Interim Decision #2326

MATT= OF PONCO

In Deportation Proceedings
A-19359463
Decided by Board October 24, 1974
(1) In deportation proceedings the Service bears the burden of proving alienage, however
one who admits birth in a foreign country is presumed an alien and must go forward
with the evidence to establish his claim to United States citizenship. Evidence concerning the validity of the alien's nonimmigrant visa, including a letter from the American
Counsul in Manila which stated that the nonimmigrant visa number on respondent's visa
bad been issued to another person was admissible; even though hearsay, where it was
relevant to the issue of respondent's deportability under section 241(a)(1) of the Immigration and Nationality Act.
(2) Pursuant to B CFII 242.8(b), unless a formal deportation hearing is actually begun, and

evidence presented for the record, there is no bar to the substitution of immigration
judges.
CHARGE:

Order: Act cf 1952—Section 241(a)(1) [8 U.S.C. 1251 (a)(1))—Excludable at entry—
nonimmigrant not in possession of a valid nonimmigrant visa,
nor exempted therefrom.
ON BEHALF OF RESPONDENT:

ON BEHALF

Howard L. Kushner, Esquire
730 Main Street
Niagara Falls, New York 14301

OF SERVICE:

Paul C. Vincent
Appellate Trial Attorney

In a decision dated July 17, 1973, an immigration judge found the
respondent deportable under section 241(a)(1) of the Immigration and
Nationality Act, and granted him the privilege of voluntary departure.
The respondent contests the finding of deportability and has appealed
from that decision. The appeal will be dismissed.
The respondent was born on July 19, 1945 in the Philippines. He was
admitted to the United States in October of 1971 as a nonimmigrant
visitor for pleasure. The Immigration and Naturalization Service has
alleged that the respondent is deportable as a nonimmigrant alien who
at the time of entry was not in possession of a valid visa. The respondent
has challenged both the finding of alienage and the finding that he did
not possess a valid nonimmigrant visa.
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Interim DeciSion #2326

In deportation proceedings the Service bears theburden of proving
alienage. The respondent, however, concedes that he was born in the
Philippines. Since he admits birth in a foreign country, he is presumed
to be an alien and must 'go forward with the evidence to establish his
claim to United States citizenship. Matter of Tijerina-Villarreal, 13 L &
N. Dec. 327 (BIA. 1969); Mattei of A—M—, 7 I. & N. Dec. 332 (BIA 1956).
The respondent has . set forth several theories under which he claims
to be either a citizen or a noncitiien national of the United States. He
initially argues that his birth in the Philippines made him a national of
the United States, and that absent an election on his part Congress

could not constitutionally divest him of that nationality. This basic
contention, however, has been rejected by the courts on several occasions. See Rabang v. Boyd; 353 U.S. 427 (1957); Manlangit v. United
States Department. of Justice, 488 F.2d 1073 (C.A. 4, 1973).
The respondent's other contentions as to United States citizenship or
nationality are equally groundless. He has failed to set forth even the
rudiments of a claim to derivative citizenship. Moreover, the argument
that his father's service in the United States Navy caused the respondent to be born constructively within the United States in not even
colorable. We find that the respondent is an alien and properly subject

to deportation proceedings. .
At the commencement of the hearing below, counsel for the respondent sought to have the case heard before an immigration judge other
than the one who actually presided. The record is not clear; however, it
appears that a preliminary conference on the case was held and that the
immigration judge who attended that conference ordered the hearing
postponed for several months to permit the respondent time to assemble
evidence regarding his claim to United States citizenship. Counsel for
the respondent alleges that an understanding regarding possible termination of the proceedings was reached at that conference, and he contends that the respondent was prejudiced by the "substitution" at the
actual hearing of a new immigration judge.• Counsel asserts that he even
offered to have his client pay for any expenses involved in transferring
the hearing to a location where the immigration judge who attended the
conference could preside.
The substitution of immigration judges is governed by 8 CFR
242.8(B), which in pertinent part provides:
. If a heating has begun but no evidence has been adduced other than by the
respondent's pleading pursuant to § 242.16(b), or if [an immigration judge] becomes
unavailab[e to complete his duties within a reasonable time, or if at any time the
respondent consents to a substitution, another [immigration judge] may be assigned to
Complete the case. . . .
It does not appear that a formal hearing was commenced before the
immigration judge who authorized a postponement in this case. Cer-

121

Interim Decision #2326
tainly, no evidence was presented for the record before anyone other
than the immigration judge who rendered the decision. The regulation
plainly authorizes the substitution of immigration judges under these
circumstances. Furthermore, there are indications in the record that it
was geographically inconvenient for the immigration judge who was
initially associated with the case to preside at the hearing. The respondent's offer to present himself for a hearing at a location convenient to
that immigration judge appears to be little more than an attempt to seek
out a favorable forum. We find that the substitution of immigration
judges in this case did not deprive the respondent of a fair hearing. See
Matter of Moleilio, 14 I. & N. Dec. 283 (BIA 1973); Matter of Bark, 14
L & N. Dec. 237 (BIA 1972); Matter of C—, 5 I. & N. Dec. 743 (BIA 1954).

The respondent's final challenge to the finding of deportability relates
to the admissibility and sufficiency of the evidence against him. The
respondent contests the Service's factual allegation that he was "not in
possession of a nonimmigrant visa" at the time of his admission into the
United States. The respondent's passport, issued to him by the Republic of the Philippines, was introduced into evidence at the hearing, and a
photocopy of the passport now appears in the record. The passport
contains what appears to be a nonimmigrant visa issued or authorized

by a United States consular official in Manila. The Service alleges that

this visa was not properly issued to the respondent, and that it is likely
counterfeit.

The Service's ease as to the invalidity of the visa was largely
documentary. A verbatim transcript of the respondent's sworn question

and answer interview before a Service investigator was introduced into
evidence. The transcript of the interview reflects that when initially
asked where he obtained the visa, the respondent asserted that he got it
from "the American Embassy in Manila, Philippines." (Exhibit 2). At
first, he also maintained that he had never been denied a nonimmigrant

visa by the 'lilted States Embassy in Manila. However, when the
Service investigator confronted the respondent with information contradicting these assertions, the respondent substantially changed his
testimony.
The respondent then told the investigator that he had gone to a travel
agency in the Philippines to receive assistance with his nonimmigrant
visa application. An employee of the travel agency accompanied the
respondent to the United States Embassy on at least. two occasions, and
the respondent was eventually denied a visa.
The respondent further testified before the investigator that the
travel agent then suggested that the passport be left at the travel
agency and that the agent would attempt to complete the necessary
work and to obtain the visa. The respondent maintains that he entrusted

the passport to the travel agent for over one month and was then
122

Interim Decision #2326
informed by the agent that the visa had been issued. The respondent did
not obtain the visa at the United States Embassy, but instead paid the
travel agent $500 for this service. The respondent admitted that the
$500 was a lot of money, but asserted that it is difficult to obtain a visa
and that he was saved much time and trouble by this procedure.
The respondent has adhered to the second version of how he obtained
the visa. Furthermore, he asserts that he has no direct knowledge that
the visa was not properly issued, and insists through counsel that the
Service has failed to prove the visa invalid.
The respondent did not object to the introduction into evidence of the

transcript of the question and answer interview. However, he did challenge the admissibility of the evidence which forms the bulk of the
Service's case. The Service successfully introduced into evidence its
written inquiry to the United States Embassy in Manila regarding the
respondent's visa, and the unsworn letter signed by the American
Consul in Manila in response to that inquiry. In this letter the American
Consul states that the respondent had been denied a visa on several
occasions in February and March of 1971, that the nonimmigrant visa
number appearing on the respondent's visa was issued to a female alien,
and that during 1971 there had been a rash of counterfeit visas. The

body of the letter recites specific factual information regarding the alien
to whom the nonimmigrant visa number appearing in the respondent's
passport was actually issued. In support of his statements, the American Consul attached to the letter photocopies of the respondent's and
the other alien's visa applications.
At the hearing, counsel objected to the introduction of these letters,
asserting that the statements should be introduced only in conjunction
with testimony which would afford him the right of cross-examination.
The immigration judge overruled this objection. In his brief on appeal,
counsel also asserts that this evidence should not have been admitted

because it is hearsay.

