MATrER OF

F—

In SECTION 245 Proceedings
A-10490404
Decided by Regional Commissioner September 16, 1960
Approved by Assistant Commissioner October 7, 1960
Adjustment of status Section 245, as amended—Alien erroneously admitted
as United States citizen without false claim held eligible.
An alien who was erroneously admitted as a United States citizen but who

did not willfully make a false claim to citizenship meets the "inspected and
admitted" requirement for eligibility under amended section 245 of the Immigration and Nationality Act, The contrary rule obtains when the claim to
citizenship was made willfully and fraudulently.
BEFORE THE REGIONAL COMMISSIONER

(September 16, 1960)
DISCUSSION: This case comes forward on appeal from the order
of the district director denying the application on the ground that
the alien was not admitted as a bona fide nonimmigrant.
Applicant is a 37-year-old married female, a native and citizen
of the Philippine Islands. She was married to a native-born citizen
of the United States in Carson City, Nevada, on June 6, 1950. This
is applicant's first marriage and of this union two children were
born in the United States. Her spouse's two previous marriages
were terminated by divorce. All of applicant's immediate family
reside in the United States. Her father, formerly a citizen of Germany, and mother, formerly a citizen of the Philippine Islands,
were naturalized in San Francisco on May 25, 1934, and August 16,
1960, respectively. She has one sister who is a native - born United
States citizen. Her two brothers and other three sisters, all natives
and citizens of the Philippine Islands, are lawful resident aliens
whose status in the United States was adjusted through pre,examination proceedings
Applicant first entered the United States at San Francisco on
February 9, 1932, with other members of her family as nationals of
the United States. It was during this period of residence in the
United States that her father was naturalized on May 25, 1934. On
June 26, 1936, along with other members of her family, applicant
5

returned to the Philippine Islands. On August 3, 1939, applicant
next applied for admission with her family at San Francisco as a
citizen of the United States. The Board of Immigration Appeals
ordered her excluded holding that she failed by one day to gain
United States citizenship wider section 2172 of the Revised Statutes
through her father's naturalization on May 25, 1934, and that she
lacked by about eight months completing the required five years
residence in the United States pursuant to a lawful admission to
gain citizenship through her naturalized father under the Act of
May 24, 1934. On March 24, 1940, applicant returned to the Philippine Islands under the exclusion order of the Board of Immigration
Appeals. Applicant last arrived in the United States on May 2,
1945, at San Pedro, California, with other members of her family
on board the United States Naval Transport Admiral F. herle, as a
wartime evacuee from the Philippine Islands. Upon this arrival,
applicant was inspected and erroneously admitted as a United States
citizen and has since resided continuously in the United States.
On April 18, 1956, applicant sought adjustment of her immigration status through preexamination, and although her application
was approved by the Service she was unable to proceed to Canada
and obtain her immigrant visa due to financial difficulties. Applicant subsequently applied under section 245 of the Immigration and
Nationality Act for status as a permanent resident. This application was submitted about September 8, 1959, and was denied on the
ground that she was not admitted as a bona fide nonimmigrant when
she last entered the United States on May 2, 1945. The denial was
timely appealed. Although the application in this case was filed,
considered, denied, and appealed under section 245 as that section
existed prior to July 14, 1960, the appeal will be considered under
present section 245.
In its present form, the Rtrd t 1- a ronfers discretionary authority

upon the Attorney General to adjust the status of an alien, other
than an alien crewman, to that of a permanent resident if such alien:
1. Was inspected and admitted or paroled into the United States;
2. Makes an application for adjustment;
3. Is eligible to receive an immigrant visa;
4. Is admissible to the United States for permanent residence; and
5. An immigrant visa is immediately available to him at the tune
his application is approved.
The requirement that an alien must have been admitted to the
United States as a 11 C17 14.4 fde nuninuuipaut Lu qualify fur adjustment no longer appears in the current statute. Therefore, if the
applicant meets the above-enumerated requirements, her application
may be granted.
A proper application

has been Sled and the applicant has been
55

found to be eligible to receive an immigrant visa and admissible to
the United States for permanent residence. A petition to accord
her nonquota status has been approved so an immigrant visa is immediately available to her. The only issue to be resolved is whether
she was inspected and admitted into the United States.
It is well established that aliens who knowingly Made a false
claim to United States citizenship for the purpose of evading inspection under the immigration laws gained entry without inspection
(Matter of C 17 , 1 385; Matter of
5-220 ; Matter of E—,
6 275). The courts also have so held. In the case of United States
ex rel. Volpe v. Smith., 62 F.2d 808, Judge Evans, in writing the
majority opinion, stated :
-

—

-

No other false or fraudulent representatlou could have accomplished Its uu-

lawful purpose [entry] so effectively as the one appellant adopted. To assert
that he was a citizen of the United States and that his naturalization pLpers
were In Chicago wholly disarmed the inspector and terminated the inspection.
. . . In legal effect, there was no inspection. (Matter in brackets added.)

However, it has been held that where a, person presented himself
to an immigrant inspector and stated that he was a citizen of the
United States, honestly believing this to be the truth, that person
did not enter without inspection (Matter of S—, unreported, A5984855, B.I.A., Dec. 31, 1946; Matter of D—, unreported, A6768542, B.I.A., Oct. 19, 1949). With reference to the applicant's
erroneous admission as a United States citizen, the records disclose
that upon arrival she presented herself for inspection and did not
willfully make a false claim to such citizenship. Accordingly, the
applicant is considered to have been inspected and admitted. (See
Matter of K—B—N—, A-10825969, 9-50, Sept. 14, 1960.)
The applicant has resided in the United States for more than 20
years. She is married to a United States citizen and has two minor
United States citizen children. Evidence of her good moral character has been submitted. Therefore, it is concluded that the facts and
circumstances in this case merit favorable exercise of the Attorney
General's discretionary authority. The appeal will be sustained and
the application will be granted.
ORDER: It is ordered that the application be granted.

56


Interim Decision #1842

MATErat OF R1VA

In Deportation Proceedings
A-11239287
O

Decided by Board March, 4,1968
The refusal of the special inquiry ellicor to adjudiente in fleportation proceed-

ings in the case of respondent, who is deportable as a remained longer nonimmigrant, the question of respondent's inadmissibility under section 212
(a) (22) of the Immigration and Nationality Act should he return to this country, was proper since such a determination was neither germane to the issue
of his deportability nor to his eligibility for discretionary relief.
ONABGE:
Order: Act of 1052—Section 241(a) (2) (8
1251 (a) (2)3 —Nonimmigrant
representative of foreign information media—remained
longer.
ON BEHALF Or SERVICE:
Thomas W. Winnerman
Trial Attorney
(Brief filed)

ON BEHALF of RESPONDENT:
Elmer Fried, Esquire
510 Madison Avenue
New York, New York 10022

Respondent, who conceded deportability on the charge in the order
to show cause, applied only for voluntary departure, and was granted
that relief, appeals from the refusal of the special inquiry officer to adjudicate, in these proceedings, the question of whether he is excludable
under section 212(a) (22) of the Immigration and Nationality Act.
The appeal will be dismissed.
Respondent is a 26-year-old married male alien, a native and citizen
of Peru. The relevant facts are set forth with particularity in the decision of the special inquiry officer and need not be repeated here. It
is sufficient to note that from 1956 to the present, respondent has been
in and out of the United States with at least four different visas. He has
been here as a visitor, a student, a representative of foreign information
media, and twice was admitted for permanent residence. He twice gave
up his permanent resident status for the admitted purpose of avoiding
service in the United States Armed Services. His testimony is that his
reason for the various status changes he made was also to avoid mill646

Interim Decision #1842
tary service, without violating any criminal statutes of the United
States. The basis for such actions was his alleged intention, at all times,
to remain.in this country only temporarily, eventually to return to his
native Peru.
Now 26 years old and married to an. American citizen, respondent
has apparently decided that be would like to settle, hers permanently.,
As a native of a Western Hemispheie country, he is ineligible to apply
for adjustment to permanent resident status in these proceedings, or
in any proceedings in the,United Stites. It will benecesiary for him
to leave this country and seek an. immigrant visa at 4 00neigate abroad.
Inasmuch as a determinatiOn of reepondent's, admits'sibility or excludability under section 212(a) (22) is neither necessary nor relevant
to the issues properly before the 'special inquiry officer in the instant
proceedings, we believe the special inquiry ()facer properly refused

to adjudicate this question. ,We hold further that he was -carp* in
considering respondent's testimony as tohis conduct vii-a-vis military
service, the,draft board, e tc., only in the context of its effect on. whether

or not he was deserving of the discretionary relief he sought. It was
his finding, which we see no reason to disturb, that in view of the
total picture respondent's actions do not warrant a finding that he
is ineligible for or unworthy of a grant of voluntary departure.
Counsel, who neither argued nor briefed his position on appeal,
stated in the Notice of Appeal:
• • • where counsel urgently requests such a ruling to be made, [whether
respondent left the United States with the intent to avoid or evade military
service and would thereby be inadmissible under section 212(a) (22)) as a matter of discretion the Special Inquiry Officer—assorolue he has jurisdiction to
make such ruling and assuming it would be germane to the issue—ought in
the exercise of discretion to rule upon it; and that therefore it was in error, in
the instant case, for the Special Inquiry Officer to decline to rule upon the issue
no tendered 4' * 4%1

We cannot agree with the position taken by counsel. First, the
question was not germane to the issue before the special inquiry officer; whether or not respondent was deportable for having overstayed his authorized period of stay as a representative of foreign
information media is in no way related to whether or not he may be
s Of interest is the case of Licea Gomez v. Paliod, 193 F. Stipp. 577, decided
October 11, 1960, in which the District Court, Northern District of Illinois,
upheld the refusal of the special inquiry officer, affirmed by the Board, to rule
iu exclusion proceedings on whether the applicant was excludable under section
212(a) (22) ; the alien had been refused a visa by the Consul on the basis of
that section, but was charged by the Government with being excludable only
because he was not in possession of a visa. The Court held the special inquiry
officer need go no further than that charge.
-

