents for medical attention pursuant to Service permission, since the
ability to control the crewman passed from the agents during his hospitalization and his escape from the hospital prevented his custody from reverting
to the agents. Fine does not lie notwithstanding removal was at the request
of the agents and with the understanding there would be np release from
liability on the part of,the carrier should the crewman abscond. .
Ix as: 31/V "ZARATHUSTRA," which arrived at the port • of Baltimore,
Maryland, from foreign on August 8, 1964. Alien crewman involved:
PANAGIOTIS HAGIESFSTBATIII
BASIS. FOR FINE:

Act of 1982— Section 254(a) (3) t$ v.5.0. 1284)

.On March 24, 1965, the District Director at Baltimore directed
that an administrative penalty of $800, $1,000 mitigated to the extent
of $200, be imposed on the Terminal Shipping Company, as agents
for the vessel, "for failure to detain and deport an alien (abovenamed) ordered detained on board." He then certified his decision
to this Board for review, pursuant to our order of March 16, 1965,
wherein we had remanded the case to said official to supply certain
procedural deficiencies.
This proceeding is concerned with an alien crewman of Greek

nationality who was examined aboard the ship by an immigration
officer at the time of its above-described arrival and refused conditional landing privileges. He later complained of illness and was
examined aboard the ship by the carrier's physician. Thereafter, the
agents . requested Service permission to take the crewman, undez:
guard, to the United States Marine Hospital in. Baltimore for
further evaluation of possible acute appendicitis. Thkiy also
245

interim Decision #1486
quested parole procedure should the crewman be admitted to that
institution as an in-patient,' with the understandinff that should the
crewman abscond to the United States there would
b be no relief
from liability to fine on the carrier's part.

On August 10, 1964, the crewman was hospitalized and paroled
by the Service until September 10, 1964. Subsequently, the agents
informed the Service that the crewman was fit for travel but not
fit for duty, and requested permission to repatriate the crewman
under safeguards satisfactory to the Service. The requested permission was granted, with the express understanding that such, action
would not release the agents from liability to fine should the subject

alien abscond in the United States.
.
When the agents' reprsentative called at the United States Public
Health Service Hospital in Baltimore to take the alien into custody
on. August 14, 1964, the date set for his discharge therefrom, it was
learned that he had absconded from that institution the preceding
night. Insofar as the record shows, he is still at large in the United
States.

The fundamental fact here is that the district directer has imposed this fine because an alien crewman who had been refused
conditional landing privileges escaped from an installation under the
supervision of the United States Government to which he had been
removed by the agents pursuant to an immigration officer's order
(Form 1-259), albeit at the agents' request. Under such circumstances, we do not think the fine should or can 'be sustained_ We
so hold.
Practically speaking, the duty to detain and/or deport depends
upon ability to control. Acknowledgement of this reality is found
within the framework of the Immigration and Nationality Act itself, since section 233(a) thereof specifically relieves carriers and
their agents of responsibility for the safekeeping of aliens removed
from a vessel or aircraft for examination under an immigration
officer's order. The prOviso to that section does not operate against
these agents because they obviously could not assume responsibility
for the safekeeping of the alien in the United States Marine Hospital, a government installation operated and controlled by public
officials. In other words, the ability to control this alien passed
from the agents to the 'United States Government during the crewman's hospitalization. His escape from the United States Marine
hospital prevented his custody from reverting to the agents. As
kresult, his deportation by the agents became impossible of performance by reason of circumstances over which they had no restraining
246

Interim Decision. #1488
power. Hence, to permit this lino to stand would lead to an
absurd, unjust, or unreasonable result (see Matter of SS "AMA,"
1 I. 84 N. Dec. 418). No statute should be so construed, particularly
not this iinasi-penal one which requires strict construction, in all
respects, even to the extent of favoring the carrier and its agents
(United States v. J. H. Winchester and Co., 40 F.2d -472): Viewed
in the light of these controlling considerations, the agents'. "agreement" that the crewman's escape would not act as a release of
liability to this is of no legal consequence whatsoever.
Support for our decision in this matter, if such be necessary,
,

can he found in the regulations promulgated by the Service itself.
Thus, in 8 CFR.253.1 (a) it is provided that "afflicted crewmen" shall

be paroled to a medical institution in the custody of the agents
except: "during the period of time he is in such medical institution)'
While that specific exception is, not contained in the regulation

applicable to this particular crewman's situation (8 CFR 253.1(d)),
the explanation is that expreesio .eorum guae &coke intomt
opemtur.

