Interim Decision #2703

MATTER OF SALMON
In Deportation Proceedings
A-30587001

Decided by Board December 29, 1978
(1) Where a ground of deportation is also a ground of inadmissibility which may be waived
under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), that
relief is available to an alien in deportation proceedings.
(2) As the charge of deportability under section 241(a)(4) of the Act, 8 U.S.C. 1251(a)(4)
(conviction of a crime involving moral turpitude), is the equivalent of a ground of
excludability under section 212(a)(9), 8 U.S.C. 1182(a)(9) (exclusion based on conviction
of a crime involving moral turpitude), section 212(c), 8 U.S.C. 1182(c), will be available
to the respondent in deportation proceedings.
(3) The mere fact of an alien's conviction of a crime providing the basis for deportation does
not, in itself, end that alien's lawful domicile for section 212(c) purposes nor does it
terminate his status as a lawful permanent resident. Matter of S—, 6 1. Si N. Dec. 392
(BIA 19b4; A.G. 1955) followed.
(4) Section 212(c) does not provide an indiscriminate waiver for all who demonstrate
statutory eligibility for such relief.
(5) An alien bears the burden of demonstrating that, as a matter of discretion, he warrants
section 212(c) relief. Matter of Maria, Interim Decision 2666 (BIA 1978) followed.
(6) The standards established in Matter of Maria in considering applications for section
212(c) relief are not limited only to those applications involving aliens convicted of drug
offenses but apply equally to an alien convicted of a crime for which he has been found
deportable under section 241(a)(4) of the Act.
(1) Although confined aliens and those who have recently committed criminal acts have a
more difficult task in securing discretionary relief, an immigration judge may not
decline to entertain an application for relief under section 212(c) of the Act by a
statutorily eligible alien merely because he is held in confinement. Matter of Fernandez,
14 I. & N. Dec. 24 (BIA 1972) distinguished.
(8) Despite recent convictions for criminal trespass in the third degree, and robbery in th e
third degree, where youthful alien had eight years of residence, cluse family ties, and
had just been released on parole, case remanded for consideration of evidence of
possible rehabilitation.
CHARGE:
Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4))—Conviction of crime involving moral turpitude committed -within five years of entry and
sentenced to confinement for a year or more
ON REHA_LF OF RESPONDENT:
Willard E. Myers, III, Esquire
Prisoners' Legal Services of New York

ON BEHALF OF SERVICE:
George Indelicato
Appellate Trial Attorney

Ithaca, New York 14850

Ithaca, NY 14850

734

Interim Decision #2703
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent has appealed from the decision of an immigration
judge, dated March '7, 1978, finding him deportable as charged 1 and
denying his request for relief from deportation under section 212(c) of
the Immigration and Nationality Act, 8 U.S.C. 1182(c). The record will
be remanded.
The respondent is a 22-year-old native of Great Britain and citizen of
Jamaica who was admitted to the United States as a lawful permanent
resident in October, 1970. At a deportation hearing held on March 7,
1978, the respondent conceded deportability under section 241(aX4) of
the Act, 8 U.S.C. 1251(a)(4), as an alien who had been convicted of a
crime involving moral turpitude committed within five years after entry
for which he had been sentenced to confinement in a prison or corrective
institution for a year or more. The only issue on appeal involves the
immigration judge's denial of the respondent's application for section
212(c) relief.
The following evidence appears of record. In October 1975, the
respondent was charged with criminal trespass in the third degree,
which arose out of his entry into the New York subway without paying
the fare (Tr. pp. 16, 17). He paid a fine of $25 in connection with his
conviction (Ex. 6). 2 On February 17, 1976, the respondent was convicted
in the Supreme Court of New York for Kings County of the offense of
robbery in the third degree, committed on September 14, 1975. On April
12, 1976, the respondent was sentenced to three years in a New York
correctional facility for this offense (Ex. 3). On March 15, 1976, the
respondent was again convicted of robbery in the third degree, for
which he was sentenced by the Supreme Court of New York for
Richmond County to an indeterminate term, not to exceed four years
(Ex. 7). This sentence was to run concurrently with the sentence imposed by the Kings County court.
At a deportation hearing held on March 7, 1978, the respondent
conceded deportability as charged, and indicated his desire to apply for
section 212(c) relief from deportation (Tr. p. 2). The trial attorney
argued that the respondent was statutorily ineligible for such relief
because his conviction for robbery on February 17, 1976, precluded him
,

The respondent was charged, in the Order to Show Cause issued on August 1, 1977,
with deportability under section 241(aX4) of the Act. It appears that the immigration
judge's decision listing the charge of deportability as section 241(a)(1) is a mere typographical error and will be treated by us as such.
2 Although a pre-sentence report of the respondent and the decision of the immigration .
judgerftoha espndt' cigforhsenaFbuy19,
1975, we believe that the correct date is February 19, 1076, us the offense was committed
in October, 1975.

735

Interim Decision #2703
from establishing the requisite seven years of lawful permanent residence necessary for a grant of section 212(c) relief. The immigration
judge did not specifically determine the question, but rather, in his
decision, stated:
Assuming, arguendo, that the Government's position is correct there is still a question
as to whether the respondent would have been eligible as a matter of discretion.

The immigration judge then went on to find that the respondent did not
merit the favorable exercise of discretion.
Availability of Section
212(c) in Deportation Proceedings
Section 212(c) of the Immigration and Nationality Act provides, in
pertinent part, that aliens lawfully admitted for permanent residence
who temporarily proceed abroad voluntarily and not under an order of
deportation, and who are returning to a lawful unrelinquished domicile
of seven consecutive years, may be admitted in the discretion of the
Attorney General without regard to certain specified grounds of exclusion enumerated in section 212(a) of the Act. The grounds specified
include an alien who has been convicted of a crime involving moral
turpitude as set forth in section 212(a)(9) of the Act, 8 U.S. C. 1182(a)(9).
Although the language in section 212(a)(9) concerning excludability on
the basis of conviction for a crime involving moral turpitude is not
exactly the same as the language of section 241(a)(4) 3 of the Act concerning deportability for a conviction of a crime involving moral turpitude, we find that drawing such a distinction would run counter to the
rationale of Francis v. INS, 532 F2d 268 (2 Cir. 1976), adopted by this
Board in Matter of Silva, Interim Decision 2532 (BIA 1976).
In Francis, supra, the Second Circuit Court of Appeals held that the
provisions of section 212(c) are applicable not only to permanent resident aliens who temporarily proceed abroad voluntarily and not under
an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, but that such provisions

are also applicable to nondeparting permanent resident aliens. In Mat-

3

Section 241(a)(4) provides:
Any alien in the United States (mcluding an alien crewman) shall, upon the order of
the Attorney General, be deported who. . . . is convicted of a crime involving moral turpitude committed within five years
after entry and either sentenced to confinement or confined therefor in a prison or
corrective institution, for a year or more, or who at any time after entry is convicted
of two crimes involving moral turpitude, not arising out of a single scheme of cri_minal
misconduct, regardless of whether confined therefor and regardless of whether the
convictions were in a single trial. . . .
736

Interim Decision #2703
ter of Silva, supra, we adopted the holding of the Francis court and
concluded that section 212(c) permits a waiver of a ground of inadmissibility to a permanent resident alien in a deportation proceeding regardless of whether he departs the United States following the act or acts
which render him deportable. Therefore, if a ground of deportation is
also a ground of inadmissibility, as here, section 212(c) can be invoked in
a deportation hearing. Cf. Matter of Ham, Interim Decision 2557 (BIA
1977); Matter of Tanori, Interim Decision 2467 (BIA 1976).
Eligibility

We also find that the respondent is not barred from seeking section
212(c) relief by the fact of his conviction for robbery on February 17,
1976. The Service argued at the respondent's deportation hearing that
this conviction alone ended the period of lawful domicile necessary to a
grant of relief under section 212(c) in that it occurred before seven years
had elapsed after the respondent's entry as a lawful permanent resi6 I. & N. Dec. 392 (BIA 1954; A.G.
dent. However, in Matter of
1955), we held that the fact that an alien may have become deportable
subsequent to his admission to the United States for lawful permanent
residence, without more, was insufficient to preclude him from seeking
relief under section 212(c). This position appears to have been followed
by the Service in Matter of Mosqueda„ 14 I. & N. Dec. 55 (R.C. 1972).
Therefore, we find that the fact of the respondent's conviction (providing a basis for deportation) does not in itself terminate the respondent's
lawful permanent resident status, nor the lawful domicile necessary for
a grant of section 212(c) relief We conclude, therefore, that the respondent is statutorily eligible for such relief.
Discretion
However, section 212(c) does not provide an indiscriminate waiver for
all who demonstrate statutory eligibility for such relief. Instead, the
Attorney General or his delegate is required to determine as a matter of
discretion whether the applicant warrants the relief sought. The alien
bears the burden of demonstrating that his application merits favorable
consideration. Matter of Marin, Interim Decision 2666 (BIA 1978).
In Matter of Morin, we established the standards to be applied in
considering applications for section 212(c) relief. 4 We observed that
confined aliens and those who have recently committed criminal acts will
have a more difficult task in showing that discretion should be exercised
4 Contrary to counsel's assertions on appeal, the standards set out in Mann to guide the
exercise of discretion in section 212(e) cases are not limited only to those applications
involving aliens convicted of drug offenses, but apply equally to an alien such as the
respondent, who was convicted of robbery in the third degree.

737

Interim Decision #2703
in their behalf than aliens who have committed the same offense in the

more distant past. However, we also there held that, contrary to the
immigration judge's opinion in this case, Matter of Fernandez, 14 I. &
N. Dec. 24 (BIA 1972) should not be read as permitting an immigration
judge to decline to entertain an application for relief under section
212(c) by a statutorily eligible respondent merely because he is held in
confinement. 5
In his decision, the immigration judge cited the favorable factors
present in the respondent's application, including his length of residence
in the United States (more than eight years), his close family ties here
(his parents and three sisters), and the hardship the respondent would
suffer if he were forced to return to Jamaica, his native country_ The
immigration judge also considered the respondent's age at the time of
his convictions for robbery, and the favorable report of one of the
respondent's teachers contained in the record. However, the immigration judge found that these favorable factors, balanced against the
serious nature and recency of the respondent's convictions, were not
sufficient to merit a favorable exercise of discretion.
Since the date of the decision in this case, the respondent has been
released on parole. This development should, we find, be considered by
the immigration judge in considering the respondent's application for
discretionary relief. See generally Matter of Marin, supra. We will,
therefore, remand the record to the immigration judge to enable him to
consider this additional evidence. On remand, the respondent should be
given an opportunity to present any additional information he may have
in support of his application, including any evidence of rehabilitation
since the date of his incarceration. Accordingly, the record will be
remanded to the immigration judge.
ORDER: The record is remanded.

