Interim Decision #2124—Appendix

APPENDIX
MEMORANDUM OPINION AND ORDER
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

JALEH BEHROOZI and
ALI ASGHAR TAHERI, Plaintiffs,
vsL. W. GILMAN, Regional Commissioner,
Immigration and Naturalization Serv., Defendant.
This 'is an action for a declaratory judgment finding plaintiffs
eligible for permanent residency in the United States as refugees
within the meaning of Section 203(ar) of the Immigration and

Nationality Act, 8 U.S.C. § 1153(a)(7).
This action is presently before this court on cross motions for
summary judgment_ The pertinent facts are as follows:

Both plaintiffs entered the United States as citizens and natives
of Iran; plaintiff Behroozi as a non-immigrant visitor for pleasure
in 1968, and plaintff Taheri as a non-immigrant student in 1964.
Both enjoyed extensions of their status as non-immigrant students and visitors through 1970.
On June 26, 1970, both plaintiffs were arrested, together with
several other Iranian students, in connection with an incident

involving the Iranian Consulate here in San Francisco. Both
plaintiffs entered guilty pleas to a charge of false imprisonment
and served 35 days in jail.
In the summer of 1971, both plaintiffs applied to the Immigration
Service seeking refugee status under Section 1153(a)(7), of the
Immigration and Nationality Act, as interpreted in the Immigration Commissioner's decision in Matter of Zedkova (13 I. & N. Dec.
626 (B IA,1970).
In their applications for refugee status, plaintiffs alleged that
they had "fled" Iran within the meaning of Zedkova, supra; that
they had participated, while in the United States, in the activities
of the Confederation of Iranian students which had recently been
outlawed by the Iranian government; that they were unwilling or
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Interim Decision #2124—Appendix
unable to return to Iran for fear that they would be imprisoned
because of their involvement with the Confederation and the
Iranian Consulate incident.
Section 1153(aX7) provides that conditional entries shall be made
available to aliens who satisfy an Immigration officer:
(A) that (i) because of persecution or fear of persecution on account of race,
religion, or political opinion they have fled ... (II) from any country within the
general area of the Middle East, and (ii) are unable or unwilling to return to
such country or area on account of race, religion, or political opinion ...

The Commissioner denied both applications upon the ground
that petitioners had failed to establish that they had "fled" from
their Middle East homeland within the meaning of Section
1153(a)(7) and, having denied the petitions upon that ground, made
no finding concerning the second requirement of Section 1153(a)(7),
namely whether petitioners were unable or unwilling to return to
their homeland on account of political opinion.
Petitioners contend that the Commissioner's ruling was arbitrary, an abuse of discretion and a violation of his own regulation,
Title 8 CFR, Part. 103.3(e), which provides that decisions selected
by the Commissioner shall serve as precedents in all proceedings
involving the same issues and, except as they may be modified or
overruled by subsequently selected decisions, shall be binding on
all officers and employees of the Service in the administration of
the Act and that such decisions shall be published and made
available to the public in the manner provided in Part 103.9(a).
It has been held that, if there has been an abuse of discretion,
i.e., no rational basis for the Commissioner's decision, it may be set
aside. Suh v. Rosenberg, 437 F.2d 1098 (9th Cir., 1971); Reyes v.
Carter, 441 F.2d 734 (C.A. 9, 1971).
In Ariz v. Fullilove (N.D.Cal. 51148, 9/19/69), (appealed to become
Ninth Circuit No. 25242, February 23, 1971) the Court of Appeals
remanded with directions to this court to allow the Commissioner
an opportunity to distinguish the Ariz decision from a prior,
Tenorio case decided differently on apparently similar facts, or to
state why the previous Tenorio decision should not be followed.

Implicit in that remand is the proposition that, if valid distinctions
of a prior different decision do not appear, or, if the Service does
not show why its previous decision should not be followed, then it
may be held that there has been arbitrary action in that the
Commissioner, once having adopted a precedent, has failed to
follow his own regulations by applying the precedent with an even
hand in all cases involving the same issue.
In support of their contention in this case, petitioners point out
that in a previous decision, i.e., Matter of Zedkova, No. A-18049736,
decided November 23, 1970, the Commissioner had held that for

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Interm Decision #2124—Appendix
purposes of the word "fled", as used in Section 1153(a)(7), it is
immaterial whether the circumstances which cause an alien to
become a refugee occur before or after departure from the country
or area.
Zedkova involved an alien Czechoslovak woman who was admitted to the United States in April 1968, as a non-immigrant visitor
for pleasure and to visit friends. While she was here, the Soviet
Union in August, 1968 invaded Czechoslovakia. Advised by her
anti-communist parents that she might be persecuted by the new
Czechoslovakian communist government, she (sic) became fearful
of returning, and after refusing an order from the Czechoslovakian Embassy in the United States to return, she filed application
for refugee classification under Section 1153(a.)(7).
The Commissioner, considering the principal issue to be whether
under these circumstances she could be regarded as having "fled"
from a communist dominated country because of persecution or
fear of persecution on account of race, religion or political opinion
within the meaning of the statute held that she could be regarded
as having "fled" saying:
"It would be extremely narrow and inequitable to view those nationals who
physically fled from Czechoslovakia because of political opinion as refugees
and to withhold such status from those who remained out of the country for
the same reason. According to "Webster's New International Dictionary,"
Third Edition, the term "fled" may reasonably be construed to include one
who has avoided, abandoned or forsaken a danger or evil. Wo boleivo that this
broad construction is consonant with the remedial nature and purpose of
Section 203(a)(7) of the Act in its use of the term. Within the context of such
definition, it is immaterial whether the circumstances which caused an alien
to become a refugee occurred before or after departure from the country or
area."