647

Interim Decision #1842
considered emokulable as one who left this country to avoid military
service in time of war or national emergency. Neither is a decision
as to whether ha would be excludable for such conduct, if it is established. that he has been guilty of it, relevant to his eligibility for voluntary departure. On this basis, such a decision by the special inquiry
officer would be a cluttering of the record with &ohm. Further, the
making of such a decision by the special inquiry officer would have
been a purely academic exercise, for the Consul before whom respondent must make his application for a visa would be in no way bound by
such a ruling of the special inquiry officer; see sections 104(a) and
221(g) of the Immigration and Nationality Act.
The ruling requested by counsel was not germane to the issues herein
and any decision or holding by the special inquiry officer would
settle no legal question and be dispositive of no issue. There was no
error in his refusal to rule on an extraneous question. We, therefore,
hold the appeal from that decision to be without sound legal basis.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

648


Interim Decision #2918

MATTER OF KLOETI

In Visa Petition Proceedings
CHI-N-22755
Decided by Regional Commissioner October 29,
(t) The beneficiary of a petition under 101(a)(15)(L) of the Act 8 U.S C. 1101(aX15)(L).

does not satisfy the qualifying experience requirement when the beneficiary's only
previous employMent for the petitioning firm was as a B4 nonimmigrant in the United
States.
(2) Matter of Continental Grain, 14 UN Dec. 140 (D.D. 1972), holds that a beneficiary's
one year qualifying experience with the petitioner must be wholly outside the United
States, except for brief trips to the United States to attend conferences, training
sessions, or similar functions.
(3) 8 C.F.R. 214.2(1)(2) requires a petitioner to submit "a statement describing the
capacity in which the beneficiary has been employed abroad" to support the petition
for 1..4 status.
ON BEHALF OF PETITIONER: Samuel D. Myers, Esquire
Freedman, Freedman & Myers, Ltd.
Suite 1902, 2 North LaSalle Street
Chicago, Illinois 60602

This matter is before me on appeal from the District Director's decision of December 31, 1981, denying the petition to classify the benefi
ciary as an intra-company transferee pursuant to section 101(a)(15)(L)
of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). as
amended. The appeal will be dismissed.
The petitioner is the United States branch of a Swiss firm, Ladmatic
AG, Flaesch/Switzerland, which designs and builds systems, robots,
fixtures and tools for grinding machines. The petitioning United States
branch was established in 1978 and has two employees, its president and
an engineer. It handles fixtures and tools for the Swiss-made grinding

machines which have been sold to United States customers. The petitioner has gross annual sales of $350,000.
The beneficiary is a 28-year-old native and citizen of Switzerland
whom the petitioner wishes to employ as a service engineer, a position
which allegedly involves specialized knowledge. As a service engineer,
the beneficiary would train operator:, fur the petitiuner's equipment in
its customers' plants and then stand by for maintenance and emergency

295

Interim Decision #2918
repairs. The beneficiary has been doing this work in the United States
since April 1979. This was the month in which he first began his employment with Ladmatie, the petitioner's overseas parent company. The
beneficiary was hired overseas expressly to be employed in the United
States as a service engineer. He was never employed in Switzerland by
the petitioner or its parent company. He entered the United States as a
nonimmigrant visitor for business (B 1) on April 11, 1979, to do set up
and repair work, his salary being paid from abroad by the petitioner's
parent firm. On May 20, 1980, the present petition was filed when it
became apparent that the beneficiary's services in the United States
would need to be continued for a longer period of time. Therefore, the
petitioner and its parent firm decided to seek the status of nonimmigrant intro-company transferee (L-1) for the beneficiary.
The employment contract between Ladmatic and the beneficiary was
submitted in support of this petition. It was dated March 28, 1979, and
-

-

indicates that the beneficiary was hired as of April 1, 1979, to be sent

directly to the United States to work as a service engineer in setting up
units of machine tools which had been delivered to United States plants
belonging to Ladmatic's customers. The beneficiary was hired to work
in the United States. Thus, it cannot be said that the beneficiary was
employed abroad by the petitioner or its affiliate or subsidiary in any
capacity prior to coming to the United States, notwithstanding that the
present visa petition was not filed until one year after the beneficiary's
employment with the petitioner began and that during this one year the
salary of the beneficiary was sent to him from Switzerland.
The petitioner was unable to comply with the requirement of federal
regulations at 8 C.F.R. 214.2(1)(2) that it submit "a statement describing the capacity in which the beneficiary has been employed abroad"
because the beneficiary had never been employed abroad by this

company. The beneficiary also is not entitled to intra-company transferee (L-1) nonimmigrant classification because by section 101(a)(15)(L)
of the Act the category is reserved for a nonimmigrant alien who,
immediately preceding the time of his application for admission into the United States,
has been employed continuously for one year by a firm . . . or an affiliate or subsidiary
thereof and who seeks to enter the United States temporarily in order to continue to
render his services to the same employer or a subsidiary or affiliate thereof....

The beneficiary applied for admission to the United States as a nonimmigrant visitor for business (B-1) in April 1979. At that time he had not
been employed for one year by Ladmatic. His contemplated application
for change of status is not an application for admission to the United
States such as section 101 (a)(15)(L) refers, rather it is an application for
a change of nonimmigrant status pursuant to section 248 of the Act, 8
U. S. C. 1258.
. It cannot be said that his employment within the United States as a
B-1 nonimmigrant from April 1979, until May 1980, (when this visa
296

Interim Decision #2918
petition was filed) was one year's qualifying employment within the rule
. of Matter of Continental Grain Co., 14 I&N Dec. 140 (D.D. 1972). The
beneficiary% employment here certainly was not merely an "intervening"
temporary stay in the .United States which only "interrupts" the 1year period of his prior overseas employment, as Continental Grain's
four month training program in the United States did, because the
present beneficiary has had no previous employinent whatsoever with

the petitioner or its Parent firm abroad. I conclude that the petition was
properly denied.
The precedent established in Continental Grain was that the one
year's continuous employment with the petitioner's firm, affiliate or
subsidiary which immediately preceded the beneficiary's application for
admission, must be wholly outside the United States. However, during
portions of that 'one-year period the beneficiary may spend some time in
the United States such as short training periods, conferences, and the
like. The petitioner has not shown that the beneficiary's employment
during the one year which preceded the filing of this petition was actually employment abroad which may have included merely some periods
of employment in the United States.
ORDER: The appeal is dismissed.

297


Interim Decision #1787

MATTER or ESTnADA-TENA
IN EXCLUSION PROCEEDINGS
A-18129779

Decided by Board September 1, 1967
application for admission to the United States notwithstanding a hearing In exclusion proceedings has been completed and
nothing remains but the rendering of the decision by the special inquiry
officer.
ExourDAELE : Act of 1952--4ection 212(a) (6). 18 U.S.O. 1182 ( it),(6) J—Allen
afflicted with tuberculosis.
An atisn may withdraw his

ON BrizArm or ApputhinT

Marion S. Richards, Esquire

110 West 0 Street
San Diego, California 92101

We take jurisdiction of the case by certification solely insofar as it
relates to the right of the applicant to withdraw his application for
admission. The facts have been fully set forth in the decision of the
special inquiry officer. Briefly, the record relates to a native and citizen of Mexico, 25 years old, male, single, who was admitted to the
United States for permanent residence on May 12,1962 at San Ysidro,
California. In 1968 he commenced to live with one Rozio Felix, a native and citizen of Mexico in Tijuana, Mexico and his two children
by her, born in Mexico on February 11, 1964 and April 23, 1966. In
February 1966, the nature of his residence was changed to that of a
commuter. In September 1966 in connection with his application for
admission to the United States, he was examined by a medical officer of
the United States Public Health Service who, on September 29, 1966,
issued a Class A Medical Certificate certifying that the applicant
was afflicted with pulmonary tuberculosis. We agree with the special
inquiry officer that the applicant's absence to Mexico where he resided
with his wife and two children was a meaningful departure; that an
alien who is in the status of a commuter-resident on the basis of the
very nature of that residence could not be considered as coming

429

Interim Decision #1787
within the purview of Rosenberg v. Fiend, 347 U.S. 449; and that
when the applicant sought to return to the United States in September
1966, he was seeking to make an entry into the United States. The
Class A Medical Certificate issued by the Public Health Service on
September 29, 1966 (Ex. 4) is conclusive in this proceeding? Under
the provisions of section 234 of the Act, there is no appeal to a Board
of Medical Officers of the United States Public Health Service with
respect to a Class A Certification under section 212(a) (6) of the Act.
Section 236(d) of the Act further provides that there is no appeal
frOm the decision of the special inquiry officer excluding an alien
under section 212 (a) (6) of the Act.
During the course of the hearing on February 21, 1967, the applicant,
through counsel, attempted to withdraw his request for admission at
that time (p. 28). However, the special inquiry officer refused to permit a. withdrawal and excluded the applicant on the ground stated in
-

the caption.

The special inquiry officer concedes that there is no precedent decision relating to the withdrawal of an application for admission nor is
there any regulation or statute which provides for the withdrawal of
an application for admission. He concludes that where the record has
been completed and nothing remains but to render a decision, it is not
considered that the withdrawal of the application for admission will
defeat the determination of the application.
We agree with the special inquiry officer that there is no precedent
decision or statute or regulation relating to the withdrawal of an application for admission. Nor have we been able to find any unreported
decisions relating to this subject. The very absence of pertinent decisions troubles us because in the long administration of the immigration laws, there must have been numerous cases involving this aspect.
Some light is thrown on this subject in Gordon and Rosenfield's excellent book on Immigration Law and Procedure. 2 The authors observed that it sometimes happens that during the hearing—usually one
held at a land border port—the applicant decides to withdraw his
application for entry, in order to avoid an order of exclusion or to enable him to assemble documents or meet other preliminary requirements. Such withdrawal ordinarily will be permitted.
The fact that withdrawals of application for admission are ordinarily permitted may explain the absence of any precedent or unreported decisions on this point. We see little to be gained by insisting
upon the entry of an order of exclusion and not permitting the with.

zSection 236(d) of the Immigration and Nationality Act.
Feansned by Banks and Company (3000 Edition), section a20e.