* Although the immigration judge cited Matter of Fernandez as permitting him to
xr•efuse to entertain the section 212(c) application because the respondent was still in
Prison, he in fact accepted the application and allowed the respondent the full opportunity
present evidence in support of a favorable exercise of discretion.

738


MATTER OF R

In SECTION 249 Proceedings
A-5760666
Decided by Assistant Commissioner March 9, 1960
Record of lawful entry—Not precluded under section 249 where record of lawful
admission for permanent residence exists but was vitiated by subsequent
illegal entry.
Prior record of lawful admission in 1928 for permanent residence does not
preclude adjustment of status under section 249 of the act where applicant's
immigration status became unlawful as a result of Illegal reentry In 1954,
and he has otherwise established his eligibility under the terms of the
statute.
APPLICATION: For creation of a record of lawful entry for permanent residence under the provisions of section 249 of the Immigration
and Nationality Act.,
BEFORE THE ASSISTANT COMMISSIONER
Discussion : The applicant,

a 36 year old cinglo male, native and

citizen of Germany, first entered the United States at New York,
New York, on May 28, 1928, as a nonpreference quota immigrant
for permanent residence. Since that date he has been absent from
the United States on one occasion, about August 1, 1954, when he
went to Canada and reentered at St. Albans, Vermont, about
August 4, 1954. At the time of reentry, he falsely represented himself to be a native-born citizen of the United States and upon such
claim gained entry. He was not then in possession of a reentry
permit, border-crossing card, or other document authorizing his reentry into the United States as an alien. The applicant has served
honorably in the Armed Forces of the United States for two
periods, each for approximately one year.
An order to show cause was issued on May 3, 1956, charging deportability under section 241 ( a) (2) of the Immigration and Nationality Act in that he entered without inspection. An expulsion
hearing wan accorded the applicant by a special inquiry officer on

May 17, 1956, and resulted in a finding of deportability on the
charge stated with the granting of voluntary departure and preexamination. Neither of these privileges was pursued.
598

On January 13, 1959, the applicant filed an application pursuant
to the provisions of section 249 of the Immigration and Nationality
Act. Although there is a record of applicant's lawful admission to
the United States in 1928, the district director granted the application and ordered that a record be created showing the applicant as
having been lawfully admitted to the United States for permanent
residence on May 25, 1959. The district director then certified the
order to the Regional Commissioner who approved the order but
has forwarded it to this office for review.
The issue here involved is whether the provisions of section 249
are applicable to persons in whose cases there exists a prior record
of lawful admission for permanent residence. Section 249 provides, inter (Ilia:
A record of lawful admission for permanent residence may, in the discretion of the Attorney General • • be made in the case of any alien • • •
if no such record is otherwise available * * *. (Emphasis supplied.)

A literal interpretation of the above-quoted provision would seem
at first blush to preclude the applicability of section 249 to any person for whom a record of lawful entry can be found. However,
section 101(a) (20) of the act defines the term lawfully admitted
for permanent residence as "the status of having been lawfully
accorded the privilege of residing permanently in the United States
as an immigrant in accordance with the immigration laws, such,
status not having changed" (emphasis supplied). It has been held
that illegal reentry constitutes a change of status in the case of an
alien who had been a lawful permanent resident (Matter of M—,
5 I. & N. Dec. 642, 647). Hence, in such case no record of lawful
admission is available within the meaning of section 249.
Therefore, it is concluded that although an alien may have lawfully entered the United States for permanent residence, a subsequent illegal entry vitiates the prior record of lawful admission,
and if the alien is otherwise eligible, he may be granted the benefits
of section 249. This finding is not inconsistent with the decision
in Matter of S—, 6 I. N. Dec. 392, holding that the fact that
the status of a person lawfully admitted for permanent residence
may have changed by reason of his subsequent deportability does
not preclude the exercise of the discretionary authority contained in
section 212(c) of the act, notwithstanding the definition contained
in section 101(a) (20) of the act.
In the instant case the applicant has been found to be unlawfully
in the United States but has established the requisite continuous
residence in this country since prior to June 28, 1940. His departure in 1954 F1, ab nut the result of exclusion or expulsion proceedings and his absence was temporary (Matter of P
A-4577395, Int. Dec. No. 976). He also established that he is not
599

a member of one of the excludable classes enumerated in section
249; that he is not ineligible to citizenship; and that he is a person
of good moral character. He has established that he is eligible for
the benefits of section 249.
Order: It is ordered that the order of the district director directing that a record of lawful admission for permanent residence be
created as of May 25, 1959, under the provisions of section 249 of
the Trn migration and Nationality Act, as amended, be and same is
hereby approved.

600


Interim Decision #1669

MATTER

of McGowan.

• In Visa Petition Proceedings
A-10809118

Decided by District Director September 13,1966
Petitioner, who has received the degree of Doctor of Chiropractic and meets
the high level of educational requirements for licensure to practice in the
State of California, is a. member of the professions within the meaning of
-

section 101(a) (32), Immigration and Nationality Act, as amended by P.L.
89-238, and is eligible for preference classification under section 203(a) (3)
of the Act, as amended, as a practitioner of chiropractic.

The petition was filed by the beneficiary, seeking classification as
a preference immigrant under section 203(a) (3) of the Immigration
and Nationality Act, as amended, based upon his training as a Doctor of Chiropractic.
Section 203(a) (3), Immigration and Nationality Act, as amended,
provides for the issuance of visas to qualified immigrants who are
members of the professions, or who because of their exceptional ability in the sciences, or the arts, will substantially benefit prospectively
the national economy, cultural interests, or welfare of the United
Stake.

Section 101(a) (32), Immigration and Nationality Act, as amended, defines the term "profession" as including *but not being limited
to architects, engineers, lawyers, physicians, surgeons, and teachers
in elementary or secondary schools, colleges, academies, or seminaries.
Although the above definition is intended to serve only as a guide,
examination of the occupations listed, indicates, that recognition of
professional status in those fields is normally obtained through attainment of at least a baccalaureate degree? As is the case with the
professions enumerated in the definition, high education, or the equivalent in specialized experience, is a realistic prerequisite for recognition of professional status in- this field.
The beneficiary was awarded the degree of Doctor of Chiropractic
by the Los Angeles College of Chiropractic on January 8, 1960, and
'Mauer of isms, Interim Decision No. 1006.

898

Interim Decision #1669
has been licensed, as a practitioner of chiropractic in the State of
California.
The beneficiary intends to practice in the State of California,
where there exists legislation regulating practitioners of chiropractic. This legislation provides as follows : "The basic principle of
Chiropractic is theonaintenance of structural and functional integrity of the nervous system. A. duly licensed Chiropractor may only
practice or attempt to practice or hold himself out as practicing a
system of treatment by manipulation of the joints of the human
body, by manipulation of anatomical displacements, articulation of
the spinal column, including its vertebrae and cord, and he may use
all necessary mechanical, hygienic and sanitary measures incident
to the care of the body in connection with said system of treatments,
but not for the purpose of treatment, and not including measures
as would constitute the practice of medicine, surgery, osteepathica,
dentistry, or optometry, and without the use of any drug or medicine
included in materie, medica."
"A duly licensed Chiropractor may make use of light, air, water,
rest, heat, diet, exercise, massage and physical culture, but only in
connection with, and incident to, the practice of Chiropractic as
herein above set forth."
Each applicant for licensors in the State of California must be a
graduate of an approved college of chiropractic, and must pass a
written examination.
In the State a California a licensed _Doctor of Chiropractic is
authorized to sign death certificates and make reports pertaining to
such deaths as required. by law. He may also order venipunctUre or
skin pitnainre for test purposes. if the -procedures are done by a
licensed clinical laboratory technologist or clinical laboratory bioanalysist.
Four thousand academic hours extended over a period of four
school terms of hot less than 9 months each are required for graduation from any college of chiropractic in the state, and the law requires that the following be included in those 4000 hours:
800 hours
Anatomy, including embryology and histology, dissection
Physiology
' 320 hours
Biochemistry, inorganic and organic chemistry
320 hours
Pathology, bacteriology and toxicology—
-480 hours
Public health, hygiene, :sanitation and first aid
120 hours
Diagnosis, pediatrics, dermatology,-syphilology, serology, X-ray
and psychiatry
720 hours
Obstetrics and gynecology
120 hours
Principles and practice of chiropractic, physiotherapy, dietetics
and °Mee procedure

1.120 boors

899

Interim Decision #1669
In order to be licensed in California an applicant must be graduated from a college which presents its curriculum in accordance with
the foregoing. To be recognized as "approved." by the state of California, each teacher must either hold a Doctor's degree from a recognized professional school of chiropractic, osteopathy, or medicine, or
must hold a degree from an. accredited college of arts and sciences.
Teachers of chemistry, bacteriology and physiologimusthold a baccalaureate degree in arts or sciences from an accredited institution.
No college of chiropractic in the State of California may be approved-unless it is organized. as a nonprofit corporation.

The laws of the State of California quite clearly regulate the
practice of Chiropractic on a professional level and a person meeting the educational requirements for licensure clearly possess the
equivalent of at least a baccalaureate degree. Examination of the
required courses reveals that they consist largely of advanced courses
in the fields of biology and chemistry, both of which are recognized
as professional fields, as well as courses which are commonly taken
in post-graduate study. Accordingly, it is held that a person who
has successfully completed such a course in Chiropractic is qualified
as a member of the professions within the meaning of section 203(a)

(3)•

•

Under Part 204.2(f), Title 8, Code of Federal Regulations, a certification •by the Department of Labor pursuant to section 212(a).