The respondent's hearsay objection is inappropriate. The hearsay
of evidence may well have a substantial effect on
the probative value of that evidence; however, if relevant, hearsay
evidence is admissible in deportation proceedings. See U.S. ex rel.
Vajtauer v. Commissioner of Immigration, 273 U.5. 103 (1927); U.S. ex
rd. Bilokurnsky v. Tod, 263 U.S. 149 (1923); U.S. ex rel. Impustato v.
O'Rourke, 211 F.2d 609 (C.A. 8, 1954), cert. denied, 348 U.S. 827 (1954);
nature of a given item

de Hernandez v. INS, 498 F.2d 919 (C.A. 9,1974); Solis-Davila v. INS,
456 F.2d 424 (C. A. 5, 1972). Furthermore, the visa applications are

official documents, and the notations on the applications appear to have
been made in the course of official business.
Section 242(b) of the Act provides in part that an alien in deportation
proceedings "shall have a reasonable opportunity . . . to cross-examine

123

Interim Decision #2326
witnesses presented by the Government . . . ." However, this right to
reasonable cross-examine does not necessarily include a right to have
each witness actually produced at the hearing. See Hyun v. Landon,
219 F.2d 404 (C.A. 9, 1955); affirmed by an equally divided court, 350
U.S. 990 (1956).
The regulations specifically authorize both the admission into evidence of relevant oral or.written statements and, in appropriate situations, the taking of depositions at the request of any party. See 8 CFR
242.14. The respondent's counsel could have requested crossexamination trough the use of written Interrogatories; however, he
merely rested on his objection to the admissibility of evidence.
• We are not dealing with the case of an unrepresented.alien. Prior to
the hearing, the respondent and his attorney were aware that the
Service had information challenging the authenticity of the visa. See
Exhibit 2.
Counsel for the respondent could have effectively accomplished
cross-examination of the otherwise unavailable witness. See Matter of
Payan, 14 I. & N. Dec. 58 (BIA 1972); Matter of Conliffe, 13 I. & N.
Dec. 95 (BIA 1968). He did not seek the opportunity to do so. He has not
shown any prejudice to the respondent, who received a fair hearing. See

Richardson v. Perales, 402 U.S. 389 (1971); Marlowe v. INS, 457 F.2d
1314 (C.A. 9, 1972); Wei v. Robinson, 246 F.2d '739, 746 (C.A. 7, 1957),
cert. denied, 355 U.S. 879 (1957); Matter of
9 L & N. Dec. 506,
508-09 (BIA 1961).
The evidence that the respondent gained admission to the United
States on the basis of a forged nonimmigrant visa, in effect no visa at all,
is clear. The photocopies of the visa applications clearly show that the
nonimmigrant -visa number appearing in the respondent's passport was
issued to an alien other than the respondent. The letter from the
American Consul confirms this information. We find that the respondent's deportability has been established by clear, convincing and un-

equivocal evidence. The appeal will be dismissed.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 92 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

124


Interim Decision #1577'

Mamma OF

ARGTROS

In Section 246 Proceedings

A-12042020
Decided by Beccrd April 15, 1986
Where an alien answered affirmatively when asked by an officer of the Serv-.
Ice whether she was willing to make a sworn statement and whether she•
understood that any statement was to be made freely and voluntarily aQ1
might be used by the Government as evidence in any proceeding, such pre-

liminary sworn statement by the alien was made voluntarily and not under
duress; is admissible in evidence In rescission proceedings under section 246,
Immigration and Nationality Act (8 CFR 246.3) ; and is not bound by thd
rules of evidence applicable to judicial proceedings, since rescission proceeding under section 246 are not within Escobedo v. Illinois, 378 11.8. 478.
(1964).

This case is before us on appeal from a decision of a special inquiry officer dated May 10, 1965, rescinding the adjustment of status.
previously granted to the respondent under section 245 of the immigration and Nationality Act [8 U.S.C. 1255]. .
The respondent is a 36-year-old female, native and citizen of
Greece, Who entered the United States as a visitor on March 19,,
1959. She married Michael Argyros, a :United States citizen, on
January 25, 1980, and he subsequently filed a visa petition on her
behalf. This was approved by the Service, and she was accorded_
nonquota status. On May 17, 1960, the Service granted the respond- •
ent's application under 8 U.S.C. 1255, and her immigration status
was adjusted to that of an alien lawfully admitted for permanent
residence. On February 2, 1965, there was served on the respondent
a letter dated December 21, 1964 which notified her concerning the
intention of the Service to rescind, under 8 U.S.C. 1256, the adjustment of her immigration status. At the conclusion of the hearingwhich was thereafter granted, the special inquiry officer found that
the respondent entered into a sham marriage with Michael Argyros:
solely
for the purpose of evading the immigration laws. He con_
eluded that she had not been eligible for the adjustment of *statu.s
•585

- Interim Decision .41571
granted toiler under 8 U.S.C.. 1255 and entered the above-mentioned
order of May 10, 1965 rescinding that- action. The issue on this
appeal -is 'whether the special inquiry officer's action Was correct:
We have carefully reviewed the entire record. The facts in this
case are fully set forth in the special inquiry officer's decision. At
the hearing (Tr. p. 2), the respondent admitted the first seven factual allegations in the letter of the Service dated December 21, 1964
which related to her alienage, arrival as a visitor, marriage, and the
adjustment of her immigration status. The one -matter that was not
admitted was the allegation of the Service that she entered into a
sham marriage with, Michael Awros solely for the purpose of
evading the immigration laws..
-

The respondent was questioned under oath by Investigator Opolion of the Service on November 13, 1963. The stenotypist, Patrick
J. Killela, was. a witness at the hearing and read the respondent's
statement-of November 13, 1963 into the record from his original
stenotype notes (Tr: pp. -139-201). The notes and transcript are
Exhibits 11 and 16, respectively. Counsel attached to 'his brief a
list of "31 instances in which were was a. variation between that
and that which appears in the stenowhich appears in the transcript ,,and

type notes. The special inquiry officer discussed this matter in-his
decisioh (pp. 41-43). It appears that Mr. Killela, in transcribing
the notes on the day after the hearing before Mr. Opolion, inserted
certain matters from memory -which were not actually in his notes.
The 'special inquiry officer stated that he would rely on the version
"

of the questions and answers as they were read' into the fecOrd of

the,hearing by Mr. Killela from his original notes rather than on the'
version contained in the _transcript (Ex. 16). 'We have also used
the version contained in the record of hearing rather than Exhibit
16. The differences between the two versions are relatively minor.
Since the special inquiry officer and this Board have not relied on
the disputed version contained in Exhibit 16, we wilt disMiss . coupsel's contention concerning this matter.
Part 246 of 8 CFR contains the regulations relating to rescission
of adjustment of status under 8 U.S.C. 1256, 8 CFR ..246.3 makes
applicable certain other regulations including the procedure specified .
in 8 CFR 242.14(c) which is as follows: "The special inquiry officer
may receive in evidence any oral or written statement which is
material and relevant to any issue in the case previously made by the
respondent or any other person during any investigation, examination, hearing, or trial." Hence, there is specific authority in the
regulations for the special inquiry officer' to consider, in this resole-.
586

Interim Decision #1577
sion proceeding, the respondent's testimony on November 18, 1968.
Counsel has argued vigorously that the testimony of the respondent on November 13, 1963 is a "confession". We are unable to
perceive why counsel deems this so important, and we gonsider it
entirely immaterial whether this testimony of the respondent is
characterized as a "confession" or "testimony" or in some other
manner. The matter which is of consequence is whether the respondent's testimony on November 13, 1963 was properly' admitted
in evidence at the hearing. In urging that the respondent's "confession" of November 13, 1963 was inadmissible, counsel contends
that it was involuntary; that she was not advised of the right to

counsel; and that she was not advised of her right to remain silent
(brief, pp. 24-36).
At the commencement of the forinal examination on November
13, 1963, the respondent answered affirmatively when she was asked
by the investigator whether she was willing to make a sworn statement and whether she understood that any statement was to be made
freely and voluntarily and that it might be. used by the Government

as evidence against her in. any proceeding. After careful consideration of the respondent's testimony at the hearing concerning the
taking of the statement and the testimony of the investigators and
the stenotypist, we are satisfied that the respondent's testimony on
November 13, 1963 was given voluntarily and not under duress.
Counsel has placed considerable reliance on Eseobedo v. Illinois,
378 U.S. 478 (1964). We discussed the same contentions in Matter
of Pang, Lit. Dec. No. 1479 (1965), and Atulicated why Eseobeclo
was not controlling in a deportation proceeding. Similarly, we hold
that Escobedo is not applicable in a rescission proceeding under 8
U.S.C. 1256. In his brief (p. 26), counsel indicated that any distinction between criminal proceedings and deportation proceedings
had been "laid to rest with respect to coerced confessions", citing
Bong Youn Choy v. Barber, 279 F.2d 612, 647 (9th Cir., 1960).
Actually, that case did not represent any change in the law since
it has never been considered that a deportation could be predicated
on a confession or statement which had not been made freely and
voluntarily. On the facts in the Bong Youn Choy case, the court
found that he had been coerced into making the 'admissions; in this
respondent's case, we have found that her testimony was !riven
der duress. Since the facts in the two cases
voluntarily and not under
differ, the Bong Youn Choy case is not controlling as to this respondent.
587

Interim Decision #1577
We have indicated above that counsel contended that., prior to the
interrogation qii ovember 13, 1963, the respondent should have
been advised that she had a right to'counsel and the right to remain
. silent. 8 CFR 246.1 contains . a specific provision that the notice of
intention to rescind shall inform the respondent that he [she], maybe represented by counsel. The District Director's letter of..December 21, 1964 (Ex. 1) did inform her concerning such representation.
However., there was no requirement that she be specifically advised
to, that effect prior to the preliminary investigation on November 13,
1963 nor that she be informed that she could refuse to answer any
questions. Nevertheless, she was advisid that the statement was to be
made freely and voluntarily which was at least some indication to
her that she 3.-as not required to make any statement. We dismiss
these contentions of counsel in accordance. with our decisions in
Matter of F—, 4 I;& N. Dec. 475 (1951) ; Matter of P—, 5 L & N.
Dec. 306 (1953); and Matter of Pang, supra. In addition, rules of
evidence applicable in judicial proceedings need not ,be strictly
followed in an immigration hearing. United States ex rel. Bilokirm.

sky v. rod, 263 U.S. 149,157 (1923) ; United States en rel. Ili:pasta&
v. O'Rourke, 211 F.2d 609 (8th Cir., 1954), cert. den. 348 U.S. 827.

