Interim Decision #2026

MATTER OF DUGGAN
In Exclusion Proceedings
A-18558057
Decided by Board February 20, 1970
the absence of a specific authorization by the Secretary of State and the
Secretary of Defense to enter into or serve in the Armed Forces of Canada, applicant's service in the Royal Canadian Navy with the intention of
voluntarily relinquishing his citizenship resulted in the loss of his United
States citizenship under section 399(a) (3) of the Immigration and Nationality Act.
EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20) ]—Immigrant without immigrant visa.

These exclusion proceedings have been certified to us by the
pecial inquiry officer for final decision. In the proceedings, the
Decial inquiry officer held that the applicant, formerly a United
tates citizen, had expatriated himself under section, 349 (a) (3)
the Immigration and Nationality Act and he was ordered exuded and deported from the United States as an immigrant
ithout an immigrant visa.
The applicant is a 36-year-old divorced male who was born at
iult Ste. Marie, Michigan on September 1, 1933 and who acired United States citizenship by reason of his birth in the
sited States under section 1 of the Fourteenth Amendment to
e United States Constitution. After several visits to Canada he
came a landed immigrant in Canada on January 4, 1953. Thereter, on September 15, 1953 he enlisted in the Royal Canadian
tvy and served therein until March 2, 1954 when he was disnorably discharged for misconduct (Ex. 6). On the day of his
ning the Canadian Armed Forces he took an oath of allegiance
Her Majesty Queen Elizabeth II.
Applicant testified that ever since 1946 he has desired to make
permanent home in Canada and to become a citizen of that
ntry because he has many relatives there and he liked the
ntry and was always able to obtain suitable employment dur-

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Interim Decision #2026
ing the several periods he resided there. He further testified that
when he joined the Royal Canadian Navy and took the oath of allegiance to the Queen he thought that this would result in the loss
of his United States citizenship, a result he desired. He stated
that after he had joined, he was informed by United States immigration officials that since he did not have the written permission
of the Secretary of State and the Secretary of Defense he should
immediately terminate his service or he would face a loss of his
citizenship (Tr. of hearing, p. 3). He did not terminate his service at that time. The record also shows that recently, in 1968, he
applied to the United States consul at Halifax, Nova Scotia, Canada for a certificate of loss of United States citizenship and filed
an affidavit with the consul relative thereto (Ex. 5).
These exclusion proceedings arose in the following manner.
From November 14, 1955 until March 1966 the applicant was imprisoned in a Michigan State penitentiary for the crimes of kidnapping and gross indecency. He was released on parole, but on
October 4, 1968 he was arrested by the police in Pontiac, Michigan on the charge of disorderly molesting, which arrest resulted
in the violation of his parole status. Two days after the arrest he
entered Canada where, on December 13, 1968, he was arrested by
the Halifax police on suspicion of violating their firearms laws,
but no charges were filed. The arrest, however, did reveal his
criminal record in the United States. Accordingly, the police
turned him over to the Canadian immigration authorities for deportation to the United States to be remanded to the Michigan
State Bureau of Pardons and Paroles as a parole violator. Exclusion proceedings were instituted when he was brought to Detroit
for entry into the United States.
Let us first . examine the claim that applicant's United States
citizenship was lost under section 349(a) (3) of the Immigration
and Nationality Act by reason of his service in the Royal Canadian Navy in 1953 and 1954. Section 349(a) (3) provides as follows:
Sec. 349. (a) From and after the effective date of this Act a person who
is a national of the United States whether by birth or naturalization, shall
lose his nationality by— * **
(3) entering, or serving in, the armed forces of a foreign state unless,
prior to such entry or service, such entry ur service is specifically authorized
in writing by the Secretary of State and the Secretary of Defense.

The constitutionality of this provision was upheld in Marks v.
Esperdy, 377 U.S. 214 (1964), and this Board held in Matter of
D—, 5 I. & N. Dec. 674 (BIA, 1954), that expatriation under this
section is avoided only when there is specific authorization by the

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Interim Decision #2026
Secretary of State and the Secretary of Defense to enter into or
serve in the armed forces of a foreign state.
It is undisputed that the applicant served in the Royal Canadian Navy. No claim has been advanced that any authorization
for such service was given by the Secretary of State and the Secretary of Defense. The final matter to consider in deciding
whether the applicant expatriated under section 349(a) (3) is to
determine if he "voluntarily relinquished" his citizenship as required under the doctrine set forth in A froyim v. Rusk, 387 U.S.
253 (1967). The court stated in that case that the Congress lacks
power under the Constitution to expatriate a citizen unless the
citizen voluntarily relinquishes his citizenship. Although the Afroyim case concerned expatriation under section 349(a) (5), Immigration and Nationality Act, by voting in a foreign political
election, the principle stated in Afroyim is to be taken into account in considering expatriation under other sections of law.'
On January 18, 1969 the Attorney General of the United States
issued a Statement of Interpretation = to serve as a guide to both
the Department of State and the Immigration and Naturalization
Service in the performance of their functions insofar as they involve questions of loss of citizenship. He stated :
Under any reading of Afroyim., however, it is clear that an act which does
lot reasonably manifest an individual's transfer or abandonment of alle;iance to the United States cannot be made a basis for expatriation.
For administrative purposes, and until the Courts have clarified the scope
'f Afroyim, I have concluded that it is the duty of executive officials to
pply the act on the following basis. "Voluntary relinquishment" of citizenhip is not confined to a written renunciation . . . It can also be manifested
y other actions declared expatriative under the act, if such actions are in
erogation of allegiance to this country. Yet even in those cases, Afroyim
ayes it open to the individual to raise the issue of intent . . . The voluntry performance of some acts can be highly persuasive evidence in the parcular case of a purpose to abandon citizenship. Yet some kinds of conduct,
tough within the proscription of the statute, simply will not be sufficient to
Ipport a finding of voluntary expatriation.
For instance, it is obviously not enough to establish a voluntary relintishment of citizenship that an individual accepts employment as a public
hool teacher in a foreign country. This I have already decided in the case
a dual national, Matter •of Sally Ann Becher, 12 I. & N. 380; Interim Desion No. 1771 (August 21, 1967).
A similar approach may be taken with respect to service in a foreign
my, depending upon the particular circumstances involved . . . In each
se the administrative authorities must make a judgment, based on all the
3

Opinion of the Attorney General of the United States,

Vol. 42, Op. 34

969).
2

Opinion of the Attorney General of the United States, supra.

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Interim Decision #2026
evidence, whether the individual comes within the terms of an expatriation
provision and has in fact voluntarily relinquished his citizenship.

There is no dispute that the applicant in the case before us did
voluntarily serve in the armed forces of a foreign state. We think
that the evidence of record is abundantly persuasive that this applicant, with the clear and subjective intent to transfer and abandon his allegiance to the United States, voluntarily relinquished
his citizenship by entering and serving in the Royal Canadian
Navy. He testified that he desired by this means to transfer his
citizenship and he believed that this result was accomplished by
his service.
We hold that expatriation did take place under section
349(a) (3) of the Act. Having so determined, it is unnecessary to
consider whether applicant also expatriated under section
349(a) (2) as one who took an oath of allegiance to a foreign
state, or under section 349 (a) (6) as one who made a formal renunciation of nationality before a consular officer of the United
States in a foreign state.
The record indicates that if this Board finds that the applicant
is excludable, the Immigration and Naturalization Service plans
to parole him into the United States to serve further time in
prison as a parole violator, after which he will be deported to
Canada (Tr. of hearing, pp. 22, 23). Canada has gone on record
that they will accept him as a deportee under the terms of a reciprocal agreement between the United States and Canada (Ex.
4)
We will thus affirm the decision of the special inquiry officer
that the applicant be excluded and deported from the United
States as an immigrant without an immigrant visa.
ORDER: It is ordered that no change be made in the order of
the special inquiry officer that the applicant be excluded and deported from the United States.

493


Interim Decision *tn66

MATTER or NAGO

In Exclusion Proceedings
A-21223151
Decided by Board February 8, 1978
Where the applicant for admission to the United States is a highly trained chef who is
engaged. in a specialized form of Japanese (Nabemono) cooking and has been brought to
the United States to impart his knowledge and share his experiences with other
employees of a treaty investor in order to enable them to become proficient in
"Nabemono" cooking, Board of Immigration Appeals concluded that the applicant is
employed by a treaty investor in a responsible capacity and therefore qualifies for
admission as a nonimmigrant alien within the meaning of section 101(a)(15)(E)(ii) of the
Act, 8 U.S.C. 1101(a)(15)(E)(i).
Excludable: Act of 1952—Section 212(a)(20) [8 U. S. C. 1182(aX20)j—Immigrant--no visa
ON BEHALF OF SERVICE:
Gary Y. Fujiwara
Trial Attorney

ON BEHALF or APPLICANT:
William F. Thompson, III,
Esquire
'925 Bethel Street
Honolulu, Hawaii 96813

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

On February 14, 1977, the immigration judge issued an order finding
that the applicant, Osami Nago, qualifies for admission to the United
States as a nonimmigrant treaty investor under section 101(a)(15)(E)(ii)
of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(E)(ii). He
ordered that the applicant be admitted to the United States as an "E-2
nonimmigrant" for a period to expire on August 14, 1977. The Immigration and Naturalization Service appealed from that decision. Subsequent to its appeal, the Service waived oral argument before this
Board. The Service appeal will be dismissed.
The applicant is a 23-year-old single male alien who is a native and
citizen of Japan. He arrived in the United States at Honolulu, Hawaii,
on November 11, 1976. The applicant, at that time, was in possession of
a valid passport issued by the Government of Japan and a nonimmigrant
(E-2) visa. He applied for admissio•as a nonimmigrant treaty invest or
under section 101(a)(15)(E)(ii) of the Act.
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Interim Decision #2633
The applicant was served by an immigration officer with a notice
(Form 1-122) informing him that he appeared to be an immigrant not in
possession of a valid unexpired immigrant visa; that it did not appear
that he was exempt from presentation of such a document; and that he
may come within the exclusion provisions of section 212(a)(20) of the
Act, 8 U.S.C. 1182(a)(20). He was also notified of the time and date of
his hearing in exclusion proceedings. The hearing was conducted on
February 14, 1977.
The record reveals that the applicant is a Japanese specialty cook who
is employed for a one -year period at "Yakiniku House Osaka", a
Japanese restaurant located in Honolulu. The restaurant is owned by, a
Japanese nonimmigrant treaty investor who seeks the culinary services
of the applicant who is apparently well versed in a specialized type of
Japanese cooking known as "Nabemono." The applicant will cook in the
"Nabemono" style and train other employees of the restaurant in this
form of cooking. It appears that "Nabemono" chefs are scarce in the
United States and that the applicant's employer has been searching for
such a chef for several years. The applicant's employer testified that the
applicant is a graduate of a leading Japanese cooking school and experienced in the art of "Nabemono" cooking. The applicant's employer also
testified that the applicant will teach other employees to carry on the
"Nabemono" style of cooking; that the "Nabemono" process can be
learned in one year, and that the applicant intends to return to Japan
after one year. The immigration judge found that the "Nabemono" type
of cooking ". . . requires a highly trained or specially qualified technical
person for the preparation of the food and for the purpose of teaching
others to perform the process."
The applicant seeks admission as a nonimmigrant treaty investor.
Section 101(a)(15)(E)(ii) of the Act defines a treaty investor as:
. . . an alien entitled to enter the United States under and in the pursuance of the
provisions of a treaty of commerce and navigation between the United States and the
foreign state of which he is a national, and the spouse and children of any such alien if
accompanying or following to join him:
(i) . . .
(ii) solely to develop and direct the operation of an enterprise in which he has invested,
or of an enterprise in which he is actively in the process of investing, a substantial
amount of capital... .