There is, of course, the question whether the Commissioner's
construction in Zedkova of Section 203(aX7), i.e., 8 U.S.C. § 1153(a)(7),
was legally sustainable—although that question is not raised by
petitioners, who merely complain that the Commissioner in their
case should follow his ruling in ZedkoVa.
It should be noted, however, that in Shabasit v. Immigration and
Naturalization Service, 450 F.2d 345 (CA. 9,1971), the Court, having
before it a record showing that Shubash, an Arab Christian, a
resident of Jerusalem, carrying a Jordanian passport, left Jerusalem in 1966, not because of persecution, but for personal reasons as

a non-immigrant visitor and showing, further, that since Shubash's entry into the United States, ISrael had occupied Jerusalem, held that on such record petitioner had failed to meet his
burden of meeting either condition A(i) or condition A(ii) of Sec.
1153(0(7).
Assuming the soundness of the Commissioner's construction of

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the law in Zedkova it appears that petitioners here were in
virtually identical positions with Zedkova insofar as they, like
Zedkova, had come to the United States for reasons wholly
unrelated to flight arising out of any fear of political persecution in
their homeland. In both cases any fear of return for such reasons
arose out of changed conditions in the homeland occurring after
the aliens had come to the United States—in Zedkova a Communist takeover; in this case according to petitioner's evidence
presented to the Commissioner in support of their applications, an
announced policy of the Iranian government to deal punitively
with Iranians who, like these two petitioners, associated themselves with the Confederation of Iranian Students, apolitically
oriented organization opposed to the established Iranian regime.
Since, according to the Commissioner's Zedkova decision, "it is
immaterial whether the circumstances which cause an alien to
become a refugee, occurred before or after departure from the
country or area", the question arises whether there is any rational
basis for distinguishing the situations of these petitioners from
Zedkova, insofar as the woid "fled" is concerned, or any rational
basis for not following the Zedkova decision here.
The Commissioner here considered the previous Zedkova decision and made a distinction from Zedkova upon the theory that in
the pending cases the circumstances, occurring after petitioner's
departure from Iran and causing their fear to return, are different
from those constituting the analogous occurrence in Czechoslovakia after Zedkova's departure and causing her fear to return. The
key to the Commissioner's distinction appears at p. 3 of his
decision in this case where he states: "Iran has not been invaded
by another country since the applicant's departure as Czechoslovakia was in the matter of Zedkova."
'Of course, the circumstances are different, but both were political changes, one a communist takeover in Czechoslovakia and the
other an announced governmental policy of Iran directed at the
political activities of members, including petitioners, of the Confederation of Iranian students.
The Commissioner's so called distinction appears to be a distinction as to detail rather than a distinction in principle. Having in
mind the procedure followed by the Court of Appeals in Ariz v.
Fullilove, supra, we are of the opinion that this case should be
remanded, witout any final decision by this court, in order to give
the Commissioner an opportunity to reconsider his decision in this
case in light of our analysis of the situation, the Commissioner to
report to this court within 60 days concerning whatever view or
action he may take and this court reserving full power to reconsider its own tentative views expressed herein.
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It is so ORDERED.
DATED: December 22, 1972

Matter of Jaleh Behroozi and Asghar Taheri
Decided bylegional Commissioner July 10, 1973
These applications are before the Regional Commisioner pursuant to an order of the U.S: District Court for the Northern
District of California for reconsideration of denial decisions dated
January 14 and 21, 1972, and to report to the Court concerning
whatever views or action taken.

Both applicants are natives and citizens of Iran. Mr. Taheri
entered the United States as a non-immigrant student on May 13,
1964, with authorized stay last extended until November 2, 1970.
Miss Behroozi entered the United States as a nonimmigrant
visitor for pleasure on October 21, 1968. Her status was changed
from visitor to student on September 8, 1969, with authorized stay
last granted until August 4, 1971.
Both applicants were arrested on June 26, 1970, along with other
Iranian students in connection with the invasion and damaging
the premises of the Iranian Consulate in San Francisco, California.
They subsequently entered guilty pleas to a charge of false
imprisonment and served 35 days in jail.
The applicants applied for classification as refugees under the
proviso to section 203(a)(7) of the Immigration and Nationality Act,
as amended, during 1971. They alleged that they "fled" from Iran
within the meaning of that term as construed in the Matter of
Zedkova, Interm Decision No. 2062 and that they were unwilling
or unable to return to Iran as they feared that they would be
jailed in Iran because of their activities with the Confederation of
Iranian Students and because of their arrest for taking part in the
anti-Iranian government demonstration at the Consulate of Iran
in San Francisco.
9/Ir. Taheri's application for classification as a refugee under the
proviso to section 203(a)(7) was denied on January 14, 1972. That
denial decision was selected by the Commissioner of this Service as
a precedent decision and designated as Interim Decision No. 2124.
Miss Behroozi's application was denied on January 21, 1972. In both
cases, it was decided that the applicants had not established that
they had "fled" from Iran within the meaning of section 203(a)(7).
Both applicants had departed from Iran temporarily for personal
reasons and not because of persecution or fear of persecution. It
was decided that they had not "fled" from Iran within the
meaning of that term as construed in the Matter of Zedkova,
supra, as that case involved the development of a situation

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subequent to the alien's departure over which the alien had no
control, whereas in the instant cases, the applicants' situations
were produced by their own deliberate actions.
A complaint for declaratory judgment was filed in the District
Court March 1, 1972, as a result of the denial decisions. The Court
stated in part in its decision of December 22, 1972, that "it appears
that petitioners here were in virtually identical positions with
Zedkova" (emphasis supplied). The Court added that "the
question arises whether there is any rational basis for distinguishing the situations of these petitioners from Zedkova, insofar as the
word 'fled' is concerned, or any rational basis for not following the

Zedkova decision here, and that the "so called distinction appears
to be a distinction as to detail rather than a distinction in
principle." In addition, the court stated, "The key to the Commissioner's distinction appears at p. 3 of his decision in this case
where he states: 'Iran has not been invaded by another country
since the applicant's departure as Czechoslovakia was in the
Matter of Zedkova.' " Thereafter, these cases were remanded to
give the Regional Commissioner an opportunity to reconsider his
decision in light of the Court's analysis of the situation and to
report to the Court within 60 days. The Service was subsequently
granted until July 20, 1973, to make the required report.
The Director, Office of Refugee and Migration Affairs, Department of State, was requested on January 23, 1973, to furnish an
advisory opinion as to the validity of applicants' claim that they
fear persecution in Iran because of their activities with the Confederation of Iranian Students.
In his response dated June 7, 1973, the Director stated, in part,
as follows:
We believe that important differences exist between the situation of the
Miss Zedkova. and that there are substantial
policy reasons for insisting that the distinction be maintained in these cases.
As you are aware, there is a relatively large number of foreign students in the
United States at all times. The expenses of many of these students are paid by
the government of the United States or of their own country with the
intention that they will return home and there utilize the education and
experience received in the United States. Many students assume an express
obligation to so return. However, there has consistently been a number of
foreign students who decide to remain in the United States more or less
indefinitely, sometimes believing that opportunities for personal advancement
are better here and sometimes for one or more of a variety of other reasons.
Iranian students and that of