430

Interim Decision #1787
drawal of the application for admission. Certainly, the alien is under
no compulsion to enter the United States. He remains in Mexico, which
accomplishes the same result as if he were excluded and deported without the necessity of seeking permission to reapply within a year after
exclusion and deportation. In the event he is satisfied that the tuberculosis has been completely arrested, the applicant may again seek to
apply for admission to the United States. Or, he may not desire to seek
to enter the United States and to remain with his family in Mexico.
The decision should rest with the applicant. We will enter an order upholding his right to withdraw his application for admission and terminating the exclusion proceedings.
ORDER: It is ordered that the withdrawal by the applicant of his
application for admission to the United States be and the same is
. hereby approved.

It is pother ordered that the order entered in exclusion proceedings
be withdrawn and that the exclusion proceedings be terminated.

431


Interim Decision #1254

MATTER OF VARA-RODRIGUEZ

In DEPORTATION Proceedings
A-15685290

Decided by Board November 15, 1960
An alien who entered the United States as a crewman is not statutorily ineligible
for voluntary departure under section 244(f) of the Immigration and
Nationality Act (as amended by Act of Oct. 24, 1962: PL 87-885).
CHARGE :

Order: Act of 1952—Seetion 241 (a) (2) [8 U.S.C. 1251(a) (2)1—Nonimmigrant
remained longer than permitted.

The special inquiry officer directed the respondent's deportation and
the case is before us on certification.
The respondent is a 44-year-old married male, native and citizen of
Spain, who last entered the United States on or about September 29,
1960, at which time he was admitted as a nonimmigrant crewman for
the period during which his vessel remained in port but not exceeding
29 days. He remained beyond that time without authority and has
conceded his deportability on the charge stated in the order to show
cause.
The issues to be determined are (1) whether a crewman is statutorily ineligible for voluntary departure under section 244 of the
Immigration and Nationality Act (8 1J.S.C. 1254) as amended on
October 24, 1962 (76 Stat. 1247-1249; Public Law 87-885, 87th Congress) and (2) whether that relief should be granted in the exercise
of discretion. The special inquiry officer concluded that the respondent was statutorily eligible for voluntary departure but exercised
his discretion by denying that relief. The Service indicated that it
did not wish to express an opinion on the question of whether the
amendatory act does or does not preclude the granting of voluntary
departure to a crewman, preferring to have this Board rule on the
matter.
The statutory provision involved is section 4 of the Act of October

24, 1962, which amended section 244 of the Immigration and National76S-450-65---9

118

Interim Decision #1254
ity Act. As originally enacted and as amended, subsections (a), (b),
(c) and (d) have reference to suspension of deportation and subsection
(e) to voluntary departure. Several changes were made in the subsections relating to suspension of deportation. As a result, reference
in subsection (e) to paragraph (4) or (5) of subsection (a) was necessarily changed to paragraph (2) of subsection (a). With that exception, amended subsection (e) is identical with subsection (e) as it was

originally enacted. In substance, subsection (e) authorizes the Attorney General, in his discretion, to "permit any alien under deportation proceedings * * to depart voluntarily from the United States
at his own expense in lieu of deportation" if he establishes good moral
character for five years. This is limited by the language excluding
certain aliens within the provisions of enumerated paragraphs of section 241(a) but even such aliens may be granted voluntary departure
if they are eligible for suspension of deportation. Insofar as concerns
subsection (e) itself, which is the only subsection dealing with voluntary departure, that relief may be granted to any cai,en under deporta-

tion proceedings with the one limited exception we have mentioned.
There was added to section 244 by the Act of October 24, 1962 a
new subsection (f) reading as follows :
(f) No provision of this section shall be applicable to an alien who (1) entered
the United States as a crewman ; or (2) was admitted to the United States pur-

suant to section 101(a) (15) (3) or has acquired such status after admission to

the United States; or (3) is a native of any country contiguous to the United
States or of any adjacent island named in section 101(b) (5) : Provided, That
the Attorney General may in his discretion agree to the granting of suspension
of deportation to an alien speeified In clause (3) of this subsection If such alien
establishes to the satisfaction of the Attorney General that he is ineligible to
obtain a nonquota immigrant visa.

A literal reading of sub.Rection (f) would indicate that it applies,
not only to the subsections dealing with suspension of deportation,
but to subsection (e) which relates to voluntary departure. There
may have been cogent reasons why Congress prohibited the granting
of suspension of deportation to aliens who entered the United States
as crewmen, or who were admitted under section 101(a) (15) (J) or
who are natives of countries contiguous to the United States or adjacent islands. With regard to a crewman there was a possibility
under prior law that such an alien, who had gained entry to the United
States by the device of deserting his ship, could eventually obtain
suspension of deportation and thus adjust his immigration status
to that of a legal permanent resident. Such a possibility added incentive for other crewmen to desert their ships and remain illegally in
the United States. On the other hand, voluntary departure confers
no right to remain in this country permanently and is ordinarily advantageous to the Government because the alien must pay the expenses
114

Interim Decision #1254
relating to his departure, and the delays which sometimes result from
enforced expulsion are eliminated.
It is a well-settled rule of statutory construction that a case may be
within the meaning of a statute and not within its letter or within
its letter and not within its meaning, and that a statute should be construed so as to carry out the intent of the legislature, although such
construction may seem contrary to the letter of the statute. Eltewart
v. Kahn, 78 U.S. 493, 504 (1871) ; Church of the Holy Trinity v.
United States,143 U.S. 457 (1892).
We have carefully examined the legislative history of the statutory
provision here involved, and we observe that there is a complete absence
of anything which would indicate an intention of changing the original
provisions of section 244(e) under which voluntary departure could
be granted to any alien who met the requirements of that subsection.

The discussion in the Senate as it appears in the Congressional Record
of October 13, 1962 (Vol. 108, p. 22169) relates entirely to adjustment
of status through suspension of deportation without any reference
to the relief of voluntary departure. The Congressional Record of
October 12, 1962 (Vol. 108, p. 22153) shows that in. the House of
Representatives Honorable Francis K Walter, in explaining the bill,
stated in part as follows :
Basic principles of a sound immigration policy and our continuous concern
to preserve the integrity of the very important international educational excuange.program caused the conferees to exclude from the benefits of this legislation those aliens who enter the United States as crewmen or exchange visitors.
Similar exclusion, with specified exceptions applies to natives of countries and
islands contiguous or adjacent to the United States.
If any alien in these classes becomes subject to deportation proceedings,
maximum relief which could be accorded Mm would be discretionary action. by
the Attorney General who may permit such. alien to leave the United States
without prejudice to his future, lawful entry, provided that he or she leaves the
United States promptly when ordered by the Attorney General to do so. (Emphasis supplied.)

We believe that Congressman Walter's remarks make it quite clear
that it was the intention and understanding of Congress that the
provisions of subsection (f) of section 244 applied only to the subsections pertaining to suspension of deportation and were not intended
to apply to subsection (e) which authorizes the granting of voluntary
departure. In view of the foregoing, it is our considered opinion that
section 244 (f) does not preclude the granting of voluntary departure
to an alien who entered the United States as a crewman. The special
inquiry °facer concluded that the respondent was statutorily eligible
for voluntary departure and apparently found that good moral
character for five years had been established. We concur in these
conclusions.
115

Interim Decision #1254
With respect to the remaining issue, it is obvious from this record
that the respondent was not one who secured employment as a seaman
for the purpose of coming to the United States and deserting his ship.

He stated that he worked as a seaman for about 18 years and came
to the United States on about 15 to 18 occasions, his first arrival being
about 1044. He testified that he departed with his vessel each time
except on his last arrival and an arrival in 1954 when he inadvertently
failed to return to his vessel before its departure. At that time he
remained ashore until 1956 when he was apprehended by the Service
and was permitted to depart voluntarily. He testified that he has
sufficient funds for his departure and is ready and willing to depart
voluntarily at his own expense if that relief is granted. His wife and
three children reside in Spain and are supported by the respondent.

We conclude that this case merits the granting of voluntary departure,
and this relief will be granted in the exercise of our discretion. Accordingly, the following order will be entered.
ORDER: It is ordered that the appeal be sustained; that the outstanding order of deportation be withdrawn ; and that the alien be
permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such
period of time, and under such conditions as the officer-in-charge of
the District deems appropriate.
It is further ordered that if the alien does not depart from the United
States in accordance with the foregoing, the order of deportation be

reinstated and executed.

116


MATTER OF P—
In DEPORTATION Proceedings
A-8421656
Decided by Attorney General May 24,1961
resentencing unless sole purpose in granting coram nobis was to provide
opportunity for recommendation.
If the court's sole basis in granting a writ of error coram nobis is to provide

Recommendation against deportation—Effective when made at time of

tation, the mthaean opportunity to mare a recommenuation
quent recommendation is ineffective. If it Is clear that this is not the sole
basis upon which the court acted—as when corani nobis is granted because
of a constitutional defect in the prior conviction=the recommendation against
deportation made following retrial satisfies the requirement in section
241(b) of the Act that it must be made at the time of "first imposing judgment." (Overrules Mutter of P—, 8-689.)
BEFORE THE ATTORNEY GENERAL

DISCUSSION: This deportation matter is before me pursuant to
a certification under 8 CFR 3.1(h) (1) (i) for a review of the order
of the Board of Immigration Appeals dated June 21, 1960, reversing the special inquiry officer and directing the respondent's
deportation.
The proceeding arises under section 241(a) (4) of the Immigration and Nationality Act, 66 Stat. 204, as amended, 8 U.S.C. 1251
(a) (4), providing for the deportation of any alien's • • who at any time after entry is convicted of two crimes involving moral
,

turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions
were in a single trial.