In view of the foregoing, we conclude that the special inquiry officer
was correct in admitting the respondent's testimony of November
13, 1963 in evidence.
Counsel has also contended that the "confession", if admissible,
Was not corroborated and was insufficient evidence, theiefore, upon
which to base

the decision. In - this connection, he has stated that in

criminal cases the Govanment must' introduce substantial evidence
to establish the trustwofthiness of the confession. However, this is
not a criminal proceeding and it is well settled that an alien's own
admissions are sufficient to support a deportation order. Unitid States
etc rel. Bilokuntay V. Tod, supra; &keeps v. Carmichael,

177 F.2d
391 (9th Cir., 1949), cert. den. 339 U.S. 914. Similarly, we hold
that the respondent's testimony of November 13, 1968 is a sufficient
basis for rescinding the adjustment of status.
We have carefully considered the remaining contentions of counsel. These are without merit and do not require specific discussion.

When the respondent filed her application for adjustment of status
under 8 U.S.C. 1255 on April 5, 1960, she stated that she had resided at 736 West 173rd Street s New York, New 'York, since January'
]960. She filed her petition for naturalization, on June 7, 1963
under 8 t.S.C. 1430(a) which required her to establish that during
the preceding three years she had been living in marital union with

588

Interim. Decision #1577
her citizen spouse. On the date the petition for naturalization was
filed, she testified before the naturalisation examiner that she WOO
-nesidirg_at 1 West 72nd Street, her place of employment; that she
.41SO maintained a, sesidence.at l'36 West 273rd -Street with.her hitsband;:_aud -th4 there was no marital rift between them. It seems to
W.conceded .that - Michael Argyros had livid et736 West 173rd
Street irior:to the marriage and continuously until 1964; that the
respondent_never lived at that address; and that, from the time of
her.arrival in 1959 until some time subsequent to June 7, 1968, she
had lived at 1 West 72nd•Street. In view of these false statements,
which were obviously made for the purpose of concealing the fact
that she and Michael Argyros were not living. together, we do, not
consider the respondent a credible witness. It is our opinion that
the respondent's admissions against . interest in her testimony of
November 13, 1963 constitute the true version of the facts and that
her testimony at the hearing, insofar as it was to the contrary, must
be rejected as self-serving statements which were untrue.
8 U.S.C. 1256 provides for the rescission of the adjustment of
immigration status if "it shall appear to the satisfaction of the
Attorney General that the person was not in fact eligible for such
adjustment of status, * *• *.'! One of the requirements for adjustment of status under 8 U.S.C. 12551s that an immigrant visa must
be immediately available. The respondent was classified as nonquota and was able to secure adjustment of her immigration status
only by reason of her marriage. Otherwise, she would have been
chargeable to the quota of Greece which was greatly oversubscribed
on May 17, 1960 when her application for adjustment of status was
granted.

On November 18, 1963, the respondent testified (Tr. pp. 156-174)
to:the effect that she met Michael Argyros through a. Mr. Regas•;
that she agreed to pay Michael Argyros $500 if he would marry
her; that she secured the money from her employer out of wages
due her; that she gave the money to Mr. Regas who was to pay
it to Michael Argyros; that she married Michael Argyros solely in
order that she might remain in the United States; that she had no
intention of living with him in a marital relationship; and that
they never had sexual intercourse. Regas was questioned by invesiigaters ,Of_the Service on November 13. 1963 (Er. 21) and denied
his involvement, stating that he knew nothing about the payment of
$500 and did not see the respondent between the time.of his first
meeting with her in December 1959 and November 1960. On the
basis of the respondent's own testimony, we believe the Service has
589

Interim Decision #1577
established that the respondent was not eligible for the adjustment
of status granted to her on May 17, 1960.
In addition to the respondent's testimony, the following factors
are pertinent. At the time of the marriage on January 95, 1960, the
respondent was 20 years old and her husband was 60. George Spyropoulos, who was a witness at the marriage, testified (Tr. pp. 18=20)
that $500 was paid to Michael Argyros as the inducement for manying the respondent; that the money was paid in his presence by the
respondent's "boy friend", a Mr. Regas; and that Michael Argyros
informed him after the marriage that he had married the respondeneonly so that she could remain in the United States.
Michael Argyros executed an affidavit (Ex. 8) before an investi- gator of the Service on October 3, 1963 in which he stated that
Regas introduced him to the respondent; that the respondent agreed
to pay him (Argyros) $500 for marrying her; that she stated that
they would not live together and that in a few months she would
see a lawyer about obtaining a. divorce; and that he (Argyros) was
paid $500 by Reps which the latter had received from the respondent. The respondent was served with notice of this proceeding on
February 2, 1965, and Argyros could not be presented as a witness
since he had died on December 22, 1964. Although we held admissible in evidence en parte affidavits of persons who died prior to
the deportation hearing in Matter of J , 6 L & N. Dec. 496, 499
(1955), we have not relied on the affidavit of Michael Argyros in
this proceeding.
During the oral argument, a contention was advanced by •counsel
for the Services that the respondent's statement of November 13,
—

1963 (Ex. 16) was taken in connection with the petition for naturalization which she had filed; that the proper procedure for' the re-

spondent's counsel would have been to take action in the naturalization court to quash the statement if he believed that there was a
lack of due process; and that the question could not be raised
collaterally in this rescission" proceeding. Thereafter, both parties
submitted briefs on this point. At the time of the interrogation. on
November 13, 1963, the respondent was advised that the proposed
sworn statement related to her "presence in the United States" and
nothing was said about her petition for naturalization (Tr. p. 139).
In any event, we are not convinced that it would have been proper
to dismiss the objections of the respondent's counsel on the technical
ground suggested by the Service. We need not reach a definite
conclusion concerning the matter since we have held above that the
.69 0

Interim Decision *1577
respondent's' testimony of November 13, 1963 was properly received
in evidence.
In view of the foregoing, we conclude that the respondent's marriage to Michael Argyros was merely a sham marriage entered into
for the sole purpose of enabling her to evade the quota restrictions;
that she was not eligible for adjustment of her immigration status
under 8 U.S.C. 1255; and that the special inquiry officer's action in
rescinding the adjustment of status was correct. Accordingly, the
respondent's appeal will be dismissed. .
.ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

591


Interim Decision *1658

MATTER or Sum
In Visa Petition Proceedings
A-13738305
. Decided by District Director September 13, 1966
Since a person with a master's degree in library science or the equivalent
thereof is classifiable as a member of the professions within the meaning
of section 101(a) (32) of the Immigration and Nationality Ait, as amended
by P.L. 89-236, a visa petition is approved to accord beneficiary, who has
a master's degree in library science, preference classification under section 203(a) (3) of the Aet as a librarian.

Discussion: The petition was filed to 'accord the beneficiary a•
third preference elwAification as a member of the professions based
upon her qualifications as a librarian. The beneficiary is a female,
native and citizen of China, age 34, presently residing in Bowie,
Maryland. Her husband, a physician, is at Alberta University Hospital, Edmonton, Canada.
The beneficiary received a bachelor of arts 'degree in 1956 from
National Taiwan University, Taipei, Taiwan, and a master of arts
degree in library science in May 1965 from Appalachian State
Teachers College,- Boone, North Carolina. She has been employed
as a librarian from July 1965 to date by Bowie Sttite College, Bowie,
Maryland. The beneficiary:intends to work in the United States as
a professional librarian.
A. certification pursuant to section 212(a) (14) of the Act, as amended, has been issued by the Department of Libor.
Librarians are listed among professional occupations under code
0-23 in the Dictionary of Occupational Titles, Volans II, second
edition, prepared by the United States Department of Labor. In
the third edition of the above - publication, librarians are listed under
professional, technical, and managerial occupations, code 100.
Duties of the librarian include selecting, acquiring, cataloging,
classifying, circulating, and maintaining library materials; furnishing reference, bibliographical, and readers' advisory services. The
Occupational Outlook Hiindbook, 1966-67. editi(M, of the United
847

Interim Decision #1653
States Department of Labor, states that to qualify as a professional
librarian, one must ordinarily have completed a course of study in a
graduate library school. This usually means at least five years of
college—four to meet requirements for a bachelor's degree and a
fifth year or more of specialized study in library science, after which
the master's degree is conferred. For those interested. in top administrative posts or the special libraries field, a doctorate in a
scientific subject field is also highly desirable. In 1965 about 72,000
people were employed as full-time professional librarians.
Joan Dorn Clarke, librarian of Boston's noted Girls' Latin School
and author of "Your Future as a Librarian", published in 1963, and
Sarah Leslie Wallace, public relations officer of the Minneapolis
Public Library and author of "So You Want to be a Librarian",
published in 1963, agree that a master's degree in library science is
a basic career requirement for the librarian.
It is concluded that a person with a master's degree in library
science or the equivalent thereof is a member of the professions
within the , Meaning of sections 101(a) (32) and 203(a) (0 of the
Act, as amended. The applicant is entitled to classification as a
member of the professions by virtue of her educational attainments.
ORDER: It is ordered that the petition be approved and the
beneficiary accorded third preference under section 203(a) (3) of
the Immigration. and Nationality Act, as amended.

848


Interim Deeision #1821

MATE= or

Oir_s_vroro

In DEPORTATION Proceedings
A-12655381
Decided by Board February 11,1964
Since substantial deviation from the authorized training conditions and program
established by petition (section 214(e)) on behalf of an industrial trainee
(section 101(a) (15) (R) (iii)) violates that status, he is deportable under
section 241(a) (0) of tho Act.