In Matter of Udagawa, 14 I. & N. Dec. 578 (BIA 1974), we pointed
out that a reasonable construction of section 101(a)(15)(E)(ii) is contained in 22 C.F.R. 41.41. The relevant portion of this Department of
State regulation states:
(a) An alien shall be classifiable as a noninunigrant treaty investor if he establishes to
the satisfaction of the consular officer that he qualifies under the provisions of section
101(a)(15)(E)(ii) of the Act and that: (1) He intends to depart from the United States

447

Interim Decision 4tzti;i6
upon the termination of his status; and (2) he is an alien who has invested or is investing

capital in a bona fide enterprise and is not seeking to proceed to the United States in
connection with the investment of a small amount of capital in a marginal enterprise
solely for the purpose of earning a living; or that (3) he is employed by a treaty investor
in a responsible capacity and the employer is a foreign person having the nationality of
the treaty country who is maintaining the status of a nonimmigrant treaty investor, or
an organization which is principally owned by a person or persons having the nationality of the treaty country, and if not residing abroad, maintaining nonimmigrant
treaty investor status. (Emphasis supplied.)

We construe the above regulation to mean that an alien such as the
applicant will qualify as a "treaty investor" if he has the necessary
intent to depart and if he meets the conditions imposed by subdivision
(3) of the quoted portion of the regulation. Since the evidence adduced at
the hearing indicates that the applicant's employer is a foreign person of
the same nationality as the applicant and that the applicant possesses
the requisite intent to return to Japan, the remaining issue in this case is
whether he can be considered to be "employed ... in a responsible
capacity. . . ." 'Matter of Udagawa, supra; Matter of Tamura., 10 L &
N. Dec. 717 (R.C. 1964).
It is clear that the applicant is a highly trained chef who is engaged in
a specialized form of Japanese cooking. The applicant has been brought

to the United States to impart his knowledge and share his experiences
with other employees of the treaty investor in order to enable them to
become proficient in "Nabemono" cooking. We conclude that the applicant is employed by a treaty investor in a responsible capacity. Therefore, the applicant qualifies for admission as a nonimmigrant alien
within the meaning of section 101(a)(15)(E)(ii) of the Act.
We note that the applicant has been in the United States in a parole
status for more than one year and that the period of the applicant's
authorized stay as set by the immigration judge in his order has expired.
These facts should be considered by the District Director in determining

the period that the applicant is allowed to remain in the United States as
an employee of a nonimmigrant treaty investor. Accordingly, the appeal
of the Immigration and Naturalization Service is dismissed.
ORDER: The appeal of the Immigration and Naturalization Service
is dismissed.

' An elaboration of the provisions of 22 C.F.R. 41.41 are contained in Note Number 4 of
Volume 9 (Visas) of the Department of State Foreign Affairs Manual. That note provides,
in pertinent part, that highly trained technical and managerial personnel employed by
firms having the nationality of a country which has entered into a treaty with the United
States providing for the investor classification are entitled to treaty investor status if they
are engaged in the training or supervision of technicians employed in manufacturing,
maintenance, and repair functions.

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Cite as 28 I&N Dec. 552 (BIA 2022)

Interim Decision #4044

Matter of Jose Miguel GERMAN SANTOS, Respondent
Decided May 5, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Any fact that establishes or increases the permissible range of punishment for
a criminal offense is an “element” for purposes of the categorical approach, even if the
term “element” is defined differently under State law. Matter of Laguerre, 28 I&N Dec.
437 (BIA 2022), followed.
(2) Title 35, section 780-113(a)(30) of the Pennsylvania Consolidated Statutes, which
punishes possession with intent to deliver a controlled substance, is divisible with
respect to the identity of the controlled substance possessed, and the respondent’s
conviction under this statute is one for a controlled substance violation under section
237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i)
(2018), under the modified categorical approach.
FOR THE RESPONDENT: Rebecca Hufstader, Esquire, Philadelphia, Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY: Alicia Crittenden, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;
HUNSUCKER and PETTY, Appellate Immigration Judges.
PETTY, Appellate Immigration Judge:

An Immigration Judge found the respondent removable under section
237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1227(a)(2)(B)(i) (2018), based on a Pennsylvania conviction for possession
with intent to deliver a controlled substance. The respondent contends that
under State law the identity of the controlled substance is a “grading factor”
for sentencing rather than an element of the offense. Regardless of the State’s
classification, any fact that establishes or increases the permissible range of
punishment is an element of the offense for Federal purposes. Here, the
identity of the controlled substance establishes the permissible range of
punishment and is therefore an element of the offense. The statute of
conviction is therefore divisible and the respondent was properly found
removable. We affirm the Immigration Judge’s denial of cancellation of
removal and will dismiss the respondent’s appeal.

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Interim Decision #4044

I. BACKGROUND
The respondent is a native and citizen of the Dominican Republic, and
a lawful permanent resident of the United States. In 2017, he was involved
in a traffic accident with a pedestrian, after which the pedestrian was
hospitalized to investigate possible hemorrhaging between her brain and
skull. The police recovered 128 grams of marijuana packaged in small
plastic bags from the respondent’s car, as well as a rolled up joint and an
open beer. The respondent was convicted in a Pennsylvania court, pursuant
to his guilty plea, of possession with intent to deliver a controlled substance,
in violation of title 35, section 780-113(a)(30) of the Pennsylvania
Consolidated Statutes, and two counts of driving under the influence of
a controlled substance.
Based on the conviction for possession with intent to deliver, the
respondent was charged with removability under section 237(a)(2)(B)(i) of
the INA, 8 U.S.C. § 1227(a)(2)(B)(i), for having been convicted of
a controlled substance violation. The Immigration Judge found the
respondent removable and denied cancellation of removal as a matter of
discretion, finding, among other things, that the respondent did not testify
credibly about his role in the traffic accident and did not accept responsibility
for his conduct. In particular, the Immigration Judge disbelieved the
respondent’s testimony that the pedestrian hit his car while he was stopped
at a red light. The Immigration Judge found that the respondent was not
stopped, but rather he drove past the red light and hit a woman who was
crossing the street, due in part to his state of intoxication. The Immigration
Judge also found incredible the respondent’s contentions that the police
planted the joint in his car; the beer was open but completely full; and the
respondent had last smoked marijuana so far in advance of the accident that
he was no longer intoxicated when it occurred.
The respondent challenges his removability under section 237(a)(2)(B)(i)
of the INA, 8 U.S.C. § 1227(a)(2)(B)(i), contending that his statute of
conviction is indivisible and overbroad, and therefore it does not
categorically define an offense relating to a controlled substance. In support
of his argument, the respondent relies on the Pennsylvania Superior Court’s
decision in Commonwealth v. Beatty, 227 A.3d 1277 (Pa. Super. Ct. 2020),
which he claims supersedes precedential decisions of the United States Court
of Appeals for the Third Circuit concluding that the identity of the controlled
substance is an element of the offense such that the statute is divisible by
substance. He also challenges the Immigration Judge’s discretionary denial
of cancellation of removal.

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Interim Decision #4044

II. DISCUSSION
A. Removability
To resolve this appeal, we must first determine whether the respondent
has been convicted of a controlled substance offense under 237(a)(2)(B)(i)
of the INA, 8 U.S.C. § 1227(a)(2)(B)(i). Whether the respondent’s
conviction is a controlled substance offense is a question of law we review
de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2021).
As we recently explained in Matter of Laguerre, 28 I&N Dec. 437, 438
(BIA 2022), to determine whether a State statute is categorically a controlled
substance offense under section 237(a)(2)(B)(i), we first ask whether the
elements of the Pennsylvania statute of conviction match those of the generic
definition of an offense relating to a controlled substance. For a categorical
match, the Pennsylvania statute must include, as an element of the offense,
a substance controlled under the Controlled Substances Act, see 21 U.S.C.
§ 802 (2018). Matter of Laguerre, 28 I&N Dec. at 438 (citing Mellouli
v. Lynch, 575 U.S. 798, 813 (2015)). “If the elements of the statute of
conviction plainly reach conduct outside the generic definition, or if there is
a realistic probability the statute would be used to prosecute such conduct,
the statute is overbroad and does not categorically match the definition.”
Matter of Koat, 28 I&N Dec. 450, 452 (BIA 2022) (citing Moncrieffe
v. Holder, 569 U.S. 184, 190–91 (2013)). If the statute is overbroad, we may
then consider whether it is divisible, i.e., whether it “sets out one or more
elements of the offense in the alternative.” Matter of Laguerre, 28 I&N Dec.
at 438 (quoting Descamps v. United States, 570 U.S. 254, 257 (2013)). “If it
is divisible, we may examine the relevant conviction records . . . under a
modified categorical approach to identify under which statutory alternative
the respondent was convicted.” Matter of Koat, 28 I&N Dec. at 452 (citing
Descamps, 570 U.S. at 257).
Elements are facts that must be “‘necessarily’ involved” in an offense.
Moncrieffe, 569 U.S. at 190 (citation omitted); see also Kawashima
v. Holder, 565 U.S. 478, 482–83 (2012); Matter of Laguerre, 28 I&N Dec.
at 439. They are the “‘constituent parts’ of a crime’s legal definition—the
things the ‘prosecution must prove to sustain a conviction.’” Matter of
Laguerre, 28 I&N Dec. at 439 (quoting Mathis v. United States, 579 U.S.
500, 504 (2016)). “In other words, ‘elements’ must be ‘necessarily found’
by a jury or ‘necessarily admitted’ . . . by a defendant, whereas ‘means’ or
‘non-elemental fact[s]’ are ‘not necessary to support a conviction.’” Id.
(alteration in original) (quoting Mathis, 579 U.S. at 515).
There is no dispute that the Pennsylvania schedules include controlled
substances that are not listed in the Federal schedules. The respondent’s
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Interim Decision #4044