In this context it should be noted that the duly enacted laws of
foreign countries are very often less permissive than our own in
the area of political dissent. It is not uncommon in many countries
for membership in specified political organizations to be illegal
even in the absence of political activities beyond simple member36

Interim Decision #2124—Appendix
ship. It is therefore not difficult for a foreign student or other alien
in the United States to join disfavored political organizations, to
make inflammatory political statements or to engage in protest
activity, any or all of which might render such persons subject to
criminal prosecution in their native countries. For these reasons,
we feel that applications for refugee status by foreign students
who came originally to the United States not for political asylum
but for education should be examined with extreme care and not
in the context of a section 203(a)(7) proceeding, which fails to
include a full administrative hearing for development of relevant
facts and review by the Board of Immigration Appeals.
As indicated above, we believe that important distinctions exist
between the cases of the Iranian students and that of Miss
Zedkova, and that such distinctions should be urged upon the
Court. In Zedkova, the Commissioner found that "It would be
extremely narrow and inequitable to view those nationals who
physically fled from Czechoslovakia because of political opinion as
refugees and to withhold such status from those who remained out
of the country for the very same reason." That determination was
reached in the context of three specific findings of fact appearing
in the decision which we consider important: first, that "several

thousand Czechoslovak nationals escaped into Austria and Germany where they sought classification as refugees"; second, that
"it has been satisfactorily Pstahlish ed that the applicant abandoned her residence in Czechoslovakia because of fear of persecution on account of her political belief ..."; and third, that there
were new circumstances in Czechoslovakia which caused her to
become an alien.l
I. In context of other refugees. This finding indicates that Miss
Zedkova's application for refugee status was made in the context
of circumstances which strongly supported her application, i.e., the

exodus from her native country of a mass of other citizens as a
result of a political upheaval. It is notable that the Zedkova case
did not arise as an isolated instance of alleged persecution, but
rather in the context of a large number of similar applications
which, according to the Regional Commissioner's decision, resulted
in depletion of the visa quota under section 203(aX'7) for the first
time since it became effective.
Although we have not made an exhaustive review of the
legislative history of section 203(0'7) and its predecessors, our
limited research indicates this preference category was intended
Per discussion with the Dept. of State, the word alien was intended to be
"refugee."

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Interim Decision #2124 Appendix
by Congress to benefit refugees as that term is customarily
understood, that is, persons who have actually fled their native
countries because of persecution, usually political persecution. It is
our understanding that the statute finds its origin in the participation of the United States in the resettlement of large numbers
of World War II refugees, and, later, of persons who became
refugees as a result of the Hungarian Revolution and the Suez
conflict, both in 1956. While section 203(a)(7) may also apply to
isolated cases of persons who actually flee because of fear of
persecution from Communist or Middle Eastern countries, we do
not believe this legislation properly can be interpreted so broadly
as to include aliens who have come to this country as students and
who thereafter claim refugee status on the basis of their own
activities here some years after their arrivaL
In the Zedkova case, the Regional Commissioner recognized the
anomaly that would exist if persons who coincidentally were
outside of Czechoslovakia for nonpolitical reasons at the time of
the Soviet invasion were treated differently from the thousands of
refugees who physically escaped into Austria and Germany. Such
an anomaly, however, cannot be found in cases such as those of
the present Iranian students. Although Iranians frequently travel

abroad for educational and other purposes, and although a small
number of the students abroad are opposed to the present government of their country, there has been no exodus of persecuted
Iranians from Iran.
We note that a change of status to permanent resident under
section 245, based on an application under 203(a)(7), would ultimately lead to United States citizenship, a benefit beyond that
required under the Status of Refugees Convention and the Protocol thereto. We also note that if section 203(a)(7) status is denied in
cases such as the present on the ground the applicant has not fled
his country, suspension (sic—per discussion with the Department of
State, the word suspension was intended to be "withholding") of
deportation remains available under section 243(h). It is believed,
therefore, that the latter remedy is most in accordance with Congressional intent where the alien has not physically fled his country
because of fear of persecution or does not find himself in such
unusual circumstances as those surrounding the Zedkova case.
2. Abandonment of residence. It is clear from the facts of the
Zedkova case that the applicant abandoned her residence very

shortly after arriving in the United States as a direct result of the
Soviet invasion of Czechoslovakia. She had not come to the United
States several years before and remained here under a continuously renewed student or visitor's visa, and so there could be no
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question in her case as to the reason she had remained out of her
country for an extended period or of at what point in time she
actually abandoned her residence. The circumstances of the present cases, however, make it questionable that Mr. Taheri and Miss
Behroozi have abandoned their residences in Iran because of fear
of persecution. Mr. Taheri first came to the United States in 1964
and to our knowledge has never evidenced any intention of
returning to Iran. His first overt political activity appears to have
occurred in 1970, and although we, of course, cannot know at what
precise point Mr. Taheri might have given up any real intention of
returning to his native country, it seems entirely possible that it
was before 1970. Although Miss Behroozi did not arrive in the
United States until 1968, approximately 3 years before the date of
her application for permanent resident status, there are grounds
for believing that her reasons for abandoning her Iran residence
are more closely related to the emigration of her parents to Israel
than to a well-founded fear of persecution in Iran.
Where, as here, the 'circumstances surrounding a decision to
abandon former residence reasonably could lead to a conclusion
that the decision was made for reasons other than fear of persecution or would have been made regardless of any such fear, the
applicant should be required to present persuasive evidence that
he decided to remain in the United States because of such fear.
This issue, of course, goes to the statutory requirement that the