CHAN= :
Order: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9) ]—Noniramigrant, failed to comply with conditions of status under which

admitted.
Lodged: Act of 1952—Section 241(a) (9) [8 U S C. 1251(a) (9)]—Nonimmigrant, failed to comply with conditions of nonimmigrant status to
which changed after entry.

The special inquiry officer held that the record sustains the lodged
charge that respondent failed to comply with the conditions of his

nonimmigrant status as changed after entry. Respondent appeals
from this determination of deportability? We concur in the special
inquiry officer's conclusion _
Respondent is a native and national of Tapan. He last entered this
country at Honolulu on September 19, 1960, as a visitor for pleasure.
Subsequently his nonimmigrant status was changed to that of an
industrial trainees' Respondent was first trained by Auto Parts Warehouse, which dealt in wholesale automotive parts. He requested a
change of trainer to the Summit Manufacturing Company (hereafter called Summit), whose business is wholly concerned with molded
rubber parts and sealing components for automatic transmissions.
The wife of the owner-president of Summit is respondent's mother's
sister.

Although Summit employs about two to four girls irregularly part
1

The special inquiry officer granted respondent's application for , voluntary

departure.
2

Section 101(a) (15) (H) (iii).

456

Interim Decision #1321
time, respondent is the only full-time employee. Therefore, the record might support a conclusion that respondent was more of an ordinary employee than a trainee.' There are some indications the Service
at the time of serving the order to show cause doubted that respondent
was actually receiving training. The Service brought these proceedings, however, because investigation indicated respondent's activities
at Summit did not conform with the approved petition.*
We are not concerned here with whether the respondent's actual
activities at Summit would qualify him for trainee status if those
activities and the petition were in harmony. We also are not concerned with whether petitioner's statements on, or in support of, the
petition willfully misrepresented the training program. For purposes of this appeal we shall consider that Summit would qualify as a
trainer and respondent would qualify as an industrial trainee if the
petition accurately reflected the actual situation.
Two questions are raised. Does respondent's actual training deviate
from the training proposed by the petition? If so, does the deviation
constitute a violation of respondent's nonimmigrant status?
Summit's petition in behalf of respondent (Exh. 2) described sum-

as a manufacturer of molded rubber parts and sealing components
for automatic transmissions. Summit's president's statement, incorporated by reference into the petition, described the training planned
for respondent. That statement outlined the first part of the training
program as follows :
mit

1. Manufacture of rubber component parts.
a. Familiarization with varying rubber formulas, temperature ranges, heat
requirements and ranges; special features and requirements of various
transmissions relating to rubber components and their application relating
to same.
b. Basic introduction and training in various production steps ; mixing crude
stock, milling, extruding finished formulas, operating heat press, curing,
trimming.
c. Care and maintenance of multd-caidty molds.
Summit's president also said special emphasis was to be placed on the

manufacture of rubber sealing components, as well as the design and
At oral argument counsel for the Service said that respondent, as the only
employee, is quite obviously replacing a United States citizen laborer. (The
petition form defines an industrial trainee as "One who seeks to enter at the
invitation of an industrial. organization, firm, or other trainer for the purpose
of receiving instruction in any field of endeavor. Only incidental production
necessary to the training is permitted provided a United States worker is not
thereby displaced.") This point was not developed at the hearing, however. We
do not give it any consideration in determining whether respondent is maintaining
his status as an industrial trainee.
8 CFR 214.2(h).

457

Interim Decision #1321
assembly of various kits, assemblies and sub-assemblies required in
the repair of automatic transmissions.
Respondent's attorney in forwarding the petition for filing wrote:
In order that the subject when he returns to Japan be experienced in the
numerous phases of the highly specialized field involving automatic automobile
transmissions he desires to obtain training in the branch of automatic transmission manufacturing dealing with molded rubber parts and sealing components.
The Summit Manufacturing Company, Inc., manufactures such molded rubber
parts and sealing components and is willing to extend its facilities for training
the subject as Indicated by the attached Form I-129B and the letter of the
president, Mr. Jack Lithe"

From these representations, the Service could conclude only that
respondent would engage in actual performance of the various manufacturing processes described in the president's statement. In fact

Summit did not, and could not, offer respondent such training
opportunities.
Respondent's counsel attempts in his brief to show that the word
"manufacture" has various applications, some of which might cover—
at least in part—what Summit does. The testimony of Summit's
president, however, repels the argument that in the automatic transmission trade Summit, on. the basis of its present activities, could be
considered a manufacturer. The president testified that prior to the
time he took over the business Summit did actually manufacture automatic transmission parts. He stopped that phase of the business,
however, because it was losing money. Respondent's counsel also
objects to the statement in the special inquiry officer's opinion that
Summit makes nothing. As we have seen, Summit does add some-

thing to the products which it purchases, mainly increasing their salability through grouping and packaging. We may concede, therefore,
that, although not a manufacturer, Summit makes something. Nevertheless, whatever Summit makes is certainly far removed from what
the Service, with good reason, thought it made when the Service
approved the petition.
As the trial attorney points out in the Government's reply brief,
when the petition here was filed respondent was completing 18 months'
training in another firm which distributed automotive parts. Indications that the new trainer would add training in manufacturing
certain automotive parts to the training respondent had already
acquired in distributing automotive parts may well have influenced.
'` Counsel prepared this statement on the basis of the information supplied by
Summit's owner. Both counsel and Summit's president, in retrospect, admit

that the petition does not accurately describe Summit or respondent's training.

458

Interim Decision #1321
the Service in granting the request for further training. In fact, as
the record amply shows, Summit is also essentially a distributor.e

We need not determine, however„what motivated the Service's approval of the petition. An industrial trainee enjoys the status established by the petition? Substantial deviations from the authorized
training conditions and program may violate that status, even though

the alien's activities, if properly described, might fall within the general classification, "industrial trainee." In administering sections
101 (a) (15) (H) (iii) and 214(c) of the Act, the Service may, as it did
here, investigate the alien's training program. It need not engage in
.a colloquy on strained semantics to determine what that program is—
:or should be.
We find that the training actually received by respondent varies
substantially from the training proposed in the Petition to Classify
Nonimmigrant as Temporary Worker or Trainee and that the variation renictitutes a violation of respondent's nonimmigrant status. Permitting such divergencies would unduly hamper the Government in
administering the Act. The lodged charge is sustained. We shall dismiss the appeal.
ORDER: It is ordered that the appeal be and is hereby dismissed.
Summit's companion, O.E.M. Automatic Transmission Parts, performs the
actual distribution. Summit is concerned with increasing marketability for
the products distributed by O.E.M. through grouping, minor trimming, and
packaging. 0.E.M., however, sometimes adds other seals and rings to the kits
prepared by Summit. (See testimony of Summit's president and exhs. 0 and
D.) Summit's owner also owns O.E.M. and the two corporations occupy the same
premises. Apparently training in Summit would practically merge with training
in the distributing functions of O.E.M.
Form 1-171 (Rev. March 24, 1960). Notice of Approval of Visa Petition, contains a statement that approval of petitions to import nonimmigrant aliens
covers only the employment or training specified in the petition and that acceptance of employment or training not specified in the petition is a violation of the
beneficiary's nonimmigrant status.

459


Interim Decision #2199

MATTER OF HSU
In Section 248 Proceedings
A-19545838

Decided by Regional Commissioner April 27, 1973
Application under section 248 of the Immigration and Nationality Act for a
change of nonimmigrant classification from visitor for business to that of a
student is denied for failure of applicant to establish that he is a bona fide
nonimmigrant where he obtained his visa on the pretext that he was coming
to this country briefly to conduct business whereas his actual purpose was to
seek acceptance to a school for the purpose of an extended period of study,
thereby evading the normal visa-issuing procedures for obtaining a student
visa.
ON BEHALF OF APPLICANT:

Elmer Fried, Esquire
515 Madison Avenue
New York, New York 10022

This matter is before the Regional Commissioner on appeal from
the denial of the application for change of nonimmigrant status.
The applicant seeks status as a nonimmigrant student in order to
continue his studies in English and business administration at
Therese Aub Secretarial School in New York City.
The applicant is a 26-year-old native and citizen of China who
was admitted to the United States as a visitor for business on
August 1, 1972 until October 2, 1972. His stay was limited to two
months in accordance with the recommendation of the United
States consular officer who issued the visa. The temporary entry
permit (Form 1-94) issued to the applicant shows that he assured
the admitting officer that two months would be adequate for his
purpose.
On September 25, 1972 the instant application was filed, supported by a Certificate of Eligibility (Form 1-20) issued by the
Therese Aub Secretarial School and a bank statement reflecting a
total of over $5,000 in the applicant's accounts in New York. The
proposed course of study would require approximately three years
to complete.
The District Director denied the application primarily for failure
344