removability therefore turns on whether the identity of the controlled
substance is an “element” of the offense that must be proven, rendering the
statute divisible and susceptible to a modified categorical inquiry, or whether
the identity of the substance merely identifies a “means” of violating the
statute, in which case the overbroad statute would be indivisible and could
not support the charge of removability. See Mathis, 579 U.S. at 512
(distinguishing between statutory “elements” and the “alternative means of
fulfilling one (or more)” of those elements); Matter of Koat, 28 I&N Dec.
at 452. If the identity of the controlled substance is an element of the offense,
and the conviction record reflects that substance is federally controlled under
the modified categorical approach, then the offense is categorically
a controlled substance offense under section 237(a)(2)(B)(i) of the INA,
8 U.S.C. § 1227(a)(2)(B)(i). See, e.g., Matter of Laguerre, 28 I&N Dec.
at 447.
To determine whether a term listed in an alternatively-phrased statute is
an element of the offense, we begin with authoritative sources of State law.
The statute may resolve the issue on its face, because “[i]f statutory
alternatives carry different punishments, then . . . they must be elements.”
Mathis, 579 U.S. at 518; see also Apprendi v. New Jersey, 530 U.S. 466, 490
(2000) (holding that any “facts that increase the prescribed range of penalties
to which a criminal defendant is exposed” are elements of the crime).
Alternatively, if State courts have “definitively answer[ed]” the question,
then the Immigration Judge “need only follow what [the State court ruling]
says.” Mathis, 579 U.S. at 517–18.
The respondent directs us to Beatty, 227 A.3d at 1285. 1 He submits that
Beatty has recently clarified that, under Pennsylvania law, the identity of the
controlled substance is not an element of his statute of conviction, and that
this controlling interpretation of State law by a State court supersedes prior
Third Circuit precedent to the contrary. 35 Pa. Stat. and Cons. Stat.
§ 780-113(a)(30) (West 2017). In Beatty, 227 A.3d at 1285, the
Pennsylvania Superior Court observed that the identity of the controlled
substance is not listed in title 35, section 780-113(a)(30). The court further
explained that “the specific identity of the controlled substance is not an
element of the offense[,] [and that] [t]he identity is only relevant for
gradation and penalties based on the relevant schedule.” Beatty, 227 A.3d at
1285.
1

The Third Circuit has held that it is appropriate to rely on decisions of the Pennsylvania
Superior Court where there is no Pennsylvania Supreme Court decision on point. Singh
v. Att’y Gen., 839 F.3d 273, 283 n.5 (3d Cir. 2016). In Pennsylvania’s Unified Judicial
System, the Superior Court is one of two state-wide intermediate appellate courts, and has
jurisdiction over criminal cases and civil cases not involving the administration of
government. Pa. Const. art. V, § 3; 42 Pa. Stat. and Cons. Stat. §§ 541–44 (West 2022).

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Interim Decision #4044

The schedules, in turn, provide for different penalties depending upon the
identity of the controlled substance. A person who violates section
780-113(a)(30) with respect to a controlled substance classified in Schedule
I or II (or counterfeit of such substance), which is a narcotic drug, may be
imprisoned up to 15 years and fined up to $250,000, or both. 35 Pa. Stat. and
Cons. Stat. § 780-113(f)(1). With respect to an offense involving
phencyclidine, methamphetamine, coca leaves, their salts and compounds
(with certain exceptions), and more than 1,000 pounds of marijuana, a person
may be imprisoned up to 10 years or fined $100,000, or both. 35 Pa. Stat.
and Cons. Stat. § 780-113(f)(1.1). Any other substance or counterfeit
substance controlled under Schedules I, II, or III carries a maximum penalty
of 5 years’ imprisonment or a fine of $15,000, or both. 35 Pa. Stat. and Cons.
Stat. § 780-113(f)(2). A violation with respect to a substance or counterfeit
substance controlled under Schedule IV carries a maximum penalty of
3 years’ imprisonment or a fine of $10,000, or both. 35 Pa. Stat. and Cons.
Stat. § 780-113(f)(3). Finally, a violation with respect to a substance or
counterfeit substance controlled under Schedule V is a misdemeanor for
which an individual may be imprisoned for not more than 1 year, or fined
$5,000, or both. 35 Pa. Stat. and Cons. Stat. § 780-113(f)(4).
Beatty neither alters existing State law nor supersedes the Third Circuit’s
construction of section 780-113(a)(30).
Although State courts are
undoubtedly “the final arbiter[s] of what is state law,” Montana v. Wyoming,
563 U.S. 368, 377 n.5 (2011), Beatty’s statement that the identity of the
controlled substance is not an “element” as that term is defined by State law
is not new. It simply summarizes Pennsylvania’s definitional statute, which
defines the “[e]lements of an offense” as the
conduct or attendant circumstances or such result of conduct as:
(1) is included in the description of the forbidden conduct in the definition of
the offense;
(2) establishes the required kind of culpability;
(3) negatives an excuse or justification for such conduct;
(4) negatives a defense under the statute of limitation; or
(5) establishes jurisdiction or venue.

18 Pa. Stat. and Cons. Stat. § 103 (West 2022).
It is this State definition of “element” that Beatty interprets. Although
Mathis, 579 U.S. at 517, requires us to follow a State court decision that
“definitively answers” whether a statutory alternative is an “element,” the
question in this case is not the definition of an “element” under State law, but
whether the statutory alternatives in the respondent’s statute of conviction
are “elements” under Federal law. See also Moncrieffe, 569 U.S. at 198
(“[W]e made clear in Carachuri-Rosendo that, for purposes of the INA,
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Interim Decision #4044

a generic federal offense may be defined by reference to both ‘“elements” in
the traditional sense’ and sentencing factors.” (quoting Carachuri-Rosendo
v. Holder, 560 U.S. 563, 572 (2010))). As we explained in Matter of
Laguerre, 28 I&N Dec. at 441, State court decisions that “d[o] not give the
term ‘element’ the precise meaning and significance the Supreme Court did”
do not control the determination whether a statutory alternative is an
“element” for purposes of the categorical approach. Cf. Dickerson v. New
Banner Inst., Inc., 460 U.S. 103, 111–12 (1983) (“Whether one has been
‘convicted’ within the language of [Federal] statutes is necessarily . . .
a question of federal, not state, law, despite the fact that the predicate offense
and its punishment are defined by the law of the State.” (citation omitted)),
superseded by statute on other grounds, Firearms Owners’ Protection Act,
Pub. L. No. 99-308, § 101(5), 100 Stat. 449, 449–51 (1986). Because Beatty
addresses whether the identity of the controlled substance is an element for
purposes of State law, rather than the Federal definition of “element,” it does
not “definitively answer[]” whether the identity of the controlled substance
involved is an element under section 780-113(a)(30) for purposes of the
categorical approach. Mathis, 579 U.S. at 517; see also Matter of Laguerre,
28 I&N Dec. at 440–441. Whether Pennsylvania considers the identity of
the controlled substance an “element” of the offense under its definitional
statute or merely a factor “relevant for gradation” is not dispositive.
Notably absent from Pennsylvania’s statutory definition of “offense” are
any findings relevant to the applicable punishment. See 18 Pa. Stat. and
Cons. Stat. § 103; Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462, 468 (3d
Cir. 2009) (noting conduct included under the heading “grading” is “per se
not an ‘element’ of the offense” and noting elements under Pennsylvania law
are defined “as solely conduct included in the formal definition of the
offense”).
Pennsylvania has defined offenses in this manner,
notwithstanding the need to submit factual questions pertaining to the
applicable punishment to a jury. See Commonwealth v. Shamberger, 788
A.2d 408, 418 (Pa. Super. Ct. 2001) (en banc) (noting factual questions
relating to the grading of an offense for sentencing “normally would be
a question for the jury”); Commonwealth v. Panko, 975 A.2d 1189, 1191 (Pa.
Super. Ct. 2009) (citing Apprendi and noting that “a fact that increases the
maximum penalty or changes the grade of an offense must be submitted to
a jury and proven beyond a reasonable doubt”); Commonwealth v. Sparks,
492 A.2d 720, 725 (Pa. Super. Ct. 1985) (“As to grading of . . . theft offenses,
it is clear that value becomes determinative and this, too, is a factual question,
which has been regarded a jury question, although it is not an element of the
crime.”).
As noted, the Supreme Court of the United States held in Apprendi, 530
U.S. at 490, that any “facts that increase the prescribed range of penalties to
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which a criminal defendant is exposed” are elements of the crime. See also
id. at 483 n.10 (“[F]acts that expose a defendant to a punishment greater than
that otherwise legally prescribed were by definition ‘elements’ of a separate
legal offense.”). Therefore, we must first determine the applicable statutory
maximum. As the Supreme Court of Pennsylvania has explained, “In many
Apprendi-based appeals, determining the otherwise-imposable maximum is
relatively straightforward, as it involves ascertaining the highest sentence
authorized by the conviction alone.” Commonwealth v. Dixon, 255 A.3d
1258, 1265 (Pa. 2021). Here, there is no penalty authorized merely for
having been convicted of a controlled substance offense under section
780-113(a)(30). Instead, as Beatty notes this provision only identifies the
prohibited conduct. 227 A.3d at 1284–85.
Penalties are defined separately and maximum penalties are assigned
based on the identity of the controlled substance in question. 35 Pa. Stat. and
Cons. Stat. § 780-113(f). Accordingly, under Pennsylvania law, the
imposition of any penalty for a conviction under section 780-113(a)(30)
requires the identification of the controlled substance at issue with sufficient
specificity to determine which paragraph of section 780-113(f) applies. In
other words, the five paragraphs of “[s]ection 780-113(f)(1) provides a list
of specific statutory alternatives.” United States v. Henderson, 841 F.3d 623,
630 (3d Cir. 2016). And if, as here, “statutory alternatives carry different
punishments, then under Apprendi they must be elements.” Mathis, 579 U.S.
at 518; accord Henderson, 841 F.3d at 630. As the Third Circuit has
explained:
[T]he type of controlled substance involved in a violation of 35 PA. STAT. ANN.
§ 780-113(a)(30) alters the prescribed range of penalties. Accordingly, the type of
drug, insofar as it increases the possible range of penalties, is an element of the crime.
Because 35 PA. STAT. ANN. § 780-113(a)(30) can be violated by the possession of
and intent to distribute many different drugs, the types of which can increase the
prescribed range of penalties, the statute includes several alternative elements and is
therefore divisible.