The respondent was admitted to the United States for permanent
residence in 1952. He was convicted of disorderly conduct in violation of section 722(8) of the Penal Law of New York in September 1954, and again in March 1959. The charges involved homosexual acts. It is conceded that the offenses constitute crimes involving moral turpitude. See Babouris v. Esperdy, 269 F.2d 621 (C.A.
2. 1959), cert. den. 362 U.S. 913.
The 1959 non v i eti on was set aside by the New York trial court
on a writ of error coram nobis. On October 2, 1959, the respondent
293

was retried and again convicted on his plea of guilty. At this
second trial the court recommended against his deportation. Section 241(b) of the Immigration and Nationality Act, 66 Stat. 208,
8 U.S.C. 1251 (b), provides that an alien subject to deportation
under section 241(a) (4) shall not be deported.
if the court sentencing such alien for such crime shall make, at the
time of first imposing Judgment or passing sentence, or within thirty days
thereafter, a recommendation to the Attorney General that such alien not be
deported, due notice having been given prior to making such recommendation
to representatives of the interested State, the Service, and prosecution
authorities * * *.

The question is whether the recommendation of the court against
deportation satisfies the requirement of section 241(b) that to be
effective it must he made "at the time of first imposing judgment
or passing sentence." The Board of Immigration Appeals has
concluded that the time of first imposing judgment occurred in
March 1959, holding that under the rule in United States eir. rel.

267 F.2d 72 (C.A. 2, 1959), the coram nobis
proceeding had no effect for the purpose of section 241 (b). In
that case the court stated that section 241(b)
• * * announces a federal standard for the determination of what constitutes
Piperkoff v. Esperdy,

the first entry of judgment or the passing of sentence. While we may assume that in many or even most cases that standard incorporates and adopts
the relevant state law, we hold that it does not do so where the sole basis

for the vacation and reentry of judgment is to repair the omission to make
the statutory recommendation against deportation permitted by §1251(b)
[sec. 241(b)]. To hold otherwise would be to defeat the plain command of
the statute, which strictly, and for good purpose, limits the time within which
the extraordinary power vested in the trial court must be exercised.* • •
[267 F.2d at page 75]

The Board's "examination of the various steps in the coraan, nobis
proceeding, particularly the reference to deportation and the plea
of guilty ,.7.7.1on rearraignment," led it to the conclusion that the
proceeding was "for the sole purpose of petitioning the court to make
the statutory recommendation against deportation * * *" and it was,
therefore, untimely and ineffectual.
Although the Board's decision is somewhat unclear, it apparently was of the view that under Piperkulj the test is the accused's
motive—Was the accused's "sole purpose" in seeking coram nobis
to obtain a recommendation against deportation? As I read Piperknff, the test to he applied under section 241(b) in coram 11 obis
cases is whether the court's "sole basis" for granting coram nobis

was to make the statutory recommendation against deportation. The
accused's motives or purposes in seeking coram nobis are immaterial,
except insofar as they throw light upon the court's basis for vacating the conviction.
294

The record shows the following In his petition for corm, nobis,

the respondent set forth three grounds for seeking the writ: (1) at
the time of pleading guilty to the March 1959 offense he was not
represented by counsel; (2) having requested that the charges be
translated into German and been refused, he was unable to understand the charges against him; and (3) the conviction could
result in his deportation. At the hearing on the petition, only the
first two grounds were urged. There was no mention of deportation.
The state district attorney, agreeing that the trial proceeding raised
a substantial question of waiver of counsel and failure to understand
the charges, did not oppose granting the writ. The court vacated
the conviction and set the case for retrial. As indicated above, the
respondent subsequently pleaded guilty and was again convicted on
October 2, 1959.
On the basis of these established facts, I have no difficulty in concluding that the opportunity to recommend against deportation was
not the court's "sole basis" for vacating the March 1959 conviction.
Although the court did not. announce, the basis for its decision, it is
clear that it granted corm, nobis because of a constitutional defect in
the prior conviction?
It, therefore, follows that for the purpose of section 241(b) the
March 1959 judgment of conviction has no significance. The time
of "first imposing judgment" was October 2, 1959, and the court's
recommendation against deportation at that time satisfied the statutory requirement. Accordingly, the Board's order of June 21, 1960,
is reversed.
Under the New York Constitution, the accused has a right to be represented by counsel at any trial, and to be informed of the charges against him.
N.Y. Constitution, Art. I, sec. 6. New York courts have recognized coram
nobis as a proper procedure for attacking convictions where the accused was
not represented by counsel. People v. McCullough, 300 N.Y. 107, 89 N.E.2d
385 (1948) ; Bojinoff v. Pantile., 299 N.Y. 145. 85 N.E.2d 909 (1949). A New
York court also found that a refusal to reread the charges to a defendant
who was unable to understand them the first time, was a denial of due process.
People v. Tat or, 189 Misc. 523, 71 N.Y.S.2d 577 (County Ct., 1947)..

295


•
•
Interim Decisions- 4k1433`

MATTER' OF imat
In Visa Petition Proceedings
A-12990543 ,

Decided by Bicard October .19, and December Si, 1964
Petition of an adult naturalized United States citizen, who was adopted in
China during Infancy, is approved to accord her natural mother preference'
quota classification under section 203(a) (2), Immigration and Nationality
Act. as amended, notwithstanding the proviso to section 101(b) (1) (E) of the
Act, since petitioner—who entered this country not as an adopted child but
as the nonquota wife of a C. S. citizen and whose adoptive father is dead
and her adoptive mother, not having been heard from in many years, is
presumed dead—has received no ironligration benefit through her adoptive
status and as qt matter of either law or fact is in no position to clef)/ such
benefit through that status.
BEFORE THE BOARD

Petitioner, a native of China and a naturalized citizen of this
country, seeks second preference quota status for her natural mother.
The District Director has revoked the visa petition which petitioner
filed for that purpose.
A short time after petitioner's birth a family that lived near her
village in China adopted her because her mother was ill. The
Service approved the petition with knowledge of petitioner's adoptive
status. An immigration officer, who interviewed petitioner preliminarily to the revocation of the petition, said that the approval
was erroneous.
The District Director's decision rests upon his conclusion that the

Immigration end Nationality Act provides that the natural parents
of an adopted child shall (by virtue of such parentage) be accorded
no rights, privileges, or status under the Act. We tbinlr his statement inaccurately reflects the statutory provision. Our reasoning
agrees substantially with petitioner's brief in support of her appeal.
55

Interim Decision #1433
The pertinent portion of the statute reads :
As used in titles I and II—The term "child" means an unmarried person ender twenty-one years of age who is•
•
•
•
•
*
(E) a child adopted while under the age of fourteen years if the child
has thereafter been in the legal custody of and has resided with, the
adopting parent or parents for at least two years: Provided, That no
natural parent of any such adopted child shall thereafter, by virtue of such
parentage, be accorded any right, privilege, or status under this Act
•
•
•
•
•
•
•
•

Manifestly, the inclusion of an adopted child in the definition of the
term "child" seeks to provide some immigration benefit for the child
through\ his relationship to his adoptive parent or parents. The
immediate purpose is to enable an adopted child, who meets the section's conditions and who otherwise could not immigrate because of
quota restrictions, to accompany his adoptive parent or parents to
this country, or to join such parent or parents here. Reading the
section as a whole, instead of considering only the language of subparagraph (E), makes clear the section's intended scope.
In referring to "such adopted child" the proviso obviously means
an adopted.child who under the terms of the section is eligible for—
or has obtained—an immigration benefit. The effect which the District Director gives to the proviso overlooks the significance of the
word. "such." If, as his decision holds, the statute precludes the
natural parent of any adopted child from obtaining by reason of
blood relationship to that child any right, privilege, or status under
the Aot, the proviso should omit the word "such" and read:
Provided,, That no natural parent of any adopted child shall thereafter, by
Me

virtue of each parentage, be steeorded any right, privilege, or etetnR under

Act.

Thus, both the section as a whole and the proviso refer to an adopted
child in relation to eligibilty through adoption for some immigration benefit, rather than either adopted children in general, or,
specifically, children who have been adopted while under the age of
14, have thereafter been in the legal custody of, and resided with,
the adoptive parent or parents for two years or more, but who have
received no immigration benefit thereby.
Petitioner came to this country not as an adopted child but as the
•

wife of a United. States citizen. She is now 48 years old. Her

counsel says her adoptive father died in China about 1951 and her
Section 101(b) (1) (E), Immigration and Nationality Act, added by Act of
September ii, 195T, 71 stat. 689, 8 D.S.O. 1101(5) (1) (E).
'

56

Interim .Decision #1483
adoptive mother has not been heard. from in many years and is
presumed dead.
In Matter of B , cited by petitioner's counsel, we held that an
adopted Child who as a matter of law could not obtain through the
adoption any immigration right, privilege, or status could. confer
second. preference quota status upon _her natural parents' Here,
petitioner did not obtain any immigration right, privilege, or status
through her adoption and as a matter of fact could not now obtain
any immigration benefit from that status. We see no appreciable
—

difference in the two situations.
We consider the Proviso in subparagraph (E) of the definition

of the term "child" for purposes of titles I and II of the Act is
inapplicable when an adopted child has received no immigration
banpfit from his adoptive status and as a matter of either law or
fact is in no position to claim such benefit. Therefore, we hold that
petitioner's adoption is immaterial here and does not affect 'beneficiary's eligibility for classification as a second preference quota immigrant based upon her alleged blood relationship to petitioner.! We
shall sustain the appeal
ORDER: It is ordered that the District Director's decision revoking the petition to classify status of alien relative for issuance
of immigration visa filed by petitioner for her natural mother_be
reversed and that the petition stand as approved.
=FORE THE BOARD