Interim Decision #2199
to establish adequate funds to fully defray all expenses of the
applicant while studying in this country.
On appeal and in oral argument counsel has submitted a new
affidavit from the applicant stating that he is now a full-time
student at Therese Aub Secretarial School and expects to graduate in November of 1975. He pays $700 per year tuition and now
has over $8,000 in a bank in New York. He further advises that his
living expenses, exclusive of his tuition, amount to approximately
$140 per month and this is broken down by rent, food, transportation, entertainment, and miscellaneous. This amount, together
with the tuition, totals about $2,400 per year. Thus, on the surface,
it would appear that he has sufficient funds to defray the cost of
three years of study in this country. Additionally, he has submitted a letter from his mother in Taiwan, along with English
translation, declaring that she would assist him financially if
necessary. There is no evidence to indicate that the mother has
any funds and could assist the applicant if she wanted to. Counsel
is aware of this and stated that it is believed that the funds now in
the bank are sufficient.
Upon examining the record, we find that the applicant originally
stated that he would be fully supported in this country by
"company support and personal saving". He had indicated that he
was employed by the "Gigantic Company" of Taipai earning $5,000
per year. He does not state in what capacity he was employed and

whether he still receives remuneration from the company. Although he asked for and received a visa which would authorize
him to apply for admission to conduct legitimate business, the
consular officer obviously had some reservations about his good
faith as evidenced by the consular notation on the visa that stay
should be limited to two months for business only.
The applicant arrived in this country on August 1, 1972 and
reached New York on August 5, 1972. Just two days later, on
August 7, 1972, he deposited more than $2,000 in a savings account
and more than $3,000 in a checking account. The checking account

is understandable if he is conducting business but it appears
highly unusual for a businessman who expects to be here only two
months to open such savings account. This is particularly true of a
man whose living expenses total only $140 per month. Further,
there is no evidence that he has actually conducted any business
here.
A bank statement shows the average daily balances in his
savings account as follows: August—$2,234; September—$2,134;
October—$388.89; November—$5,188.89 and a balance of $8,233.89
as of December 15, 1972.

There is no explanation given for the sharp fluctuations in the
345

Interim Decision #2199
bank balances. We are not told for what he is spending and
receiving several thousands of dollars over a brief period. If he is
actually engaged in legitimate business transactions permitted
under his classification as a visitor for business, he has made no

effort to enlighten us.
The activities of the applicant support a finding that he was less
than candid in his dealings with the American consular officer
who issued his visa and with this Service. It appears that he came
to this country not to conduct legitimate business for two months
but to seek acceptance to a school for the purpose of studying for
an extended period of time. Therefore, it follows that he circumvented the prescribed visa-issuing procedures by securing a
business visa rather than a student's visa. Perhaps, what the
applicant has not told us speaks louder than what he has told us.
In any event, we find that he has not convinced us that he came
here as a bana fide visitor for business and that he was maintaining such lawful status when he filed the current application.

Further, the failure to reveal many material details leads to the
conclusion that the totality of the applicant's good faith is subject
to doubt and we find that he has failed to establish that he is a
bona fide nonimmigrant. Accordingly, we find that the denial of
the application was the proper decision and the appeal will be
dismissed.
It is ordered that the appeal be and is hereby dismissed.

346


Interim Decision #2054

MATTER OF GOUVE1A

In Visa Petition Proceedings
A-17869843
Decided by Board August 7, 1970
'nder the law of Guyana, acknowledgment or recognition alone of an illegitimate child by the putative father does not result in legitimation of such
child; legitimation of a child born out of wedlock requires the marriage of
the natural parents.
N BEHALF OF PETITIONER Norman D. Archer, Esquire
720 Franklin Avenue
Brooklyn, New York 11238

The petitioner appeals the decision of the District Director
nying this petition filed to accord the beneficiary immediate relve status as the child of a United States citizen. The District
rector concluded that the petitioner failed to establish that he
rried the beneficiary's mother or otherwise legitimated the
ieficiary in accordance with the provisions of section
'.(b) (1) (C). We concur with that determination.
Che petitioner, a native of British Guiana, asserts that the beniary, a native and citizen of Guyana was born on September 9,
0 in Georgetown, Guyana. The petitioner concedes he never
-ried the beneficiary's mother. In the beneficiary's birth certife presented in support of this petition, the petitioner is regisd as the beneficiary's father.
he petitioner contends on appeal that, under the laws and
:ial Executive Regulations of Guyana, a child once given the
er's name and taken care of by the father is considered a
.imate child. We digagree.
a ction 3 (1) of the Legitimacy Ordinance of British Guiana,'
'ides in pertinent part :
olume IV, The Laws of British Guiana, Chapter 165 (May 14, 1932).
r the Guyana Independence Act of 1966, all laws in force as part of
tw of British Guiana shall continue to have effect as part of the law of
na.

604

1

Interim Decision #2054
Subject to the provisions of this section where the parents of an illegitimate
person marry or have married one another, whether before or after the commencement of this Ordinance, the marriage did or shall, if the father of the
illegitimate person was or is at the date of the marriage domiciled in British Guiana, render that person, if he is or was living, legitimate from the
date of marriage.

We have reviewed the Registration of Births and Deaths
Ordinance 2 and find no section providing for the legitimation of a
child by the mere registration of the father's name. Section 31 of
that ordinance relating to the entry of the name of the person as
father of the illegitimate child provides;
No registrar who receives information of the birth of an illegitimate child
shall enter in the register of births the name of anyone as the father of
that child except at the joint request of the mother, and of the person who
acknowledges himself to be the father, and the person shall in that case sign
the register together with the mother.

The above, while dealing with the acknowledgment of a child
by the putative father, does not confer legitimate status of a child
born out of wedlock. The mere fact that the petitioner's name
appears on the beneficiary's birth certificate is not legitimation.
We conclude that, under the laws of Guyana, the legitimation of
the beneficiary required the marriage of the petitioner and the
beneficiary's mother, Matter of J—, 9 I. & N. Dec. 246 (1961).
We therefore affirm the District Director's order.
ORDER: The appeal is dismissed.

Registration of Births and Deaths Ordinance of October 1, 1968, IV
Laws of British Guiana, C. 162, Section 31.

605


Interim Decision #2820

MATTER OF Ramirez-SANcHEz

In Deportation Proceedings
A-230074'72
Decided by Board August 25, 1980
(1) The decision to institute deportation proceedings involves the exercise of
prosecutorial discretion and is one which neither the immigration judge nor this
Board reviews.
(2) Once deportation proceedings are commenced, the immigration judge must find the
respondent deportable if the evidence sustains the charge.
(3) Where the name on Service records is identical to the respondent's name, in the
absence of a denial by the respondent that those documents relate to him, we may
infer that those records do pertain to him.
(4) Counsel's comments in support of a motion to suppreao are not evidence.
(5) Where Forms 1-274 (Request for Return to Mexico) advised the respondent of his
right to counsel and to a deportation hearing, there was substantial compliance with
8 C.F.R. 287.3 despite the failure of the record to indicate that the respondent was
advised that any statement he made could be used against him in a subsequent
proceeding.

(6) Where there was substantial compliance with 8 C.F.R. 287.3, in the absence of any
claim of any right to remain in the United States, there was no prejudice to the
respondent from the admission into evidence from Service files of Forms 1-274 reflecting that the respondent had twice previously requested and received voluntary
departure_
(7) Where copies of Forms 1 - 274 offered into evidence were properly certified by the

District Director pursuant to 8 C.F.R. 103.7(dX2) and 287.6, and the respondent did not
challenge the authenticity or accuracy of those documents, the immigration judge's
refusal to require the Service to produce for cross-examination the agents who
completed the forms was proper.

(8) The facts that the respondent twice requested and accepted voluntary departure and
that, even with the assistance of counsel, he has not alleged any right to remain in the
United States constitute persuasive evidence of alienage.
CHARGE;

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)1—Entry without inspection
ON BrHAr 5, or RESPONDENT:

Kenneth A. Leshen, Esquire
5228 Whittier Boulevard
Los Angelce, California 90022

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

Interim Decision #2820
In a decision dated November 17, 1978, an immigration judge found
the respondent deportable under section 241(a)(2) of the Immigration
and Nationality Act, 8 U.S.C. 1251(a)(2), for having entered the United
States without inspection. The immigration judge denied voluntary
departure and ordered the respondent deported. The respondent has

appealed. The appeal will be dismissed.
The respondent is a married male approximately 23 years of age,
allegedly a native and citizen of Mexico. A written argument in support of a motion to suppress contained in the record reflects that the

respondent was arrested by Service officers on May 17, 1978, at the
Sbicca Shoe Factory in South El Monte, California.
At the hearing, the respondent testified that his name is Mario
Ramirez-Sanchez. His counsel indicated that the respondent is the
person named in the Order to Show Cause. The respondent then
invoked his rights against self-incrimination under the Fifth Amendment and refused to answer further questions regarding deportability.
To establish deportabiIity, the Service introduced two sets of documents from Service File No. A23 007 472 pertaining to one Mario
Ramirez-Sanchez. Each set of documents included Forms 1-213
(Record of Deportable Alien), 1-274 (Request for Return to Mexico),
and WR-424. These sets of documents which were prepared on March 3,
1977, and September 9, 1977, respectively, indicate, inter alit; that

Mario Ramirez-Sanchez twice entered the United States without inspection by paying a smuggler, and that in both instances he requested
and was allowed voluntarily to return to Mexico. Both Forms 1 213
show Sbicca, El Monte, California (the respondent's most recent employer) as the last or current employer. The respondent refused to
identify the signatures on the Forms 1-274, but did not deny that he
signed those, documents. The immigration judge found that these
documents established the respondent's deportability by clear, convincing, and unequivocal evidence.
-