United States v. Abbott, 748 F.3d 154, 159 (3d Cir. 2014) (footnote omitted).
Because the identity of the controlled substance must be submitted to the jury
and proven beyond a reasonable doubt, it is an “element” of sections
780-113(a)(30) and (f)(1) under Federal law, regardless of Pennsylvania’s
decision to label it a “grading factor,” rendering the statute divisible by
substance under the categorical approach. Id.; see also Mathis, 579 U.S.
at 518; Moncrieffe, 569 U.S. at 198.
The remaining aspects of the divisibility analysis pertaining to this statute
have been comprehensively discussed elsewhere. See Henderson, 841 F.3d
at 627–32 (reaffirming divisibility of section 780-113(a)(30) following
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Mathis); Abbott, 748 F.3d at 159 (concluding that section 780-113(a)(30) is
divisible in light of Apprendi); Matter of Laguerre, 28 I&N Dec. at 444–45
(discussing Henderson). Because Beatty does not address “elements” as they
are defined under Federal law, the Third Circuit’s conclusion that “[s]ection
780-113(f)(1) sets forth different elements of the offense; not different
means” remains controlling. Henderson, 841 F.3d at 629; see also Matter of
Chairez, 26 I&N Dec. 819, 820 (BIA 2016) (“[T]he Board must follow
applicable circuit law to the fullest extent possible when seeking to determine
what Descamps and Mathis require.”). 2
As the respondent’s statute of conviction is divisible with respect to the
identity of the controlled substance, we apply the modified categorical
approach to identify the controlled substance underlying his conviction. See
Mathis, 579 U.S. at 505–06; Matter of Laguerre, 28 I&N Dec. at 447. It is
undisputed that the controlled substance involved in this case is marijuana,
which is a federally controlled substance under 21 U.S.C. § 812(c), schedule
I(c)(10) (2018). Because the respondent was convicted of an offense relating
to a substance that is controlled under Federal law, he committed an offense
categorically relating to a controlled substance violation. Thus, the
respondent is removable as charged under section 237(a)(2)(B)(i) of the INA,
8 U.S.C. § 1227(a)(2)(B)(i).
B. Cancellation of Removal
The Immigration Judge denied the respondent’s application for
cancellation of removal as a matter of discretion. In reaching this
determination, the Immigration Judge recognized the respondent’s
significant equities, including his lengthy residence and family ties in the
United States, heard testimony from his partner and his sister, and considered
pertinent hardship factors including the respondent’s medical condition. As
relevant negative factors, the Immigration Judge considered the respondent’s
criminal history, which includes convictions for possession with intent to
distribute and driving under the influence. The Immigration Judge also
2
We also reject the respondent’s contention that Commonwealth v. Ramsey, 214 A.3d
274 (Pa. Super. Ct. 2019), reflects a new determination by Pennsylvania courts that the
identity of the controlled substance is not an element of the offense. Ramsey involved
a single delivery of “a compound mixture containing inseparable controlled substances,”
and held that this conduct constituted a single criminal act. Id. at 277–78. The court in
Ramsey contrasted its holding with Commonwealth v. Swavely, 554 A.2d 946 (Pa. Super.
Ct. 1989), which affirmed multiple convictions for one delivery of two separate controlled
substances that were not mixed together. Both Ramsey and Swavely remain good law, and
as the respondent’s offense did not involve an inseparable compound mixture, Ramsey does
not control. Nor does Ramsey call into doubt the Third Circuit’s reliance on Swavely in
Henderson, 841 F.3d at 629, and Abbott, 748 F.3d at 159 n.4.

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considered the respondent’s account of the circumstances surrounding his
offenses, which the Immigration Judge found not credible and reflected
a lack of acceptance of responsibility for his actions. The Immigration Judge
determined that the negative factors presented outweigh the respondent’s
positive equities. See Matter of Sotelo, 23 I&N Dec. 201, 204 (BIA 2001);
Matter of C-V-T-, 22 I&N Dec. 7, 11 (BIA 1998); Matter of Marin, 16 I&N
Dec. 581, 584–85 (BIA 1978). We affirm the Immigration Judge’s decision.
On appeal, the respondent challenges the Immigration Judge’s adverse
credibility finding, which underpins the discretionary denial of relief. While
we review the Immigration Judge’s overall discretionary decision de novo,
we review credibility findings for clear error. 8 C.F.R. § 1003.1(d)(3)(i)–(ii).
We discern no clear error in the Immigration Judge’s adverse credibility
finding. See INA § 240(c)(4)(C), 8 U.S.C. § 1229a(c)(4)(C) (2018); U.S.
Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge,
LLC, 138 S. Ct. 960, 966 (2018) (noting that clear error review is a “serious
thumb on the scale” in favor of the finding below).
The respondent does not dispute that the car he was driving collided with
a pedestrian and that the victim was transported to a hospital as a result of
internal hemorrhaging caused by the accident. The Immigration Judge found
that the respondent’s vehicle drove through a red light and hit a woman who
was crossing the street, and that the respondent was intoxicated at the time
of the accident. Those findings are not clearly erroneous. The Immigration
Judge was not required to accept the respondent’s contention that the
pedestrian required transportation to a hospital to treat possible
hemorrhaging between her brain and skull after having merely walked into
a car stopped in a line of traffic at a red light. See INA § 240(c)(4)(C),
8 U.S.C. § 1229b(c)(4)(C) (“[T]he immigration judge may base a credibility
determination on . . . the inherent plausibility of the applicant’s or witness’s
account . . . .”); Matter of D-R-, 25 I&N Dec. 445, 454 (BIA 2011) (providing
that Immigration Judges may make factual findings “based on reasonable
inferences from direct and circumstantial evidence of the record as a whole”),
remanded on other grounds, Radojkovic v. Holder, 599 F. App’x 646 (9th
Cir. 2015). 3 In light of the respondent’s conviction for driving under the
influence, the open container of alcohol in the car, and his admission that he
3

The Immigration Judge found incredible the respondent’s contentions that the police
planted the joint in his car; that the beer was open but completely full when the accident
occurred; and that the respondent had most recently smoked marijuana at 5:00 a.m. that
morning, rather than closer in time to the accident. These findings are likewise permissible
inferences based on the totality of the circumstances and support the Immigration Judge’s
conclusion that the respondent drove through the red light while intoxicated. See Anderson
v. City of Bessemer City, 470 U.S. 564, 574 (1985) (“Where there are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”).

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Interim Decision #4044

had smoked marijuana earlier that day, the Immigration Judge’s finding that
the respondent was intoxicated at the time of the accident is not clearly
erroneous. See Matter of Roberts, 20 I&N Dec. 294, 301 (BIA 1991) (“[I]t
is impermissible to go behind a record of conviction to reassess an alien’s
ultimate guilt or innocence.”). 4
The Immigration Judge permissibly construed the respondent’s
minimization of his responsibility for the accident as evidence of a lack of
rehabilitation and failure to accept responsibility for his conduct. See Matter
of C-V-T-, 22 I&N Dec. at 14 (“Rehabilitation can be a relevant consideration
in the exercise of discretion.”); Matter of Arreguin, 21 I&N Dec. 38, 40 (BIA
1995) (noting that evidence of rehabilitation may “include [the] apparent
acceptance of responsibility for [a] crime”); Matter of Marin, 16 I&N Dec.
at 585.
In light of the foregoing, we agree with the Immigration Judge’s
discretionary analysis. The respondent’s convictions for driving under the
influence of a controlled substance and for possession with intent to deliver
a controlled substance are themselves serious negative factors. See Matter
of Siniauskas, 27 I&N Dec. 207, 209 (BIA 2018); Matter of Gonzalez Romo,
26 I&N Dec. 743, 746–47 (BIA 2016); Matter of Khourn, 21 I&N Dec. 1041,
1046–47 (BIA 1997). The Immigration Judge reasonably determined that
the nature, recency, and seriousness of the respondent’s criminal conduct,
particularly when viewed in light of his incredible testimony concerning the
accident and his failure to accept responsibility, outweigh the favorable
factors and the social and humane considerations presented on his behalf and
militate against a favorable exercise of discretion. See Matter of C-V-T-, 22
I&N Dec. at 11; cf. id. at 14 (noting evidence of remorse or rehabilitation
4

The respondent submitted with his appellate brief the report of a toxicologist who
rendered certain opinions based on the toxicology laboratory results from the day of the
accident. We do not consider new evidence for the first time on appeal. See 8 C.F.R.
§ 1003.1(d)(3)(iv); see also Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984),
abrogated on other grounds by Negusie v. Holder, 555 U.S. 511 (2009). To the extent the
respondent seeks remand for additional fact-finding on this basis, the request is denied.
The toxicology laboratory results are dated October 6, 2016, the day of the accident in
question—more than a year before the respondent entered a guilty plea to the driving under
the influence charge in October 2017, and more than 3 years before the conclusion of his
removal proceedings in immigration court in May 2020. The respondent has not shown
that the toxicology results were previously unavailable, or that he could not have
reasonably obtained the report of an expert in the 2 and a half years his removal proceedings
were pending in Immigration Court. Moreover, as noted above, his contention that he was
not intoxicated is contradicted by his guilty plea to two counts of driving under the
influence of a controlled substance. We conclude this report is unlikely to change the result
in this case. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (holding that a
noncitizen seeking to remand proceedings bears a heavy burden of proving that the new
evidence offered would likely change the result).

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may offset the risk of recidivism). Accordingly, we will affirm the
Immigration Judge’s discretionary denial of the respondent’s application for
cancellation of removal under section 240A(a) of the INA, 8 U.S.C.
§ 1229b(a).