applicant have "fled" from his country and is distinct from the
reasons he presently may be unable or unwilling to return.
3. New circumstances in alien's country. In its December 22, 1972
opinion, the district Court noted that in both Zedkova and the
present cases "any fear or return for such reasons (political
persecution) arose out of changed conditions in the homeland after
the aliens had come to the United States ..." This element of

changed conditions is clearly necessary in the case of aliens who
have not physically fled from their countries, and it points up the
inherent difficulty in the theory of constructive flight We do not

believe that any new circumstances have occurred in Iran that are
similar to the 1968 events in Cvechoslovakia or that otherwise
support the applicants' claim that they have fled Iran for fear of
persecution within the meaning of section 203(anAccording to documents submitted to the INS by counsel for the
applicants, it was announced in Iran in January 1971 that members
of the Confederation of Iranian Students would after March 21, 1971
be subject to prosecution under a penal statute enacted June 12,
1931. This announcement followed the June 26, 1970 occupation of
the Iranian Consulate in San Francisco by 41 members of the
Confederation, including the applicants, and a series of similar

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demonstrations in Europe. The applicants were indicted in California on five counts, including false imprisonment by fraud, menace
and violence and destruction of property, and were convicted of
false imprisonment. We believe that the announcement in Iran of
January 21, 1971 resulted in part from the criminal act in San
Francisco of the applicants and other members of the Confederation.
In Zedkova a wholly new government had been installed in the
alien's country after events that resulted in the actual flight of
thousands of refugees. In the present case, there was no new
government or law in Iran, nor any substantive new policy;
having criminally attacked Iranian government property and
officials in San Francisco, the applicants were subject to prosecution under the 1931 legislation, both for their own acts and for
memberhip in the Confederation which apparently had organized
the Consulate occupation. Of course, that legislation was available
for prosecution of the applicants whether or not there was any
official announcement that it would be employed.
Prosecution for a violation of a penal statute by appropriate
authorities of a foreign country because of unlawful membership
in an organization is not necessarily persecution because of political opinion within the meaning of section 203(07). The applicants
must establish that they are statutorily eligible for the classification sought. In addition, they must establish that their applications should be granted as a matter of discretion. They, along with
other members of the Confederation, have been involved in criminal acts in violation of the laws of the United States. This militates
against the favorable exercise of the Attorney General's discretionary authority and is a rational basis, in our opinion, for the
denial of their application. We believe the applicants should not
benefit directly or indirectly from their wilful and deliberate illegal
actions. This was the key to the Regional Commissioner's prior
decision, rather than that stated in the Court's" order remanding
these cases for reconsideration, and supports the reason why their
situation was found to be distinguishable from Zedkova.
Should we find the applicants • eligible for classification as refugees, it could establish a precedent enabling an individual alien or
group of foreign students from any country having a strict policy
or attitude against political dissent to demonstrate in the United
States against their government, as did these applicants, thus
putting them in disfavor with their government and qualify such
alien or group of foreign students for classification as refugees on
the basis of a claim that they would be unable or unwilling to
return to their country because of fear of persecution because of
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political opinion. This is not what the statute or the decision in the
Matter of Zedkova intended and should not be so interpreted.

In view of the foregoing and after carefully reconsidering these
cases, it is concluded that the applications were properly denied.
The Regional Commissioner's decisions of January 14 and 21 will be
reaffirmed.
ORDER: IT IS ORDERED that the denial decisions of January
14 and 21, 1972 be and the same are hereby reaffirmed
Memorandum of Decision
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

JALEH BEHROOZI and
ALI ASGHAR TAHERI, Plaintiffs,
vsL. W. GILMAN, Regional Commissioner,Immigration and Naturalization Serv.,
Defendant.
This is an action for a declaratory judgment finding

plaintiffs eligible for classification as refugees within the meaning
of section 203(a)(7) of the Immigration and Nationality Act, 8
U.S.C. 1153(a)(7), in order that they may have preference in obtaining immigrant visas.
This action is presently before this court on cross-motions for
summary judgment.
Reference is hereby made to this court's previous Memorandum
of Opinion and Order of December 22, 1972, for the background of
the present ruling.
In that Memorandum we ordered the case remanded to the
Commissioner for a report on whether the Commissioner's ruling
(Taheri, A-13748152 (1114/72) and Behroozi, A-19181823 (1/21/73))
could be deemed an abuse of discretion for being contrary to his
previous ruling in Zedkova, No. A-18049736, (11123/70) upon a record
in this case that then appeared to this court to be similar to Zedkova
and, if so, a violation of the Commissioner's own regulation 8 CFR
Part 103.3(e) and 103.9(a) which provide in effect that decisions
selected by the Commissioner shall serve as binding precedents in
all proceedings involving the same issues—except as they may be
modified or overruled by subsequently selected decisions.
The Commissioner had ruled in Zedkova that the term "fled" as
used in Sec. 203(a)(7) of the Immigration and Nationality Act, in 8
U.S.C. § I153(a)(7) may be broadly construed to include one who has
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avoided, abandoned or forsaken a danger or evil and that, when
the statute is so construed, it becomes immaterial whether the
circumstances creating refugee status occurred prior or subsequent to departure from the country or area; that an alien, who
departed temporarily from Czechoslovakia prior to a Communist
upheaval there in 1968 but who because of political opinion feared
to return in view of changed conditions in that country , may be
considered as having constructively "fled" within the meaning of
the statute.
The Report of the Commissioner, filed herein July 10, 1973, pursuant to our order, is to the effect that the Zedkova ruling that
petitioner there had constructively "fled" Czechoslovakia within
the meaning of the statute was distinguishable from the present
case in that the Zedkova ruling was made in a context of three,
specific ancillary findings of fact appearing in that decision but,
according to the Commissioner Report, not present in the pending
case.
The Zedkova ancillary findings were as follows:
(1) That "several thousand Czechoslovakian Nationals escaped
into Austria and Germany where they sought classification as

refugees."
According to the Commissioner, the bearing of this finding on
the ultimate finding that Zedkova had constructively "fled" within
the meaning of the statute is that an actual exodus of a number of
persons from the country in question (because of persecution or
fear of persecution on account of race, religion or political, opinion)
is reasonably required to justify an ultimate finding that one who
happens to be outside that country at the time of such exodus and
who decides to remain away for similar reasons has constructively
fled the country within the meaning of the statute.
The Commissioner contends that in the present case no such
essential ancillary finding has been or can be made, pointing out
that no such actual exodus of Iranians from their country has
been shown or even claimed by petitioners; that in the present
case the only showing is that petitioners left Iran as• non-immigrants for temporary residence here in pursuit of their pleasure
and/or education.