Finally, for comparative purposes we will refer briefly to prior
decisions of this Board involving somewhat similar problems. While
the two cases to be cited are not controlling here because of factual'
or technical differences, consideration thereof will serve to put this
case in its proper perspective.
Matter of M/S "Panaghia Theoslcepasti" (NYC-10/52489, BIA,
8/92/83; Int. Dec. No. 1300), was based. on Notice of Intention to

Fine charging "failure to detain on board the vessel at all times
an alien crewman who had not been granted a conditional permit
to land temporarily in the United States." The crewman therein
had been refused conditional landing privileges, but the agents were

later given permission to take him ashore for medical treatment
(private), on condition that he be kept under guard at all times
and returned aboard the ship. The ship's second officer was assigned
the task of accompanying the crewman to the doctor and bringing
him back to the ship, but the crewman eluded his guard en route to
the doctor's office. We did not permit the fine to stand in that
case because proceedings were predicated upon subsection (2) of
section 254(a) of the Immigration and Nationality Act, rather
than subsection (3) thereof as is the case here.
In the foregoing case, we referred to the unreported case of the
SS "Atlantic Unity" (PHI-10/99.161, BIA, 7/9/59) wherein, as
here, there was a violation of section 254(a) (3) of the Act charged.
Therein, the boarding immigration officer refused conditional land247.

Interim Deciiion #1486
ing privileges to an alien crewman, but the Service later consented

to his removal from the ship for hospitalization. Such consent wet
given upon' the responsible parties agreeing in writing, somewhat
similarly to here, to the following conditions: that upon release from
the hospital the crewman, would be promptly removed from the
United Statei Without expense to the government; that he would
be under guard after his release from the hospital until his deportation; and that the foregoing arrangement would not relieve the
responsible parties front liability to fine proceedings and deportation
costs if the crewman failed to so depart from. the United States.
We think that the conditions imposed there correctly reflect the
true conditions under which "a detained alien crewman's removal
from the ship for hospitalization should be based. They obviously
take into consideration the practicalities of hospitalization in a
facility over which the agents have no control. And while we did
sustain the fine in that case, the record there clearly reflected that
the agents had regained custody of the crewman after his discharge
from the hospital.

ORDER: It is ordered that the appeal be sustained and that the
fine be not imposed.

248


Interim Decision *2010

MATTER OF AIRCRAFT N-3281—Z
In Fine Proceedings
SPM-10/2.81
Decided by Board October 29, 1969
(1) It is no defense to imposition of fine on aircraft's owner for violation of
section 239 of the Immigration and Nationality Act that the owner of the
aircraft may not have been the pilot of the plane at the time the violation
occurred, since the statute provides that the penalty shall be a lien upon
the aircraft.
(2) Mitigation of fine is not warranted since appellant was uncooperative
with Service officers throughout and after the aircraft had been properly
made the subject of seizure, despite notice thereof and instructions not to
interfere with the seizure proceedings, appellant took the plane and has
been using it for his private purposes.
IN RE: Piper Cub Aircraft N-3281—Z, which arrived in the United States
at an unknown time and place from Canada on or about January
27, 1969. Person involved: Mike Meier—owner.
BASIS FOR FINE: Act of 1952—Section 239 (8 U.S.C. 1229), and 8 CFR

239.2.