(14) of the Immigration and Nationali& Act, as amended, is
required before the visa petition may be approved. That section
provides for the. exclusion of certain aliens from the United States,
incliiding aliens seeking classification under section 203(a) (3), unless
the Secretary of Labor has determined and certified to the Secretary
of State, and to the Attorney General that (A) there are not sufficient workers in the United Stites, who are able, willing, qualified
and available at the time of application for a visa and admission to
the United States and at' the place to which the alien is destined to
perform such skilled or unskilled labor, and (B) the employment of
such aliens will not adversely affect the wages and working conditions of the -workers in the United States similarly employed. In
connection with the instant petition such a certification was made
on May 18, 1966.
ORDER: It is ordered that the petition to classify the status of
Michael Murdoch McGowan, as a preference quota immigrant under
section 203(a) (3) of the Immigration and Nationality Act, as
amended, be granted.

900


MATTER OF S
In EXCLUSION Proceedings
A-1127 ,206
Decided by Board Deccolber 23, 1958
Citigoarhip_acgoi,ition by child born abroad—Section 301(a)(7), (b), and (c)
of Immigration and Nationality Act—Failure to retain under section 201(g)
and (h), Nationality Act of 1940—Savings clause, section 405, Immigration
and Nationality Act.
(1) A person who acquired United States citizenship on July 12, 1934, at time
of birth abroad (to a United States citizen parent and an alien parent)
under section 1.993 of the Revised Statutes, as amended, and who tailed to
take up residence in the United States prior to her sixteenth birthday as
required by section 201(g) and (h) of the Nationality Act of Imo, retains
her United States citizenship when she complies with the provisions of section 301(b) of the Immigration and Nationality Act by coming to the United
States prior to her twenty-third birthday and establishing physical presence
in the United States for a continuous period of five years (Matter of 11—,
5 I. & N. Dec. 291 (1953), overruled.)
(2) Where such person was incorrectly informed by an American consular
officer on January 8, 1957, before her twenty-third birthday, that she had
lost her United States citizenship, nod in reliance upon such information
and without any lack of diligence on her part did not apply for and receive
a United States passport until after her twenty-third birthday and proceeded
immodiutoly upon pag,,r1 i.rinnep to this owintrv. she is entitled to admission as a United States citizen.
EXCLUDABLE Act of 1952—Section 212011(20) [8 U.S.C. 1182(a ) (20)]—No
immigrant visa.
7.
Act of 14152—Section 212(a1 (20) [8 INC.
I182;a (20)1—No unexpired passport.
BEFORE THE BOARD

Discussion: Appellant is a 24-year-old married female who
was born in Italy on Only 12, 1934. She arrived in the United
States at New I orlc via air on June 4, 1958, and applied for admis-

sion as a United States citizen. She was in possession of a United
States passport issued May 23, 1958, at Rome, Italy. This was the
only document in her possession. The special inquiry officer ordered
that she be excluded and deported from the United States as an
alien immigrant not in possession of the necessary documents. She
221

appeals to this Board from that decision, asserting her right to
admission as a citizen of the United States.
Appellant was never in the United States prior to her application
for entry on June 4, 1958. Her father was burn in tho United
States at Philadelphia, Pennsylvania, on July 23, 1908, and is,
therefore, a United States citizen by birth. He was married in
Italy on December 20, 1930, to is woman who was not a citizen of
the United States and who, at that time, had never been in the
United States. Appellant acquired citizenship of the United States
at birth under section IM of the Ttayised Statutes of the United
States, as amended by the Act of May 24, 1934. Under section 201
(g) of the Nationality Act of 1940 1 it was necessary for appellant
to arrive in (lie United States before she became 16 in order to
retain her United States citizenship. Following the enactment of
the Immigration and Nationality Act of 1952 2 the provision was
liberalized to extend her citizenship so that she might retain it if
she took up residence in the United States before reaching age 23
years and if she remained in this country for 5 years following her
entry
At the time of appellant's arrival in the United States she
was more than 23 years of age, and the epeeist inquiry officer held
Section 201. The following shall be nationals and citizens of the United
ta,tos tit birth: "" (g) A person born outside the United States and its
outlying, possessions of parents one of whom Is n citizen of the United States
who, prior to the birth of such person, has had ten years' residence is the
United States or one of Its outlying possessions, at least five of which were
after attaining the age of sixteen years, the other being an Mien: Provided,
That in order to retain such citizenship, the child must reside in the United
States or its outlying possessions for a period or periods totaling five years
between the ages of thirteen and twenty - one years: Provided further, That,
if the ohild has not taken up a residence in the United States or its outlying
possessions by the time he reaches tne ag e of enstoen rears, or If he resides
abroad for such a time that it becomes impossible for him to complete the
Owe years' residence in the United. States or its outlying possessions before
reaching the age of twenty-one years, his American citizenship shalt thereupon
cease. * *
"Sec. 301. (a) The following shall be nationals and citizens of the United
States at birth: (7) a person horn outside the geographical limits, of the
United States and its outlying possessions of parents one of whom is an alien,
and the other a citizen of the United States who, prior to the birth of such
person, was physically present In the United States or its outlying possessions
for a period or periods totaling not less than ten years, at least five of which
were aft,. attaining rho age of fourteen years * * *
(b) Any person who is a national and citizen or the Unitorl States at birth
under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of
twenty-three years and shall immediately following any such coming be continuously physically present in the United States for at least five years * * 0.
[Amended by section 19, P.L, 85-315, but amendment not pertinent here.]
(c) Subsection (b) shall apply to a person born abroad subsequent to May
24, 1934 0 00 .
222

she had lost her United States citizenship. At the time of her
hearing before the special inquiry officer she did not know, and at
the time of oral argument before this Board her attorney and the
Ser vice representative had not yet been informed, of the rationale
for the issuance of a United States passport to her by the American
Embassy at Rome even though she was more than age 23.
An inquiry concerning the citizenship status of appellant was
addressed by the District Director of the Immigration and Naturalization Service at Philadelphia on October 9, 1958, to the Chief of
the Foreign Adjudications Division, Passport Office, Department of
State. The responsive communication has been referred to us. It
states that the records of the Passport Office show that appellant's
father listed her as his minor child in connection with his passport
application executed at the American Embassy at Rome on January
31, 1950. On January 8, 1957, her brother listed her as his sister in
connection with his registration application also executed at the
American Embassy at Rome. Appellant first made formal application for a passport on May 9, 1958. (She was by then more than
23 years old.) The State Department further advises as follows
(in pertinent part)

•

It has been the long-standing practice of the American Consular posts
abroad, including the Rome Embassy, to inform applicants for passports or
registrations of the citizenship status of other members of their families
listed 111 connection With tam applications. Our Embassy at name nas reported that it has no reason to believe that Mrs. S--- was not so informed
through her father and brother on January 31, 1950, and January 8, 1957,
respectively, In view of our interpretation of section 301(b) and (c) of the
Immigration and Nationality Act prior to the decision in the case of Lee You
Fee v. Males,3 this office takes the position that Mrs. S— was incorrectly
informed on January 8, 195? by the Rome Embassy, through her brother, that
she had lost her United States citizenship under section 201 (g) and (h) of
the Nationality Act by reason of her failure to take.up United States residence
prior to her sixteenth birthday. Consequently, the Passport Office considers
that Mrs. S—'s failure to establish her residence in the United States prior
to her twenty-third birthday must he attributed to the fault of the United
States Government. We also consider that for the purpose of complying with
the live-year physical presence requirement of section 301 (h), as amended,
Mrs. may be regarded to have been constructively physically present in
the United States at least for a period of time to enable her to comply with
the retention of citizenship requirement of the same section.
In view of the above the American Embassy at Rome issued on May 23,
1958 United States passport No. 89095 to E
D
M
S
The action (akem in this coos is in accordance with State Department memoranda. wherein the Department of State outlined the

categories of persons who would be considered eligible for documentation as United States citizens, even though they had failed to
355 U.S. (11 (1957).
Memo CA-7479, March 3, 1958, as amended by a memorandum of October
14, 1958,

223

establish residence in this country prior to reaching age 23. These
memoranda refer to changes in the interpretation of section 301 (b)
and (c) of the Immigration and Nationality Act, resulting from
the ruling of the Solicitor General and the affirmance thereof by
the Supreme Court in the case of Lee You Fee v. Dulles, referred
to above. It was originally the view of the State Department, the
Immigration and Naturalization Service, and this Board that
United States citizenship lost under section 201(g) of the Nationality Act of 1010 for failure to come to the United States before
age 16 was not restored by section 301 (b) and (c) of the Immigration and Nationality Act (enacted June 27, 1952 and effective December 24, 1952). It was our belief that the savings clause contained in section 405(c) 5 operated in this situation rather than the
provision of section 301(c) which says, "Subsection (b) shall apply
to a person born abroad subsequent to May 24, 1934." This view
was set forth in Matter of B , 5 I. & N. Dec. 291 (B.I.A., 1953),
which we now consider overruled. The Circuit Court lated adhered
to this position in Lee You Fee v. Duffles, 236 F.2d 885 (C.A. 7,
1956). However, the Solicitor General of the 'United States confessed error in this matter and the Supreme Court approved his
action reversing the decision of the Circuit Court of Appeals and
remanding the ease to the District Court with directions to vacate

its order (355 U.S. 61 (1957)). A decision following the revised
, 7 I. & N. Dec. 646, which quotes at length
view is Matter of
from the brief for the Government submitted by the Department of
Justice in support of its confession of error in Lee You Fee. The
conclusion of the Solicitor General was that section 301 (c) renders
the general savings clause inapplicable, so that, although a petitioner had lost his citizenship under the 1940 act, he, could regain
that citizenship under section 301 (b) and (c) of the 1952 act by
coming to the United States before he became 23 years of age.
State Department memoranda circulated to all diplomatic and
consular posts declared that an applicant over age 2:5 at time of
documentation, who acquired United States citizenship at birth,
and who applied for a passport before reaching 23, whose application was disapproved because she had failed to take up residence
in the United States before reaching 16, may now be given a United
States passport (under conditions enumerated, which are not relevant here because they have been complied with). The memoranda
stipulated that the applicant must have been "wrongfully refused
documentation" or "misinformed" that she had lost United States
5 SEC. 405. (c) Except as otherwise specifically provided in this Act, the repeal of any statute by this Act shall not terminate nationality heretofore lawfully acquired nor restore nationality heretofore lost under any law of the
United States or any treaty to which the United States may have been a party.

