MATTER OF PEARSON

In Visa Petition Proceedings
A-17520162
Decided by Board February 26, 1969
(1) Visa petition to accord beneficiary immediate relative status was properly denied for failure to prosecuLe since petitioner failed to appear for

interviews, as requested, to clarify the legal termination of his previous
marriage.
(2) Since the divorce obtained by petitioner in Mexico dissolving his prior
s. marriage, in connection with which he- was in Mexico only a few hours to
obtain an attorney and did not appear before the Mexican court, is not
valid under the laws of Nevada, the State where his subsequent marriage
to beneficiary was contracted, nor under the laws of New York, the State
of matrimonial domicile, such marriage is not valid .to confer immediate
relative status on beneficiary. .
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

ON BEHALF OF PETITIONER:

Edwin L. Wolf, Esquire
40 Worth Street
New York, New York 10013
Kenneth Correa& Esquire
(Of counsel)

On August 5, 1967, the petitioner, a United States citizen, filed
a visa petition on behalf of his spouse, a native and citizen of the
Philippines. The petition recited that the parties were married
on February 18, 1967 in the State of Nevada and thereafter resided in California until May 31, 1967. The record reflects that
since July 8, 1967, the parties have resided in the City of New
York. The petitioner had been married previously and submitted
with the visa petition is a decree of divorce obtained by the petitioner in the Country Court of Yautepec, Fifth Judicial District,
State of Morelos, Republic of Mexico. The divorce was granted on
July 10, 1959: On October 5, 1967, the petitioner was interviewed

by an immigrant inspector. The petitioner stated that he went to
Mexico in 1959 to obtain an attorney, remaining there for a few
hours, and did not appear before the Mexican court. He was ad-

152

Interim Decision #1943
vised by his Mexican attorney that the divorce was legal in the
United States. Thereafter the petitioner was summoned for further interviews. Failing to appear, the District Director, on August 23, 1968, denied the visa petition for lack of prosecution and
for petitioner's failure to resolve the issue of the validity of his
present marriage to the beneficiary.

Counsel on appeal argues that the visa petition should not have
been denied for failure to prosecute. He states that petitioner, a
seaman, has been on the high seas since June 1968, and was unable to present himself for interview. Failure to appear, counsel
asserts, should not be the basis for denial of a visa petition based
on a marriage formalized in conformity with the laws of the
State of Nevada and followed, by actual cohabitation of the parties.

We have reviewed the entire record. We find that the District
Director properly denied the visa petition for failure to prose
cute. The burden is upon the petitioner to establish eligibility for
the benefits he seeks under the immigration laws, Matter of Awct,
dam, 10 I & N Dec. 530 (1964); Matter of Branagan, 11 I. & N.
Dec. 493 (1966). The burden upon petitioner never shifts and is
not satisfied by the mere presentation of documentary proof that
he has obtained a divorce. Petitioner must show that the marriage
presently contracted is valid where celebrated and that any previous marriagei have been legally terminated. By failing to appear for interviews to dispel the doubts raised by his Mexican divorce, he failed to prosecute his petition for benefits under the
immigration laws.
Turning to the question of the effect of the Mexican divorce on
the validity of petitioner's present marriage, we reject the notion
that we must accept at face value the divorce rendered in Mexico.
The issue, here, is whether the Mexican divorce will be recognized
by Nevada, the lex eelebrationis, thereby rendering the marriage
valid.
Counsel argues that it is not the function of the Service to explore the ramifications of legal questions of domicile, residence
and the like involved in foreign divorce decrees, citing as authority Matter of B , 3 L & N. Dec. 227 (1948). That case involved
a person who had been physically present in Mexico for a period
of four days .and had appeared before a "civil judge" although
the divorce had not been granted before he left Mexico. That decision, holding that the administrative agency's inquiry should
end whe
n It has been ascertained that the person had been physically present in. the divorce court's jurisdiction, is based on a
—

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Interim Decision #1943
previous holding by the Attorney General. In a prior decision,
Matter of 0—, 3 I. & N. Dec. 33 (1949), the Attorney General

held that in visa petition cases, the validity of a foreign divorce
is to be determined in accordance with the prevailing law of the
country in which the subject is domiciled and physically present
at the time the divorce is granted. In Matter of P— , 4 I. & N.
Dec. 610 (1952), the Attorney General later changed his position,
thereby also overruling indirectly Matter of B—, supra, stating
that the validity of marriage is governed by the place where the
marriage took place. Another case, Matter of B—, 5 I. & N. Dec.
659 (1954), relied on by' counsel, applies this new rule to determine whether a Mexican divorce, rendered where the Mexican
court had jurisdiction over one of the parties, would be recognized under California law, the place of celebration. However, in
Matter of B—, supra, one party was in Mexico for over a week
and the other party was represented by counsel. In the case before us, the former spouse of the petitioner did not appear in
court, either personally or through authorized counsel. In accordance with the rule set down in Matter of P— , supra, we reject
the- notion that this Mexican divorce should be accepted at face
value and we look to the laws of Nevada to determine the legal
effect of the Mexican divorce upon the marriage in question.
We have recently decided a similar case. In Matter of Adamo,
Interim Decision No. 1910 (1968), we concluded that Nevada
would not recognize a Mexican divorce Where neither of the parties had obtained domicile in Mexico. In Adamo, the petitioner
had gone to Mexico to obtain a lawyer but did not submit himself
to the jurisdiction of the Mexican court, nor did he acquire residence or domicile in Mexico. We found that under the laws of Nevada, mere physical presence in a foreign jurisdiction as opposed
to actual domicile will not' suffice to confer jurisdiction in a foreign court over the subject matter in a divorce proceeding, Bates
v. Bates, 53 Nev. 77 292 P. 298 (1930). Consequently, we held
that Nevada would not recognize petitioner's divbrce obtained in
Mexico where he had not assumed domicile. The marriage between the parties was determined to be void.
Counsel for petitioner asserts that New York, the matrimonial
domicile of the parties, would rule on the question differently.
Under New York law, a marriage which is valid where performed, in the absence of contrary public policy, will be recognized in New York, though it would be invalid if performed in
New York, Herndon v. Herndon, 164 N.Y.S. 2d 568 (1967). However, even under such a rule, we find that New York 'would arrive
154

Interim Decision #1943
at the same result as the State of Nevada in determining whether
the Mexican divorce legally terminated petitioner's previous marriage. Citing Rosenstiei v. Rosenstiel, 202 N.Y.S. 2d 86 209 N.E.
2d 709 (1965), counsel asserts that New York no longer views
domicile as a jurisdictional requirement to the recognition of foreign divorce decrees. We do not find that the Rosenstiel case
stands for such a proposition. The Rosenstiel case involves facts
different from those presented here. That case concerns itself
with a bilateral Mexican divorce. There the party-plaintiff went
to Mexico, signed the Municipal Registry and was physically
present in Mexico for a total of one hour. However, the defendant
spouse also went to Mexico, appeared in the Mexican court by a
duly authorized representative and filed an answer in which she
submitted to the jurisdiction of the Mexican court. The New
York court, although finding that neither party had domicile in
Mexico, determined that both parties to the divorce had submitted to the jurisdiction of the Mexican court. The court in Rosenstiel, if faced with a situation such as is before us, would declare
the divorce of no effect since only one of the parties submitted to
the jurisdiction of the Mexican court.
During oral argument, the Service representative questioned
counsel's standing to appear in light of petitioner's apparent lack
of interest in prosecuting this visa petition. Since we have decided the issues presented herein on their merits, we find it unnecessary to resolve the question of standing.
In summary, it appears in all respects that both Nevada and

New York would not give extraterritorial effect to the Mexican
divorce and consequently the marriage performed in Nevada between the petitioner and the beneficiary is void. We affirm the decision of the District Director.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.