(2) That it was satisfactorily established in Zedkova that she had
formed an intent to abandon her residence in Czechoslovakia
because' of fear of persecution on account of her political belief.
According to the Commissioner, the bearing of this finding on
the ultimate finding that Zedkova had constructively "fled" within
the meaning of the statute is that to support a finding of such
cotistructive flight a reasonable showing should be made of an
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intent to abandon residence in the former country because of the
persecution (or fear of persecution) that caused the actual exodus
of others.
The Commissioner contends that no such ancillary finding has
been or can be made in the present ease, pointing out that the
evidence makes it questionable whether either of the two petitioners abandoned their Iran residence because of fear of persecution; that the evidence is such that petitioner Taheri, who came to
the United States in 1964 as a nonimmigrant student, and petitioner, Behroozi, who entered in 1968, as a non-immigrant visitor
for pleasure (later for study), might well be found to have decided

to abandon their Iran residence, not a a result of fear of persecution, but for other reasons formed even before the announcement
of any Iranian policy to persecute them.
(3) That in Zedkova there were new circumstances in Czechoslovakia which caused Zedkava to become an alien.
According to the Report, the bearing of this finding upon the
ultimate finding of constructive flight is that a showing of changed
conditions since an alien's actual departure from his country, is
reasonably necessary in the case of aliens who have not physically
fled their country but who claim constructive flight. The Commissioner points out that in Zedkova the finding of changed conditions, i.e., new circumstances, was supported by evidence that a
wholly new government had been installed in the country since
her departure, an event that caused the actual flight of thousands
of others.
The Commissioner contends that no such ancillary finding has
been or can be made in the present case, pointing out that the
evidence here is merely to the effect that in January, 1971, the
Iranian government announced that members of the Confederation of Iranian students would, after March 21, 1971, be subject to
prosecution under an Iranian penal statute enacted as long ago as
1931; that this announcement followed and, according to the Commissioner, was the result of a June 26, 1970 occupation of the
Iranian Consulate in San Francisco by forty-one members of the
Confederation, including petitioners here, who were thereafter
indicted in California on five counts and convicted of false imprisonment.
Review by the District Court of rulings of the Immigration
Commissioner is limited to determination of whether there has
been an abuse of discretion, i.e., a decision without evidence to
support it or a decision based on an incorrect understanding of the
law. Song Jook Suh, v. Rosenberg, 427 F.2d 1098 (C.A. 9, 1971).
Further, the burden of proof at the administrative level is upon
the-petitioner, not upon the Commissioner, to show that they fall

43

Interim Decision #2124—Appendix
within the terms of the statute as reasonably interpreted by the
Commissioner.
The court concludes that the Commissioner's interpretation of
the statute to the effect that flight may be constructive as well as
actual (provided that a claim of constructive flight is supported by
the ancillary factual elements above discussed) was not an unreasonable or incorrect interpretation of the law; that in the case at
bar the evidence was such that the Commissioner could reasonably find it insufficient to support the essential eleinents for
constructive flight; that the ruling of the Commissioner in the
present case was not an arbitrary departure from the ruling in

Zedkova on the issue of constructive flight, and, therefore, was not
a violation of 8 CFR Part 103.3(e) or 103.9(a).
IT IS, THEREFORE, ORDERED that the defendant's motion
for summary judgment be granted and plaintiffs' motion for
summary judgment be denied, upon the condition, however, thit
within thirty (30) days from the date of this Memorandum and
Order the Commissioner supplement his previous decisions in Taberi and Behroozi by adding thereto his Report herein, together
with a copy of this Memorandum, in order to clearly distinguish
this case from Zedkova and so make clear that there has been no
violation of 8 CFR 103.3(e) or 103.9(a).
Dated: December 11, 1974.

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Matter of N-V-G-, Respondent
Decided September 17, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A person who enters the United States as a refugee and later adjusts in the United States
to lawful permanent resident status is not precluded from establishing eligibility for a
waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act,
8 U.S.C. § 1182(h) (2018), based on a conviction for an aggravated felony, because he or
she has not “previously been admitted to the United States as an alien lawfully admitted
for permanent residence” under that provision.
FOR RESPONDENT: Mai Neng Moua, Esquire, Minneapolis, Minnesota
FOR THE DEPARTMENT OF HOMELAND SECURITY: Amy K.R. Zaske, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;
HUNSUCKER, Appellate Immigration Judge; NOFERI, Temporary Appellate
Immigration Judge.
NOFERI, Temporary Appellate Immigration Judge:

In a decision dated September 13, 2018, an Immigration Judge granted
the respondent’s request for a waiver of his inadmissibility under section
212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2018).
The Department of Homeland Security (“DHS”) has appealed from this
decision, and the respondent opposes the appeal. The DHS’s appeal
regarding the respondent’s eligibility for a 212(h) waiver will be dismissed,
and the record will be remanded for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Laos who entered the United
States as a refugee in 1989 under section 207 of the Act, 8 U.S.C. § 1157
(1988). In 1990, he adjusted his status to that of a lawful permanent resident
pursuant to section 209(a) of the Act, 8 U.S.C. § 1159(a) (1988). In 2001,
he was convicted of second degree assault with a dangerous weapon in
violation of section 609.222(1) of the Minnesota Statutes Annotated, and
sentenced to 21 months of incarceration.
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Based on this conviction, the DHS placed the respondent in removal
proceedings, charging him with removability under section 237(a)(2)(E)(i)
of the Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), as an “alien . . . convicted of
a crime of domestic violence.” The respondent admitted the allegations and
conceded that he was removable as charged. For purposes of relief from
removal, the Immigration Judge found that the respondent’s conviction was
one for an aggravated felony “crime of violence” for which the term of
imprisonment was at least 1 year under section 101(a)(43)(F) of the Act,
8 U.S.C. § 1101(a)(43)(F) (2018). 1 The Immigration Judge acknowledged
that section 212(h) of the Act bars a respondent who has been convicted of
an aggravated felony after “previously [being] admitted to the United States
as an alien lawfully admitted for permanent residence.” However, she
concluded that the respondent was not subject to this bar because he entered
the United States as a refugee, not as a lawful permanent resident, and he was
not “admitted to the United States as an alien lawfully admitted for
permanent residence” based on his adjustment of status under section 209(a)
of the Act. The DHS challenges this conclusion on appeal. Whether the
respondent is subject to the aggravated felony bar at section 212(h) of the
Act is a question of law we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii)
(2021).