114

citizenship under section 201 (g) of the 1940 act for failure to come
to the United States before age 16. She must have been prevented from complying with section 301(h) of the Immigration and
Nationality Act by the erroneous previous interpretation of section 301(b) by the State Department. This instruction assumes
further that the applicant has never performed any expatriative
act and that she previously applied for documentation after June 27,
1952, but before she reached age 23. Applying these principles to
the instant case, and assuming that appellant was incorrectly informed through her brother on January 8, 1957, at which time she
was not yet 23 years of age, that she had lost her United Staten
citizenship, she falls squarely within the category of persons described in the State Department memoranda as a person who is
entitled to is United ,States pnssport in spite of the fact that she
failed to arrive in theUnited States before she became 23 years of age.
The record shows that a United States passport was issued to
M , appellant's father, at Rome on January 7, 1955.
G D
Appellant's father testified that he filed a petition in Philadelphia
for his daughter to come to the United States three-and-a-half years
before the hearing. This would place the date of the filing of the
petition for appellant early in 1901. Appellant's mother arrived
in the United States in May 1956. Her father stated that he at
first filed a visa petition to obtain an immigrant visa under the
quuta for his daughter, but at the time her mother came to the

United States in 1956 the American Consul at Naples told his
daughter that she could file her own petition, because her father
was a United States citizen. After June 27, 1952, the date of the
passage of the Immigration and Nationality Act, she was incorrectly informed that she no longer had a claim to United States
citizenship. Her failure to arrive in the United States and take up
permanent residence here prior to her 23rd birthday was the result
of failure of consular officials to provide a United States passport.
The record does not establish lack of diligence in protecting her
claim to citizenship. There is no way in which she could lawfully
have entered the United States to take up permanent residence
Prior to the date on which she did so. It will be ordered that
appellant be admitted to the United States for permanent residence
as a United. States citizen.
Order: It is ordered that the appellant be admitted to the United
States as a United States citizen.

:225


Interim Decision #1564

IGUITER

or ComtAL-Fmaaoso*

In Deportation ProCeedingS.
A-61275
Decided by Board March S, 1966
The judicial recommendation against deportation pursuant to section 241(b)
(2), Immigration and Nationality Act, as amended, made by the court
following respondent's conviction for violation or 8 11.8M. 1324(a) (2), is
ineffective to defeat his deportation under section 241(a) (13) of the Act for
knowingly and for gain assisting other aliens to =lawfully, enter the
United States.
z
•Can:
Order: Act of 1952—Section 241(a) (13) [8 Q.S.C. 1251(a) (13)1—Knowingly and for gain encouraged, induced, assisted,
abetted or aided any other alien to enter the United
States in violation of law.

The case comes forward on 'motion of counsel requesting that the
matter be reopened, reconsidered and reversed.
The record relates to a native and citizen of Mexico, a permanent
resident who was found deportable by a special inquiry Officer on October 22, 1905 on the charge stated above based upon events which occurred on or about July 1965. The special inquiry officer found re' spondent ineligible for discretionary relief and ordered deportation.
The present motion is supported by a •ertified copy of an order of
judgment entered in the United States:District Court for the Western District of Texas, El Paso Division, entered November 12, 1965
in which the respondent was convicted upon his plea of pay of the
offense of knowingly and unlairfully transporting aliens in the United
States in violation of section 1324(a) (2), Title 8, United States Code,
sentence was deferred until Noveniber 12, 1965, the respondent was
sentenced to one month on each five counts consecutively, the sentences suspended, defendant placed upon probation for a period of
one year; further ordering counts 6, 7, 8, 9, and 10 be dismissed. In
•

• See also. Matter of Corral-In:cow. Int. Dee. No. 1549. of which the alien
in this case is also the subject.

529

Interim Decision 41564
addition, the court recommended that the defendant be not deported under section 1251(b) (2), Title . 18, United States Code (go).
The recommendation against deportation was made in accordance
with the provisions of S U.S,C. 1251(b) (2), (section 241(b) (2) of
the Immigration and Nationality Act), which provides that the provisions of section 241(a) (4) respecting the deportation of an alien
convicted of a crime or crimes shall not apply if the court sentencing
such alien for such crime shall make, at the time of first imposing
judgment or passing sentence, or within 30 days thereafter, a recommendation: to the Attorney General that such alien not be deported.
It is hello-yea that the decision in the case of Jew Ten v. Immigration and Naturalization Service, 307 F.2d 832 (1962), cert.
denied, 371 U.S. 968, is dispositive of the instant case. In that case
the alien was On February 15, 1954 convicted- of conspiracy to assist
Other aliens who entered the United States in violation of law and
the District Court, pursuant to the provisions of section 211(b) (2)
of the Immigration and Nationality Act (8 U.S.C. 1251(b) (2),
recommended that the petitioner be not deported. Thereafter a
special inquiry officer on. July 18, 1955 directed the alien to be deported from the United States under section 241(a) (13) of the Immigration and' Nationality Act, the decision being affirmed by the
Board on December 20,1955.
The court held that section 241(b) can only mean that the sentencing court is limited to making recommendations in 241(a) (4)
convictions. The defendant however was found to be depOrtable
under section 241(a) (13). The only significance attached to the
petitioner's conviction was that the conviction.made it easier to prove
that the alien did in fact commit acts proscribed by section 241(a)
(13). The judicial recommendation that an alien convicted of conspiracy to assist other aliens who entered the United. Statea,in violation of the law be not deported, while rendering inapplicable the
statutory provision permitting deportation of. aliens under section
241(a) (4), did not preclude deportation muter section 241(a) (13)
of the Immigration and Nationality Act.
We believe the cited case is diapositive of the issue. Here, the
respondent was found deportable; not under section 241(a) (4) of
the Immigration and Nationality Act, but under•section 241(a) (13)
for knowingly and for gain assisting other aliens who entered the
United. States. The recommendation against deportation pursuant
to section 241(b) (2) is ineffective to defeat deportation. The motion
will 'be denied.
ORDER: It is ordered that the motion be and the same is hereby
denied:
580-


Interim Decision #1272

MATTER OV FONG

In DEPORTATION Proceedings
A-9698010
Decided by Board Mare& 1, 1963
An administrative appeal from a denial of suspension of deportation pending on
October 24,1082, the date of enactment of Public Law 87-885, must be dismissed in the case of an alien who entered the United States as a crewman
since he is statutorily precluded by section 244(f) from obtaining the benefits
of suspension under the provisions of the amendatory legislation.
CHAIM:
Warrant: Act of 1952—Seaton 241(a) (9) Le U.S.C. 1251(a) (0)3—Vaned to

comply—nonimmigrant seaman—Act of 1924.

The case comes forward on appeal from the order of the special
inquiry officer dated October 22, 1962 denying the respondent's application for suspension of deportation under section 244(a) (5) of the
Immigration. and Nationality Act, granting him the privilege of voluntary departure in lieu of deportation and further ordering that
if the respondent failed to depart as required he be deported to the
Republic of China on Formosa on the ground stated above.
The record relates to a native and citizen of China, 50 years old, male,
who last entered the United States at the port of Philadelphia, Pennsylvania on August 17, 1950 as a member of the crew of the SS
"Ulysses." Deportability has been conceded.
The case was last before us on November 6, 1961 on appeal from an
order entered by the special inquiry officer on September 6, 1961, denying the respondent's motion requesting a reopening of the proceedings for the purpose of affording him an opportunity to apply for
suspension of deportation under section 244(a) (5) of the Immigration and Nationality Act because respondent had been served with a
final order of deportation. It appears that a warrant of arrest was
served on the respondent on April 26, 1951 but a hearing record does
not exist. A hearing was accorded the respondent on August 25, 1961
in connection with the motion to reopen to permit respondent to apply

for suspension of deportation under section 244(a) (5) of the Immi210

Interim Decision 4t1272
gration and Nationality Act and portions of a record were reconstructed from documents available in the administrative file. These
documents indicated that the respondent may have been accorded a
hearing in deportation proceedings at New York on October 31, 1955
when a communication was addressed to him advising him of the voluntary departure privilege and if he failed to depart as directed he
would be deported if he did not depart prior to December 2, 1955. An
application for adjustment of immigration status under section 6 of
the Refugee Relief Act of 1953 failed of approval of the 85th Congress
and on June 12, 1958 he was notified to effect his departure from the
United States on or before July 12, 1958. He failed to depart and the
respondent was notified on September 4, 1958 that his deportation to
China had been directed. On the same date a warrant was issued providing for his deportation under section 241(a) (2) of the Immigration. and Nationality Act although the warrant of arrest served on him
on April 26, 1954 charged him with being illegally in the United States
under section 241(a) (9) of the Immigration and Nationality Act in
that after admission as a seaman under section 3(5) of the Immigration Act of 1924 he failed to comply with the conditions of such status.
Faced with the lack of a hearing record and the confusion existing in

the administrative file, it was concluded that the requirements of section 242 (b) (4) were lacking. In view of the difficulty, if not the impossibility, of determining whether or not a final order of deportation
had been entered in the case, it was ordered. that the case be remanded
for further proceedings in order to complete the record and to afford
the respondent an opportunity to apply for such relief as might be
available, if any.
At the hearings before the special inquiry officer held on December
15, 1961 and May 10, 1962 the respondent applied for suspension of
deportation pursuant to section 244(a) (5) of the Immigration. and

Nationality Act. The respondent's wife and child reside in Chins and
he has no close relatives in the United States. He has resided in the
United States continuously since his last admission on August 17,
1950. The respondent first entered the United States in 1943 as a
seaman and claims to have lived here since November 1945 except
for his various absences as a seaman until August 1950. He is employed. as a cook earning $97 per week. His assets consist of $1,100 in
savings; $1,500 in stock and $1,000 in miscellaneous personal effects.
The quota for Chinese persons to which the respondent is chargeable
is greatly oversubscribed at the present time and he cannot readily
obtain an immigrant visa if granted. the privilege of voluntary departure. The respondent has no =eat record except an arrest in
October 1961 on a charge of disorderly conduct which was dismissed.
211