155


Interim Decision

40871

MATIMR OF KIM

In Visa Petition Proceedings
A-17276790
Decided by Regional Commissioner Jay 18, 1967
Since the phrase "exceptional ability in the sciences or arts" contained in section
203(a) (3) of the Immigration and Nationality Act, as amended, contemplates
a broader field of activity, knowledge and ability than that encompassed by
the phrase "of distinguished merit and ability" contained in section 101(a) (15 )
(H) (1), beneficiary does not automatically qualify for preference classification under section 203(a) (3) , as a singer, solely by virtue of baying been
accorded classification under section 101(a) (15) (H) (1) of the Act, as a
person of distinguished merit and ability in the entertainment field.

Oic BRIXISZ or Passions: Hiram W. Ewan, Esquire
1011 North Broadway, Suite 203
Los Angeles, California

This case comes forward on appeal from the decision of the District
Direetor, Los Angeles, who denied the petition on May 3, 1967, in that
it had not been satisfactorily established that the petitioner had "exceptional ability in the sciences or arts" to the degree contemplated
by the statute to qualify for 3rd preference classification.
Oral argument was requested and granted. Counsel appeared on date
scheduled and requested additional time to obtain more evidence. The
additional evidence has been submitted.
Petitioner is a married female, 29 years of age, a native and citizen
of Korea residing in Los Angeles. She was temporarily admitted to
the United States at Honolulu on October 12, 1963 as a nonimmigrant
of distinguished merit and ability under section 101(a) (15) (H) (i)
of the Immigration and Nationality Act, destined to the Desert Inn,
Las Vegas, Nevada.. She was subsequently the beneficiary of a second
petition for the same classification approved October 15, 1964, for
temporary performance at the Stardust Hotel in Las Vegas, and
granted an extension of stay to July 28, 1965. Her husband is also in

the United States in a temporary status as a representative of a foreign
news media.

758

She seeks classification as a preference immigrant under section 203
(a) (3) of the Act, based upon her ability as a singer. The Department
of Labor certification required by section 212(a) (14) of the Act has
been issued_
Section 203 (a) (3) of the Act, provides for the issuance of visas
"to qualified immigrants who are members of the professions, or who
because of their exceptional ability in the sciences or the arts will
substantially benefit prospectively the national economy, cultural interests, or welfare of the United States".
Section 101(a) (32) of the Immigration and Nationality Act, as
amended, defines "profession" as including but not being limited to
architects, engineers, lawyers, physicians, surgeons, and teachers in
elementary or secondary schools, colleges, academies, or seminaries.
Although the definition contained in section 101 (a) (32) is intended
to serve only as a guide, examination of the occupations listed indicates
a common characteristic. A pre-requisite for recognition of professional status in those fields is normally the attainment of at least an
undergraduate degree, and in some instances, a degree beyond the
undergraduate level. Matter of Shin, Int. Dec. No. 1606.
The beneficiary claims to have attended Ewah University, Seoul,
Korea, from 1950 to 1959 studying vocal training and indicates that

no degree or certificate was earned for this course of study. On appeal
counsel presented a letter under the letterhead "Seoul High School of
Music and Art" dated May 1, 1967, stating that petitioner "graduated
from this school on February 27 1 1956". No other evidences of academic
qualifications or higher education has been presented. Consequently,
it has not been established that the beneficiary is eligible for preference
classification by reason of high education. She cannot be considered as
a member of the professions within the statutory definition of that
term.
Counsel on appeal argues that the petitioner Is a singer by occupation and singing is her profession. However, "profession" is a defined
term and the beneficiary's occupation does not fall within that
definition.
We must now determine whether the petitioner can be considered
eligible for 3rd preference classification as a person of exceptional
ability in the sciences or arts.
Title 8 CFR, Part 204.2(f), prescribes the type of evidence required
to establish exceptional ability within the meaning of section 203(a)
(3) of the Act. If the alien alleges eligibility on a claim of exceptional
ability in the sciences or the arts, documentary evidence must be submitted. Such evidence may attest to the universal acclaim and either
national or international recognition accorded the alien; that he has
received national or international recognized prizes or awards in corn-

759

Interim Decision. 4p ta i s
petition awarded for excellence for a specific product, or performance,
or outstanding achievement, or that he is a member of a national or
international association which maintains standards of membership
recognizing outstanding achievement as judged by national or international recognized experts in a, specific discipline or field of endeavor.
Affidavit attesting to an alien's exceptional ability must set forth the
name and address of the affiant, state how he has acquired his knowledge of the alien's qualifications, and describe in detail the facts on
which the affiant bases his assessment of the alien's superior qualifications.
Letters attesting to her ability have been submitted by the Korean
Music Association of Southern California, and by the Consul General
of the Republic of Korea in Los Angeles. Also, numerous uncertified
copies of newspaper and/or magazine clippings concerning appearances from 1960 to 1963. The majority are from Korean and Japanese
publications. Most have only partial translations or penned notations
as to the text, while many are mute as to their content. Most of these
clippings are ordinary publicity type articles and cannot be considered
to be critical reviews by experts in the beneficiary's field of endeavor
as to the quality of the beneficiary's performance in the singing field.
Nowhere is there any evidence that the beneficiary has performed or
sung in an individual performance or act. All the evidence relates to
the beneficiary and her partner singing as a team. Nowhere in the
publicity items is there any Specific mention made of the beneficiary
as to her individual ability as a performer. There is no evidence that
she has ever starred or played a leading role. She has not been featured
by name or acknowledged as eminent by recognized critics or experts
in the field of entertainment. She has appeared at some of the more
prominent places of entertainment and nightclubs in Las Vegas and
New York, but never as the star feature or attraction, and never mentioned individually by name, only as a supporting act with her singing
partner. Whether or not a person possesses exceptional ability must
rest, as a general rule, upon the opinions of persons who are qualified
experts in the field in which the exceptional ability is claimed (5 I. & N.
'Dec. 454). In support of appeal, counsel has presented an affidavit
executed by the entertainment director of the agency which has the
beneficiary under contract, in which he describes the beneficiary as
having "exceptional ability in the science and art of singing", and that
the act in which beneficiary performs has been presented at the Stardust Hotel in La,§ Vegas, in 1966.
The evidence submitted does "Mt satisfy the evidentiary requirements previously set forth. The writers of the letters submitted, although several are engaged in the field of music, have not set forth
their qualifications to judge the ability of the beneficiary and conse-