II. DISCUSSION
In relevant part, section 212(h) of the Act states that no waiver shall be
granted “in the case of an alien who has previously been admitted to the
United States as an alien lawfully admitted for permanent residence if . . .
since the date of the admission the alien has been convicted of an aggravated
felony.” (Emphases added.) The term “admitted” is defined as “the lawful
entry of the alien into the United States after inspection and authorization by
1

We affirm the Immigration Judge’s conclusion that the respondent’s conviction is for
an aggravated felony. The United States Court of Appeals for the Eighth Circuit, under
whose jurisdiction this case arises, has held that a violation of section 609.222(1) of the
Minnesota Statutes Annotated is categorically a conviction for a “violent felony” under the
“force clause” of the Armed Career Criminal Act (“ACCA”). United States v. Pendleton,
894 F.3d 978, 981–82 (8th Cir. 2018). The “force clause” of the ACCA is identical in all
material respects to the definition of a “crime of violence” under 18 U.S.C. § 16(a) (2018),
which is incorporated by reference into section 101(a)(43)(F) of the Act. Compare 18
U.S.C. § 16(a), with 18 U.S.C. § 924(e)(2)(B)(i) (2018). We have previously described the
“force clause” of the ACCA and the definition of an aggravated “crime of violence” under
§ 16(a) as “very similar.” Matter of Guzman-Polanco, 26 I&N Dec. 713, 717 (BIA 2016)
(quoting Johnson v. United States, 559 U.S. 133, 140 (2010)), clarified by 26 I&N Dec. 806
(BIA 2016). Thus, the Immigration Judge properly applied the Eighth Circuit’s holding in
Pendleton to the respondent’s conviction.

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an immigration officer.” Section 101(a)(13)(A) of the Act. And the term
“lawfully admitted for permanent residence” is defined as “the status of
having been lawfully accorded the privilege of residing permanently in the
United States as an immigrant in accordance with the immigration laws, such
status not having changed.” Section 101(a)(20) of the Act.
We have interpreted section 212(h) in light of these terms and held that
in order to be subject to the aggravated felony bar under this provision, three
prerequisites apply—respondents must have (1) “entered the United States,”
(2) “as lawful permanent residents,” (3) prior to being convicted of an
aggravated felony. Matter of J-H-J-, 26 I&N Dec. 563, 565 (BIA 2015)
(emphasis added). We did so because a clear majority of circuit courts
adopted a similar interpretation of this provision. Id. at 564 (collecting
cases); see also, e.g., Stanovsek v. Holder, 768 F.3d 515, 517 (6th Cir. 2014)
(stating that “a § 212(h) waiver is precluded after a conviction of an
aggravated felony only when the removable person had attained the status of
lawful permanent resident at the time of his or her lawful entry into the
United States”); Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1366–67 (11th Cir.
2011) (interpreting section 212(h) as providing that “a person must have
physically entered the United States, after inspection, as a lawful permanent
resident in order to have ‘previously been admitted to the United States as an
alien lawfully admitted for permanent residence’” (citation omitted)). But
see Roberts v. Holder, 745 F.3d 928, 932 (8th Cir. 2014) (per curiam).
As noted, the respondent entered the United States as a refugee under
section 207 of the Act and later adjusted to lawful permanent resident status
pursuant to section 209(a) of the Act. The DHS argues that our holding in
Matter of J-H-J- is inapplicable in light of this two-step process for refugee
admissions because section 209(a)(2) of the Act provides that an individual,
who was admitted as a refugee and later adjusts his or her status to that of a
lawful permanent resident under section 209(a), “shall . . . be regarded as
lawfully admitted to the United States for permanent residence as of the date
of such alien’s arrival into the United States.” We disagree.
Although we have held that a person “admitted to the United States as a
refugee has been ‘admitted’ for purposes of section 101(a)(13)(A) of the
Act,” Matter of D-K-, 25 I&N Dec. 761, 769 (BIA 2012) (emphasis added),
we have never said that such a “refugee” has been admitted in the status of
an alien “lawfully admitted for permanent residence,” for purposes of section
101(a)(20) of the Act (emphasis added). See also Matter of Jean, 23 I&N
Dec. 373, 374 n.4 (A.G. 2002) (noting that the respondent, admitted as a
“refugee” under section 207, was not “permanently admitted into the
country”). See generally Sanchez v. Mayorkas, 141 S. Ct. 1809, 1813 (2021)
(“Lawful status and admission . . . are distinct concepts in immigration law:
Establishing one does not necessarily establish the other.”).
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Significantly, section 207 of the Act explicitly provides for the admission
of “refugees,” and, unlike section 209(a)(2), it does not use the term
“lawfully admitted . . . for permanent residence.” Thus, an “admission”
under section 207 is an “admission” to the United States in the status of a
“refugee,” not a lawful permanent resident. Matter of D-K-, 25 I&N Dec. at
769; see generally INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987)
(“[W]here Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion.” (alteration in original) (citation omitted)). Further, section 209
of the Act, which governs the adjustment of status of refugees “admitted to
the United States under section 207,” explicitly precludes refugees from
adjusting their status if they have “acquired permanent resident status.”
Sections 209(a)(1), (1)(C) of the Act. Accordingly, sections 207 and 209
provide that the respondent, who entered the United States as a “refugee” and
later adjusted his status under section 209(a) of the Act, was not
“previously . . . admitted to the United States as an alien lawfully admitted
for permanent residence” within the meaning of section 212(h) of the Act.
The relevant legislative history supports this conclusion.
During passage of the Refugee Act of 1980, Pub. L. No. 96-912, 94 Stat.
102, Congress rejected proposed language from the Senate, which would
have granted lawful permanent resident status to refugees upon their entry
into the United States and instead adopted statutory language conditionally
withholding lawful permanent resident status from refugees. S. Rep. No.
96-256, at 7–8 (1979); see also Matter of D-K-, 25 I&N Dec. at 767
(recognizing this legislative history). In the final version, Congress replaced
‘“conditional entrant’ status” with “conditional admission of all refugees.”
Matter of Garcia-Alzugaray, 19 I&N Dec. 407, 408 (BIA 1986) (emphases
added); see also H.R. Rep. No. 96-781, at 21 (1980). Thus, a respondent
who is conditionally admitted as a “refugee” under section 207 has not been
admitted as “an alien lawfully admitted for permanent residence” for
purposes of the section 212(h) waiver. 2
2
This conclusion is consistent with our holding in Matter of Paek, 26 I&N Dec. 403
(BIA 2014), aff’d, Paek v. Att’y Gen. of the U.S., 793 F.3d 330 (3d Cir. 2015). In that case,
we held that a spouse or child initially admitted to the United States as a conditional
permanent resident under section 216(a) of the Act, 8 U.S.C. § 1186a(a) (2012), has
previously been “admitted to the United States as an alien lawfully admitted for permanent
residence” within the meaning of section 212(h). Id., 26 I&N Dec. at 406–07. We reached
this conclusion based on the plain language of the Act, which provides that “permanent
resident status is obtained on the date of an alien’s initial admission as a conditional
permanent resident,” and thus, “although an alien may be admitted pursuant to section 216
on a conditional basis, under the plain language of that section, such an admission is