Interim Decision #1272
No evidence has been produced. showing any connection with subversive groups. The character investigation is favorable. An employment certificate and affidavits of with esseR establish that respondent
has been continuously physically present in the United States since
August 1950.
The special inquiry officer has found that respondent's deportation,
while it would undoubtedly entail some hardship to him, such hardship failed to satisfy the "exceptional, extremely and unusual" hardship requirement of the Immigration and Nationality Act and as a
result he was ineligible for suspension of deportation. Furthermore,
the special inquiry officer found that, even. assuming respondent met
the minimum statutory requirements for eligibility for suspension of
deportation, and despite his maritime service of approximately 16

months during World War II between December 1942 and March 1944
and December 1944 and January 1945, in view of respondent's repeated
conflicts with the immigration laws and the fact that he has eked
out the period since April 1954 while under deportation proceedings,
and in view of the lack of family ties in the United States, as a matter
of administrative discretion suspension of deportation would not be
granted, and that the maximum relief granted the respondent would
be that of the privilege of voluntary departure in lieu of deportation.
The decision of the special inquiry officer was rendered. on October
22, 1962. Two days afterward there was enacted the Act of October
24, 1962 (Public Law 87-885; 76 Stet. 1247; 8 11.8.0.A. 1254, C.A.P.P.
1962), section 4 of which amended section 244 of the Immigration and
Nationality Act (8 U.S.O. 1254) in several important respects.
Among other things, section 244(a) was changed from the former
five subparagraphs into two subparagraphs. The respondent's case
would appear to fall within section 244(a) (1) of the Act as amended
by section 4 of Public Law 87 886. This new section requires seven
years' residence in the United States preceding the date of the application and requires the person to establish that his deportation would
result in extreme hardship to the alien. Ordinarily we would remand
the case to the special inquiry officer for reopening and reconsideration in view of the less stringent requirements of section 244 of the
Immigration and Nationality Act as newly amended by section 4 of
Public Law 87-885.
However, the same section 4 of Public Law 87-885 added a new
subparagraph (f) to section 244 to the effect that no provision of that
section should be applicable to an alien who entered the -United States
as a. crewman (as well as excluding certain other classes from the
benefits of the amendatory legislation). No purpose, therefore, would
-

be served in reopening the case for consideration under section 244

(a) (1), as amended by the Act of October 24, 1962, since the new
212

Interim Decision #1272
subparagraph (f) renders moot the respondent's eligibility for that
form of discretionary relief, inasmuch as he last entered the United
States as a crewman.

The respondent was still the subject of administrative adjudication and had not established any right to the future status of a
permanent resident he was seeking to obtain by his application; accordingly, the amendment is not being given any retrospective application. No savings clause was enacted as a part of the Act of October 24, 1962 in contrast to the savings clause enacted in section 405(a)
of the Immigration and Nationality Act of 1952 which made specific
reference to a pending application for suspension of deportation under
section 19 of the Immigration Act of 1917 as amended on the date
of the enactment of that Act_ The exclusion from the benefits of the

amendatory legislation of October 24, 1962 of the aliens enumerated
in section 244(f), namely, crewmen, exchange students and natives
of contiguous countries or adjacent islands, constitutes the expression of a clear Congressional policy not to extend the benefits of the
amendatory legislation to those specified classes. Inasmuch as an
approved application for suspension of deportation would still require
a referral to Congress, it would appear inconsistent to hold crewmen
eligible for the benefits of the amended suspension of deportation from
which they are specifically barred. 1 Even though the amendment
of section 224(f) of the Act of October 24, 1962 occurred subsequent to the date of the special inquiry officer's decision but during
the pendency of the administrative appeal, the respondent, who entered
as a. crewman, is not now eligible for consideration of suspension of deportation and his application for that form of relief must be denied.:
The grant of voluntary departure in lieu of deportation appears to be
the maximum relief which can be accorded the respondents
This conclusion disposes of the contentions of counsel, both at oral

argument and as set forth in his brief. The denial of the respondent's
application for adjustment of status under section 6 of the Refugee
Relief Act is not within our jurisdiction. We have noted the cases
cited by counsel in his brief but we do not find them to be applicable
to the situation before us. For the reasons already set forth, we find
an alien who entered as a crewman ineligible for suspension of
deportation under section 244(a) as amended.
ORDER : It is ordered that the appeal be and the same is hereby
dismissed.
'

2

Matter of Taraboechia, Int. Dec. No. 1266 (February 11, 1963).
Cf. Fasailie et al. v. EsperdV, 301 F.2d 429 (24 Cir., 1962) ; also Histopouloo

v. Shaughnessy, 35317.2. 72.
a Matter of Vora-Rodriguez,

Int. Dee. No. 1254.

213


Interim Decision #2604

MATTER OF ANWO

In Deportation Proceedings
A-19395836
Decided by Board August 4,

1977

(1)The respondent, a native and citizen of Liberia was admitted to the United States as a
nonimmigrant student on December 9, 1969, and was accorded lawful permanent
resident status on October 11, 1973. On September 9, 1975, he was convicted for
possession of marihuana in violation of section 402 of Title 33, of the District of Columbia
Code. Respondent was subsequently found deportable under section 241(a)(11) of the
Immigration and Nationality Act and ordered deported to Liberia.
(2) Relief under section 212(c) of the Act is available only to an alien who has established
lawful permanent residence and maintained it for seven consecutive years. Nothing in
the statutory language or legislative history indicates a Congressional intent to extend
the same benefit to une whose "dumicile" here was accrued as a nonimmigrant.
(3) Respondent is statutorily ineligible for relief under section 212(c) of the Act because he
has not been a lawful permanent resident for seven consecutive years.
(4) Board declines to follow the rationale expressed in Tim Lok v. INS, 548 F.2d 37 (2 Cir. ,
1977), in cases arising outside of the second circuit. Nevertheless, respondent would not
even qualify for relief under the rationale expressed in Tim Lok v. INS, because he was
admitted as a nonimmigrant student. Under these circumstances, a fixed intent to
remain in the United States, which is a necessary ingredient of domicile, would have
rendered respondent's nonimmigrant status and domicile in this country unlawful and
thus not within the second circuit's holding in Tim Lok, supra.
CHARGE:

Order Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11))—Convicted of violation of
law or regulation relating to the illicit possession of marihuana
ON REM LP OP RESPONDENT:
ON BEHALF OF SERVICE:
Lois E. Bruckner, Esquire
Mary Jo Grotenrath
3423 Olney-Laytonsville Road
Appellate Trial Attorney
Olney, Maryland 20832
BY: Milhollan, Chairman; Wilson, Maniatis, Appieman, and Maguire, Board Members

In a decision dated January 26, 1977, the immigration judge found the
respondent deportable under section 241(a)(11) of the immigration and
Nationality Act as an alien who had been convicted of an offense relating
to the illicit possession of marihuana, and ordered him deported to
Liberia. The respondent appealed from that decision, originally arguing
tb at deportation on the stated charge would be in violation of the
respondent's rights under the Fifth Amendment to the United States
293

Interim Decision #2604
Constitution. In oral argument before this Board, however, the respondent, through counsel, requested that we remand the record to the

immigration judge for consideration of the respondent's claim for relief
from deportation under section 212(c) of the Act and the decision of the
United States Court of Appeals for the Second Circuit in Tim Lok v.
INS, 548 F.2d 37 (2 Cir. 1977), rehearing denied March hi, 1977. For
the reasons that follow, the respondent's request for remand of the
record will be denied, and the appeal will be dismissed.
The respondent, a native and citizen of Liberia, was admitted to the

United States as a nonimmigrant student on December 9, 1969, and was
accorded lawful permanent resident status on October 11, 1973. On
September 9, 1975, he was convicted in United States District Court of
possession of five pounds of marihuana, in violation of Title 33, District of
Columbia Code, §402.
I
in his brief submitted to the immigration judge and incorporated into
the record on appeal, the respondent argues that section 241(a)(11) of
the Act as it relates to lawful permanent residents convicted of possession of marijuana is in violation of the Fifth Amendment to the United

States Constitution. However, it is beyond the power of the Board to
4 I.
entertain constitutional challenges to the Act itself. Matter of
& N. Dec. 556 (BIA 1951); see also Matter of Wong, 13 I. & N. Dec. 820
MIA 1971). This claim, therefore, is pressed by the respondent in an
inappropriate forum. Upon a review of the record, we find that deportability under section 241(a)(11) has been established by clear, convincing,
and unequivocal evidence.

II
Section 212(c) was enacted in 1952 1 to replace the Seventh Proviso to
section 3 of the Immigration Act of 1917. 2 Under this latter section, an
alien otherwise inadmissible under certain provisions of the predecessor
to section 212(a) but returning after a temporary absence to an =relinquished United States domicile of seven consecutive years could be
admitted in the discretion of the Attorney General under such condiawns as he might prescribe.
Section 212(c), as enacted in 1952, contained two significant restrictions upon the discretionary power conferred upon the Attorney General under the Seventh Proviso. First, under section 212(e), relief is
only available to "aliens lawfully admitted for permanent residence who
Proceeded abroad voluntarily and not under an order of deportation."
2

_Act of June 27, 1952, 66 Stat. 163; 8 U.S.C. 1192(c).
Act of February 5, 1917, 39 Stet. 878; ch. 29, §3.

294

Interim Decision *2604
Second, section 212(c) contains the requirement that the lawful permanent resident alien be returning to a "lawful" unrelinquished domicile of
seven years.
The scope of permissible discretion exercisable under the Seventh
Proviso was administratively enlarged early on to allow a nunc pro tune
waiver of a ground of inadmissibility in deportation proceedings. See
Matter of L — , 1 1. & N. Dec. 1 (A.G. 1940). The availability of nuwc pro
bow waivers of inadmissibility was reaffirmed after the enactment of
section 212(c). See Matter of Tudwri, Interim Decision 2467 (BIA 1976).