III. CONCLUSION
For the reasons discussed above, the respondent’s conviction for the
offense of possession with intent to deliver a controlled substance, in
violation of section 780-113(a)(30), constitutes a controlled substance
violation, rendering him removable under section 237(a)(2)(B)(i) of the INA,
8 U.S.C. § 1227(a)(2)(B)(i). The respondent does not merit cancellation of
removal as a matter of discretion. Accordingly, the appeal is dismissed.
ORDER: The respondent’s appeal is dismissed.

562


Interim Decision #2531

MATTER OF HASSAN
In Visa Petition Proceedings

A4258751

Decided by Board September 9, 1976
(1) In order for a child to confer immediate relative status upon a parent under the
provisions of section 201(b) of the Immigration and Nationality Act, the petitioning child
must be a United States citizen at least 21 years of age, and qualify as a "child" as
defined in section 101(b) of the Act.
(2) Beneficiary, the natural father of a United States citizen petitioner, obtained a divorce
in 1950 at the Royal Egyptian Consulate located in New York. Notwithstanding the fact
that the divorce occurred in a foreign consulate in the United States, it was not a foreign
divorce. Therefore, the principle of international comity is not involved, and the divorce
is subject to the requirements of full faith and credit. Since this divorce was not
obtained in accordance with applicable New York statutory provisions it was invalid in
the State of New York, was not entitled to full faith and credit in any other jurisdiction,
and was invalid for immigration purposes.
(3) Since the beneficiary's divorce was invalid in the United States (notwithstanding the
fact it was valid in Egypt). beneficiary was not free to contract a valid marriage with
petitioner's mother in the United States so as to legitimate the petitioner and enable
him to confer immediate relative status on his father. Under the circumstances revocation of the approval of the visa petition was proper.
(4) Matter of
6 I. & N. Dec. 470 (BIA 1954) reaffirmed.
ON BEHALF Or PlartiONER:

ON BEHALF OF SERVICE:

George Indelicato
Appellate Trial Attorney

Arlene Tuck Ulman, Esquire
3730 Rhode Island Avenue N.W.
'Washington, D.C. 20036

The United States citizen petitioner applied for immediate relative
status for the beneficiary as his father under section 201(b) of the
Immigration and Nationality Act. The petition was initially approved;
however, after due notice to the petitioner, the approval was revoked
by' the District Director in a decision dated January 15, 1975. The
petitioner has appealed. The appeal will be dismissed.
The issue in this case is whether the beneficiary, the natural father of
th e petitioner, is entitled to immediate relative status under section
2001(b) of the Act, as the "parent" of an adult United States citizen.
Counsel has offered two alternative arguments in support of the petition.
In the first argument, counsel assumes that the petitioner must once
have been the "child" of the beneficiary within the statutory definition,
16

Interim Decision #2531
in order to confer immediate relative status, under section 201(b), upon
the beneficiary as a "parent." See sections 101(b)(1) and (2). She contends that the petitioner, although born out of wedlock, was legitimated
according to the requirements of section 101(b)(1)(C). Counsel's alternative argument is that even if the petitioner was not legitimated, there is
no congressional directive that the petitioner must have qualified as the
"child" of the beneficiary in order to confer benefits, as an adult, upon
his parent. Moreover, counsel contends that the intent of Congress to
unite families would be subverted if that requirement is read into
section 201(b). We turn first to counsel's contention that the petitioner is
the legitimated son of the beneficiary.
The beneficiary, Mr. Hassan, is a native and citizen of Egypt. He
entered the United States in 1948 as the servant of an official assigned to
the Egyptian Embassy in Washington, D.C. The beneficiary's wife,
whom he had married in 1946 in Cairo, Egypt, did not accompany him to
the United States.
On December 4, 1950, the beneficiary went to the. Royal Egyptian
Consulate in New York City and obtained an irrevocable divorce from
his Egyptian wife. One year later, he married a United States citizen in
the State of Maryland. A petition to accord him immediate relative
status was filed by his American wife in 1952. It was denied by the
District Director on the ground that the beneficiary's consular divorce
was not valid for immigration purposes and that he was not free,
therefore, to marry in the United States. The petitioner appealed that
decision to this Board; we affirmed the District Director's decision in
Matter of H—, 6 I. & N. Dec. 470 (BIA 1954).
In the present appeal, taken some 20 years after our decision in
Matter of H—, supra, we are once again concerned with Mr. Hassan's
consular divorce. In the present context, the petitioner's claim to
legitimated status must be evaluated in ligh.t of our holding in Matter of
supra. The registration of the petitioner's birth indicates that he
was officially acknowledged by the beneficiary shortly after his birth on
January lo, 1953. It is counsel's contention that the petitioner was
legitimated under the laws of his residence; the District of Columbia,
when his father, Mr. Hassan, entered into a. common-law marriage with
his mother in the District in the mid - 1950's_ Quite obviously, unless we
now find that Mr. Hassan was free to enter into the alleged common-law
marriage, we cannot accept counsel's theory. In short, we are urged to
overturn Matter of H—, supra, and to extend belated recognition to the
beneficiary's consular divorce for the following two reasons.
First, counsel contends that the Board's characterization of the benefieiary's divorce as a "consular divorce" (a decree granted at a foreign
For a succinct discussion of the reasons underlying the invalidity of the "consular
divorce" in this country, see Puente, The Foreign Consul and His Juridical Status in the

17

Interim Decision #2531
consulate within the United States) is inaccurate. According to counsel,
although the proceeding was commenced in New York City, it was
concluded, some three years later, in Egypt. Moreover, it was a proceeding in which both parties participated and over which the rendering
authorities in Egypt had competent jurisdiction. Thus, it is more precisely characterized as a foreign divorce. As such, recognition of its
validity becomes a matter of international comity. If recognized by the
jurisdiction most concerned with the effect of the decree, namely, the
beneficiary's residence at the time of the proceeding, it must be recognized for immigration purposes.

Second, counsel contends that the Board erred in holding that the
beneficiary was a resident of New York, and that, as a consequence,
New York law governed the validity of the divorce. Counsel maintains
that the beneficiary's residence was the District of Columbia. Therefore,
as a corollary to the first argument, counsel contends that recognition
of the foreign divorce must be assessed in light of the laws and policies
of the District of Columbia.
We observe, at the outset, that unless we find that the beneficiary's
divorce was a foreign judgment, and not a consular divorce, as counsel

contends, we need not discuss the choice of law issue. For if the divorce
is, as we held in Matter of H—, supra, a consular divorce, granted in
usurpation of New York's traditional and exclusive authority in matrimonial matters over persons within her borders, it cannot be recognized by the District of Columbia. It is axiomatic, under the principle of
full faith and credit, that no jurisdiction can adopt, as valid, a divorce
decree which is void in the jurisdiction where rendered.
Therefore, the pivotal issue in counsel's first argument is whether the
beneficiary's divorce was a "New York" divorce, obtained in a consulate
in New York or whether New York was only coincidentally the site of

the institution of divorce proceedings which eventually culminated in a
filial decree of divorce issued by an Egyptian court in Egypt.
To assist us in answering this question, we have asked the Library of
Congress to provide us with information on the Egyptian law of divorce.
From a memorandum submitted, we have learned that in Egypt, marriage and divorce are performed by a government official called alDia'zun. According to Article 31 of the "Ordinance for the Ma'zuns,"

(Egyptian Official Gazette, No. 25 of February 27, 1915):
The Ma'zun must register the divorce exactly as the divorcer has pronounced it
without any change in its wording.

In situations which involve the marriage or divorce of Egyptian
United States (Burdette J. Smith and Company, Publishers, 1926). For pertinent commaentary from the United States Department of State, see Whiteman, Digest of Internatiemat Law, Vol. VII, pp. 621-625.
18

Interim Decision #2531
nationals abroad, the Egyptian consuls are empowered to perform the
same functions which the Ma'zuns are assigned in Egypt. Under Article
16 of the "Consular Law" (Egyptian Official Gazette, No. 78 of August
13, 1925), the consul is authorized "to draw the pronouncements of
divorce and attest their authenticity . . ." (subsection 3).
The record indicates that Mr. Hassan went to the Royal Egyptian
Consulate in New York on December 4, 1950, and pronounced himself
irrevocably divorced from his Egyptian wife before the presiding consul. Two years later, in connection with a visa petition filed on his
behalf, he presented as evidence of the termination of his first marriage,
a certificate issued by the Egyptian Consulate. In this certificate, which
was issued on November 5, 1952, the Egyptian Consul attested to the
validity, under Egyptian law, of the divorce which had been concluded
two years earlier. Reference to the "Consular Law," mentioned above,
indicates that this attestation by the consul, acting in his capacity as
Ma'zun, was clearly authorized. The substance of this certificate is set
out below.
H
was married on December 5th, 1946
0
at Cairo, EGYPT. to Miss E
I
A
and was divorced from said wife on
December 4th, 1950_ This divorce was concluded at the office of the Royal Consulate
General of Egypt in New York, U.S.A., in conformity with stipulations of the Egyptian
Law and entered in the Divorce Records under No. 20 {Emphasis added.)

This is to certify that Mr. A

Despite the fact that the certificate recites December 4, 1950, as the
date on which the divorce was "concluded" according to Egyptian la-w,
counsel maintains that the divorce was not finalized until 1953. In
support of this assertion, she had provided a document in Arabic with
two English translations. This document, issued by the Shari'a court of
Abdeen in Egypt under the seal of the Ministry of Justice, records the
remarriage of the beneficiary's first wife by a Ma'zun on February 25,
1953. Both translations state that the bride "was divorced from Mx.
Ahmed Osman Hassan on December 4, 1950, in the presence of 1VIr.
Ahmed Abdul Aziz Sherif, Consul, at the Consulate General in New
York." 2 The translations further state that this divorce was certified or

approved by the Egyptian Ministry of Justice on February 24, 1953, the
day before the remarriage.
On the basis of this document, counsel argues that the divorce was not
final and binding upon the beneficiary until it was certified in 1953. More
importantly, she argues that when it was certified, it constituted. a
2 In commenting upon the original Arabic version of this document, the author of the
Library of Congress memorandum noted that the divorce which was pronounced by the
beneficiary in New York City was an irrevocable divorce (Ba'in in Arabic). Unlike the

revocable divorce (Rail in Arabic), the marital status of the parties Lu su irrevocable
divorce is terminated instantly.