760

.L111A3r1.111

Lieraston

.to

quently their opinions cannot be accepted as opinions by qualified
critics. "Exceptional ability" must be demonstrated through accomplishment in the individual's chosen field of endeavor. The individual
must have attained a status in his field wherein he is recognized by
his contemporaries as possessing exceptional ability. The term "exceptional ability" as used in section 203(a) (3) of the Act, contemplates something more than what is usual, ordinary, or common and
requires some rare or unusual talent, or unique or extraordinary ability
in a calling which, of itself, requires talent or skill. The evidence
fails to establish that the beneficiary is pre-eminent in her field of
endeavor. She falls short of establishing that she has attained the
eminent stature and reputation contemplated by the statute. The
recognition which she has received has been as a member of a performing team, a singing duet, and not for individual performance.
Counsel argues that the Service having once found the beneficiary
qualified far status under section 101(a) (15) (H) (i) of the Act, as a
person.of distinguished merit and ability in the entertainment field,
she is qualified for the ,3rd preference classification she now seeks.
We cannot agree. Each type of case must be considered on its own
individual merits, characteristics, and qualifications.
The beneficiary's admission in "H i" status, as of distinguished
—

merit and ability, was granted on her performance as a team member
of a duet and that combined performance of the two singers was considered by the Service as qualifying the beneficiary for "H—i" status.
This 'does not, however, automatically qualify the beneficiaries for
3rd preference classification as persons of exceptional ability in the
sciences or arts. It is noted that counsel advised that the beneficiary's
singing partner has been denied 3rd preference classification in another District.
"Exceptional abilityin the sciences or arts", as found in section 203
(9)(3) of the Act, contemplates a broader field of activity, knowledge,
and ability than the wording of section 101(a) (15) (II) (i), "who is
of distinguished merit and ability" coming .temporarily to perform
temporary services requiring such merit and ability. Section 203(a)
(3) encompasses exceptional ability in the field of the sciences or arts
such as a painter, sculptor, writer, prominent in his field while "H i"
—

could be confined to a specific, limited act or ability which is a limited
part of the whole field.
Considering all the circumstances as described above," t must be
found that the debision of the District Director was proper. It has
not been satisfactorily established that the beneficiary is qualified for
3rd preference classification as a perton of exceptional ability in the
sciences or arts. The appeal will be diSmissed:
ORDER; It is ordered that the appeal b6 dismissed;

761


Interim Decision #2413

MATTER OF VALBUENA
In Deportation Proceedings
A-20045995
Decided by Board July 2.4, 1975
Respondent, who was admitted to the United States temporarily as a sheepherder on the
basis of an approved visa petition filed by the Western Range Association, and who,
after being laid off because his employer did not have enough work for him to do, took
employment outside the Association and outside the industry which had petitioned for
him, has violated the conditions of his nonimmigrant status and is subject to deportation
under sectio 241(a)(9) of the Immigration and Nationality Act. Notwithstanding a
contract between the petitioning Association and respondent may have contained a
provision requiring action by the Immigration and Naturalization Service to attempt to
transfer respondent to another association or employer if efforts of the Western Runge
Association or respondents to do this failed, the Service is not bound by such provision
SIT
. 1PP it was rot a party to the contract and would not have had any authority to seek
other employment for the respondent.
CHARGE:
Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9)]—Failed to comply with
conditions of nonimmigrant status—sheepherder.
ON BEHALF OF RESPONDENT: Gerald L. McVey, Esquire
30 Hotaling Place
San Francisco, California 94111

This case has been certified to us by the immigration judge, who
terminated aroceedingb against the respondent on November 10, 1972
in reliance upon our decision in Matter of Garde-Mugueta, A-17290404,
unreported (BIA May 4, 1957). The Immigration and Naturalization
Service did not appeal from the immigration judge's decision. We shall
reverse the immigration judge's decision and remand the case to him for
reopened proceedings.
The alien respondent is a native and citizen of Spain who was
admitted temporarily as a sheepherder on April 29, 1970. He was the
beneficiary of an approved visa petition filed by the Western Range
Association (hereafter the ASsociation). He worked for several members of the Association until May 1972, when he was laid off because his
employer did not have enough work for him to do. When he sought a
new placement from the Association, he was informed that he would
404

Interim Decision #2413
have to go north. Fearing a recurrence of the ill health he had experienced previously when he had gone north to work, he requested an
assignment in California but was told there was no work there. He then
tried unsuccessfully to find employment as a sheepherder on his own,
finally accepting a position on a cattle ranch. In October 1972 he again
approached the Association, requesting work as a sheepherder, but was
told that his case was in the hands of the Immigration and Naturalization Service.
The immigration judge terminated these proceedings on the basis of
our decision in Matter of Garde-Mugueta, supra, another case involving
a sheepherder and the Western Range Association. In that opinion we
quoted from the contract between the Association and the herder, which
contained a provision requiring action by the Immigration and Naturalization Service to attempt to transfer the herder to another association or employer if the efforts of the Western Range Association and the
herder to do this failed. In that case we terminated proceedings on the
ground that this provision had not been complied with. We now recede
from our holding in Matter of Garde-Mugueta, supra.
The contract between the respondent and the Western Range Association is not part of the record. Regardless of whether it was identical
with the contract referred to in Garde-Mugueta, it is clear that the
Immigration and Naturalization Service was not a party to it. The
Service was thus not bound by its provisions, and would not have had
any authority to seek other employment for the respondent.
The respondent admits that he took employment outside the Association and outside the industry which had petitioned for him. This is
clearly a violation of his status. We shall remand the case to the immigration judge for the entry of a new decision and for the consideration of
any applications for discretionary relief which may be made.
ORDER: The decision of the immigration judge is reversed, and the

case is remanded to the immigration judge for. further proceedings in
accordance with the above opinion.

1

Board Member Irving A. Appleman abstained. froni 'consideration of this case.

405


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Interim Decision #3910

Matter of Ramon JASSO ARANGURE, Respondent
Decided December 29, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The Department of Homeland Security is not precluded by res judicata from initiating
a separate proceeding to remove an alien as one convicted of an aggravated felony
burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(43)(G) (2012), based on the same conviction that supported a
crime of violence aggravated felony charge under section 101(a)(43)(F) in the prior
proceeding. Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007), not followed.
(2) Home invasion in the first degree in violation of Michigan Compiled Laws section
750.110a(2) is a categorical burglary offense under section 101(a)(43)(G) of the Act.
FOR RESPONDENT: Russell R. Abrutyn, Esquire, Berkley, Michigan
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sarah Shilvock, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and CREPPY, Board Members.
PAULEY, Board Member:

In a decision dated December 6, 2016, an Immigration Judge found the
respondent 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 burglary offense under section 101(a)(43)(G) of the
Act, 8 U.S.C. § 1101(a)(43)(G) (2012), and ordered him removed from the
United States. 1 The respondent has appealed from that decision. The appeal
will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was admitted to the
United States as a lawful permanent resident on March 17, 2003. The record
reflects that on December 1, 2014, he was convicted on a plea of guilty to
1

The Immigration Judge incorporated by reference a decision dated December 1, 2016,
in which he determined the issue of the respondent’s removability and denied his motion
to terminate the proceedings.