Following the decision of the United States Court of Appeals for the
Second Circuit in Francis v. INS, 532 F.2d 268 (2 Cir. 1976), w -e held
that relief under section 212(c) was available in deportation proceedings
notwithstanding the fact that the respondent had not effected a 'departure and entry following the acts which rendered him excludable and
deportable. Matter of Silva, Interim Decision 2532 (BIA 1976). The
respondent, therefore, is not precluded from asserting a claim to section
212(c) relief by reason of his failure to effect a departure and reentry, if
he is otherwise eligible under the statute.
To establish eligibility for section 212(c) relief, a respondent must

establish that he has maintained a "lawful unrelinquished domicile" in
the United States for seven consecutive years. Based upon our understanding of the Congressional intent as reflected by the legislative
history of this provision and the restrictive attitude which attended its
incorporation into the Immigration and Nationality Act of 1952 (see Tim,
Lok v. INS, supra, at 41), we have long held that the phrase "'lawful
unrelinquished domicile" meant that the alien must have maintained a
domicile in the United States for seven consecutive years subsequent to
his lawful admission for permanent residence. See Matter of 5— , 5 L &
N. Dec. 116 (BIA 1053); Matter of Lok, Interim Decision 2509 (BIA
1976).

This interpretation of section 212(c) was followed without judicial
challenge for some 24 years. However, it has recently been rejected by
the United States Court of Appeals for the Second Circuit in Tim Lok v..
INS, supra. The court in that case, overruling the decision of the Board
in Matter of Lok, supra, rejected the interpretation of "lawful unrelinquished domicile" set forth in Matter of S — , supra. Noting the Congressional purpose of reuniting families, described in its holding in/Two/cis
v. INS, supra, the court held that there existed no direct legal equation

between the terms "lawfully admitted for permanent residence" and
"lawful unrelinquished domicile." It concluded that it was in fact possible for an alien to possess a "lawful domicile" in the United States
without having been admitted for permanent residence, and therefore
remanded the ease to this Board for determination of whether the
domicile prior to his adjustment of status had been "lawful."
295

Interim Decision #2604
However, we continue to believe that the general Congressional
policy of reuniting families as described in Francis v. INS, supra, and
relied upon by the court in Tim Lok, must give way, in the interpretation of section 212(c), to the specific Congressional intent to restrict the
scope of permissible discretion which had been available to the Attorney
General under the Seventh Proviso to section 3 of the Immigration Act

of 1917. 3 The relief available under the Seventh Proviso and section
212(c), as with all provisions providing discretionary relief from the
statutory mandates of the Immigration and Nationality Act, springs, of
course, from the Congressional belief that exclusion and deportation in
some circumstances would be inhumane. However, section 212(e) was
enacted in 1 952 specifically to restrict the implementation of this policy
to certain classes of aliens. It is this restrictive intent, rather than the
more general policies governing all relief provisions under the Act,
which should govern the interpretation of the language added to section
212(c) and not previously in the Seventh Proviso.
Accordingly, we adhere to our belief that section 212(c) was designed
as means of waiving a disability which would otherwise bar a long term
lawful permanent resident of the United States from returning to (or,
since Francis, continuing) his extensive lawful domicile in this country,
and is available only to one who has: (a) established a lawful permanent
residence, and (b) maintained it for seven years. Nothing in the statutory language or the legislative history indicates a Gong' essiunal intent
to extend the same benefit to one who may have eked out all or part of
seven years of "domicile" while here as a nonimmigrant.
The lawful permanent resident has met extensive quantitative and
qualitative standards at time of entry as an immigrant. He has, legally
and properly, established ties to this country. He may work. He normally looks toward citizenship and will have that privilege in time. He
enjoys greater rights than the nonimmigrant alien and assumes comraensurate responsibilities and duties. It is reasonable that after seven
years of such lawful resident status the Congress intended he should not
lightly be held barred from continuing in that status under the exclusionary provisions of the statute.

On the other hand, the statutory scheme clearly reflects an entirely
different view of the nonimmigrant. He has none of the foregoing

attributes. He is expected to enter, accomplish the purpose of his visit,
and to leave within a relatively short period of time. It is not reasonable
to believe that the Congress visualized him as remaining here for years,
until such time as he could achieve lawful permanent residence, and thus
qualify for benefits of section 212(c). We remain persuaded that the
words "who are returning to a lawful unrelinquished domicile of seven
3 S. Rep. No. 1515, 81st Cong., 2d Sess. 384 (1950); H.R. .Etep. No. 1365, 62d Gong., al
Suess. 51 (1952).

296

Interim Decision #2604
consecutive years," in section 212(c), were intended to impose the requirement that the alien applicant for section 212(c) relief has been in
lawful permanent resident status for seven consecutive years.
The difficulties resulting from the Second Circuit Court of Appeals'
interpretation of section 212(c) become apparent when the entire
scheme of discretionary relief from deportation under the Immigration
and Nationality Act is considered. It is a well-settled principle of statutory construction that all sections of an Act must be reconciled if possible
so as to produce a symmetrical whole. General Motors Acceptance Corp.
v. W hisnant, 387 F.2d 774 (5 Cir. 1968); Maiattoo v. United States, 302
F.2d 880 (D.C. Cir. 1962). Section 212(c) must be interpreted in light of
the other provisions of the Act according relief from deportation. When
the interpretation of that section adopted by the court in Tim Lok,
supra, is viewed in perspective alongside the relief afforded a deportable alien under section 244(a) of the Act a it becomes apparent that the
court's interpretation would render this latter section largely nugatory.
Suspension of deportation under section 244(a) of the Act is potentially available to the class of aliens, whether in illegal, nonimmigrant,
or resident status, who satisfy the seven or ten-year United States
residence requirements. However, the applicant for seetion. 244(a) relief
must also meet strict qualitative requirements. He must e stablish that
he has been a person of good moral character throughout the statutory
period. He must establish that his deportation would cause an extreme
degree of hardship to himself or to specified relatives who are United
States citizens or lawful permanent residents. In short, whether the
applicant is illegal, a nonimmigrant, or a lawful permanent resident, his
mere residence in the United States for a period of seven or ten years
will not entitle him to relief from deportation.
By contrast, section 212(c) imposes no strict standards which must be
met before an applicant is able to escape deportation. The alien applying
for section 212(c) relief has only to show that he is a lawful permanent
resident and that he has maintained a "lawful unrelinquished domicile"
in the United States for a period of seven consecutive years. In light of
the lesser standards which must be met before relief from deportation
can be accorded under section 212(c), the class of aliens to which it
applies must therefore be distinct from, and possess a stronger relationship with this country than, the class of aliens eligible for suspension of
,

4 Under section 244(a), an alien found deportable under the Act who establishes continuous physical presence in the United States for a period of either seven or ten years,
who establishes that he has been a person of good moral character for the same period, and
who establishes that his deportation would cause a specified degree of hardship to himself
or to specified relatives 'who are United States citizens or lawful permanent residents,
may, in the discretion or the Atturney General, have hie deportation et:vended and his
status adjusted to that of a lawful permanent resident.

297

Interim Decision #2604
deportation. Otherwise, the hardship and good moral character requirements of section 244(a) as this section applies to deportable lawful
permanent resident aliens would be rendered nugatory. We conclude,
therefore, that if the strict standards embodied in section 244(a) are not
to be read out of the Act, section 212(c) cannot be interpreted to apply to
lawful permanent residents who have not been in such status for a
period of seven years.
We decline, therefore, to adopt the holding of the Court of Appeals
for the Second Circuit in Tim Lok v. INS, supra, in cases arising outside
the Second Circuit. Accordingly, we adhere to our interpretation of
section 212(c) as set forth in Matter of S—, supra, and hold that relief
under section 212(c) is only available to a lawful permanent resident
alien who has been a lawful domiciliary of the United States for seven
consecutive years subsequent to achieving lawful permanent resident
status.
III
Moreover, we note that even under the interpretation of section

212(c) adopted by the court in Tim Lok v. INS, supra, the respondent in
this case would be ineligible for relief under section 212(c). The respondent was admitted to the United States as a student in 1969. In 1973, his
status was adjusted to that of a permanent resident. 5 Thus, during three
of the seven yearn during which he now claims Lo have been a
domiciliary, he was in nonimmigrant student status.
The term "domicile" is not defined in the Act itself. However, courts
have consistently held that domicile is established upon proof of residence, combined with the "intent to make [that residence] a fixed and
permanent home." Johansen v. Confederation Life Association, 447
F.2d 175, 180 (2 Cir. 1971); Gilbert v. David, 235 U.S. 561, 569 570
(1915); illitchell v. United States, 21 Wall. (88 U.S.), 350, 353 (1875);
Matter of Carron°, Interim Decision 2579 (BIA 1977); Matter
of Garcia., Interim Decision 2366 (BIA 1975).
-

A_ student may establish that he is domiciled at his place of instruction_ Stiel v. Hopkins, 477 F.2d 1116 (6 Cir. 1973). However, an alien

student, admitted as a nonimmigrant under section 101(a)(15)(F), is
subj ect to special restrictions with respect to domicile_ Section
101(.a)(15)(F) defines a nonimmigrant student as one "who seeks to enter
the -United States temporarily and solely for the purpose of pursuing
... a course of study at an established institution of learning. . . ."
(Ern phasis supplied). The alien student is admitted to the United
The record does not reveal whether the respondent remained in student status until
his adjustment in 1973. If he did not, and that status lapsed, his domicile was clearly not
lawful], and he is preelmled from obtaining seetion212(c) relief. However, we shall assume
for tine purpose of our discussion that the respondent's student status at no time lapsed.

298

Interim Decision #2604
States, therefore, under the express condition that he depart at the
expiration of his nonimmigrant visa. Any contrary intent will render his
nonimmigrant student status unlawful. Matter of Gallares, 14 I. & N.
Dec. 250 (BIA 1972). By definition, the fixed intent to remain which is
necessary to establish domicile necessarily involves a violation of lawful
nonimmigrant student status. Therefore, to the extent that the respondent has established, by his intent to remain indefinitely in the United
States, a domicile in this country, this domicile was unlawful. The
respondent is therefore ineligible for relief under section 212(c) even
under the interpretation of that provision enunciated by the court in Tim
Lok v. INS, supra.
The appeal will be dismissed.