19

Interim Decision #2531
"foreign" decree of divorce, recognizable in United States courts under
the doctrine of international comity. We cannot agree.
Our materials on Egyptian law indicate that the document which
counsel has submitted is in the nature of an administrative record. It
registers the remarriage of the beneficiary's ex-wife; it also reflects
compliance on the part of the Egyptian wife, upon remarriage, with

registration requirements contained in the "Ordinance of the Ma'zuns."
It does not refer to a certification of the divorce, in the sense of "give
effect to"; it simply refers to the registration in the Shari'a court of a
divorce obtained abroad.
Specifically, the law of Egypt requires the recording or registering of
a divorce with a Ma'zun or in a Shari'a court. Article 33 of the "Ordinance of the Ma'zuns" reads:
If the separation [between the couple] reached the Ma'zun who performed the
marriage and he has the register of marriage in his possession, he shall enter the divorce
at the bottom of the marriage folio. But if this Ma'zun did not perform [originally] the
marriage and the marriage registeris not in his possession, he must im this case notify the
Shari'a court or the Ma'run [who performed the marriagelin order to note the divorce in
the proper register.

This provision is not operative if the marriage resulting in separation did not take

place either in Egypt or in the Sudan. [Emphasis added.]

Therefore, although the "Consular Law" empowers the consul to
register the divorce when pronounced in a foreign country, the divorce
must also be registered with the Ma'zun who performed the marriage or
in the appropriate Shari'a court. Moreover, if the divorcee wishes to
remarry, Article 28 of the "Ordinance of the Ma'zuns" requires her to
prove to the Ma'zun who presides over the marriage ceremony that her
divorce from a previous husband has been duly recorded.
The Ma'zun is not allowed to perform a marriage contract of a divorcee with another
it .
But if anything of that sort has not been presented to the Ma'zun, he must refer the
matter to the Shari'a judge and follow whatever orderhe receives. The judge may allow
the conclusion of the marriage if, according to the investigation he effected, it has been
proven that there were no objections to it. Then the Ma'zun should specify in the
marriage contract, the date, number and the place where the divorce has taken place, or
the date of the permission given [by the judge] to perform the marriage. [Article 28.]
husband unless he sees the document (folio) of her divorce, or the final judgment in

The document which counsel has provided indicates that the Ma'zun
who remarried the beneficiary's first wife was satisfied that her divorce
had been properly recorded with the Shari'a court, on the day before he
performed the ceremony. As a consequence, there were no instructions
from the Shari'a judge indicating that the divorce's validity had been
questioned. As Article 28 directs, the Ma'zun noted in the marriage
contract, the date and place of the party's divorce. The date given was
December 4, 1950; the place, New York.

Therefore, after reassessment, we have concluded that the reasoning
20

Interim Decision #2531
in Matter of H , supra, remains sound. Although the document provided by counsel removes all doubt that the divorce was recognized as
valid in Egypt, it does not alter our conclusion that "the doctrine of
comity would appear to have no application, since, notwithstanding the
fact that the divorce occurred in a foreign consulate in the United
States, it was not a foreign divorce, and insofar as its recognition by the
State of Maryland with respect to the subsequent marriage, is subject
only to the requirement of full faith and credit . . . ," Matter of H ,
—

—

supra, at 472.

Hence, while counsel has presented persuasive evidence that the
Board erroneously assumed, in Matter of H , supra, that Mr. Hassan
was a resident of New York when he obtained his divorce, we cannot
conclude that this evidence impacts on the outcome of the decision.
Even if the beneficiary has been a resident of the District of Columbia at
all times, the divorce must still be denied recognition. For just as the
District must extend its recognition to a decree validly rendered in a
sister state, under the doctrine of full faith and credit, so too must it
deny recognition to a decree which is void under the law of the jurisdiction where it was issued. 3
In an alternative argument, counsel contends that the petitioner need
not qualify as a "child" within the statutory definition in order to confer
immediate relative status upon his father under section 231(b) of the
Act. We cannot agree_
Section 101(b) of the Immigration and Nationality Act of 1952 provided interrelated definitions of the terms "child" and "parent" which
would govern their use in Titles I and II of the statute. In Title II of that
Act, parents were merely accorded preference status under section
203(a)(2). Moreover, section 203(a)(2) referred only to parents of United
—

States citizens "at least twenty-one years of age,"

It was not until the term "parent" arose in another context, without
the age restrictions, that the Board had an occasion to determine precisely the nature of the interrelationship between the two definitions—
parent and child. Matter of G , 8 I. & N. Dee. 355 (BIA 1959),
concerned the use of "parent" within section 7 of the Act of September
11, 1957 (P.L. 85-316). Section 14 of the same Act directed that the
—

definitional provisions contained in subsections (a) and (b) of section 101

of the 1952 Act apply to section 7 of the 1957 law. Therefore, the Board
had squarely before it the question of what "circumstances" within
section 101(b)(1) lead to the creation of the status of "parent." (See
definition of parent in section 101(b)(2).) In light of the steadily liberalizing policy of the Congress to unite and preserve the immigrant's family
3 In light of our holding that the beneficiary's first marriage was not validly terminated,
we need not address counsel's contention that the beneficiary's second marriage in 1951 to

a United States citizen was void, ab initio.
21

Interim Decision #2531
unit, the Board held that the "circumstances" referred to in section
101(b)(2) referred only to the events in subsections (A) through (E)
which create a child-parent relationship. Those circumstances include: a
legitimate birth, the creation of a steprelationship, legitimation, illegitimate birth in relation to the mother, and an adoption. The term
"circumstances" does not refer to the words "unmarried" or "under
twenty-one years of age." Therefore, "While for immigration purposes a
`child' ceases to be a child even if it fits into the various categories when
it reaches the age of twenty - one or becomes married, the parent, once
the required relationship has been established, always remains a parent." Matter of G—, supra, at 359. (Emphasis added.)
In dicta, the Board also notcd that if the age and marital restrictions
in the definition of child were read into the definition of parent, the
provisions in the 1952 Act giving parents a preference would also have
to be restricted to the parents of adult unmarried citizens since section
203(a)(2) refers to parents of citizens over 21 but makes no mention of
marital status. In light of Congress' clear intent to unite the families of
immigrants, such a restriction appeared unwarranted. In keeping with
these observations, the Board held in Matter of Schaad, 10 L & N. Dec.
555 (BIA 1964), that a 32-year-old married petitioner could not confer
preference status under section 203(a)(2) on her stepfather, because the
steprelationship had not been created before the petitioner reached the
age of 18, as section 101(b)(1)(B) requires. The petitioner's age and
marital status were dearly not relevant to the denial.
In 1965, Congress created the provision which the present petitioner
invokes to confer immigration benefits upon his father. This provision,
section 201(b),4 in effect, reaffirmed the terms of section 203(a)(2) of the
1952 Act while elevating the parents of citizens over 21 from "preferred"
to "nonquota" status. Thus, the new amendment enables the parents of
adult United States citizens, as well as the spouses and children, to
enter this country as "immediate relatives," without numerical limitation. As part of Title II of the Act, the new provision's use of the terms
"child" and "parent" is governed by the definitions set out In sections
101(b)(1) and (2). 5 Hence, in discussing the applicability of the term
4 "The 'immediate relatives' referred to in subsection (a) of this section shall mean the
children, spouses, and parents of a citizen of the United States: Provided, That in the case
of parents, such citizen must be at least twenty-one years of age. The immediate relatives
specified in this subsection who are otherwise qualified for admission as immigrants shall
be admitted as such, without regard to the numerical limitations in this Act"
Counsel points out that while section 14 of the 1957 Act expressly directed that the
definitions of section 101(a) and (b) of the 1952 Act apply to section 7 (the provision at issue
in Matter of G—, supra), there is no provision which preserves those definitions with
reference to section 201(b), as amended. A careful look at section 14, however, indicates
that the definitions were only applied to those sections of the new law which were not
incorporated into Titles I and II of the 1952 Act. Congress apparently saw no reason to

22

Interim Decision #2531
"parent" to the new provision, the Board concluded in Matter of Citino,
12 I. & N. Dec. 427 (BIA 1967), that the decision was governed by our
earlier decision construing the interrelationship between the terms
"parent" and "child," e.g., Matter of supra. Applying the holding in
Matter of G — , supra, to the issue in Citino, we held that the petitioner,
a 33-year-old married woman, could confer 201(b) status on her stepmother since the steprelationship had been created within the requirements of section 101(b)(1)(B). The opposite result was reached in cases
involving the same issue when the parent-child relationships were not

created in accordance with (A) through (E) of section 101 of the statute.
See Matter of Polidoro, 12 L & N. Dec. 353 (BIA 1967), and Matter of
Huerta-Leon, Interim Decision 2367 (BIA 1975).
We find no support within the statute nor in our decisions for counsel's
contention that section 201(b) in Title II of the Act need not be read in
conjunction with the definitions in Title I. Inasmuch as the petitioner, in
this ease, has never qualified as a "child" for immigration purposes, he
cannot bestow immediate relative status, as an adult, upon the beneficiary.
Accordingly, the appeal will he dismissed

.

ORDER: The appeal is dismissed.
Irving A. Appleman, Member, Concurring

I concur in that portion of the majority decision which finds that the
parent-child relationship under section 201(b) of the Immigration and
Nationality Act is governed by the same definition as in the case of an
adopted child, Matter of Caramanzana, 12 I. & N. Dec. 47 (BIA 1967),
stepchild, Matter of Schaal, 10 I. & N. Dec. 555 (BIA 1964), or son or
daughter, Nazarene v. Attorney General of the United States, 512 F.2d
936 (C_A_D_ C. 1975).