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Interim Decision #3910

home invasion in the first degree in violation of section 750.110a(2) of the
Michigan Compiled Laws. 2 On January 20, 2015, the respondent was
sentenced to a term of imprisonment of 18 months to 20 years.
The Department of Homeland Security (“DHS”) issued a notice to appear
on April 21, 2015, charging the respondent with removability as an alien
convicted of an aggravated felony crime of violence under section
101(a)(43)(F) of the Act. On April 27, 2016, the Immigration Judge
sustained the charge, finding that the respondent was convicted of a crime of
violence, as defined in 18 U.S.C. § 16(b) (2012), and ordered him removed
from the United States. The respondent appealed from that decision.
In a decision dated July 26, 2016, we remanded the record to the
Immigration Judge in light of an intervening decision of the United States
Court of Appeals for the Sixth Circuit, in whose jurisdiction this case arises,
in Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016), which declared 18 U.S.C.
§ 16(b) to be unconstitutionally vague. In light of this change in law, the
Immigration Judge terminated the removal proceedings on remand in a
decision dated September 13, 2016. 3
The DHS issued a second notice to appear on September 15, 2016,
charging the respondent with removability as an alien convicted of an
aggravated felony burglary offense under section 101(a)(43)(G) of the Act,
based on the respondent’s home invasion conviction. Through counsel, the
respondent filed a motion to terminate the new proceedings, arguing that his
offense is not an aggravated felony and that these proceedings are barred by
the doctrine of res judicata. The DHS submitted a response in opposition to
the respondent’s motion.
In his December 1, 2016, decision, the Immigration Judge denied the
motion to terminate and determined that the respondent’s conviction was for
2

Section 750.110a(2) of the Michigan Compiled Laws provides as follows:

A person who breaks and enters a dwelling with intent to commit a felony, larceny,
or assault in the dwelling, a person who enters a dwelling without permission with
intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks
and enters a dwelling or enters a dwelling without permission and, at any time while
he or she is entering, present in, or exiting the dwelling, commits a felony, larceny,
or assault is guilty of home invasion in the first degree if at any time while the person
is entering, present in, or exiting the dwelling either of the following circumstances
exists:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.
3
The Immigration Judge’s order did not specify whether the termination was with
prejudice, which is an issue disputed by the parties. For purposes of this appeal, we will
assume, arguendo, that the termination order was with prejudice.

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Interim Decision #3910

an aggravated felony burglary offense under section 101(a)(43)(G) of the
Act. He ordered the respondent removed in his December 6, 2016, decision,
from which the respondent has appealed. 4
The respondent argues on appeal that the Immigration Judge erred in
finding that these proceedings are not barred by the doctrine of res judicata.
In response, the DHS contends that res judicata does not apply because the
original charge was that the respondent’s conviction is for a crime of violence
aggravated felony under section 101(a)(43)(F) of the Act, while the current
charge is based on a different statute, section 101(a)(43)(G).
The respondent also asserts that his offense is not a categorical aggravated
felony under section 101(a)(43)(G) of the Act. According to the respondent,
the Michigan home invasion statute is divisible because “the prosecutor
must choose between the following elements: entering (or breaking and
entering) with the intent to commit a crime or committing a crime while
entering, while present in, or while leaving a dwelling.” The respondent
contends that the latter “element” falls outside the generic burglary definition
and that he was convicted of that “element.” The DHS argues the
respondent’s offense is a categorical aggravated felony under section
101(a)(43)(G).

II. ANALYSIS
A. Res Judicata
Res judicata is a common law principle that provides that “a final
judgment on the merits bars a subsequent action between the same parties
over the same cause of action.” Channer v. Dep’t of Homeland Sec., 527
F.3d 275, 279 (2d Cir. 2008) (citing Semtek Int’l Inc. v. Lockheed Martin
Corp., 531 U.S. 497, 502 (2001)); see also Winget v. JP Morgan Chase Bank,
N.A., 537 F.3d 565, 577−78 (6th Cir. 2008). Under res judicata, a subsequent
cause of action is barred by an earlier one if it “involves the same ‘claim’
or—‘nucleus of operative fact’—as the first.” Channer, 527 F.3d at 280
(quoting Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000));
see also Alvear-Velez v. Mukasey, 540 F.3d 672, 677 (7th Cir. 2008) (noting
that “a cause of action consists of ‘a core of operative facts which give rise
to a remedy’” (citation omitted)). According to the Supreme Court, the
rationale undergirding the doctrine of res judicata is threefold: it limits “the
4

On April 7, 2017, we again remanded the record to the Immigration Judge to consolidate
the original proceedings with the current proceedings and to include in the record certain
documents deemed necessary for adjudication of the respondent’s appeal. The
Immigration Judge issued an order on April 19, 2017, complying with our request and
certifying the record for adjudication of the respondent’s appeal.

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Interim Decision #3910

expense and vexation attending multiple lawsuits, conserves judicial
resources, and fosters reliance on judicial action by minimizing the
possibility of inconsistent decisions.” Montana v. United States, 440 U.S.
147, 153−54 (1979); see also B&B Hardware, Inc. v. Hargis Industries, Inc.,
135 S. Ct. 1293, 1302–03 (2015).
Res judicata may also apply in the context of administrative law. Astoria
Fed. Sav. and Loan Ass’n v. Solimino, 501 U.S. 104, 107 (1991). Many of
the circuit courts that have considered the application of res judicata in
administrative proceedings have determined, however, that the doctrine
applies more flexibly in that context than it does in judicial proceedings. See
Artukovic v. INS, 693 F.2d 894, 898 (9th Cir. 1982) (“[I]n the administrative
law context, the principles of . . . res judicata are applied flexibly.”); see also,
e.g., Maldonado v. U.S. Att’y Gen., 664 F.3d 1369, 1377−78 (11th Cir. 2011);
Johnson v. Whitehead, 647 F.3d 120, 128−29 (4th Cir. 2011); Alvear-Velez,
540 F.3d at 677; Quiñones Candelario v. Postmaster Gen. of U.S., 906 F.2d
798, 801 (1st Cir. 1990); Facchiano v. U.S. Dep’t of Labor, 859 F.2d 1163,
1167 (3d Cir. 1988); United States v. Smith, 482 F.2d 1120, 1123 (8th Cir.
1973). The Sixth Circuit agrees with this view. See Parker v. Califano, 644
F.2d 1199, 1202 (6th Cir. 1981) (“[A]dministrative res judicata . . . is applied
with less rigidity than its judicial counterpart.”). 5
In the prior proceedings in this case, the respondent admitted the factual
allegations of the initial notice to appear, and the Immigration Judge
sustained the charge that the respondent’s conviction was for an
aggravated felony crime of violence under section 101(a)(43)(F) of the Act.
When a change in law resulted in the termination of those proceedings, the
DHS brought the current proceedings based on the charge that the
respondent was convicted of an aggravated felony burglary offense under
section 101(a)(43)(G). For the following reasons, we conclude that the
Immigration Judge properly determined that res judicata does not bar these
proceedings.
Although both of the proceedings brought against the respondent are
based on the same conviction and the same charge of removability under
section 237(a)(2)(A)(iii) of the Act, the underlying basis for the charge in
each is different. In this regard, the proof necessary to establish whether a
conviction is for a “crime of violence” or a “burglary offense” is not the
In Matter of Barragan-Garibay, 15 I&N Dec. 77, 78−79 (BIA 1974), we applied
collateral estoppel, which is based on the same principles as res judicata, in exclusion
proceedings to preclude relitigation of the question whether an alien effected an entry. We
also applied the doctrine of collateral estoppel in Matter of Fedorenko, 19 I&N Dec. 57,
61−64 (BIA 1984), where we gave conclusive effect to facts found during the respondent’s
prior denaturalization proceedings. We note that the question of removability based on
criminal charges, which is at issue in this case, is of a very different nature.