ORDER: The appeal is dismissed.

299


Interim Decision #1472

Maw.=

OF HUANG

In Section 245 Proceedings
A-13974856
A--13974858

Decided by Regional Commissioner May 27, 1965
Applicanta, aliens who were born in the United States under diplomatic status,
:::*fict have never departed from this country, and who would be eligible for

- the issuance of noaquota immigrant visas if abroad, are deemed to be lawful
permanent residents of the United States; therefore, their applications for
adjustment of status pursuant to section 245. Immigration and Nationality
Act, as amended, are denied.

The applications were denied by the District Director, Baltimore,
Maryland, on the ground that applicants were not inspected and admitted. or paroled into the United States as required by section 245
of the Act. We have taken jurisdiction by way of certification as
provided by 8 CFR 1014 to resolve the question as to whether applicants may be considered lawful permanent residents of the United

States.
Ann Lillian Huang and Byron Dean Huang were born in Washington, 1).0., on March 10, 1952, and December 16, 1953, respectively.
At the"time of their birth their father was a duly accredited diplomatic representative of the Republic of China assigned to the Chinese Embassy, Washington, D.C. Applicantemother, a native and
former citizen•of China,, became a permanent resident of the United
States pursuant to section 6 of the Refugee Relief Act of 1953. On
October 5, 1959, she was naturalized . as a. citizen of this country.
Her petitions to classify applicants and their father as nonquota
'immigrants were approved June 29, 1964. The father was granted
status as a permanent resident under section 245 of the Act as of
August 12, 1964, and is now engaged in private 14usiness.

It is settled that the applicants who were born in the United
States did not acquire citizenship under the Fourteenth Amendment
to the United States Constitution as they were not born subject to

190

Interim Decision 44472
the jurisdiction of the United States. United 'States -v. Wong Kim
Ark, 169 U.S. 642. They have never departed the United States and
now desire to become citizens of this country and remain here permanently. 11 they are considered to be lawful permanent residents
of the United States, they may immediately proceed towards naturalization.
A. similar case was the subject of an opinion dated December 10,
1946, by the General Counsel of the Service who concluded "that a
person who is an alien because he was born in the United States
under diplomatic status 'and who has continued to ,reside in this
'country, may be considered' as lawfully admitted to the United
States with respect to deriving citizenship through a jaarent or
parents and aim; so far as concerns section 701 of the Nationality
Act of 1940." Section 701 of the Nationality Act of 1940 provided
for the naturalization of persons who served honorably in the military or naval services in the United States and who had been lawfully admitted to the United States.
The General Counsel reasoned that it would be absurd and a vain
thing to require aliens who are born in the United States and have
never left this country to depart and be readmitted sin: ply to effect
a lawful admission. He pointed out that aliens in this category,
never having been out of the United States, are not subject to de- .
portainudehmgolaws,thedprinovs
of those laws relate only to aliens who have entered the United
States. Although the Nationality Act of 1940 has been repealed, the
reasons underlying the General Counsel's opinion are applicable
here. The applicants have grown up as a part of our American
population. They are not amenable to deportation. Their parents
no longer have diplomatic status and in fact, as stated above, one
parent is a United States citizen anti the other a permanent resident.
It is also noted that during minority the domicile'of the child is that .
of the domicile of the parents. 19 C. J. 411: Yarborough v. Yarborough, 290 U.S. 202, 90 ALR 924.
We are not aware of any administrative or judicial decisions under the Immigration and Nationality Act which would preclude a
finding that these applicants are lawful permanent residents of the
United States. It lies been established that, if they were outside
this country, they would be eligible for issuance to them of immi;
grant visas and for admission 1 t S permanent residents.
Accordingly, in light of the foregoing, and after careful consideration of all the evidence before us, we conclude the applicants may

191

Interim Decision #1472
be considered to be lawful permanent residents of the United States.
For this reason we shall'concur with the decision of the District Director, Baltimore, Maryland, and enter the following order.
ORDER!• It is ordered that the applications be denied.
It is further ordered that applicants be considered to be lawful
permanent residents of the United States.

192


Interim. Decision 4t1402

MATTER

OF

GuPTA

In SECTION 245 Proceedings
A-10593058
Deckled by Regional Commissioner August 21, 1964
Since eligibility for nonquota status pursuant to the ProYblous of section 2, Act
of October 24, 1962 (Public Law 87-885), requires that on October 24, 1962, the
alien must have been the beneficiary of an approved first preference visa
petition filed in his behalf prior to April 1, 1962, the beneficiary of an approved
first preference visa petition Med. September 26, 1959, the validity of which
expired October 5, 1962, is ineligible for nonquota status under section 2 of
that Act, even though a new first preference petition filed in his behalf on
October 9, 1962, was approved on October 23, 1962, and is currently valid. (Cf.
Matter of Lee, Int. Dec. No. 1357.)

DISCUSSION: The application was denied by the District Director at Philadelphia, Pennsylvania on May 27, 1964. It is now considered on certification..
The applicant is a 32-year-old unmarried native and citizen of
India, who was paroled into the United States on August 12, 1963.
He was previously in the United States from August 23, 1956 to June
14, 1963, and his application for the status of a permanent resident
under section 245 of the Immigration and Nationality Act was filed
on October 31, 1961. The applicant was then the beneficiary of a
first preference petition filed by Wilson-Martin, a division of Wilson
and Company, Inc., Philadelphia, Pennsylvania on September 25,
1959 granting him status under section 203(a) (1) of the Act. The
petition shows him to be a research chemist.
Upon inquiry by this Service, the petitioner, Wilson-Martin, advised under date of September 18, 1962 that the services of the applicant were no longer urgently needed by that organization. Shortly
thereafter, on. October 5, 1962, the time for which the petition had
been previously extended expired.

The applicant had left the employment of the petitioner, WilsonMartin, on February 10, 1962 and on February 26, 1962 entered the
employment of William H. Rorer, Inc., Fort Washington, Pennsylvania, continuing in the occupation of research chemist. A new first
750

Interim Decision #1402
preference petition was filed by the latter corporation on. October 9,
1962. This petition was approved on October 23, 1962 and is currently valid.
On October 24, 1962, Public Law 87-885 was enacted in which section 2 extended nonquota status to certain beneficiaries of first preference petitions in the following language;
Any alien eligible for a quota immigrant status under the provisions of Section 203(a) (1) of the Immigration and Nationality Act (8 U.S.C. 1153) on the
basis of a petition filed with the Attorney General prior to April 1, 1962, shall
be held to be a nonquota immigrant and may be issued a nonquota immigrant
visa : Provided, That upon his application for an immigrant visa and for admission to the United States or for adjustment of his immigrant status in the
United States pursuant to Section 245 of the Immigration and Nationality Act

(8 U.S.C. 1255) the alien is found to have retained his status as established
in the approved petition. This section shall be applicable only to aliens admissible to the United States except for the fact that an immigrant visa is not
promptly available for issuance to them because the first 50 per centum of the
quota of the quota area to which they are chargeable is oversubscribed by beneficiaries of petitions approved by the Attorney General pursuant to Sections 203
(a) (1) and 204 of the Immigration and Nationality Act (8 U.S.C. 1153, 1154)
prior to the date of enactment of this Act.

The currently valid petition entitles the applicant to a priority date
of October 9, 1962 in the first preference portion of the quota for India.
The quota is oversubscribed to the extent that a first preference quota
number is not now available for that priority date. The application
as presented cannot be granted unless the applicant is a nonquota immigrant by reason of Public Law 87-885.
Attorney for the applicant, in a brief submitted upon certification
of the case, argues that an object of Public Law 87-885 was to grant
nonquota status to all pre April 1, 1962 first preference filings. He
relies on the ruling established in the case of Dr. Ye. Phi Lee,

A-10454029 decided by the Deputy Associate Commissioner, Travel
Control on January 30, 1964 (Int. Dec. No. 1387), in which nonquota
status was established.
In the case of Dr. Lee, on the date of enactment of Public Law
87-885 he was the beneficiary of an approved visa petition to accord
him first preference classification under the quota, which had been
filed prior to April 1, 1962; and it was found that when he had
applied for adjustment of status he had retained the status as established in that approved petition. It was held that Dr. Lee's change
of position to a new employer in substantially the same type of highly
skilled work sometime after October 24, 1962, during the pendency
of his application for adjustment of status, had not disturbed his
eligibility for nonquota classification under section 2 of Public Law

87-885. In the present case, upon the enactment of Public Law 87-885
751

Interim Decision .#1402
on October 24, 1962, the applicant was no longer the beneficiary of
an approved visa petition filed prior to April 1, 1962 to accord him
first preference classification under the quota. The validity of approval of the visa petition filed in his behalf on September 29, 1959
by Wilson-Martin had expired prior to October 21, 1962, and the new
petition submitted in his behalf by William H. Rorer, Inc., had not
been filed until October 9, 1962.

Attorney for the applicant argues that it was only necessary for
him to have been in the employ of the first petitioner when the application for adjustment was filed and that the filing of the approved
first preference petition antedate April 1, 1962, to benefit by Public
Law 87-885. This view disregards the fact that on and after October
24, 1962, the status of the applicant under section 203 (a) (1) of the

Immigration and Nationality Act has not been on the basis of a petition filed with the Attorney General prior to April 1, 1962, but rather
upon the basis of a petition filed by a subsequent employer on
October 9, 1962.
It is my finding that the wording in section 2 of Public Law 87-885

"Any alien eligible for a quota immigrant status under the provisions
of section 203 (a) (1) of the Immigration and Nationality Act (8

U.S.C. 1153) on the basis of a petition filed with the Attorney General
prior to April 1, 1962, sbnn be held to be a nonquota immigrant . . ."
is not retroactive in scope. One of the qualifications necessary before
an alien may be accorded nonquota classification under section 2 of
Public Law 87-885 is that the alien, on or after October 24, 1962 when
that law was enacted, must be the beneficiary of an approved first
preference petition filed prior to April 1, 1962. The decision of the

District Director will, therefore, be approved and the application
denied.
ORDER; The decision of the District Director is approved and the

application is hereby denied.