I also agree that so far as this record is concerned we are confronted
with a purely "consular divorce" in the United States, invalid under the
law of the State of New York, and one to which full faith and credit could
not be given by the District of Columbia.' The Board recognized in the
reiterate the fact that the section 101 definitions were automatically applicable to the parts
of the new Act which were incorporated into the existing framework of Titles I and II. For
ion applying the defini the name reason, there was no need to include en express provision

tions of parent and child to section 201(b), as amended, in 1965, since, the definitions
themselves are prefaced with the sentence—"As used in Titles I and II." In short, the
absence of a preserving clause cannot be seen as an indication that Congress severed the
existing connection between the two provisions.
' Contrary to the contention of counsel, there is substantial evidence that Hassan Sr,
was domiciled in New York at the apartment of his wife, although working in the District
of Columbia at the time the divorce was obtained. However, The domicile is unimportant,
and the divorce would gain no stature even if Hassan had been residing in the District of
Columbia at the time.
23

Interim Decision #2531
original Hassan decision (Matter of H—, 6 I. & N. Dec. 470) that the
consular decree might well be recognized as valid in Egypt. Petitioner
has submitted two widely divergent translations of an Egyptian document. The net effect of a reading of the translations is that the Egyptian
authorities did indeed recognize as valid the divorce obtained in the
New York consulate. There is a dirth of any evidence that the parties to
the divorce, or their representatives, secured a foreign divorce in a
manner which can be recognized here under principles of comity.
That should end the inquiry so far as this Board is concerned. The
further majority discussion of E gyptian divorce law, is both confusing,
and unnecessary, in my opinion- Foreign law is a matter of fact, to be
proved as evidence. Here the Board has, on its own, obtained a
memorandum of law from the Library of Congress, which it has then
proceeded to rely on heavily, adversely to the petitioner—and without
showing it to the parties prior to decision. One can recognize the necessity for the Board requesting such a memorandum in some circumstances not present here 2 but the practice of rendering an opinion
based on the memorandum, without the parties seeing it and having a
chance to comment, is most questionable.
In addition, it will be noted that the present claim is based on an
alleged common-law marriage between Hassan Sr. (the beneficiary) and
one Frances Mae, beginning sometime prior to the birth of the petitioner in 1953 and allegedly continuing until 1959. Frances Mae Hendricks (the petitioner's mother according to his birth certificate) and
Frances Robinson (referred to as the petitioner's mother by Hassan Sr.)
presumably are one and the same person. However, the record indicates
that Frances also had .a prior existing marriage and there is no proof
whatsoever of the termination of that marriage. Thus, even assuming
the impediment to a common-law marriage ceased as to Hassan Sr., it
has not been shown to have ceased as to his claimed, common-law,
"wife." Nor has any evidence been submitted to prove a true commonlaw marriage even assuming no impediment as to either party.
With the record in this state, the majority discussion of esoteric

Egyptian and Islamic divorce law is a needless exercise, and, since it is
based on a Library of Congress memorandum received into evidence at
the Board level, without briefing or scrutiny by the parties, it may quite
possibly be an erroneous one as well.
The case has appealing aspects. The petitioner is a United States
Marine Corps veteran who enlisted at the age of 18. It is alleged that the
beneficiary supported and raised the petitioner from infancy, and that
Hassan, Sr. has been in the United States since 1948. The visa petition
was filed as a preliminary to an application for adjustment of status.
2

An obvious example is for an indigent alien.

24

Interim Decision #2531
While the file before us does not purport to examine the good moral
character of the beneficiary, so far as known he may be able to qualify
for suspension of deportation, and that avenue of relief may be open to
him. For the reasons stated, I agree with the majority, that the present
petition cannot be approved, but would deny solely because petitioner
has failed to sustain his burden under Matter of Brantigan, 11 I. & N.
Dec. 493 (BIA 1966).

25


Interim Decision # 2019

MATTER OF YANEZ-JAQUEZ

In Deportation Proceedings
A-10532657
Decided by Board January 16, 1970
(1) A conviction of passing a forged instrument which resulted in a suspended sentence and probation under the Texas Code of Criminal Procedure adopted effective January 1, 19661 is a final conviction upon which to
predicate a ground of deportation under section 241(a) (4), Immigration
and Nationality Act, as amended.
(2) A permanent resident alien, fully aware that his Form 1-151 was required for readmission, who, without such Form willfully and deliberately
departed to Mexico for a short visit (the purpose of which was characterized by criminal intent) thereafter returning to the United States by
crossing the dry bed of the Rio Grande approximately one-half mile from
the Service port of entry, thereby attempting to enter without inspection,
made upon his return an entry upon which to predicate a ground of deportation [Rosenberg v. Fleuti, 374 U.S. 449 (1963), inapplicable].*

CHARGE:
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251]—Convicted of a
crime involving moral turpitude, to wit, passing a
forged instrument (1968), committed within five
years after entry (1967), and sentenced to confinement therefor in a prison or corrective institution for a year or more.
ON BEHALF OF RESPONDENT:
Albert Armendariz, Esquire
543 Magoffin Avenue
El Paso, Texas 79901

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney
Bernabe Q. Maldonado
Trial Attorney
(Brief filed)

This case is before us on appeal from a special inquiry officer's
order of June 16, 1969, directing that the respondent be deported
from the United States to Mexico on the charge contained in the
order to show cause. The appeal will be dismissed.
Overruled. See 440 F.2d 701 (1971).

449

Interim Decision #2019
The record relates to a 24-year-old unmarried male alien, a native and citizen of Mexico, who was admitted to the United States
for permanent residence on July 19, 1955. He was assaulted and
robbed in Juarez, Mexico, on or about May 4 or 5, 1963, following
which he returned to his home in El Paso. The next day, he
armed himself with an ice pick and planned to go back to Juarez
to confront the persons who had robbed him. His mother tried to
dissuade him, and refused to let him have his resident alien border crossing identification card (Form 1-151), which is used in
lieu of a visa to reenter the United States after a temporary visit
abroad, with certain exceptions not here pertinent.
The respondent, on arriving in Juarez, Mexico, did not immediately locate his assailants. He testified that because of the presence in the area of numerous Mexican police, he crossed the dry
bed of the Rio Grande to the American side, where he was sitting
on the river bank watching for his assailants. See Exhibit 4.
United States border patrol officers, who patrol the area along the
river bank, noticed the respondent and took him to the United
States Immigration Service port of entry about half a mile away.
He claimed he was a lawful permanent resident of the United
States. His mother brought his 1-151 to the Immigration Office,
ind satisfied the officials there that the respondent had been lawFully admitted to this country for permanent residence. He was
hen admitted, but was forthwith taken into custody by El Paso
>olice for possession of the ice pick.
On January 11, 1968, in the Fourth Judicial Court, El Paso,
7exas, the respondent was convicted of the offense of passing a
orged instrument, which is a crime involving moral turpitude.
'he respondent was given a two-year prison sentence, suspended,
nd was placed on adult probation for a period of two years. On
une 7, 1968, an order was issued by the same court revoking the
robation and ordering the respondent to serve two years in the
tate Penitentiary, beginning February 23, 1968. He is now servig that sentence?
The respondent's first contention is that the conviction on
hich the Service relies is not of sufficient finality to support an
-der of deportation. In support of this proposition, he relies on
I The record of the respondent's conviction (Ex. 2) shows that the condims of his probation were that he would commit no offense against the
ws of the State of Texas, any other State, or the United States, and that
would make restitution; and that the reason for the revocation of his
obation was that on February 23, 1968, the respondent had passed another
-ged instrument.

450

Interim Decision #2019
the precedent decision rendered by the Attorney General in Matter of L—R--, 7 1. & N. Dec. 318 (1957). We, however, reject
this argument, finding That the decision under reference is not
controlling here, for several reasons.
In the first place, the Texas Code of Criminal Procedure was
revised by the legislature in 1965 and a new Code of Criminal
Procedure was adopted effective January 1, 1966; and the new
code repealed all prior laws relating to criminal procedure, with
certain exceptions which do not include the adult probation and
parole law of 1967 or the suspended sentence law of 1913, which
laws are involved in Matter of L—R--, ante. Second, under the
new code, on facts substantially the same as those involved here,
we upheld the special inquiry officer's order of deportation, for
reasons which are equally applicable here.= Third, any doubts
which might arise on this point are completely dispelled by the
revocation of the respondent's probation and the requirement for
his incarceration in accordance with the original sentence.
The respondent's second contention, which we likewise reject,
is that while the crime which serves as the basis for the respondent's deportation was committed within five years after his return to the United States on May 6, 1963, conviction therefor did
not occur until after the expiration of five years from that date.
We have previously ruled that section 241(a) (4) of the Immigration and Nationality Act renders deportable an alien who commits a crime involving moral turpitude within five years after
entry whether or not the conviction for such a crime occurs
within the five-year period.' The rationale of that decision is
clearly dispositive of all points raised by respondent in support of
his arguments to the contrary in this case. Further discussion of
this aspect of the case is unnecessary.
We also find wanting the respondent's final contention that he
did not make an "entry" into the United States on May 6, 1963
within the contemplation of the decision of the Supreme Court in
the case of Rosenberg v. Fleuti, 374 U.S. 449 (1963). The evidence of record, as hereinbcfore summarized, convinces us clearly
and unequivocally, that on May 6, 1963, the respondent was in
.Juarez, Mexico, for a period of one and a half to two hours and
thereafter returned to the United States within the city limits of
El Paso, Texas, by way of crossing the Rio Grande at a point
about one half mile west of the Sante Fe Street Bridge. The eviMatter of Gonzalez De Lure, 12 I. & N. Dec. 806 (1968).
3 Matter of A—, 6 I. & N. Dec. 684 (1955).
2

451

Interim Decision #2019
deuce of record also definitely demonstrates that the respondent
was fully aware that his Form 1 151 was required for his readmission into the United States as a returning resident; that by
going to Juarez from El Paso on May 6, 1963, the respondent was
acting against the wishes of his mother who had taken his Form
-

1-151 from him; and that he thereby willfully and deliberately
subjected himself to the hazards of exclusion upon his return to
the United States on that date. The record further reflects, without any shadow of a doubt, that the purpose of the respondent's
visit to Juarez on the date in question was to get back from his
assailants the watch, which they had stolen from him the prepious day, by means of an aggravated assault, if necessary, with
L deadly weapon, to wit, an ice pick.' Finally, in this connection,
he circumstances surrounding the respondent's visit to Juarez on
/lay 6, 1963, and his return to the United States thereafter, lead
o the inescapable conclusion that, at the time in question, he was
ttempting to enter the United States without inspection, thereby
mdering the Fleuti decision, ante, inapplicable in his case.*
Accordingly, and in view of the foregoing, we conclude that the
?cision of the special inquiry officer should be affirmed. Discreonary relief in the respondent's case is not available.
ORDER: It is ordered that the appeal be and the same is
:reby dismissed.

ee Matter of Scherbank, 10 I. & N. Dec. 522 (BIA, 1964).
'alter of Kolk, 11 I. & N. Dec. 103 (BIA, 1965).

452


MATTER OF S—

In DEPORTATION Proceedings
A-12662238
Decided by Board March 27, 1962
Adjustment of status—Section 245, as amended—Eligibility—Admission gained

by false claim to citizenship.