5

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same, because the elements of each charge are different. This indicates that
the “operative facts” are also different. See Channer, 527 F.3d at 281
(holding that res judicata did not bar the Government from bringing a
second removal proceeding based on the alien’s robbery conviction after his
drug conviction that was litigated in a prior removal proceeding was
vacated, even though the robbery conviction could have been alleged at the
same time).
Moreover, a crime of violence was the most appropriate charge under the
law at the time proceedings against the respondent were first commenced. In
the initial proceedings, the Immigration Judge properly sustained the charge
of removability predicated on his determination that, under the applicable
precedent at the time, the respondent’s offense was a crime of violence as
defined by 18 U.S.C. § 16(b). His finding was only rendered invalid because
the Sixth Circuit’s intervening decision in Shuti declared § 16(b) to be void
for vagueness. At the time the initial notice to appear was filed on June 8,
2015, no court had found § 16(b) to be void for vagueness, so the Sixth
Circuit’s ruling is a circumstance that the DHS could not have legitimately
anticipated.
Whether a particular offense is an aggravated felony is a legal
determination affected by complex laws that are in constant flux, as
illustrated by the effect of the Sixth Circuit’s decision in Shuti on this case.
Often, the DHS must determine which causes of action to bring against an
alien, based only on preliminary information available when proceedings are
initiated. To require the DHS to anticipate every possible turn of events and
charge an alien with all conceivable grounds of removability would not
provide the judicial economy that is a fundamental goal of res judicata. See
Duhaney v. U.S. Att’y Gen., 621 F.3d 340, 350−51 (3d Cir. 2010); Yong
Wong Park v. Att’y Gen. of U.S., 472 F.3d 66, 73 (3d Cir. 2006) (stating that
requiring the DHS to present every possible basis for removability in the
notice to appear “would needlessly complicate proceedings in the vast
majority of cases” (citation omitted)).
Furthermore, it is not practical to require the DHS to present all possible
bases for removal in a single proceeding. For example, the DHS would have
to determine which charges might reasonably lie and to present proof of each,
even when there is no reason to foresee that one charge may not succeed.
Additionally, Immigration Judges would need to rule on multiple, redundant
charges. Such a requirement would further burden the already backlogged
immigration system. See Grose v. Cohen, 406 F.2d 823, 824−25 (4th Cir.
1969) (stating that “practical reasons may exist for refusing to apply” res
judicata in administrative proceedings).
The DHS has broad discretion in determining whether to initiate
proceedings and which charges of removability to bring. See Matter of
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E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011). This is especially
true in the context of aggravated felony grounds of removability, where the
societal interest in removing criminal aliens is strongest. In that regard, we
note that the Supreme Court has stated that the rules of preclusion should
“apply except ‘when a statutory purpose to the contrary is evident.’” Astoria,
501 U.S. at 108 (emphasis added) (citations omitted). Accordingly, we
consider the removal of aliens who have committed aggravated felonies to
be a special concern that merits an even greater degree of flexibility and
forbearance in the application of the res judicata doctrine.
Because of “Congress’ clear and emphatic position with respect to” aliens
convicted of aggravated felonies and other criminal offenses, several courts
of appeals have indicated that res judicata may not even apply in the specific
context of their removal. 6 Channer, 527 F.3d at 280 n.4 (stating that aliens
convicted of aggravated felonies “fall[] into the category of aliens whom
Congress repeatedly and unambiguously has sought to remove” and noting
that res judicata “should not be applied so as to frustrate clearly expressed
congressional intent”); see also Dormescar v. U.S. Att’y Gen., 690 F.3d 1258,
1268 & n.10 (11th Cir. 2012); Johnson, 647 F.3d at 130−31; Duhaney, 621
F.3d at 348 n.4; cf. Duvall v. Att’y Gen. of U.S., 436 F.3d 382, 391−92 (3d
Cir. 2006) (finding that “application of the doctrine of collateral estoppel was
unwarranted” where it contravened the clear intent of Congress “to ensure
and expedite the removal of aliens convicted of serious crimes”); cf. also
Smith v. Perkins Bd. of Educ., 708 F.3d 821, 827−28 (6th Cir. 2013) (stating
that collateral estoppel principles do not apply where Congress has
demonstrated a contrary intent).
To the extent that there is tension between the public interest in finality
of administrative judgments and Congress’ clear intent to remove criminal
aliens, we believe the latter controls. Several courts agree with this position,
which is supported by congressional intent and the Act itself. Quiñones
Candelario, 906 F.2d at 801 (“[I]n the context of administrative proceedings,
res judicata is not automatically and rigidly applied in the face of contrary
6
Congress’ intent to expedite the removal of aliens convicted of serious crimes is evident
in several revisions to the Act, which not only establish special proceedings to handle such
cases but also largely insulate orders of removal against criminal aliens from judicial
review. See sections 238, 242(a)(2)(C) of the Act, 8 U.S.C. §§ 1228, 1252(a)(2)(C) (2012);
see also section 236(c)(1) of the Act, 8 U.S.C. § 1226(c)(1) (2012) (providing for
mandatory detention of certain criminal aliens); Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, § 321, 110 Stat. 3009-627 to -628;
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, §§ 440, 442,
110 Stat. 1214, 1276–80; Leocal v. Ashcroft, 543 U.S. 1, 1 n.1 (2004) (discussing the
history of aggravated felony enactments); Duhaney, 621 F.3d at 351 (“Congress has
repeatedly amended the immigration laws to facilitate the removal of aliens who have been
convicted of aggravated felonies.”).