On appeal, the respondent contends that the Order to Show Cause
was facially insufficient to require him to answer it, that the docu-

mentary evidence introduced at the hearing should have been suppressed or at least that he should have been granted a separate hearing
on his motion to suppress during which he could have testified without
his testimony being considered against him on the issue of deportability, and that he was denied the right to cross-examine the agents who
prepared the documents admitted into evidence against him.' His
' The respondent devoted several pages of his, brief on appeal to the question whether
his apprehension by Service agents at his place of employment was legally sufficient.
This issue was not raised before the immigration judge and.the facts of the arrest are not
set forth in the record. Moreover, no evidence seized in connection with the respondent's
arrest was offered into evidence at the hearing It is well established that an illegal
504

Interim Decision #2820
contentions were preserved for appeal by appropriate objections
below. '
The respondent's challenge to the Order to Show Cause is in essence
a contention that deportation proceedings were improperly instituted.
Every proceeding to determine the deportability of an alien in the
United States is commenced by the issuance of an Order to Show
Cause. 8 C.F.R. 2421. The decision to institute deportation proceedings
involves the exercise of prosecutorial discretion and is one which

neither the immigration judge nor this Board reviews. Matter of
Morin, 16 I&N Dec. 581 (BIA 1978); Matter of Geronimo, 13 I&N Dec.
680 (BIA 1971). Once deportation proceedings are commenced, the
immigration judge must order deportation if the evidence supports the

charge. Guan Chow Tok v. INS, 538 F.2d 36 (2 Cir. 1976). Thus, the
question is whether the evidence submitted established deportability
and not whether the Order to Show Cause should have been issued.
To be admissible in deportation proceedings, evidence must be relevant and probative and its use must not be fundamentally unfair.
Hoonsilapa. v. INS, supra; Marlowe v. INS, 457 F.2d 1314 (9 Cir. 1972);

Matter of Toro, Interim Decision 2784 (BIA 1980). The use of admis-

sions obtained" from a respondent involuntarily to establish deportability is fundamentally unfair. Matter of Garcia, Interim Decision 2778
(BIA 1980). An objection to the admissibility of a statement on the

ground that it was involuntarily obtained must be supported by
specific and detailed statements based on personal knowledge or other
evidence, and a prima facie case must be shown before the Service is
required to justify the manner in which the statement was obtained.
Matter of Garcia, supra; cf. Matter of Rojas-Flores, 15 I&N Dec. 722
(BIA 1976); Matter of Wong, 13 I&N Dec. 820 (ETA 1971); Matter of

Tang, 13 I&N Dec. 691 (BIA 1971).

The respondent's motion to suppress the evidence offered by the
Service was insufficient and properly denied. There is no evidence that
the prior statements of Mario Ramirez-Sanchez were- made involuntarily. The respondent's offer of proof in support of his motion is
a mixed legal and factual declaration by counsel, not based on counsel's
personal knowledge and never corroborated personally by the respondent. The respondent stood mute at the hearing, refusing to testify on
the issue of deportability on the ground that his answers might incriminate him. In a brief to the immigration judge, his counsel argued
arrest alone does not invalidate subsequent deportation proceedings otherwise legally
sufficient. U.S. ex. rel. Bilolcurnsky v. Tod, 263 U.S. 149 (1923); Medina-Sandoval v. INS,
524 F.2d 658 (9 Cir. 1975) is also settled that the respondent's identity is not
suppressible. See Smithy. INS, 585 F.2d 600 (3 Cir. 1978); Ho onsilapa v. INS, 575 F.2d 735

(9 Cir. 1978), Wong Chung Che v. INS, 565 F.2d 166 (1 Cir. 1977); Kati* v. INS, 562 F.2d
866 (2 Cir. 1977); Guzman-Flores v. INS, 496 F.2d 1245 (7 Cir. 1974).

505

Interim Decision #2820
that if the respondent were allowed to testify without his testimony
being considered against him, the respondent would testify that at the
times the statements in question were taken, he was detained in the
custody of Service agents, he was nervous and fearful, and that the
agents misrepresented if not suppressed his rights to counsel and to a

hearing.
Counsel's arguments are not evidence and even if they were, they
would not constitute a prima faeie showing that the statements were

involuntarily given. The statement lacks factual details from which we
could conclude that there may have been coercion or duress. There is
no allegation of physical abuse, hours of interrogation, denial of food
or drink, threats or promises, or interference with any attempt by the
respondent to exercise his rights. Compare Matter of Garcia, supra.
The record does not reflect that the respondent was advised that any
statement that he made could be used in a subsequent proceeding.
However, we find substantial compliances with 8 C.F.R. 287.3 in that
both Forms 1-274 advised the respondent, in both English and Spanish,
of his right to consult a lawyer and his right to ask for a hearing to
determine his right to remain in the. United States. Despite these
warnings, the respondent acknowledged his alienage and requested
voluntary departure. As the respondent, now with assistance of counsel, has offered no evidence or even an allegation of any right to remain
in the United States, we infer that none existed at the time of his
requests for voluntary departure. Under these circumstances we find
no prejudice to the respondent (Matter of Garcia-Flores, supra) and
that use of the documents described above is fundamentally fair?
As the names on the documents from the Service's files and the
respondent's name are identical and the respondent has not denied
that the documents pertain to him or that the information contained

in those documents is true, they are clearly relevant and clearly
probative of alienage. U.S. v. Rebon-Delgado, 467 F.2d 11 (9 Cir. 1972);
Matter of Lepva, 16 I&N Dec. 118 (BIA 1977); Matter of14,15 I&N Dec.
514 (BIA 1975); Matter of Cheung,13 1&N Dec. 794 (BIA 1971). Further,
aside from the verbal admissions made by the respondent, the facts
that he twice requested and accepted voluntary departure to Mexico
and that, even with the assistance of counsel, he has not alleged any
2 The immigration judge's. refusal to require the Service to produce for cross-examination the agents who recorded the respondent's statements was not error. The copies of
those documents which were admitted were properly certified as official records of the
Service by the District Director pursuant to 8 C.F.R. 287.6. A District Director is
authorized by 8 C.F.R. 103.7(d)(2) to certify copies of files, documents, and records in the
custody of his office. As the respondent did not challenge the authenticity or accuracy of
those documents, no further authentication was required. Compare Matter of Exantus
and Pierre, 16 I&N Dec. 382 (BIA 1977).

506

Interim Decision #2820
right to remain in the United. States constitute persuasive evidence of
alienage. The respondent has offered no evidence to establish the time
and manner of his entry into the United States as required by section
291 of the Act.

We find the evidence of deportability to be clear, convincing, and
unequivocal. See Woodby v. INS, 385 U.S. 276 (1966). Accordingly, the
appeal will be dismissed.
ORDERS The appeal is dismissed.

kna


Interim Decision #2562

MATTER OP BATERINA
In Deportation Proceedings
A-19863283

Decided by Board March S, 1977
(1) The immigration judge has the authority to make an independent determination as to
whether an alien is subject to the foreign residence requirement of section 212(e) of the
Immigration and Nationality Act.
(2) Even though the regulations governing the applicability of the Skills List (22 C.F.R.
41.65(b)) provide that aliens granted exchange-visitor visas after its effective date
(April 25, 1972) shall not be subject to it, and alien reinstated in exchange-visitor status
after April 25, 1972, is subject to the Skills List in the same manner as an alien obtaining
an exchange - visitor vies for the first time after that date.
(3) Proceeding remanded to the immigration judge for a determination of whether the
respondent is subject to the foreign residence requirement as a registered nurse trebled
in a recognized nursing specialty.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained
longer
ON BEHALF OF RESPONDENT: William B. Howell, Esquire

1200 Wilshire Boulevard '
Suite 404
Los Angeles, California 90017

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members
In a decision dated June 1, 1976, an immigration judge denied the
respondent's motion to reopen her deportation proceedings so that she
could apply for adjustment of status under section 245 of the Immigration and Nationality Act. The respondent has appealed from that decision. The record will be remanded.
The respondent is a 29-year-old female, native and citizen of the
Philippines. She was admitted into the United States on July 27, 1971,
as a nonimmigrant exchange visitor under section 101(a)(15)(J) of the
Act to participate in a nurse training program sponsored by Methodist
Hospital, Houston, Texas. The record reflects that she was reinstated to
exchange-visitor status on March 13, 1974, with extension of time until
August 24, 1974. Her subsequent application to change her status to
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that of temporary worker was evidently denied by the District Director;
the record contains a letter from the Regional Commissioner dated June
26, 1975, affirming this denial. The reason for denial was that she was
within the category of exchange visitors who are ineligible for adjustment until they have completed the two-year foreign residence requirement under- section 212(e) of the Act.
On September 17, 1975, the respondent was found deportable under
section 241(a)(2) of the Act as an overstayed nonimmigrant and was
granted the privilege of voluntary departure. The respondent subsequently applied for adjustment of status and moved to reopen the
deportation proceedings for consideration of her application. The immigration judge ruled that he was bound by the District Director's finding
that she was subject to the foreign residence requirement. He also
stated that he was without jurisdiction to determine whether she was
entitled to a waiver of the residence requirement.
Prior to 1970, all aliens who were admitted into the United States as
exchange visitors were ineligible to apply for an immigrant visa, permanent residence, or for a nonimmigrant (temporary worker) visa unless they had been physically present for at least two years in their
country of nationality or last residence following the expiration of their
stay. Waivers of the foreign residence requirement were permitted in
the case of aliens who established that fulfillment of that requirement
would cause extreme hardship or was not in the public interest.
The subsequent amendment of section 212(e) in 1970 effectively removed the foreign residence requirement for all exchange visitors except those who (1) participated in programs financed either in whole or
in part by their country or the United States, or (2) are trained in an
occupation whose skills are required by their country. These exchange
visitors may still apply for a personal hardship or public interest waiver.
The Department of State is charged with identifying and publishing a
list of Government-financed programs and of special skills needed by
individual countries. Section 212(e) of the Act. See generally S. Rep.