752


Interim Decision #2365

MATTER OP LEON—PEREZ
In Bond Proceedings
A-19570639

Decided 4y Board April 8, 1975
8 CFR 103.6(a)(2) provides, in an appropriate case, for a condition of a bond prohibiting
unauthorized employment by an alien. The immigration judge denied respondent'S
request for removal of the employment condition and respondent appealed from that
denial. The case is remanded, with general guidelines that the record of proceedings
include among other things: written evidence of the bond condition and the Regional
Commissioner's approval thereof; evidence of the, mpact and dislocation of American
workers caused by the alien's employment; if applicable, the numbers of aliens working
illegally for the particuldr employer; Service records or other specific informations
showing dates of prior unauthorized employment by the respondent; and opecific information relating to prior orders'of 'deportation against the alien.
ON BEHALF OF RESPONDENT:

J. C. Codias, Esquire
1252 W Peachtree Street, N.W.
Atlanta, Georgia 30309

In a decision dated February 18, 1975, the immigration judge denied
the respondent's request for removal of the bond condition prohibiting
his unauthorized employment in the United States. The respondent has
appealed from that decision. The record will be remanded to the immigration judge.
" •
The respondent does not contest the 'amount of his bond. The only
issue on appeal involves the nonemployment rider. Counsel makes various contentions that the imposition of that bond condition violates the
due process clause and other provisions of the Constitution.
The authority of the Service to impose a bond condition prohibiting
unauthorized employment was at issue in Matter of Toseano -Rivas, 14
I. & N. Dec.'523 (A.G. 1974). In that case, the Attorney General found
that section 242 and section 103 of the Immigration and Nationality Act
gave the Service authority, in some circumstances, to impose a bond
condition prohibiting unauthorized employment. The Attorney General
expressed a concern, however, that there be appropriate substantive
safeguards with respect to the imposition of a condition prohibiting
employment. He stated that "before a condition of that nature is im239

Interim Decision #2365
posed, there should be a regulation of the Service dealing specifically
with the subject" (p. 61). Since there was no such regulation in existence
at the time the bond condition in Toseano-Rivas was imposed, the
Attorney General did not sustain that bond condition.
The Attorr.ey General mentioned several reasons why a specific regu-'
lation governing nonemployment riders was necessary: (1) in light of the
prior history of nonuse of employment conditions by the Service, a
regulation would provide a formal basis for the new action, (2) the
regulation would provide guidance for Service personnel in imposing
bond conditions and would safeguard against abuse of discretion and

undue utilization of such bonds conditions, (3) the regulation would
provide a standard for administrative and judicial review, (4) the regulation would provide notice of the nonemployment condition to aliens
and employers, and (5) promulgation of the regulation would give the
Service an opportunity to obtain the views of interested parties and
would thereby help to assure the consideration of various points of view.
In response to the Attorney General's opinion in Matter of ToscanoRivas, the Service has promulgated 8 CFR 103.6(a)(2). 1 This regulation
proVides for prior approval by the Regional Commissioner of any condition barring unauthorized employment, and it sets forth nine factors to
be considered in connection with the imposition of such a condition.
Those factors are considered as examples only and are not exclusive. We
are satisfied .that the regulations set forth in 8 CFR 103.6(a)(2) are in
compliance with the opinion of the. Attorney General in Matter of

Toseano-Rives.
Since the present case arose after the effective date of 8 CFR
103.6(a)(2), the only remining question is whether that regulation was
1

8 CFR 103.6(a)(2) provides:
Bond riders--(i)General. Bond riders shall be prepared on Form I-351 and attached
to Form Laia. If a condition to be included in a bond is not on Form 1 851, a rider
containing the condition shall be executed and forwarded with Form 1-352 to the
regional commissioner for approval.
Condition against unauthorised employment. la the discretion of the district
-

director and with the prior approVal of the regional commissioner, a condition barring

unauthorized employment may be included in an appearance and delivery bond in
connection with a deportation proceeding.
op. Factors to be considered. Among the factors to be considered in connection with
the impositim of the bond condition barring unauthorized employment are;

Safeguarding employment opportunities for United States citizens and legal resident
aliens; impact on and dislocation of American workers by alien's employment; the
number of aliens involved in performing the unauthorized employment; prior immigration violations relating to acceptance of unauthorized employment by the alien; the .
likelihood of continued violations with the same employer; the recentness of the
alien's arrive: in the United States; the acceitance of the unauthorized employment
shortly after such arrival; whether there is a reasonable basis for consideration of
discretionary relief; whether a spouse or chadren are dependent on the alien for

support, or other equities exist. These factors are intended as examples only and are
not exclusive
.

240

Interim Decision #2365
properly applied here. In considering this question, we are mindful of
the fact that bond proceedings, by their very nature, demand flexible
procedures in order to prompt determinations may be reached. Consequently, we have always attempted to avoid setting forth rigid procedural or evidentiary requirements which would lessen the ability to
arrive at prompt and equitable bond determinations.
On the other hand, we cannot ignore the serious concerns expressed
by the Attorney General, and • reflected in the regulations, that the
utmost care be taken in imposing bond conditions prohibiting employ- •
ment: Consequently, we are unable to approve of the type of record
-

made below in this case.
Initially, we note that the record contains no copy of the bond condition involved, nor does 'it contain evidence, other than the trial attorney's oral representation, that the condition has been approved by the
Regional Commissioner aspecifled in 8 CFR 103.6(a)(2)(i) and (ii).
While we would not remand the present case for this reason along, we
believe that it would be highly desirable to have the record contain
extrinsic evidence of the bond condition and the Regional Commissioner's approval. - •
At the hearing before the immigration judge, the trial attorney discussed the various factors set forth in 8 CFR 103.6(a)(2)(iii). With
respect to safeguarding the employment opportunities of United States
citizens and lawful permanent 'residents, and 'also with respect to the
impace and dislocation of American workers caused by the alien's employment, the trial attorney merely asked the immigration judge to take
notice of the general state of unemployment in the United States. 2 This
does not comply with our reading of -the requirements of 8 CFR 103.6
(a)(2)(iii). The regulation tvidently contemplates that some effort will
be made by the Service to shovfi the employment situation in the particular geographic area involved,' and•what impact the employment of the
alien in question may be expected to have on that situation. Without
intending to limit the inanner.in which 'such impact might be demonstrated, we note that employment information obtained from federal,
state, or local governments would be particularly convincing.
As to the number of aliens intiilved, the trial attorney alleged that the
respondent's employer, Grief Brothers Company, had a long record of
hiring illegal aliens extending over the previous seven years. The trial
attorney also alleged that over this period as many as 36, and as few as
one, of Grief Brothers' total employinent had been made up of illegal
aliens, and that "[e]very time we go there [Grief Brothers], we have
found illegal aliens." The purpose of the regulations governing employment conditions in bonds is not to punish employers for past action in
2 we note that counsel maintained that there were no citizens or permanent residents in
the locality who were -willing to perform the work that the respondent evidently was
performing.

241

Interim Decision #2365
hiring illegal aliens, nor is it to punish aliens for the past action of
employers. We construe the regulation's reference to "the number of
aliens involved in performing the unauthorized employment" to relate to
the adverse effect on American labor if the respondent is , was, or is
likely to become one of a large number of aliens performing unauthorized employment within a particular factory or within a particular
industry in a specific geographic location;? If the Service has specific
information concerning the number of aliens found performing unauthorized. employment in a particular factory or industry, it would be
helpful if this information were placed in the record to, the extent

feasible. .
The regulation also refers to prior immigration violations by a particular alien relating to acceptance of unauthorized employment,' to the
likelihood of continued violations 'by the alien with the same employer
and to the acceptance of unauthorized employment shortly after an
alien's arrival in the United States. The trial attorney stated that on two
prior occasions the respondent had been apprehended working for the
same employer. The trial attorney argued that this demonstrated a
pattern of illegal employment with the same employer and a likelihood
of continuing illegal employment. Although counsel apparently does not
dispute the,trial attorney's contentions, the present record should, to
the extent possible, contain copies of Service records or other specific
information showing prior unauthorized employment by this respondent
with particular reference to the date of such employment. It would also
be appropriate to have the record contain specific information relating to
prior orders of deportation entered against the respondent, since this
might have a bearing on apparent eligibility for discretionary relief from
deportation, another of the factors listed in 8 CFR 103.6(a)(2)(iii).
Finally, t:le trial attorney stated that the respondent had no dependents residing in this country and that there were no equities or other
factors to consider in the respondent's case. While conceding that the
respondent's dependents reside in Mexico, counsel has raised a claim of
hardship to the respondent based on the facts of this ease. Counsel
points out that the respondent is presently also under a $2,000 delivery
bond on a criminal charge.. Since -the criminal charge is apparently not
scheduled for determination in the immediate future, and since the
Government evidently does not intend to proceed with deportation

proceedings until the criminal charges are determined, counsel contends
that the respondent will be placed in an untenable position. He will have
to choose between violating the employment condition of his immigration bond in order to maintain himself, seeking social assistance, or
3 In.Matter of roscano-Rivas, the Attorney General emphasized that "a basic purpose
of the immigration laws is to protect against the displacement of workers in the United
States" (p. 58) : The specific fact situation at issue in Toscana Rivas was a "flagrant
violation of the immigration laws" by a group of at least ten illegal aliens.
-

242

Interim Decision #2365
absconding and returning to Mexico, thereby forfeiting the bonds in
both the criminal and deportation cases. We believe that counsel's
contention should have received greater consideration from the immigration judge.
The foregoing comments are designed to deal with the present case
and are not necessarily applicable to bond determinations not involving
a condition barring employment. No attempt has been made to lay down
inflexible rules governing the information to be placed in the record
when a nonemployment condition is in issue. However, in a case of this
type the record should facilitate prompt and fair review on both administrative and judicial levels. The record will be remanded to the
immigration judge for reconsideration in light of the preceding comments.
ORDER: The record is remanded to the immigration judge for reconsideration and further proceedings consistent with the above opinion.

243