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public policy.”); Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125, 128
(6th Cir. 1971) (stating that res judicata is “rejected when [its] application
would contravene an overriding public policy”). Therefore, while we
acknowledge the possibility that the DHS could have filed an amended notice
to appear at some point in the original proceeding, we conclude that it was
not required to do so. See Yong Wong Park, 472 F.3d at 73 (stating that
“there is no requirement that the [DHS] advance every conceivable basis for
[removability] in the [Notice to Appear]” (alterations in original) (citation
omitted)). We also do not find it appropriate for the res judicata
determination to turn on whether the DHS brought the burglary charge on
remand while the original proceeding was still pending, or, as it did, shortly
after the proceeding became administratively final.
In view of the clear congressional intent to remove criminal aliens, we
conclude that res judicata should not apply in this case. A contrary holding
would leave some respondents in a sort of legal limbo, because they would
be ineligible to adjust to a legal immigration status but would not be
removable if the DHS could not initiate new proceedings against them. It is
unlikely that Congress intended for aliens, especially those charged with
criminal grounds of removability, to remain in such an uncertain status. See
Matter of Pangan-Sis, 27 I&N Dec. 130, 136 (BIA 2017).
In reaching our conclusion that res judicata does not apply in this case,
we respectfully disagree with the Ninth Circuit’s decision in Bravo-Pedroza
v. Gonzales, 475 F.3d 1358 (9th Cir. 2007), where the court concluded that
res judicata barred the Government from issuing a second notice to appear
based on a conviction that it could have presented in the first case. Relying
on the language of the regulation that is currently at 8 C.F.R. § 1003.30
(2017)), the court ruled that any new charges must be brought by the DHS
“during the pendency of immigration proceedings.” Id. at 1360. However,
we do not understand that regulation, which enables the bringing of
“additional or substituted” charges at any time during the same proceeding,
as intended to address the issue of res judicata, which necessarily involves
charges brought in a new proceeding.
The respondent contends that he should prevail under the rationale in
Bravo-Pedroza, because the DHS had the opportunity to charge the
aggravated felony burglary ground while his case was on remand. It is true
that, in civil actions outside the context of immigration or other
administrative proceedings, the application of res judicata extends to issues
that “should have been litigated” in a prior proceeding, as well as issues that
actually were litigated. Browning v. Levy, 283 F.3d 761, 771 (6th Cir. 2002).
However, like the courts in Duhaney and Channer, we disagree with the
Ninth Circuit that this aspect of the res judicata doctrine is dispositive in
immigration proceedings where the grounds of removability charged are
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criminal in nature. See Duhaney, 621 F.3d at 350 (declining to follow
Bravo-Pedroza); Channer, 527 F.3d at 282 (same). 7
In sum, we conclude that the DHS is not precluded by res judicata from
initiating a separate proceeding to remove the respondent as an alien
convicted of an aggravated felony burglary offense under section
101(a)(43)(G) of the Act based on the same conviction that supported the
crime of violence aggravated felony charge in the prior proceeding.
B. Burglary
We also agree with the Immigration Judge’s finding that home invasion
in the first degree in violation of Michigan Compiled Laws section
750.110a(2) is a categorical burglary offense under section 101(a)(43)(G) of
the Act. The elements of that crime when committed by “breaking and
entering” are that the defendant (1) broke into a dwelling; and (2) entered the
dwelling; and (3) either intended to commit an offense when breaking and
entering or committed the offense when entering, present in, or leaving the
dwelling; and (4) when entering, present in, or leaving the dwelling, was
armed with a dangerous weapon and/or another person was lawfully present
in the dwelling. See M. Crim. JI 25.2a. The elements of the crime when
committed by “entering without permission” are that the defendant
(1) entered a dwelling without permission; and (2) either intended to commit
an offense when entering, or committed the offense when entering, present
in, or leaving the dwelling; and (3) when entering, present in, or leaving the
dwelling, was armed with a dangerous weapon and/or another person was
lawfully present in the dwelling. See M. Crim. JI 25.2c.
The generic definition of burglary, as defined by the United States
Supreme Court, is “an unlawful or unprivileged entry into, or remaining in,
a building or other structure, with intent to commit a crime.” Taylor v. United
States, 495 U.S. 575, 598 (1990). The respondent argues that committing a
crime while “in the act of entering, while being present in, or while leaving
a dwelling” falls outside the generic definition of burglary in Taylor.
However, we agree with the Immigration Judge and the DHS that the added
elements under the Michigan statute of committing the crime while
7
We note that the Ninth Circuit has distinguished its holding in Bravo-Pedroza, albeit in
an unpublished decision, in a case involving a change in the law that created an “altered
situation” between the petitioner’s first and second orders of removal. See Lopez-Bazante
v. Gonzales, 237 F. App’x 131, 134 (9th Cir. 2007) (“We recognize an exception to res
judicata ‘where between the time of the first judgment and the second there has been an
intervening decision or a change in the law creating an altered situation.’” (citations
omitted)). As previously noted, there was a significant change in law during the pendency
of the respondent’s initial proceedings when the circuit courts found 18 U.S.C. § 16(b) to
be void for vagueness, thereby invalidating the crime of violence charge against him.

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“entering, present in, or exiting” a dwelling, if anything, may narrow the
scope of the statute’s definition of burglary, rather than expanding it to
include conduct outside of the generic definition.
We further agree that the entirety of the statute falls within the generic
burglary definition and that the offense of home invasion is an aggravated
felony under section 101(a)(43)(G) of the Act. In United States v. Quarles,
850 F.3d 836, 840 (6th Cir. 2017), the Sixth Circuit held that third degree
home invasion under Michigan law is categorically equivalent to generic
burglary. According to the court, generic burglary “as defined in Taylor,
does not require intent at entry; rather the intent can be developed while
‘remaining in’” the dwelling without permission. 8 Because we concur with
this assessment, we conclude that the respondent is removable as charged.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

8

The court in Quarles relied on United States v. Priddy, 808 F.3d 676, 685 (6th Cir.
2015), which rejected the very argument advanced by the respondent, namely, that a person
who committed a crime while leaving a dwelling was not within the ambit of a generic
burglary offense. The Sixth Circuit found that the intent to commit a crime did not have
to exist at the time of entry and that first degree home invasion under Michigan law was
within the parameters of generic burglary because it was a type of unauthorized “remaining
in” burglary offense within the meaning of Taylor. While the Sixth Circuit has recently
abrogated its holding in Priddy that the Tennessee statute at issue there covers a burglary
offense, it did so on other grounds, specifically, that the Tennessee statute reached vehicles
and other structures not covered by generic burglary and was not divisible. United States
v. Stitt, 860 F.3d 854, 858−60. 862−63 (6th Cir. 2017) (en banc).

186


Interim Decision #2060

MATTER OF YEE
In Visa Petition Proceedings
A-19169736
Decided by Board November 5, 1970
Petitioner's alleged adoption of beneficiary in China in 1952 when latter was
4 years of age has not been established for immigration purposes since no
adoption papers were presented nor adoption procedure or formalities followed, all previous Chinese laws and decrees regarding adoption were
abolished when the Chinese Communist Government seized control in 1950,
and further, Article 13 of the Communist Chinese Marriage Law pertaining to foster parents and foster children does not create a relationship
equivalent to adoption.
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

ON BEHALF OF PETITIONER:
Joseph P. Fallon, Esquire
30 Hotaling Place
San Francisco, California 94111

Petitioner, a native of China and a permanent resident of the
United States, appeals the decision of the District Director denying this visa petition filed to accord the beneficiary classification
as the unmarried adopted son of a permanent resident alien. The
appeal will be dismissed.
In her visa petition, petitioner states that the beneficiary, also
a native and citizen of China, who was born on December 20,
1948 in Kwangtung Province, China, was adopted by her in 1952
with the consent of her husband, who was then residing in the
Philippines. The record reflects that when petitioner applied for
an immigrant visa in 1967 she indicated on her visa application
that she had a daughter and an adopted son, the beneficiary. Petitioner, in an interview, stated she adopted the beneficiary in
China when he was four years of age; that the beneficiary's natural parents came from a neighboring village; that no adoption
paper was executed and no milk money was paid.
The District Director noted, relying on an opinion from the
Secretary for Home Affairs of the Colony of Hong Kong, that the
Communist Chinese regime, in power at the time of the alleged

620

Interim Decision 2060
adoption, had not promulgated any statute or regulation prescribing the formalities for adoptions. He concluded that in the absence of a legal statutory pronouncement regarding adoption on
the mainland of China since May 1, 1950, it was impossible to
fulfill the requirements for adoption as set forth in Matter of
Fong, 10 I. & N. Dec. 497 (1964).' Petitioner on appeal contends
that, although no specific procedure exists under Communist law
concerning adoptions, the institution of adoption has been preserved through Chinese customary law. We disagree. A memorandum from the Library of Congress, Far Eastern Law Division, of
record, indicates that when the Chinese Communist Government
seized the mainland of China in 1950, it decreed that :
All laws, decrees and judicial systems of Kuomintang reactionary government which oppress the people shall be abolished. Laws and decrees protecting the people shall be enacted and the people's judicial system shall be set
up. 2