No. 851, 91st Gong., 2d Sess., 7.
The respondent contends on appeal (1) that the immigration judge has
the authority to review a decision by the District Director that an alien
belongs to either category of exchange visitors; (2) that she is not
subject to the Skills List, 22 C.F.R. 41.65(b), because she was admitted
to the United States before its effective date; and (3) that, even if she is
subject to it, she is not "trained in a recognized nursing specialty" and is
therefore not a person whose skills are needed by her native country.
The immigration judge refused to consider evidence submitted by the
respondent because of the District Director's prior determination that
she was subject to the foreign residence requirement. We believe that

he does have the authority to make an independent determination of this
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issue. In Matter of Ajaelo, Interim Decision 2317 (BIA 1974), the Board
held that it was prejudicial error for an immigration judge to refuse to
consider evidence that the program the respondent had participated in
was not a Government-financed program and he was therefore not
subject to the residence requirement, when the evidence was presented
in conjunction with an application for adjustment of status which tugs

properly before him. See also Matter of Oum, 14 I. & N. Dec. 340 (BIA
1973).
This view is not inconsistent with our prior holdings that an immigration judge has no authority to review a decision by the District Director
denying an application for a waiver of the foreign residence requirement
by an exchange visitor who is concededly subject to that requirement.
See Matter of Mombo, Interim Decision 2301 (BIA 1974); Matter of hie.
10 I. & N. Dec. 372 (BIA 1963); Matter of Rosenblatt, 10 I. & N. Dec.
154 (BIA 1963); Matter of Han, 10 I. & N. Dec. 53 (BIA 1962).
The respondent contends that she is not subject to the Skills List
since she obtained her visa prior to the effective date of the list. (April
25, 1972.)
It is true that the regulations state that only those aliens granted
exchange visitor visas after the effective date of the Skills List shall he
subject to it. See 22 C.F. R. 41.65(b). The purpose behind its prospective
application is to put those exchange visitors on notice at the commencement of their stay that they will have to fulfill the foreign residence
requirement before they can apply for change or adjustment of status.
"Whether the foreign residence requirement is applied in each case will
be determined with reference to circumstances existing at the time the
exchange visitor acquired `J' status rather than at the time he applies
for adjustment of status or an immigrant visa." S. Rep. No. 851, supra.
An alien who is reinstated to exchange-visitor status is in substantially the same position as one who acquires that status for the first
time. When the respondent was reinstated to exchange-visitor status on
March 13, 1974, she received an extension of stay beyond the time
permitted when she first obtained a visa. In effect, she "reacquireti"
exchange-visitor status, and should have been on notice that she was
subject to the foreign residence requirement if trained in one of the
occupations denominated on the Skills List_

We therefore conclude that an alien who is reinstated to exchangevisitor status after April 25, 1972, is subject to the Skills List in the
same manner as an alien who obtains an exchange-visitor visa for the
first time after that date.
The only issue remaining is whether the respondent is in fact a
"registered nurse in a recognized nursing specialty." It is undisputed
that she is a registered nurse. The Regional Counnibsioner concludd
that she had worked in a cardiovascular surgery unit and was therefore
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trained in a nursing specialty, but the evidence he based his decision on
is not contained in the record. The respondent has submitted an affidavit
by her and letters from her employers in the United States as evidence
that the only training she has received here has been as a general staff
nurse.
Accordingly, the motion to reopen is granted and the ease will be
remanded to the immigration judge for a determination of whether the
respondent is subject to the foreign residence requirement as a registered nurse trained in a recognized nursing specialty. The record contains an application for adjustment of status and an approved visa
petition, dated April 1, 1976, on behalf of the respondent as the daughter of a lawful permanent resident. As discussed previously, whether
the respondent is subject to the foreign residence requirement relates to
her statutory eligibility for adjustment of status, and the immigration
judge has the authority to make this determination.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with this opinion and the entry of a new
decision.

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Interim Decision #3890

Matter of Martin CHAIREZ-Castrejon, Respondent
Decided April 24, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In determining whether a statute is divisible under Mathis v. United States, 136 S. Ct.
2243 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record
only to discern whether statutory alternatives define “elements” or “means,” provided
State law does not otherwise resolve the question.
FOR RESPONDENT: Skyler Anderson, Esquire, Taylorsville, Utah
FOR THE DEPARTMENT OF HOMELAND SECURITY: Matthew R. Hall, Senior
Attorney
BEFORE: Board Panel: PAULEY and GREER, Board Members. Concurring Opinion:
MALPHRUS, Board Member.
PAULEY, Board Member:

When this case was last before us in Matter of Chairez, 26 I&N Dec.
819 (BIA 2016), we sustained the respondent’s appeal in part and remanded
the record to the Immigration Judge. The Department of Homeland
Security (“DHS”) has filed a motion asking us to reconsider that decision.
The motion will be denied.
The respondent is a native and citizen of Mexico and lawful permanent
resident of the United States. He was convicted on December 3, 2012, of
unlawfully discharging a firearm in violation of section 76-10-508.1 of the
Utah Code, a felony for which he was sentenced to an indeterminate term
of imprisonment of up to 5 years. In Matter of Chairez, 26 I&N Dec. at
825, we held that the DHS did not prove that the respondent was removable
under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated
felony crime of violence under 18 U.S.C. § 16 (2012) and section
101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2012). 1
1

The Immigration Judge also concluded that the respondent is removable under section
237(a)(2)(C) of the Act because he was convicted of a categorical firearms offense, and
we affirmed that determination. Matter of Chairez, 26 I&N Dec. at 821 n.2. The issue of
the respondent’s removability under section 237(a)(2)(C) of the Act is not before us.