This appeal is directed to an administrative penalty of $500
which the Acting District Director at St. Paul has ordered imposed on the aircraft's owner for a violation of the statute and
the related regulations, as follows : failure to land at a designated
airport; failure to give advance notice of arrival; and discharging
or permitting departure of passengers or crew without permission of an immigration officer. The appeal will be dismissed.
A Royal Canadian Mounted Police report dated January 28,
1969, sets forth that late the preceding afternoon a Canadian citizen named Collins telephonically informed the reporter that he
had just seen an aircraft bearing the number "N-3281—Z," an
American Certificate of Registration number, make a landing in
Canada while engaged in illegally shooting foxes. Appropriate
federal records show Mike Meier, a United States citizen, to be
its registered owner, and he admits that he ,is the owner of the
aircraft.
409

Interim Decision #2010
On June 9, 1969, two Collins brothers, Canadian citizens, Douglas Lloyd and Jan Earl, executed affidavits before a border patrol
officer of the Immigration Service, in the presence of a Royal Canadian Mounted Police Officer, concerning the aforementioned
Royal Canadian Mounted Police report. Both brothers stated that
they saw the plane land in Canada at a point about 10 miles
north of the international boundary. One of the affiants walked to
the aircraft; talked to its pilot; assisted in the plane's takeoff;
and then wrote its number, "N-3281-Z," down on a piece of
paper, which he gave to his brother. The latter, the other affiant,
who had remained in a truck about one quarter a mile away from
the aircraft, noted its number when it circled low over him in
taking off ; compared his number with the one written down by
his brother; found that the number tallied ; and then reported the
matter to the Royal Canadian Mounted Police by telephone.
On July 11, 1969, Mike Meier submitted a written statement
covering a fox hunting trip on February 21, 1969. He then stated,
and is corroborated by a United States Customs officer in this re3pect, that the trip was confined to United States territory. Apparently, Mr. Meier is inferring that this is the trip to which the
;estimony of the Collins brothers related. Mr. Meier denies that
its aircraft was in Canada on January 27, 1969. However, appro)riate federal records show no lawful United States arrival of
his aircraft on or after January 27, 1969.
In our opinion, the foregoing evidence clearly and convincingly
stablishes that a violation of the statute here under consideraion, and its related regulations, occurred. We think the testimony
f the Collins brothers that the aircraft was in Canada far out-eighs Mr. Meier's denial of this fact. Therefore, we hold that
le Acting District Director has properly ordered a fine imposed
this instance.
It is no defense to imposition to the fine that Mr. Meier may
A have been the pilot of the aircraft. Concomitantly, it is immarial that the description of the aircraft's pilot furnished by one
' the Collins brothers may not have been related to Mr. Meier.
le reason, simply stated, is that the statute provides that the
realty specified therein shall be a lien upon the aircraft. Hence,
en although not a party to the violation, Mr. Meier must satisfy
e lien on the plane, and upon failure to do so may be liable for
e fine in United States courts as provided by the statute. In
ler words, the statute marks the owner of the aircraft as well
the pilot thereof properly the subject of these proceedings. The
410

Interim Decision #2010
law does not require the Service to look to the pilot in preference
to the owner.
Under the circumstances outlined, we do not feel that the fivemonth gap between the Royal Canadian Mounted Police report
and the date of the affidavits furnished by the Collins brothers is
in any way fatal. The Royal Canadian Police report would seem
to cover any deficiency in this respect, if there is any concern
with the question of a reasonably contemporaneous identification
of the aircraft. From a practical standpoint, also, it obviously
took a while for the Royal Canadian Police report to get to the
Service; tracing the plane's owner consumed a good bit of time,
as indicated by the record ; and winter conditions probably hindered travel to Canada by a Service officer to interview the Collins
brothers.
As to the remaining question of mitigation, we do not think
that any such relief is warranted in these premises. The record
reflects clearly that the appellant was uncooperative with Service
officers throughout. In addition, after the aircraft had been properly made the subject of seizure, Mr. Meier, despite notice thereof
and instructions not to interfere with the seizure proceedings,
took the plane and has been using it for his private purposes.
Under these circumstances, no reduction in the amount of the
penalty is warranted.
Our decision With respect to mitigation is made without regard
to the possibility that in the course of the violation here under
consideration the pilot and/or owner may have been engaged in
poaching in Canada and importing wild mammals into the United
States in violation of law. Accordingly, and in view of the foregoing, no change will be made in the Acting District Director's decision of August 5, 1969.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.

411