The memorandum observes that after almost 19 years of existence, Communist China has failed to promulgate a civil code,
criminal code, or code of civil procedure and as a result, no code
of adoption, normally included within the civil code, has been enacted. There is no indication from the source material before us
that Communist China, in suspending the Civil Code, intended to
revert to Chinese custom and practice. In any event petitioner, in
discharging the burden imposed upon her under the immigration
law, would be required to establish that Chinese customary law
prevailed on the Chinese mainland at the time of the alleged
adoption. She has not met that burden.
Petitioner argues that, notwithstanding the suspension of the
Chinese Civil Code, the institution of adoption has been preserved.
She relies on Article 13 of the Communist Chinese Marriage Law
which provides :
Parents have the duty to rear and to educate their children; the children
I In Matter of Fong, this Board observed:
By statute, in most jurisdictions, but not at common law, a person may
adopt a child; and in such a case, unless there are statutory provisions to
the contrary, the rights, duties and obligations arising from the artificial relationship will be substantially the same as those arising from the natural
relation of parent and child. Where the artificial relation of parent and
child is created by adoption under the statute, the relationship will by the
express provisions of the statute, and even independently of such provisions,
give rise to substantially the same rights, duties, and liabilities as arise out
of the national relationship.
2 Chung yang jen min cheng fu fa ling hui pien, 1949-1950
[Collection of
Laws and Decrees of the Central People's Government, 1949-1950], Peking,
1952, p. 19.

621

terim Decision #2060
ye the duty to support and to assist their parents.
r the children shall maltreat or desert one another.

Neither the parents

The foregoing provision also applies to Foster-parents and Foster-chilen. Infanticide by drowning and similar criminal acts are strictly prohibd.

?titioner urges us to accept the term "adoption" as within the
eaning of "foster parents" and "foster children." Assuming ariendo that the provision quoted above recognizes that the instition of adoption, standing alone, it does not serve to detail a
'ocedure regarding the manner in which adoptions may be efcted. The absence of any specific procedure bears upon the kind
proof required under our immigration laws to establish a valid
loption. Under 8 CFR 204.2(c) (7), to support a visa petition on
?half of an adopted child, a certified copy of the adoption decree
ust accompany the petition. The only evidence before us bearig on adoption is petitioner's own word that the child was
lopted by her. Whether this "adoption" was or is recognized by
le Chinese authorities on the mainland of China as creating
ghts and obligations between petitioner and the beneficiary anlogous to those between a natural parent and its child has not
een demonstrated.
Furthermore, while Article 13 of the Marriage Law refers to
foster children," we are not persuaded that "adopted children"
re included within that term. The term "foster" as it refers to
arent-child relationship has been defined to mean affording, reeiving or sharing nourishment or sustenance although not rented by blood or ties of nature or the like. In re Norman's Esate, 209 Minn. 19, 295 N.W. 63 (1940). The mere taking of a
hild into a family and treating it as a natural offspring without
omplying with formal procedures as prescribed by law is not an
doption. Succession of D'Asaro, 167 So. 2d 391 (1964) ; Stellmah
Henderdon Coop G.L.F. Service, 47 N.J. 163, 219 A. 2d 616
1966).
In Steelmah v. Henderdon Coop, supra, the court discussed the
neaning of adoption in a proceeding to obtain workman's corniensation death benefits for a child who was allegedly adopted in
Quebec, Canada. The court in interpreting the New Jersey Adop3 Concerning adoptions effected under the Chinese Civil Code, this Board
tas required, in accordance with Article 1079 of that Code, a writing as
proof of adoption unless the person adopted has been brought up as a child
)f the adopter since infancy. The adoptive parents must have brought up
:he child intending to adopt it. The mere fact of bringing up the child is not
sufficient. Matter of Chan, 11 I. & N. Dec. 219 (BIA, 1965).

622

Interim Decision #2060
tion Act as it applied to workman's compensation cases observed
at page 621:
Adoption was unknown to the common law although it was commonly
practiced and regulated under the Civil Law of both ancient Greece and
Rome. The first total regulation of the process was found in the Justinian
Code from which our modern legislation derives its principles. Under this
code, once the prescribed formalities were met, the adopted person was entitled to inherit from the adopted father both testate and intestate and there
was created the relation of paternity and filiation not before legally recognized. . . . Our Adoption Act [N.J.S.A. 9:3-17] seeks to accomplish these
same goals of succession, paternity and filiation by prescribing certain procedures to be met before the relationship of parent and child can be established.
***
The full meaning of the concept is conveyed by the term "adopted" alone,
for the mere taking of a child into a family and treating it as a natural
offspring without complying with formal procedures prescribed by law, is
not an adoption.

In our opinion Article 13 merely imposes on foster parents and
foster children certain obligations which parents and their children have, but it does not thereby create a relationship equivalent
to adoption. We conclude that the petitioner has not borne the
burden of establishing that a legal adoption within the meaning of section 101 (b) (1) (E) has been effected, and we dismiss
this appeal.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.

623


MATTER OF MAN

In Visa Petition Proceedings
A-21080157
Decided by Board June 29, 1978
A concubine (tsip) cannot derive an immigration benefit through children born to her
"husband" and his principal wife, and a visa petition by the "child" in behalf of the
claimed "stepmother" will be denied since the sole relationship between the parties is
the polygamous "marriage."
ON BEHALF OF PETITIONER: Seymour Magier, Esquire
Blether & Mendel
1501 Broadway, Suite 1610
New York, New York 10036
BY: Milhollan, Chairman; Manlatis, Appleman, Maguire, and Farb, Board Members

The United States citizen petitioner applied for immediate relative
status for the beneficiary as her stepmother under section 201(b) of the
Immigration and Nationality Act, 8 U.S.G. 1151(b). In a decision doted
October 31, 1977, the District Director denied the petition on the ground
that the petitioner had not established that her father married the
beneficiary. The District Director certified his decision to us for review.
We will affirm the District Director's decision.
The beneficiary is a 49-year-old native of China who resides in Hong
Kong. The petitioner is a 30-year-old native of Hong Kong who was
naturalized in 1975. The petitioner filed a visa petition on behalf of the
beneficiary on March 2, 1976.
The petitioner's natural parents were married in Hong Kong in 1946.
Four female children were born to them between 1947 and 1956, including the petitioner. According to affidavits executed by the petitioner,
her natural mother, and other close relatives, the petitioner's father
brought the beneficiary into the household in 1957, as a concubine or
secondary wife, for the purpose of producing a male heir. The affidavits
indicate also that the beneficiary was still in the household in 1965, when
the petitioner's father died, and in 1968, when the petitioner's natural
mother immigrated to the United States. •
On appeal, the petitioner claims that the beneficiary was her father's
concubine and had the status of a secondary wife (tsip) within the
meaning of Matter of Moony, Interim Decision 2287 (BIA 1975). The
543