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We concluded that section 76-10-508.1 does not categorically define a
crime of violence because it encompasses offenses committed with a mens
rea of recklessness. Matter of Chairez, 26 I&N Dec. at 822 (citing United
States v. Zuniga-Soto, 527 F.3d 1110, 1122–24 (10th Cir. 2008) (holding
that reckless conduct does not involve the deliberate “use” of physical force
required by the crime of violence definition)). We determined that even
though section 76-10-508.1 encompasses offenses committed intentionally
and knowingly, it is not divisible into three separate offenses with distinct
mental states—that is, intentional, knowing, or reckless discharge of a
firearm. Id. at 824–25 (citing Mathis v. United States, 136 S. Ct. 2243,
2256 (2016)). Because this alternative language did not render section
76-10-508.1 divisible relative to the definition of a crime of violence, we
concluded that a modified categorical inquiry was not permitted. Id.
The DHS argues that we should have extended the Supreme Court’s
holding in Voisine v. United States, 136 S. Ct. 2272 (2016), and found that
even “reckless” discharge of a firearm under section 76-10-508.1 is a crime
of violence notwithstanding Zuniga-Soto, a decision of the United States
Court of Appeals for the Tenth Circuit, in whose jurisdiction this case
arises. Alternatively, the DHS argues that even if section 76-10-508.1 does
not categorically define a crime of violence, we misapplied Mathis in two
respects: (1) we improperly inferred that section 76-10-508.1 is indivisible
from the fact that Utah law does not require a jury to be unanimous about
the mental state of a defendant who is guilty of second-degree murder; and
(2) we did not consider the respondent’s plea agreement as evidence of the
divisibility of section 76-10-508.1.
A motion to reconsider is a “request [to] reexamine [a] decision in light
of additional legal arguments, a change of law, or perhaps an argument or
aspect of the case which was overlooked.” Matter of O-S-G-, 24 I&N Dec.
56, 57 (BIA 2006) (citations omitted). The DHS’s motion will be denied
because it does not identify an adequate reason for reconsideration.
First, while we have the authority to apply intervening Supreme Court
precedent that supersedes contrary circuit court authority, we may not
extend the rationale of a Supreme Court decision in the face of contrary
precedent from the controlling circuit. See Matter of Carachuri-Rosendo,
24 I&N Dec. 382, 385, 387–88 (BIA 2007) (holding that we must follow
circuit precedent regarding the meaning of criminal statutes and clarifying
that the circuits must decide whether their precedents have been implicitly
overruled by the Supreme Court), aff’d, Carachuri-Rosendo v. Holder, 570
F.3d 263 (5th Cir. 2009), rev’d on other grounds, 560 U.S. 563 (2010).
As we noted in our prior decision, the Court in Voisine held only that
reckless assault involves the “use of physical force” within the meaning of
the “misdemeanor crime of domestic violence” definition in 18 U.S.C.
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§ 921(a)(33)(A) (2012). Matter of Chairez, 26 I&N Dec. at 822 n.4. In so
holding, the Court stated that it did not intend to resolve whether reckless
conduct satisfies the “use of physical force” requirement under 18 U.S.C.
§ 16. Voisine, 136 S. Ct. at 2280 n.4. The Court explained that “[c]ourts
have sometimes given [18 U.S.C. §§ 16 and 921(a)(33)(A)] divergent
readings in light of differences in their contexts and purposes,” and it left
open the possibility that courts could interpret the two provisions
differently “with respect to their required mental states.” Id. Because there
is no necessary conflict between Voisine and Zuniga-Soto, we are obliged
to follow Zuniga-Soto unless and until it is overruled by a court of
competent jurisdiction. Matter of Carachuri-Rosendo, 24 I&N Dec. at 385,
387–88. This is not a proper case for us to express an opinion on the merits
of the DHS’s arguments as to how the law may or should evolve after
Voisine. Rather, since the Tenth Circuit has not overturned Zuniga-Soto in
the wake of Voisine, it remains authoritative precedent in this case.
We also disagree with the DHS’s assertion that we misapplied Mathis
when we drew a “reasonable inference” that section 76-10-508.1 is
indivisible by looking to analogous Utah case law in the context of
second-degree murder. Matter of Chairez, 26 I&N Dec. at 824 (citing State
v. Russell, 733 P.2d 162, 164–68 (Utah 1987)). As the Court in Mathis
made clear, the divisibility of a State statute depends on whether State law
establishes that statutory alternatives are discrete “elements” or alternative
“means” of committing an offense. Mathis, 136 S. Ct. at 2256. Where
State case law does not address the distinction between elements and means
in the context of a specific criminal statute, we see nothing unreasonable or
impermissible about seeking guidance in cases interpreting statutes with
similar language and structure. As we stated in our prior decision, we are
unaware of any “Utah cases directly addressing whether intent, knowledge,
and recklessness operate as alternative ‘elements’ or mere [means] in the
context of section [76-10-508.1].” Matter of Chairez, 26 I&N Dec. at 824.
Finally, we cannot adopt the DHS’s view that the respondent’s plea
agreement—which indicates that the respondent’s offense involved a
“knowing” discharge of a firearm—is probative evidence of the divisibility
of section 76-10-508.1 under Mathis. Pursuant to Mathis, we may “peek”
at the respondent’s conviction record for the “sole and limited purpose” of
deciding whether statutory alternatives define discrete “elements”—or facts
that must be proven to a jury beyond a reasonable doubt in order to convict.
Mathis, 136 S. Ct. at 2256–57 (citation omitted). Thus, at the “peeking”
stage of our inquiry, we are not concerned (as we would be under a
modified categorical inquiry) about which facts were proved or admitted.
Instead, we are concerned only with those facts that had to be proved or
admitted in order to convict. Id. at 2248.
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Standing alone, the admission in the respondent’s plea agreement that
he knowingly discharged a firearm is not itself sufficient to reliably
establish that this admitted fact is an “element” in the narrow sense
contemplated in Mathis. The Court has instructed that we must view such
findings or admissions in conjunction with the charges to which they
correspond in order to ensure that a found or admitted fact is truly an
“element” of the State statute of conviction. See id. at 2257. Thus, while
the facts admitted in a plea agreement may shed light on the divisibility of a
State statute when those facts are tethered to what is alleged in a charging
document, that is not the case here.
We need not decide what documents are appropriate for a “peek,” aside
from the documents referenced by the Court in Mathis—namely, the
relevant jury instructions and the charging document filed by the
prosecutor. See id. If, for example, a prosecutor charges a defendant in the
disjunctive with “intentionally, knowingly, or recklessly” discharging a
firearm, that would be “as clear an indication as any that each alternative is
only a possible means of commission, not an element that the prosecutor
must prove to a jury beyond a reasonable doubt.” Id. This is so even if the
defendant subsequently signs a plea agreement that specifies only one of
those three mental states to the exclusion of the others. On the other hand,
if a prosecutor charges a defendant only with one of the three enumerated
mental states—for instance, “knowingly” discharging a firearm—that
would tend to indicate that each mental state is a distinct element. 2
As we noted in our prior decision, “[t]he amended information to which
the respondent entered his guilty plea contains no mens rea allegation at all
with respect to the respondent’s discharge of a firearm, much less an
allegation of one particular mental state to the exclusion of all others.”
Matter of Chairez, 26 I&N Dec. at 825. Since the admission of a
“knowing” mental state contained in the respondent’s plea agreement is not
tethered to any fact charged in the amended information, that admission
does not establish the divisibility of section 76-10-508.1 under Mathis. We
therefore discern no legal or factual error in our prior decision in this case
and will deny the DHS’s motion to reconsider. See Matter of O-S-G-,
24 I&N Dec. at 57.
ORDER: The motion to reconsider is denied.

2

Notably, the information that may be gleaned by “peek[ing]” at the conviction record
does not stand on an equal footing with “authoritative sources of state law.” Mathis, 136
S. Ct. at 2256. In fact, the Court made clear that such a “peek” may be resorted to only
“if state law fails to provide clear answers” with respect to divisibility. Id.

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CONCURRING OPINION: Garry D. Malphrus, Board Member
I concur in the reasoning and the result in this case. I write separately to
note that while the Department of Homeland Security (“DHS”) is incorrect
that the respondent’s plea agreement renders his statute of conviction
divisible relative to the generic definition of a crime of violence under
18 U.S.C. § 16 (2012), it is correct that the respondent’s plea agreement
shows that he pled to knowingly—rather than recklessly—discharging a
firearm in the direction of a person. Under established law, this would
constitute a crime of violence under 18 U.S.C. § 16, and thus an aggravated
felony under section 101(a)(43)(F) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(43)(F) (2012).
However, we may not consider the respondent’s conviction records in
this or any other case, unless we first determine that the statute of
conviction is divisible under the narrow circumstances prescribed by the
Supreme Court in Mathis v. United States, 136 S. Ct. 2243 (2016), and
Descamps v. United States, 133 S. Ct. 2276 (2013), where the Court
interpreted and extended its approach to divisibility in Taylor v. United
States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S.
13 (2005). This is so even when the relevant conviction documents are in
the record and it is undisputed that they establish the respondent’s actual
conduct. Mathis, 136 S. Ct. at 2256 (noting that “how a defendant actually
committed [the] offense” is irrelevant to the divisibility analysis).
Whether Congress would have intended this result is an entirely
different question. See id. at 2258 (Kennedy, J., concurring) (noting that
Congress did not intend this strict approach when the record makes it clear
that the defendant committed the generic crime); see also id. at 2268 (Alito,
J., dissenting) (same). This is especially true for immigration proceedings,
which are civil, rather than criminal, in nature. The Supreme Court’s
approach to divisibility in Taylor and Shepard was created to protect Sixth
Amendment rights in the context of Federal sentencing proceedings and to
prevent “the specter of mini-trials” on collateral issues during sentencing,
but those legal and policy concerns do not apply in the same manner in the
context of immigration proceedings. Prudencio v. Holder, 669 F.3d 472,
490 (4th Cir. 2012) (Shedd, J., dissenting) (citation omitted). It is not at all
clear that holding a mini-trial to determine what conduct—within the range
of conduct punished by a statute—an alien actually committed is any more
onerous than deciding whether a particular statute provides separate
elements of a crime or alternative means of committing the offense. See
Mathis, 136 S. Ct. at 2264 (Breyer, J., dissenting). There are often no clear
answers to whether a fact is an element or a means, even after an exhaustive

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search, and “[w]hat was once a simple matter will produce a
time-consuming legal tangle.” Id.
Immigration Judges frequently make findings on collateral issues such
as determining whether an offense is a “particularly serious crime” in the
course of adjudicating an asylum application. See section 208(b)(2)(A)(ii)
of the Act, 8 U.S.C. § 1158(b)(2)(A)(ii) (2012). Also, Immigration Judges
routinely consider probative evidence of facts and circumstances outside
the conviction record when considering whether a respondent with a
criminal history warrants relief from removal in the exercise of discretion.
See, e.g., Matter of Silva-Trevino, 26 I&N Dec. 826, 837 (BIA 2016);
Matter of Mendez, 21 I&N Dec. 296, 303 n.1 (BIA 1996).
Here, we must presume that the respondent committed the least of the
acts criminalized within the range of conduct punishable under his statute
of conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013).
This is true even though the respondent’s plea agreement indicates that he
did more—specifically, that he knowingly discharged a firearm at another,
and thus he committed an aggravated felony crime of violence. See id.
The approach to divisibility required by Descamps and Mathis will
result in immigration proceedings being terminated for many aliens who
have committed serious crimes in the United States. See, e.g., Ramirez
v. Lynch, 810 F.3d 1127, 1134–38 (9th Cir. 2016) (reversing the order of
removal upon concluding that the California statute proscribing felony
child abuse was not divisible, and thus it was improper to consider the
conviction records in determining whether the alien’s conviction
constituted an aggravated felony crime of violence). 1 It is for Congress to
determine whether this approach is consistent with its intent regarding the
immigration consequences of such criminal conduct.

1

While we are not terminating proceedings in this case because the respondent is
removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (2012),
termination would be necessary if the respondent had been convicted under the California
firearms statute that corresponds to the Utah statute at issue here. See United States
v. Aguilera-Rios, 769 F.3d 626, 635–37 (9th Cir. 2014). In fact, while section
237(a)(2)(C) of the Act provides that an alien is removable for a firearms offense, that
provision is inapplicable in any jurisdiction where there is a realistic probability of
successful prosecutions under the statute involving antique firearms. See id. at 637. This
is true even if such prosecutions are exceedingly rare and it is undisputed that the alien’s
conviction did not involve an antique firearm. See Moncrieffe, 133 S. Ct. at 1684–85.

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