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Moreover, we are not persuaded that the language at section 209(a)(2) of
the Act retroactively converts the respondent’s adjustment of status—after
he entered the United States as a “refugee”—into a previous “admission” into
the United States as “an alien lawfully admitted for permanent residence”
within the meaning of section 212(h) of the Act. 3 Being “regarded,”
following an adjustment of status, as “lawfully admitted . . . for permanent
residence” as of one’s date of arrival in the United States is not the same
thing as being admitted to the United States as a lawful permanent resident,
as required by section 212(h). Sections 209(a)(2), 212(h) of the Act. We
made this very point in Matter of J-H-J-.
Prior to Matter of J-H-J-, we had held that the term “admitted” in section
212(h) of the Act was ambiguous and could encompass an adjustment of
status within the United States. Matter of E.W. Rodriguez, 25 I&N Dec. 784,
789 (BIA 2012); Matter of Koljenovic, 25 I&N Dec. 219, 220–23 (BIA
2010). The United States Court of Appeals for the Eighth Circuit, in whose
jurisdiction this case arises, deferred to our holdings in those cases. Roberts,
745 F.3d at 932. However, in the face of “overwhelming circuit court
authority in disagreement with Koljenovic and E.W. Rodriguez,” concluding
that the term “admitted to the United States as an alien lawfully admitted for
permanent residence” in section 212(h) plainly and unambiguously required
a person to enter the United States as a permanent resident, we “accede[d] to
the clear majority view of these . . . circuits” and withdrew from our prior
holdings in Matter of Koljenovic and Matter of E.W. Rodriguez. Matter of
J-H-J-, 26 I&N Dec. at 564–65. As noted, we held that section 212(h) “only
precludes aliens who entered the United States as lawful permanent residents
from establishing eligibility for a waiver on the basis of an aggravated felony
conviction.” Id. at 565 (emphasis added). Because the respondent entered
the United States as a refugee—rather than as a lawful permanent resident—
he is not subject to the aggravated felony bar under section 212(h). We are
not persuaded by the DHS’s remaining arguments to the contrary.
In support of its argument that section 209(a)(2) retroactively converted
the respondent’s entry as a “refugee” into an “admission” as a lawful
permanent resident, the DHS points to similar language in section 245(b) of
the Act, 8 U.S.C. § 1255(b) (2018), which provides that “[u]pon the approval
of an application for adjustment made under subsection (a) of this section,
nonetheless an admission ‘as an alien lawfully admitted for permanent residence’” under
section 212(h). Id.
3
The legislative history of the Refugee Act of 1980 reflects that Congress intended
section 209(a)(2) to preserve a refugee’s physical presence in the United States from the
date of initial entry for purposes of eligibility for naturalization, such that “the individual
would not be disadvantaged during the waiting period” required to apply for adjustment of
status. 126 Cong. Rec. 4500 (1980) (statement of Rep. Holtzman).

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the Attorney General shall record the alien’s lawful admission for permanent
residence as of the date of the order of the Attorney General approving the
application for adjustment of status.” (Emphasis added.) The DHS contends
that this language supports its contention that an adjustment of status under
section 209 is an “admission.” However, section 245(b) relates to adjustment
of status under section 245(a), not section 209(a) of the Act. And, in any
event, we withdrew our prior precedents endorsing the DHS’s interpretation
of section 245(b) of the Act. See Matter of J-H-J-, 26 I&N Dec. at 565. 4
The DHS also relies on section 209(a)(1), which requires applicants for
adjustment of status to “return or be returned to the custody of the [DHS] for
inspection and examination for admission to the United States as an
immigrant.” (Emphasis added.) The DHS argues that this reinspection
requirement renders an applicant “admitted to the United States as an alien
lawfully admitted for permanent residence” for purposes of section 212(h).
However, adjustment of status under section 209(a) does not necessitate a
“lawful entry” into the United States within the meaning of section
101(a)(13)(A) of the Act. 5 We therefore conclude, consistent with the
holdings to which we acceded in Matter of J-H-J-, that adjustment of status
pursuant to section 209(a) of the Act does not render the respondent
“previously . . . admitted to the United States as an alien lawfully admitted
for permanent residence” within the meaning of section 212(h) of the Act.
See, e.g., Lanier, 631 F.3d at 1366–67. This conclusion is consistent with
Matter of D-K-, 25 I&N Dec. at 769, in which we stated that the reinspection
requirement under section 209(a)(1) “does not undermine [a noncitizen’s]
initial admission as a refugee under section 207 of the Act.” 6
Finally, we recognize that the Eighth Circuit has held that a refugee who
adjusted his status under section 209 of the Act was “admitted” within the
meaning of the aggravated felony bar in section 212(h). Spacek v. Holder,
4