The Service moves for reconsideration of our order of October 19,
1904, which reversed the District Director's decision revoking approval of the visa petition filed in behalf of petitioner's mother.'
Counsel for the Service contends section 101(b) (1) (E) of the Immigration. and Nationality Act bars approval of the petition. The
District Director took the same , position in his decision. We adhere
to our previous ruling.
The Service's counsel's concern .with the statutory prohibition has
led him into the same error which the District Director committed—
interpreting the statute mechanically and unrealistically. What we
said in our previous order about the scope of section 101(b) (1) (E)'
applies with equal force to this motion. That statutory provision

simply has no applicability here.
'9 L & N. Dec. 46.
'We note, moreover, that this record ialls.to establish that petitioner was
legally adopted under Chinese law.
'The motion seeks - also reopening of the proceedings for the presentation of

farther evidence. We shall consider this aspect later.

at

Interim Decision #1433
We believe the following hypothetical situations point up that
inapplicability. In each we assume the factual situation here, as set
forth in our previous order, except that we vary the' facts with
respect to the adoption. We also assunie , that the adoption in each
case is valid under Chinese law and that the adoptive parents are
deceased.
Case A. Petitioner was adopted when over the age of 14 years.'
Case B. Petitioner was adopted when under the age of 14 years but following the adoption resided with them for less than two years.
Case C. Petitioner, as here, was adopted when under the age of 14 years
and following the adoption was in the legal onatody

and resided with them for two years or more.

a

the adopting parents,

Apparently, the Service would approve petitions for petitioner's
natural mother in Cases A and B but deny such a petition in Case C.
In the circumstances we have assumed, however, we discern no special
magic in the fact that the situation in Case 0 happens to fit the
language which immediately precedes the proviso in section
101(b) (1) (B). That language was not designed for the situations

we envisage. It limits the situations in which an adopted child may
benefit under the immigration laws through, its relationship to its
adoptive parents. Congress particularized the adopted child who
might so benefit in order to forestall use of the provision simply as a
means of evading other provisions of the law. Thus, the language
which precedes the proviso loses its force when considered out of the
context of the adoptive relationship In our situations, that language has never been applied—and could not be applied—to accord

any status under the immigration laws. Therefore, the language
should have no more significance in one of the situations than in the
others.
In the proviso, Congress particularized the natural parent in the
same manner. The proviso does not preclude a petition by any
adopted. person for a natural parent. It precludes such a petition
only if the petitioner has obtained a benefit under the immigration
laws, or may obtain some benefit under those laws, by reason of his
adopted status. Such person must, of course, qualify under the
language preceding the proviso in order to be eligible for the benefit
We. consider, however, the language of the proviso also loses its
force where the adopted person, even though mechanically qualifying undert the definition, has never used, and never could use, his
qualifications for immigration purposes. Thus, looking at the statutory provision as a whole, petitioner's adoption under circumstances
Essentially, this was the situation in Matter of B—, 9 1. & N. Dee. 46.
58

Interim Decision #1433
which meet the statutory requirements in the definition of an adopted
child is immaterial for the purposes here considered.
In addition to applying section 101(b) (1) (B), erroneously, the
Service's motion misconstrues the effect of our decision.' -We -believe
the Service's difficulty arises primarily -from misstatement of the
issue. The motion states the issue to be whether' a child, whO in all
respects comes within the definition of an adopted child in the immigration and Nationality Act, can have a visa petition approved for
her natural pare& on the ground that the child had not gaineda
benefit tinder the immigration laws by reason of the adoption. As
we have seen, petitioner "4:100a not "in all respects" come within the
definition of an adopted child in the Immigration and Nationality
Act. Actually she does not come within' itat all.
Assuming that petitioner was legally adopted, the circumstances of
her adoption merely coincide mechanically with the conditions imposed by the definition. Moreover, the criterion heh is not that the
adopted person has not at the time of petitioning already obtained

a benefit under the immigration laws. Our decision contemplates
that petitioner not only has not gained a benefit under the immigration laws through her adoption but could not 'now or ever obtain
such a benefit. Both conditions must be present.
We believe the foregoing statement disposes of the .Serrici's con'tendon that our holding permits an adopted child to haie greater
rights than a natural child in that the adopted child could petition
for two sets of parents and two sets of brothers and sisters. We need
not discuss the Service's suggestion that petitioner might be considered to make an election in favor of tho natural paront although
the motion urges that an adopted person shonld not have an election.
There is no election-here. Beneficiary is the only mother 'petitioner
now has. The possibility that petitioner might someday be in a position to petition for her adoptive mother is so remote that it can. have
no part in any realistic aPpraisal Of the situation.
The motion suggests that our original decision should have been
based upon the failure of the record to show petitioner has been
legally adopted under Chinese law and urges that we remand the
case for further evidence on this point." The petition was initially
approved on October 15,1962. .Beneficiary is now Over 74 years old:
Although we noted in our original decision:that the record did not
properly develop petitioner's adoptive status, we were not disposed to
—

remand the ease to Overcome deficiencies we considered to be immaterial.

If anything, we are less disposed to do so now.
59

Interim Decision #1433
Finally, the Service declares that our order of October 19, 1964
departs from our other decisions relating to section 101(b) (1) (E).
The motion attaches significance to our resting our decision in Matter
of B

—

upon the age of the child at the tirao of adoption rather than

the child's nonacquisition of any benefits wider the immigration laws
through the adoption.3 We see no such significance. The situation
merely presented an obvious basis for decision apart from any question of benefits arising from the adoption. Moreover, the case was
before us on certification to consider the District Director's decision
approving the petition. Apparently, the District Director reached
his decision because of petitioner's age when adopted.
The motion also cites Matter of Martinelli, unpublished.* There,
we first approved a petition by, a mother for her natural daughter,
who had been adopted in Italy at the age of 17.. We noted that beneficiary was over 14 years of age when adopted but preferred to rest
our decision upon the failure of any immigration status or benefit to
result from the adoption. The Service moved for reconsideration of
our order. On reconsideration we found to be appropriate adoption

of the doctrine of Matter of B , which hid been decided subsequent
to our original order in Martinelli and just a few days before the
Service's motion. Therefore, we concluded that the petition should
be approved on the basis of petitioner's daughter's age at the time of
adoption. Our final action in Martinelli, did not necessarily repudiate the previous basis for our decision. As in Matter of B—, we
—

simply used another, and perhaps then more convenient, basis for

decision.
In the present motion, counsel for the Service attributes to Matter
the rule- that the determining factor is whether the child
of
comes within the statutory definition of an adopted child. Although
we do not find this specific language in either B— or Martinelli, we
believe it may be a fair -statement of the rule, but only if properly
understood. For example, as we have emphasized, we consider petitioner here does not "come within" the statutory definition' of an
adopted child.
In Matter of K—, discussed also in the Service's motion, we held
that, because of the provisions of section 101(b) (1) (E), in adoption
at the age of two years precluded the -natural parent of the adopted
child from asserting any right, privilege or status with respect to the
child." The natural mother, a permanent resident of this country,
*Supra°.
4 A 11490302. decided October 19, 1960.
.
L 8; N. Dee. 116.
-

60•

Interim Decision #1438
had Bled. the -visa petition. The 'opinion is brief and contains no
facts about the adoptive paients. Ncithini indicates whether we considered the possibility of 'disregarding the adoption on any basis.
Some of the language in the opinion is quite broad and must be read
in the light of our statements in other matters involving the definition of an. adopted child for immigration purposes—including our
opinion here. We do not consider Matter of K to be inconsistent
with our present holding. The circumstances in which that opinion
was rendered do not sufficiently appear to determine -whether there is
—

any conflict.

Matter of 8 , in which petitioner had been adopted at 18 years of
age and was petitioning for his natural parents, must also be read in
the light Of our ruling here" The statement from Matter of 8quoted in the Service's motion—to tho effect that the adoption
changed, for immigration purposes, petitioner's preadoption relationship to his natural parents applies in many, if not most situations,
but not in all.
None of the decisions which we have discussed squarely meet the
question of the applicability of section 101(b) (1) (E) where the
adoptive parents are deceased, or presumed deceased. In Matter of
B the adoptive parents, who were petitioner's aunt and uncle were
living in Arizona. Martinelli's adoptive parents—again an aunt and
uncle—were living in Italy. Matter of K does not reveal whether
the adoptive parents were alive or dead. The adoptive parents in
Matter of 8 were living in New York City.
Although we answered the Service's motion when we pointed out
the inapplicability here of the statutory definition of an adopted
—

—

—

—

child, we have dismissed it at some length in an attempt to (Nun/Tome

much apparent confusion concerning the effect of the definition.
Upon cursory reading, the provision appears to support the Service's
position. The District Director—as well, apparently, as the consular
officer .who returned the approved petition to the Service for consideration under the definition—labored under the same misapprehension as the Service's counsel here. We have not previously had
occasion to consider the precise situation now before us. As a result,
some of the language of our prior opinions has not served to dispel
confusion of thought in this area.
We affirm nur order of October 19, 1964. Matter of B , supra,
laid down the rule that an adopted child who could not benefit by the
adoption under the immigration laws because not within the definition of an adopted child under section 101(b) (1) (E) was not dis—

& N. Dec. 58Y.

61

Interim Decision #1433 '
qualified by the proviso to that sub-section from receiving the benefit
from his natural parents. Our present decision holds that the prohibition contained in the proviso also has no application where an
adopted child has received no benefit under the immigration laws
through the adoptive parent or parents and cannot in the future
receive such a benefit, as in the instant case where the adoptive parents are dead (the death of one is proved; the death of the other is
presumed). Hence, there is no reason for not approving the petition
for the natural mother of the petitioner. We deny the motion.
ORDER: It is ordered that the Service's motion be, and hereby is,
denied.