An alien who gained admission_to the United States by a knowing false claim
to United States citizenship has not been inspected as an alien. Therefore,
he

uul eligible fur adjustment of status under section 245 of the Act, as

amended, since he has not been "inspected and admitted" as required by
that section. (Overrules Mailer of T , 9-478.)
—

CHABGE :
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)3—Entered
without inspection.
BEFORE THE BOARD

DISCUSSION: The special inquiry officer ordered respondent deported on the ground stated above and certified the case for final
decision.
Respondent, a 28-year-old divorced male, a native and citizen of
Germany, first entered the United States (October 1954), and on
several occasions thereafter, by willfully and falsely claiming that
he was a citizen of the United States. He last entered the United
States in January 1960 claiming to have been born in the United
States.
After evidence had been presented at the deportation hearing to
establish that the respondent last entered by willfully and falsely
claiming birth in the United States, counsel moved for postponement
of proceedings so that he could file an application under section 245
of the Act (8 U.S.C. 1255) which provides for the adjustment of the
status of an alien "who was inspected and admitted or paroled into
the United States * * *." (Emphasis added.) The special inquiry
officer denied the request on the ground that the respondent was
ineligible for the relief because one who entered on a willful false
claim to birth in the United States avoided the inspection required
by the immigration laws and was, therefore, cleportaNe as an alien
who entered without inspection (Matter of E—, 6-275) . The special
599

inquiry officer considered two cases decided by the Service which dealt
with the eligibility for adjustment of status of one deportable as having entered without inspection because the entry had been made upon
a false claim to United States citizenship Matter of K—B—N--,
9-50 (Oct. 3, 1960), held that an alien who obtained entry by falsely
claiming United States citizenship had entered without inspection
and, therefore, was not eligible under section 245 of the Act which
related only to aliens who had been "inspected" and admitted. Matter
of T—, 9-478 (Sept. 8, 1961, Commissioner), overruled Matter of
r —N , sup-a, insofar as it held that one who had gained admission by falsely stating to an immigration officer that he was a citizen of the United States had not been inspected within the meaning
of section 245 of the Act. However, the special inquiry officer ruled
CIA Matter of K—B—N—, supra, correctly interpreted the law and
refused to follow Matter of T—, supra.
Counsel contends that Matter of T—, supra, correctly sets forth
the present views and should be accepted by the special inquiry officer. He further contends that since the respondent was questioned
and examined, he was inspected at the time of his last admission and
is, therefore, eligible for relief under section 245 of the Act.
The special inquiry officer is bcand only by precedent decisions of
this Board (8 CFR 3.1 (g)). Normally, published decisions of the
Commissioner will be accepted initially concerning issues over which
the Commissioner formerly exercised final appellate jurisdiction ; but

ultimately, the weight a special inquiry officer should accord to published decisions of the Commissioner in an area in which the Commissioner does not make the final decision for the Attorney General,
depends upon the persuasive value of the reasoning therein. Hence,
we see no error in the action of the special inquiry officer.
The immigration laws contemplate that an alien seeking admission
to the United States be inspected for the purpose of determining his
admissibility. The term "inspection" has been judicially defined as
it relates to one who entered upon a false claim to United States
citizenship. Concerning such an individual the court said:
. .. The fact that the alien made himself visible to an officer of the immigration service at the time he crossed the line, and that he crossed with other
persons then entering the United States, is the basis for the claim that the
requirement as to inspection was satisfied. "Inspection," to my mind, as used
in the Immigration Act, means that the immigration officers are given the
opportunity to check the right of the alien to cuter the United States when
he presents himself as an alien.
In the petitioner's case, he, with a pending examination before him, evaded
such examination, and by subterfuge and misrepresentation succeeded in passing into the United States. He did not, at the point of his entry, present
himself as an alien ready to submit proofs of his right to enter. By his misrepresentation alone he avoided the "inspection" which the act contemplates

every alien snail be subjecieu Le. .
26 F.2d 458, cert. den. 278 U.S. 616)

(Ex. pal tc Caadi, 25 17 .2d 334, 330, Ord

We have followed this rule consistently for a long period (Matter
1-385 (1943) ). We are bound to follow this rule in the
absence of a clear directive from Congress to the contrary. Section
241(a) (2) of the 1952 Act provides for the deportation of an alien
who "entered the United States without inspection or at any time or
place other than as designated * * *." This is a paraphrase of the
law as it existed prior to the Act of 1952 (Act of February 5, 1917,
section 19(a) (39 Stitt. 874) ). It is quite evident, therefore, that
Congress intended the term "inspection" to have the same meaning as
it had in previous laws. Since the term "inspected" in section 245 of
the Act can have
ve no other meaning than that an alien presented himself before a proper official of the Immigration Service for inspection
as an alien and since the respondent did not do this, he is not eligible
for relief under section 245 of the Act.
To the extent that Matter o f T—, 9-178, holds that admission of
an alien as a United States citizen upon a willful false claim to United
States citizenship constitutes an inspection, it is overruled.
ORDER: It is ordered that no change be made in the order of the
special inquiry officer.
cf

601


Interim Decision #2456

• MATTER OF VELLA.GOMEZ
In Deportation Proceedings
A-14193878

Decided by Board November 25, 1975
(1) Respondent, a native and citizen of Mexico, was admitted to the United States for
permanent residence in May 1965. Prior to admission, he told the United States consul
that he was married to a United States citizen whereas, in fact, that marriage was void
because of a previous undissolyed marriage. In the absence of clear, convincing and
unequivocal evidence that the respondent made a willful misrepresentation, he is not
deportable as an alien excludable at entry under section 212(a)(19) of the Immigration
and Nationality Act, as amended.
(2) Inasmuch as respondent's marriage to a 'U.S. citizen was void, respondent was subject
to the provisions of section 212(a)(14) of the Act. However, in the absence of showing
that the Secretary of Labor would have affirmatively acted or did act to preclude the
admission of respondent, he is not deportable as an alien excludable at entry under
section 212(a)(14) as that section of the statute read at the time of his entry in May of
1965—prior to its amendment by the Aet of October 2, 1965, which placed direct

responsibility on the alien to obtain certification from the Secretary of Labor.
(3) Since respondent received his nonquota immigrant classification as a native of the
Western Hemisphere, not as the spouse of a U.S. citizen, his misrepresentation to the
consular officer has no bearing on his deportability as one inadmissible at entry under
section 212(a)(2C) of the Act. While the misrepresentation arguably was germane to
respondent's inadmissibility under section 212(a)(14), since that charge has not been
sustained, it cannot be used to support the "no visa" charge under section 212(a)(20) and
the "no visa" charge falls.

CHARGES:

Order: Act of 1952

—

Section 241(a)(1) [8 U.S.C. 1251(a)(1)]

Excludable at entry

—

under section 212(a)(20) —no valid inunigraut visa.

Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry
under section 212(a)(14)—no labor certification.
Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry
under section 212(a)(19)—visa procured by fraud.
ON BEHALF OF RESPONDENT:

John F. Sheffield, Esquire
523 West Sixth Street
Los Angeles, California 90014

In a: decision dated August 8, 1974, an immigration judge found the
respondent deportable, denied his application for suspension of deporta528

Interim Decision #2456
tion, and granted him voluntary departure in lieu of deportation. The
respondent has appealed from that decision. The appeal will be sustained.
The respondent, a native and citizen of Mexico, was admitted to the
United States as a lawful permanent resident in May, 1965. F'rior- to his
admission he told the United States consul that he was married to a
United States citizen when, in fact, that marriage was void on account of a
previous undissolved marriage. Deportation proceedings were instituted
against him based upon the following charges:
(1) Section 241(a)(1) of the Immigration -and Nationality Act as an alien without a
valid visa [section 212(aX20) of the Act];
(2) Section 241(a)(1) of the Immigration and Nationality Act as an alien without a
valid labor certification [section 212(a)(14) of the Act];
(3) Section 2e41(a)(1) of the Immigration and Nationality Act as an alien who willfully
misrepresented a material fact in order to procure a visa (section 212(a)(19) of the
Act].

The immigration judge found the respondent deportable on the first two
charges but conduled that the evidence was insufficient to establish that
a willful misrepresentation had been made, and he dismissed the third
charge.
With respect to the section 212(a)(19) charge, we agree with the
immigration judge that the Service has failed to establish by clear,
convincing and unequivocal evidence that the respondent made a willful
misrepresentation.
With

respect to

the section 212(a)(14) charge,

we disagree with the

conclusion of the immigration judge. Section 212(a)(14) in May of 1965
excluded from admission:
Aliens seeking to enter the United States for the purpose of performing skilled or
unskilled labor, if the Secretary of Labor has determined and certified to the Secretary of
State and to the Attorney General that (A) sufficient workers in the United States who
are able, willing, and qualified are available at the time (of application fora visa and for
admission to the United States) end place (to which the alien is destined) to perform such
skilled or unskilled labor, or (B) the employment of such aliens will adversely affect the
wages and working conditions of the workers in the United States similarly employed. 8
U.S.C. section 1182 (1952).

Certain specified aliens were exempted from this provision, including the
spouses of United States citizens. Inasmuch as the respondent's marriage
to a United States citizen was void, the respondent was subject to the
provisions of section 212(a)(14). This section was radically altered in the
amendment of the Act of October 3, 1965, which placed direct responsibil-

ity on the alien to obtain certification from the Secretary of Labor.
However, in order to find the respondent deportable as an alien excludable at entry under section 212(a)(14) as the statute read in May of 1965,
the Service must show by clear, convincing and unequivocal evidence
that the Secretary of Labor would have affirmatively acted or did act to
preclude the admission of the respondent. No such showing has been
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made. As a consequence, the order of deportation is not sustained on the
section 212(a)(14) charge.
With respect to the section 212(a)(20) charge, the respondent made a
misrepresentation to the consular officer concerning his marriage to a
United States citizen. That misrepresentation has no bearing on deportability under section 212(a)(20) unless the respondent's visa was obtained
as a result of the misrepresentation. The respondent received his nonquota immigrant classification as a native of the Western Hemisphere,
not as a spouse of a United States citizen. The misrepresentation arguably was germane to the respondent's admissibility under section 212(a)(14), but inasmuch as the Service has not met its burden of proof on
that charge, it cannot be used to support the "no visa" charge under
section 212(a)(20). Consequently, the respondent's deportability on the
section 212(0(20) charge has not been established.
The Serv..ce has not shown by clear, convincing and unequivocal
evidence that the respondent was deportable on any of the three charges
brought against him. The appeal will therefore be sustained and the
proceedings against him terminated.
ORDER: The appeal is sustained, and the deportation proceedings are
terminated.

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