The circuit court interpretations we acceded to in Matter of J-H-J- found section 245(b)
to be consistent with “admission” defined as “an event occurring at the point of first lawful
entry,” which is distinguishable from “lawful status.” Stanovsek, 768 F.3d at 519 (“[T]he
status of ‘lawfully admitted for permanent residence’ can be attained at that point of entry
or at a later adjustment of status.”); see also Husic v. Holder, 776 F.3d 59, 64–65 (2d Cir.
2015).
5
The regulations provide that refugees may apply for adjustment of status from within
the United States, without a requirement to reenter the United States. See 8 C.F.R.
§§ 209.1, 1209.1 (2021).
6
To the extent that we stated in Matter of D-K-, 25 I&N Dec. at 768, that “our
construction effectively envisions that a refugee who ultimately becomes a lawful
permanent resident will have been ‘admitted’ twice—first, upon conditional admission
under section 207 of the Act, and second, upon reinspection and adjustment to permanent
resident status under section 209(a) of the Act,” that language was dicta not essential to our
holding in that case.

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688 F.3d 536, 539 (8th Cir. 2012). 7 Citing the reinspection requirement at
section 209(a)(1), the court reasoned that this provision “incorporates the
same definitions as [section 212(h)], so ‘admission’ under the former is
equivalent to ‘admission’ under the latter.” Id. Based on this reasoning, the
court concluded that the respondent in that case had been “‘lawfully admitted
for permanent residence’ at the time of his ‘admission’ under
[section 209(a)(1)],” and thus “his subsequent aggravated felony
disqualifie[d] him from seeking a [section 212(h)] waiver of inadmissibility.”
Id.
While the Eighth Circuit reached a different conclusion in Spacek than
the holding we reach today, we note that the court’s decision in Spacek
preceded Roberts, in which the Eighth Circuit expressly concluded that the
wording of the section 212(h) waiver—the key statutory provision at issue
here—is ambiguous, and deferred to our interpretation of that provision.
Roberts, 745 F.3d at 932. Subsequently, in Matter of J-H-J-, which also
arose in the Eighth Circuit, we withdrew from our prior interpretation of
section 212(h) and acceded to “overwhelming circuit court authority” finding
section 212(h) unambiguous. Matter of J-H-J-, 26 I&N Dec. at 564–65. The
decision in Spacek was not based on a holding that the statutory text of
section 212(h) was unambiguous. Spacek, 688 F.3d at 539; cf., e.g., Lanier,
631 F.3d at 1366–67 (basing its holding on “the plain language of § 212(h)”).
Because the Eighth Circuit has concluded in Roberts that the wording of
section 212(h) is ambiguous, we respectfully conclude that our holding in
this case is reasonable and warrants deference, as it is consistent with
significant changes in the interpretation of section 212(h) since the issuance
of Spacek. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute
trumps an agency construction otherwise entitled to Chevron [U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),] deference
only if the prior court decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for agency
discretion.”); see also Roberts, 745 F.3d at 932. 8 This will also promote

7

We are not aware of any Circuit Court of Appeals that has followed the Spacek court’s
approach.
8
Additionally, the fact that Spacek relies in significant part on an analysis of the interplay
between two statutory provisions (i.e. sections 209(a)(1) and 212(h) of the Act) is a further
indication that Spacek’s construction is not based on the provisions being unambiguous.
See Garfias-Rodriguez v. Holder, 702 F.3d 504, 512-14 (9th Cir. 2012) (en banc) (noting
that tension between two provisions “creates a statutory ambiguity that cannot be resolved
conclusively by resort to the text,” and deferring to the Board regarding Matter of Briones,
24 I&N Dec. 355 (BIA 2007) and Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010)).

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national uniformity in the administration of the immigration laws. 9 See
Matter of Ortega-Lopez, 27 I&N Dec. 382, 387 (BIA 2018) (“[A] single rule
furthers the paramount need for ‘uniformity in the administration of
immigration laws.’” (citation omitted)), aff’d, Ortega-Lopez v. Barr,
978 F.3d 680 (9th Cir. 2020); see also, e.g., Matter of Marquez Conde, 27
I&N Dec. 251, 254-55 (BIA 2018) (reaffirming and modifying Matter of
Pickering, 23 I&N Dec. 621 (BIA 2003), to apply it nationwide).
For the reasons stated above, we conclude that a person who enters the
United States as a refugee and later adjusts in the United States to lawful
permanent resident status is not precluded from establishing eligibility for a
waiver of inadmissibility under section 212(h) of the Act based on a
conviction for an aggravated felony, because he or she has not “previously
been admitted to the United States as an alien lawfully admitted for
permanent residence” under that provision.
We therefore agree with the Immigration Judge that the respondent’s
conviction for an aggravated felony does not bar him from seeking a section
212(h) waiver and will affirm the Immigration Judge’s determination that the
respondent is eligible for a waiver of inadmissibility under section 212(h) of
the Act. Accordingly, the DHS’s appeal of that issue is dismissed.
We note that the Immigration Judge erred in concluding that the
respondent could seek a “stand-alone” waiver without also applying for
adjustment of status. Matter of Rivas, 26 I&N Dec. 130, 132–33 (BIA 2013)
(holding that a waiver of inadmissibility under section 212(h) of the Act is
not available on a “stand-alone” basis to an alien in removal proceedings
without a concurrently filed application for adjustment of status). However,
the record reflects that the respondent has submitted an application for
adjustment of status based on an approved visa petition filed by his United
States citizen daughter. The record is remanded to the Immigration Judge
for further consideration of the respondent’s statutory eligibility for
adjustment of status, and whether he warrants relief in the exercise of
discretion. The respondent may also pursue on remand any other relief or
protection for which he may be eligible. We express no opinion regarding
the outcome of the proceedings on remand.
ORDER: The Department of Homeland Security’s appeal is dismissed.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
entry of a new decision.

9

The Board has previously issued inconsistent decisions within the Eighth Circuit on this
issue.

387