62


Interim Decision #2771

MATTER OF ALONZO
In Section 212(1) Proceedings
A-22449562
A-22449563
Decided by Commissioner May 25, 1979
(1) The birth of a United States citizen child, whether or not born during a lawful stay of
the parent(s) in the United States, is a favorable factor and must be accorded
considerable weight in the adjudication of an application for the relief of a waiver of
grounds of excludability under section 212(i) of the Immigration and Nationality Act.,
8 U.S.C. 1192(1).
(2) The section 212(i) waiver should be granted in the exercise of discretion, where
favorable factors are present, and there is absence of countervailing adverse factors.
(2) Ia a section 212(i) waiver rase, there is no statutory or other requirement that
extreme hardship be shown.
(4) Where applicants sought waiver of excludability based on violation of section
212(aX19) of the Act, S U.S.C. 1182(a)(19), for obtaining visas by fraud and misrepresentation, such violation was not to be considered an adverse factor because it
was the violation for which they sought to be forgiven.
ON BEHALF OF APPLICANTS: Raymond Campos, Esquire

Vivero & Campos
304 South Broadway
Suite 310
Los Angeles, California 90013

This is before the Commissioner on certification pursuant to 8 C.F.R.
103.4. On March 16, 1978, the District Director, in an appellate decision, upheld the decision of the Officer -in-Charge which denied the
applications on the grounds that unfavorable factors outweighed the
favorable ones and favorable discretion was not warranted in the
cases.
The applicants are husband and wife, natives and citizens of Mexico,
34 and 26 years of age, respectively. They are the parents of two
children, one of which was born in the United States and a citizen
thereof. The other child is a citizen of Mexico. The applicants and their
alien child have applied for immigrant visas at the American Consulate in Tijuana, Baja California, Mexico and have been found eligible
292

Interim. Decision #2771
except for the excludability of the applicant-spouses under section
212(a)(19) of the Immigration and Nationality Act. The husband was
found excludable under this section of law for having obtained a B-2
nonimmigrant visa by fraud on November 7, 1977, and the wife was
likewise found excludable for having obtained nonimmigrant visas by
fraud on March 25, 1976, and October 20, 1976. The fraud consisted of
having informed the consular officers that the visas were desired for
tourist purposes when in fact it was their intent to return to reside and
work in the United States.
The records reflect that the male applicant was present in the United
States for the majority of the time from 1971 until his departure to
Mexico in 1977. His wife, from 1973 until 1977. During this time their
United States citizen child was born and the husband was employed
without authorization.
The Officer-in-Charge in his decision, took into account the age of the
United States citizen child, now 5 years of age, the fact that she had
never attended school in the United State .% and that she spoke no
language other than Spanish_ From this, he concluded there would be
no cultural shock if the child remained in Mexico with her parents. We
also pointed out that the birth of a child in the United States after
December 31, 1976, would not accord a benefit to the parents as it did
prior to the amendment to the Act on the above date. The birth of a
child before or after the above date is important in that birth prior to
that date exempted an alien parent from the labor certification requirement of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14) whereas
birth after that date provided no such exemption. In this, the Officerin-Charge sought to diminish the effect of the birth of the child as a
favorable factor, which he described as an "accident of birth." As an
adverse factor, he pointed to the applicants' demonstrated disregard of
the law, including a statement in the decision not supported by the
record, that the applicants have smuggled their Mexican citizen child

into the United States.
In weighing the factors present in the case, the Officer-in-Charge
concluded that there were no favorable or compelling humanitarian or
other factors present and the favorable exercise of the Attorney
General's discretion was not warranted.
In a brief submitted by the applicants' attorney in support of the
appeal filed with the District Director he claims that relief should be
granted for three reasons: (1) the applicants are parents of a United
States citizen; (2) they are persons of good moral character; (3) the
denial of the waiver would cause extreme hardship to them and to
their United States citizen child. In expanding on the third part of this
theme, he points out the rights of our citizens to reside in and receive
the benefits of our country. He likewise contested the view of the
293

Interim Decision #2771
Officer-in-Charge that hardship would not accrue to the child by her
forced absence from the United States.
The District Director, in his appellate decision, countered the attorney's argument by stating that courts have consistently held that
the exclusion of a child's parents does not deprive the child of any
constitutional rights. He also pointed out that the applicants have no
family ties in the United States other then one sister of the male
applicant, and that their past entries into the United States evidenced

a disrespect of the law. As did the Officer-in-Charge, he depreciated the
effect of the birth of the child in the United States while the parents
were here in an illegal status, which he viewed as an unfair advantage
over other aliens not in a similar familial condition. He concluded that
there was an absence of substantial equities in the case and upheld the
decision of the Officer-in-Charge.
Section 212(i) of the Act reads as follows:
(i) An alien who is the spouse, parent, or child of a United States citizen or of an alien
lawfully admitted for permanent residence and who is excludable because (1) he seeks
or has sought to procure, or has procured, a visa or other documentation. or entry into
the United States by fraud or misrepresentation, or (2) he admits the commission of
perjury in connection therewith, may be granted a visa and admitted to the United
States for permanent residence, if otherwise admissible, if the Attorney Gerneral in
his rlisPration has consented to the alien's applying or reapplying for a visa and for
admission to the United States.

This section of law is significantly different from section 212(h) of
the Act, 8 U.S.C. 1182(h), which precedes it. The same relationship is
required but section 212(h) has the added requirement that extreme
hardship must be shown. From this difference we must conclude that
Congress intended that different standards be applied to the two parts
with a more liberal standard to be applied to section 212(1), otherwise

they would read the same.
In the cases at hand, statutory eligibility is present. The remaining
requirement is to determine whether favorable discretion is in order.
To make this determination we must look at the record. The United
States citizen child is a favorable factor. It will be deprived to some
extent if it must remain with its parents in Mexico. Obtaining visas by
fraud and misrepresentation shows disrespect for the law, but this is
the action for which they seek to be forgiven and should not be held as
an adverse factor. Other than this, there is nothing of record which
indicates that they are not persons of good moral character.
It is felt that the birth of a United States citizen child, whether born
during a lawful of unlawful stay of the parent or parents in the United
States, must be accorded considerable weight in the adjudication of a

section 212(i) waiver application, and in the absence of other strong
countervailing factors, the application for waiver should be granted.
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There should be no showing of extreme or unusual hardship required.
This circumstance should not result, however, in pro forma approval of
such applications when the entry of the alien would be against the
public interest of the United States or where other strong adverse
factors are present. No simple formula is available nor desirable in
adjudicating those applications, but must be approached on an individual basis. As a general rule, however, the requisite relationship is
sufficient to result in the favorable exercise of discretion absent substantially unfavorable factors.
A careful review of the cases at hand indicates that they meet the
above criteria and they will be approved.
ORDER. The decision of the District Director is withdrawn and
the applications are approved.

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Matter of Valentine C. MORGAN, Respondent
Decided March 18, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Larceny in the third degree under section 53a-124(a) of the Connecticut General Statutes
is not a theft offense aggravated felony under section 101(a)(43)(G) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because it incorporates by
reference a definition of “larceny” under section 53a-119 of the Connecticut General
Statutes that is overbroad and indivisible with respect to the generic definition of a theft
offense. Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009), and Abimbola v. Ashcroft,
378 F.3d 173 (2d Cir. 2004), not followed.
FOR THE RESPONDENT: Shernette G. Noyes, Esquire, Stratford, Connecticut
BEFORE: Board Panel: CASSIDY, COUCH, and OWEN, Appellate Immigration Judges.
OWEN, Appellate Immigration Judge:

In a decision dated July 9, 2018, the Immigration Judge found the
respondent removable as charged and denied his applications for relief. The
respondent has appealed from that decision, arguing, in part, that he is not
removable based on a conviction for an aggravated felony. The respondent’s
appeal will be sustained, in part, and the record will be remanded.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Jamaica and a lawful permanent
resident of the United States since 1991. He has three convictions that are
pertinent here: two convictions for possession of narcotics in violation of
section 21a-279(a) of the Connecticut General Statutes and a 2006 conviction
for attempt to commit larceny in the third degree in violation of sections
53a-124 and 53a-49 of the Connecticut General Statutes, for which he was
sentenced to a term of imprisonment of 1 year.
The Department of Homeland Security (“DHS”) charged the respondent
with removability under sections 237(a)(2)(A)(iii) and (B)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i)
(2018), for having been convicted of an aggravated felony as defined in
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sections 101(a)(43)(G) and (U) of the Act, 8 U.S.C. § 1101(a)(43)(G), (U)
(2018), and for a controlled substance offense. The Immigration Judge
sustained the charges of removability. As relief from removal, the
respondent applied for asylum under section 208(a)(1) of the Act, 8 U.S.C.
§ 1158(a)(1) (2018), withholding of removal under section 241(b)(3) of the
Act, 8 U.S.C. § 1231(b)(3) (2018), and protection under the regulations
implementing the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature Dec.
10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Dec.
A/RES/39/708 (1984) (“Convention Against Torture”). 1 The Immigration
Judge concluded that the respondent was ineligible for asylum because of his
conviction of an aggravated felony. See sections 208(b)(2)(A)(ii), (B)(i) of
the Act. The Immigration Judge further denied the respondent’s applications
for withholding of removal or protection under the Convention Against
Torture.
The respondent filed a timely appeal. He argues that these proceedings
should be terminated, that he has not been convicted of an aggravated felony,
and that he should be granted relief. 2

II. ANALYSIS
A. Termination
We will deny the respondent’s motion to terminate these proceedings in
light of Pereira v. Sessions, 138 S. Ct. 2105 (2018). Although the
respondent’s notice to appear did not include the time and place of his initial
removal hearing, he was later served with a compliant notice of hearing
specifying this information and appeared at all subsequent hearings.
Therefore, jurisdiction properly vested with the Immigration Court and
neither the United States Supreme Court’s decision in Pereira v. Sessions,
nor its decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), require us
to terminate removal proceedings. See Matter of Arambula-Bravo, 28 I&N
Dec. 388, 390–92 (BIA 2021); see also Chery v. Garland, 16 F.4th 980,
986–87 (2d Cir. 2021).
1

The respondent also indicated an intention to seek cancellation of removal under section
240A(a) of the Act, 8 U.S.C. § 1229b(a) (2018), but the Immigration Judge concluded that
he was barred from that relief based on his conviction for an aggravated felony. See section
240A(a)(3) of the Act.
2
The respondent does not challenge the Immigration Judge’s determination that he is
removable from the United States based on a conviction for a controlled substance offense.

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B. Aggravated Felony
The respondent argues that his conviction under sections 53a-124 and
53a-49 of the Connecticut General Statutes is not an aggravated felony under
sections 101(a)(43)(G) and (U) the Act. Section 101(a)(43)(G) defines an
aggravated felony as “a theft offense (including receipt of stolen property) or
burglary offense for which the term of imprisonment [is] at least one year.”
Section 101(a)(43)(U) defines an aggravated felony as “an attempt or
conspiracy to commit an offense described in this paragraph.” There is no
dispute that the respondent’s sentence to 1 year of imprisonment satisfies the
requirement of section 101(a)(43)(G) or that criminal attempt under section
53a-49 constitutes an “attempt” offense under section 101(a)(43)(U) of the
Act. See Conn. Gen. Stat. § 53a-49(a) (2006). The issue before us is whether
the respondent’s conviction under section 53a-124 constitutes a “theft
offense” under section 101(a)(43)(G). We review this issue de novo.
8 C.F.R. § 1003.1(d)(3)(ii).
To determine whether an offense is an aggravated felony, we employ the
categorical approach by comparing the elements of the state offense to the
generic federal definition. See Mathis v. United States, 136 S. Ct. 2243, 2248
(2016); Descamps v. United States, 570 U.S. 254, 257 (2013); Matter of
Koat, 28 I&N Dec. 450, 452 (BIA 2022). We focus on the elements defining
the offense of conviction and the minimum conduct that has a “realistic
probability” of being prosecuted under the statute. Moncrieffe v. Holder, 569
U.S. 184, 191, 206 (2013) (citation omitted) (stating that to demonstrate a
realistic probability, the State must “actually prosecute[]” conduct outside
the generic definition of the crime). A state crime is not a categorical match
with a generic federal offense if its elements are broader than those of the
generic offense. See Mathis, 136 S. Ct. at 2251.
As explained in Mathis, an “element” of a statute is what the “prosecution
must prove to sustain a conviction” and the jury must unanimously find
beyond a reasonable doubt. Id. at 2248 (citation omitted); see also Ramos v.
Louisiana, 140 S. Ct. 1390, 1397 (2020) (holding that jury verdicts must be
unanimous in state and federal criminal trials). When confronted with an
alternatively phrased statute, the Supreme Court instructed courts to look first
at the statute itself and sources such as case law and jury instructions to
determine whether the listed items are elements or means. Mathis, 136 S. Ct.
at 2256. When state law does not provide a clear answer, a court may “peek
at the [record] documents . . . for the sole and limited purpose of determining
whether [the listed items are] element[s] of the offense.” Id. at 2256–57
(alterations in original) (citation omitted).

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At all relevant times, the respondent’s conviction under section
53a-124(a) of the Connecticut General Statutes defined the offense of larceny
in the third degree, in relevant part, as follows:
(a) A person is guilty of larceny in the third degree when he commits larceny, as
defined in section 53a-119, and: (1) The property consists of a motor vehicle, the
value of which is five thousand dollars or less; (2) the value of the property or service
exceeds one thousand dollars; (3) the property consists of a public record . . . or (4)
the property consists of . . . any other article, material, device or substance which
constitutes, represents, evidences, reflects or records a secret scientific or technical
process, invention or formula or any phase or part thereof.

Section 53a-124(a) incorporates the definition of larceny in section
53a-119. At the time of the respondent’s offense, section 53a-119 defined
“larceny” in relevant part as follows:
A person commits larceny when, with intent to deprive another of property or to
appropriate the same to himself or a third person, he wrongfully takes, obtains or
withholds such property from an owner. Larceny includes, but is not limited to:
(1) Embezzlement. . . .
(2) Obtaining property by false pretenses. . . .
(3) Obtaining property by false promise. . . .
(4) Acquiring property lost, mislaid or delivered by mistake. . . .
(5) Extortion. . . .
(6) Defrauding of public community. . . .
(7) Theft of services. . . .
(8) Receiving stolen property. . . .
(9) Shoplifting. . . .
(10) Conversion of a motor vehicle. . . .
(11) Obtaining property through fraudulent use of an automated teller
machine. . . .
(12) Library theft. . . .
(13) Conversion of leased property. . . .
(14) Failure to pay prevailing rate of wages. . . .
(15) Theft of utility service. . . .
(16) Air bag fraud. . . .
(17) Theft of motor fuel. . . .

Conn. Gen. Stat. § 53a-119 (2006).
To qualify as an aggravated felony “theft offense” under section
101(a)(43)(G) of the Act, a crime must involve a “taking of property or an
exercise of control over property without consent with the criminal intent to
deprive the owner of rights and benefits of ownership, even if such
deprivation is less than total or permanent.” Matter of Ibarra, 26 I&N Dec.
809, 811 (BIA 2016) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183,
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189 (2007)). This Board has interpreted the term “theft offense” to exclude
offenses in which a person or institution is tricked into voluntarily
surrendering property to another. See Matter of Garcia-Madruga, 24 I&N
Dec. 436, 437–38, 440–41 (BIA 2008) (holding that welfare fraud under
Rhode Island law is not a “theft offense” because the elements of the offense
include the acquisition of property with consent that has been fraudulently
obtained).
With these principles established, we now consider whether larceny
under sections 53a-124(a) and 53a-119 constitutes a generic theft offense.
We recognize that we do not write on a blank slate with regard to this issue.
Understandably, the Immigration Judge relied upon the Court of Appeals for
the Second Circuit’s precedent decisions holding that larceny under
Connecticut law is categorically a theft offense to conclude that the
respondent has been convicted of an aggravated felony under sections
101(a)(43)(G) and (U) of the Act. See Almeida v. Holder, 588 F.3d 778,
785–89 (2d Cir. 2009) (holding that second degree larceny under section
53a-123 of the Connecticut General Statutes is categorically an aggravated
felony theft offense); Abimbola v. Ashcroft, 378 F.3d 173, 177–80 (2d Cir.
2004) (holding that third degree larceny under section 53a–124 is
categorically an aggravated felony theft offense). 3
We acknowledge the holdings of Almeida and Abimbola, as well as the
axiomatic principle that we are generally constrained to follow precedent
decisions from the controlling circuit court. See Matter of Anselmo, 20 I&N
Dec. 25, 31–32 (BIA 1989). However, we conclude that these cases do not
control here. Neither of these cases considered nor ruled on the specific
dispositive legal issue presented in this case: whether larceny as defined
under Connecticut law distinguishes between taking property with consent
that was fraudulently obtained and taking property without consent. See
Matter of Garcia-Madruga, 24 I&N Dec. at 440-41.
In Abimbola, the Second Circuit gave deference to the Board’s definition
of theft in Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000), and concluded
that third degree larceny under Connecticut law is categorically a theft
offense because it necessarily satisfies the “intent to deprive” element of our
definition of theft, and because the stolen property need not be tangible to
constitute a theft. See Amimbola, 378 F.3d at 176–80; see also Matter of
V-Z-S-, 22 I&N Dec. at 1346 (holding that a taking of property constitutes a
“theft offense” under section 101(a)(43)(G) of the Act whenever there is

3

All degrees of larceny under Connecticut law incorporate the definition of larceny in
section 53a-119 of the Connecticut General Statutes.

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criminal intent to deprive the owner of the rights and benefits of ownership,
even if such deprivation is less than total or permanent).
In Almeida, the Second Circuit again deferred to the definition of “theft”
we articulated in Matter of V-Z-S- and concluded that second degree larceny
under Connecticut law is categorically a theft offense. In arriving at this
conclusion, the Second Circuit rejected the respondent’s argument that “to
deprive another of property” and “to appropriate [the property of another to
oneself] or a third person” as used in the Connecticut definition of larceny
have different meanings and that only the former falls within the definition
of a theft offense. Id. at 786–88. Rather, the Court concluded that the
Connecticut definition of larceny establishes “a broad generic requirement of
an intent to deprive another person (to the degree statutorily specified) of
some rights or benefits of property ownership.” Id. at 788.
Both Almeida and Abimbola gave deference to, and applied, the definition
of theft we articulated in Matter of V-Z-S-. 4 The focus of the parties’
arguments and of the Second Circuit’s analysis in both cases was whether
the definition of Connecticut larceny satisfied the intent to deprive element
of our definition of theft.
Subsequent to our decision in Matter of V-Z-S-, in an effort to distinguish
a “theft offense” under section 101(a)(43)(G) of the Act from “an offense
that involves fraud or deceit” under section 101(a)(43)(M)(i) of the Act, 8
U.S.C. § 1101(a)(43)(M)(i), this Board interpreted the term “theft offense”
to exclude offenses in which a person or institution is tricked into voluntarily
surrendering property to another. See Matter of Garcia-Madruga, 24 I&N
Dec. at 439–41. The Second Circuit has not considered in a precedent
decision the modified definition of “theft” we articulated in Matter of
Garcia-Madruga as it relates to whether larceny under Connecticut state law
is a theft offense for purposes of section 101(a)(43)(G) of the Act.
The Second Circuit has recognized, however, the limitations of Almeida
and Abimbola in an unpublished decision. In that decision, the Second
Circuit noted that neither precedent decisions considered the distinction
between taking property with and without consent or the distinction the
Board has made between fraud and theft offenses. See Bastian-Mojica v.
Sessions, 716 F. App’x. 45, 47 (2d Cir. 2017). In fact, the Second Circuit
remanded that case to the Board to clarify whether Connecticut’s larceny
offense is an aggravated felony theft offense in light of the Board’s

4

The Second Circuit has also more recently deferred to the Board’s construction of “theft
offense” in an unpublished opinion. Ya Yi Zeng v. Barr, 828 F. App’x. 27, 29 (2d Cir.
2020).

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distinction between theft and fraud. 5 See id. at 47; see also Smith v. Barr,
809 F. App’x. 54, 55 (2d Cir. 2020) (applying Matter of Garcia-Madruga
and concluding that a larceny conviction under New York law is not an
aggravated felony theft offense because the offense can “be committed by
the taking of property with consent such as through larceny by trick,
embezzlement, or obtaining property by false pretenses”). 6 Accordingly, we
do not consider the dispositive issue in this case—whether larceny as defined
under section 53a-119 distinguishes between taking property with consent
that was fraudulently obtained (i.e. a fraud offense) and taking property
without consent (i.e. a theft offense)—to be controlled by Second Circuit
law.
Having concluded that the outcome of the particular issue raised in this
case is not controlled by authority from the Second Circuit, we now consider
de novo whether larceny under section 53a-124(a) is a “theft offense” under
section 101(a)(43)(G) of the Act. We conclude that the definition of larceny
under section 53a-119 is overbroad and indivisible and that a conviction
under section 53a-124(a) is not a theft offense for purposes of section
101(a)(43)(G) of the Act.
At the time of the respondent’s conviction in 2006, section 53a-124(a)
incorporated the definition of larceny in section 53a-119 and set out four
subsections based on the type of property. Thus, to determine whether
section 53a-124(a) is a theft offense, we first consider the definition of
larceny in section 53a-119. If this definition is overbroad and indivisible
with respect to the theft or fraud issue (i.e. a taking without consent or a
taking with consent fraudulently obtained), we need not engage in further
analysis of section 53a-124(a). 7
5

In Bastian Mojica, 716 F. App’x at 47, the Second Circuit specifically noted that while
“the BIA understandably felt obliged to follow Abimbola and Almeida,” it “will be alerted
by this Order to the fact that we do not consider those decisions to have adjudicated [the
distinction between theft and fraud], [and] it will be free upon remand to consider [the
respondent’s] claim anew.” It is this admonition we seek to address here.
6
We acknowledge that a different panel of the Second Circuit discussed the consent issue
in an unpublished decision in which the court held the Board did not abuse its discretion in
denying a motion to reconsider. Forbes v. Lynch, 642 F. App’x. 29, 30–31 (2d Cir. 2016)
(concluding that section 53a-119 of the Connecticut General Statutes includes a “without
consent” requirement although it is not specifically enumerated). However, the discussion
of the issue in that case was dicta and, in any event, the unpublished decision is not
controlling authority in this case.
7
We acknowledge that during the pendency of this appeal, the Attorney General issued
Matter of Reyes, 28 I&N Dec. 52, 59–62 (A.G. 2020), holding that a respondent convicted
of a State theft statute can be convicted of an aggravated felony if all of the means of
committing the crime based on the elements of the statute of conviction amount to either

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By its terms, section 53a-119 defines larceny expansively, to include such
acts as “obtaining property by false pretenses,” “obtaining property by false
promise,” “defrauding of public community” and “air bag fraud.” Conn.
Gen. Stat. § 53a-119(2), (3), (6), (16). Such acts are not “theft offenses”
under Matter of Garcia-Madruga because they do not require the
nonconsensual taking of property; rather, they involve takings of property
with consent that was fraudulently obtained. 8
Moreover, although some Connecticut cases generally assert that a lack
of consent is a necessary element of the crime of larceny, other cases specify
that a taking of property must be without the knowing consent of the owner.
See State v. Calonico, 770 A.2d 454, 465–66 (Conn. 2001) (collecting cases
aggravated felony theft or an aggravated felony fraud offense. For Matter of Reyes to apply
here, the Immigration Judge would have to find that the respondent’s conviction for
attempted theft by fraud under sections 53a-124 and 53a-49 involved a potential loss to the
victim of more than $10,000, as required by section 101(a)(43)(M)(i) of the Act. See
Matter of S-I-K-, 24 I&N Dec. 324, 326–28 (BIA 2007) (holding that a respondent
convicted of conspiracy to commit fraud need only demonstrate that the potential, rather
than actual, loss to the victim exceeded $10,000); see also Matter of F-R-A-, 28 I&N Dec.
460, 463 (BIA 2022) (noting that the circumstance-specific approach applies to
determining whether the loss to the victim exceeds $10,000). The Immigration Judge made
no such finding.
8
Section 53a-119 of the Connecticut General Statutes defines the relevant offenses as
follows:
(2) Obtaining property by false pretenses. A person obtains property by false
pretenses when, by any false token, pretense of device, he obtains from another any
property, with intent to defraud him or any other person.
(3) Obtaining property by false promise. A person obtains property by false
promise when, pursuant to a scheme to defraud, he obtains property of another by
means of a representation, express or implied, that he or a third person will in the
future engage in particular conduct, and when he does not intend to engage in such
conduct or does not believe that the third person intends to engage in such
conduct. . . .
(6) Defrauding of public community. A person is guilty of defrauding a public
community who (A) authorizes, certifies, attests or files a claim for benefits or
reimbursement from a local, state or federal agency which he knows is false; or
(B) knowingly accepts the benefits from a claim he knows is false; or (C) as an officer
or agent of any public community, with intent to prejudice it, appropriates its
property to the use of any person or draws any order upon its treasury or presents or
aids in procuring to be allowed any fraudulent claim against such community. . . .
(16) Air bag fraud. A person is guilty of air bag fraud when such person, with
intent to defraud another person, obtains property from such other person or a third
person by knowingly installing or reinstalling any object in lieu of an air bag that
was designed in accordance with federal safety requirements . . . .

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and concluding that larceny requires a lack of knowing consent). Defining
larceny to include a lack of knowing consent is consistent with the expansive
definition of larceny found at section 53a-119 and would include takings with
consent obtained through fraud. In light of Matter of Garcia-Madruga, we
conclude that section 53a-119 is overbroad vis-à-vis the generic definition of
theft under section 101(a)(43)(G) of the Act in that the scope of larceny under
Connecticut law includes both theft and fraud offenses.
Having concluded that the definition of larceny in section 53a-119 is
overbroad in that it includes both theft and fraud offenses, we next consider
whether the statute is divisible, such that we may apply the modified
categorical approach to search the record of conviction to ascertain which
type of larceny articulated in section 53a-119 the respondent was convicted
of committing. Mathis, 136 S. Ct. at 2249; Descamps, 570 U.S. at 261–64;
see also Matter of Chairez, 26 I&N Dec. 819, 822–23 (BIA 2016).
Under Mathis, the divisibility of a statute depends on whether the
statutory alternatives are discrete “elements” as opposed to “means” of
committing an offense. Mathis, 136 S. Ct. at 2256. Thus, if the different
types of larceny articulated in section 53a-119 constitute separate offenses
involving elements that must be proven to the jury, the definition of larceny
is divisible. However, if the different subsections are merely different means
of committing larceny and the jury can disagree on the manner in which
larceny was committed, the definition is not divisible. To resolve this issue,
we look first to the statute itself and then, if necessary, to “authoritative
sources of state law” to determine whether a jury must unanimously choose
between the alternative methods of committing larceny when convicting a
defendant under section 53a-124(a). Id. at 2256.
We conclude that the definition of larceny under section 53a-119 is not
divisible under Mathis. Section 53a-119 defines larceny in the alternative by
listing more than a dozen discrete types of conduct, but the list is plainly
“drafted to offer ‘illustrative examples’” and not to define alternative
elements. Mathis, 136 U.S. at 2256 (citation omitted). Specifically, section
53a-119’s list is preceded by an introductory clause stating that “[l]arceny
includes, but is not limited to” the following list, thereby making clear that
the list is nonexhaustive and its enumerated acts are merely examples of
some of the myriad of ways larceny can be committed in Connecticut.
In sum, we conclude the broad definition of larceny under Connecticut
law includes both theft and fraud offenses, and that how a person committed
a larceny is not an element of the offense under section 53a-124(a). Because
section 53a-124(a) is overbroad and indivisible, we cannot employ a
modified categorical analysis to determine whether the respondent was
convicted of conduct that qualifies as a theft offense. See Id. at 2256.
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Therefore, pursuant to Matter of Garcia-Madruga, 24 I&N Dec. at 440–41,
the respondent’s charge of removability based on an aggravated felony under
sections 101(a)(43)(G) and (U) of the Act cannot be sustained. 9 See section
237(a)(2)(A)(iii) of the Act.
In light of our determination that the respondent’s conviction for
attempted larceny in the third degree in violation of sections 53a-124 and
53a-49 is not an aggravated felony, we conclude that remand is appropriate
for additional consideration of his eligibility for asylum and cancellation of
removal. We express no opinion regarding the ultimate outcome of these
proceedings. 10 Accordingly, the following orders will be entered.
ORDER: The appeal is sustained, in part.
FURTHER ORDER: The record is remanded for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

9

The determination in this case that the respondent has not been convicted of an
aggravated felony is a consequence of the necessity of applying the categorical approach.
As numerous adjudicators have noted, the categorical approach can be exceedingly
complex, and often leads to results that are contrary to common sense and that Congress
did not intend. See e.g., United States v. Scott, 990 F.3d 94, 126 (2d Cir. 2021) (Park, J.,
concurring) (“[T]he categorical approach perverts the will of Congress, leads to
inconsistent results, wastes judicial resources, and undermines confidence in the
administration of justice.”); Matter of Rosa, 27 I&N Dec. 228, 234–37 (BIA 2018)
(O’Connor, concurring) (collecting cases noting the deficiency of the categorical approach
and calling for Congressional reform), vacated by Rosa v. Att’y Gen. U.S., 950 F.3d 67 (3d
Cir. 2020); Matter of Velasquez, 25 I&N Dec. 278, 284 (BIA 2010) (Malphrus, concurring)
(noting that the categorical approach may allow many respondents convicted of spousal or
child abuse to avoid the immigration consequences that Congress had intended for those
offenses).
10
We decline, at this point, to consider the respondent’s arguments relating to his
eligibility for withholding of removal under the Act and for protection under the
Convention Against Torture.

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