petitioner argues, therefore, that the children born to her father and the
beneficiary are legitimate' and that they are her siblings for immigration purposes. Matter of Kwan, 13 I. & N. Dec. 302 (BIA 1969). The
petitioner claims, moreover, that she lived in the same household with
the beneficiary in a true mother-daughter relationship. The petitioner
concludes, therefore, that the beneficiary is her stepmother.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefits sought. Matter of Brantigan, 11 I. & N.
Dee. 493 (BIA 1966). If a petition is submitted on behalf of the stepparent under section 201(b) of the Act, the petitioner's birth certificate
and the marriage certificate of his parent and the stepparent must
accompany the petition, as well as proof of the legal termination of their
prior marriages, if any. 8 C.F.R. 204.2(e)(1) and (5).
The petitioner in this case has not submitted a marriage certificate to
establish that her father married the beneficiary. She has, however,
submitted affidavits which indicate that her father brought the beneficiary into his household in 1957, as a concubine with secondary wife
(trip) status, and that such relationships are considered marriages
under the law of Hong Kong. It is apparent, moreover, that children
born to the husband and his secondary wife (fair) have bean considered
legitimate for immigration purposes. 2 It has never been held, however,
that the secondary wife can derive or bestow immigration benefits
through children born to the husband and his principal wife. In such
instances, the sole relationship between the parties would be through
the concubine "marriage," which is polygamous. See Matter of
6 I.
& N. Dec. 9 (BIA 1953). We are satisfied that Congress did not intend to
accord preference status on the basis of such relationships in view of the
clear disfavor it expressed towards polygamy by excluding polygamists
from entry into the United States wader section 212(a)(11) of the Act, 8
U.S.C. 1182(a)(11). 3
We conclude, therefore, that the District Director's decision is correct. The decision, accordingly, will be affirmed.
ORDER: The decision of the District Director is affirmed.
record indicates that four children were born to the petitioner's father and the
beneficiary.
2 Recognition of these children as being legitimate for immigration purposes does not
imply approval of the institution of concubinage, or make any change in the law regarding
coneubinage. Matter of K W B----, 9 1. & N. Dec. 396 (A.G. 1961).
SEC. 212.(a) Except as otherwise provided in this Act, the following classes of aliens
shall be ineligible to receive visas and shall be excluded from admission into the United
States:
—

—

(11) Aliens who are polygamists or who practice polygamy or advocate the practice
of polygamy;

544


MATTER OF

H

T

tiV

In DEPORTATION Proceedings
A-7415273
Decided by Board February 12, 1960
Common - law marriage — Proof required under New York law.

(1) Evidence that parties lived together, used the same name, were regarded
as husband and wife, and were the parents of a child is not sufficient to
prove a valid common-law marriage in New York. Failure to show mutuality of consent and intention bars a finding that such a marriage existed
between them.
(2) Since the evidence of respondent's relationship with a woman between
1927 and 1932 fails to establish a valid common-law marriage, his ceremonial marriage in 1943 to another .woman cannot be regarded as bigamous
so as to preclude him from establishing good moral character during the
statutory period required for the grant of voluntary departure.
(Note: Common-law marriages are valid in New York if entered into prior to
April 29, 1933.)
CHARGE:

Warrant: Act of 1924—After admission as visitor, change of status to government official—Failed to maintain status.
BEFORE THE BOARD

Discussion: The respondent appeals from an order entered by the
special inquiry officer October 6, 1959, directing his deportation on
the charge that after admission as a nonimmigrant visitor and thereafter a change of status to that of a government official, he failed to
maintain status. Exceptions have been taken to the denial of diserPtinn a ry
The respondent, a native and citizen of China, male, 63 years of
age, last entered the United States through the port of Seattle, Washington, on September 2, 1925. He was admitted as a student under
section 4(e) of the Immigration Act of 1924 (8 U.S.C. 204(e), 1940
ed.). His status was changed to that of a foreign government official in 1938. He has failed to maintain status since January 31,
195U. Deportability on the stated charge is conceded.
The special inquiry officer concludes that respondent is statutorily
ineligible for discretionary relief because he is incapable of establishing his good moral character by reason of an adulterous rela562

Lionship ivhich has existed since arch 6, 1943. The special inquiry
officer finds that there is substantial evidence which establishes that
the respondent did enter into a valid common-law marriage with
one V C in 1026 or 1927 and that since this marriage has
not been terminated, his ceremonial marriage. to L P in 1043
was bigamous.
The respondent has the burden of establishing his eligibility for
discretionary relief (8 CPR 242.16(e) ; Matter of T
7 I. S.: N. Dec. 582, I3.I.A., Sept. 11, 1957). Pursuant to this burden,
respondent has submitted evidence of his ceremonial marriage to a
United States citizen, one L P , at the Riverside. Church in
New York City on March 6, 1943, the usual affidavits attesting to
his good moral character and the fact that. he has no criminal record.
The special inquiry officer attacks the validity of respondent's marriage to L
P on ,arch 6, 1943. The attack is based on evidence in this and prior proceedings 1 to the effect that respondent
resided with one V C from on or about 1927 to 1932 in a
common-law relationship and is the father of a child by that relationship. The special inquiry officer is of the opinion that respondent's admissions are sufficient to establish a common-law marriage between respondent. and V C which is valid in the
State of New York if entered into prior to April 29, 1933.
We are not concerned here with a presumption of validity as between successive marriages since respondent contends that he was
married on one occasion only, to wit, the ceremonial marriage performed on March 6, 1913. The issue presented is whether there is
sufficient evidence to support the special inquiry officer's finding of a
valid common-law marriage under the laws of the State of New
York. The courts of the State of New York have held that in order to establish the existence of a common-law marriage it requires
clear, consistent, and convincing evidence that there was a valid
contractual agreement "Per verba de presenti" between the parties
to live together as husband and wife (Application of Durkin, 93
N.Y.S. 2d 354, Sup. Ct. of N.Y., App. Div., Nov. 16, 1949; Castellani. v. Castellani.. 28 N.Y.S. 2d 879 (1941) ; Boyd v. Boyd, 252 N.Y.
422, 169 N.E. 632, C.A.N.Y. (1930)).
The validity of any common-law marriage is always open to suspicion (Boyd v. Boyd, supra). As we review the record, the. only
evidence supporting the existence of a common-law marriage is testimony and statements in former immigration proceedings to the
effect that there was open cohabitation over a period of approximately 5 years, the birth of issue and respondent's holding out of
his wife.
3 See hearing accorded in deportation proceedings September 13, 1951, and
statements taken from respondent and his wife on April 27, 1950, and March 22,
1951, respectively (Exhs. R2—R3, Exhs. 9, 10, 11 and 12)'.

503

Opposed to this evidence is respondent's testimony in this proceeding that he held out V C as his wife merely to protect
the legitimacy of the child born to her. Also opposed to the existence
of a valid contractual agreement "Per verba de presenti" are statements made by V—C and her mother on the occasion of her
admission to the Manhattan State Hospital during December of 1934
and her transfer to the Pilgrim State Hospital in November of 1935.
The Pilgrim State Hospital of the State of New York reports, "On
admission, this patient (V C ) listed herself as single. Anamnestic data obtained from her mother also indicated that the patient

was single and was never married." We also have before us an
"affidavit for license to marry" executed by respondent and L
C—P— on March 2, 1943. Respondent, in answer to the question "Number of previous marriages of groom," stated "None." This
documentary evidence was not a part of the record when we considered the case on August 14, 1956 (see page 2 of Board's opinion of
August 14, 1956).
The tests applied for the sufficiency of proof in this class of cases
by the courts of New York may be stated as follows : To prove a
common-law marriage there must be clear, consistent, and convincing

evidence of an agreement between the parties, a present consent per
verba de presenti, to take each other as husband and wife, to enter
into a relation which was to continue until death did them part,
with the resulting obligations of husband and wife (Boyd v. Boyd,
supra.; In re Reynolds' Estate, 9 N.Y.S. 2d 274; Graham v. Graham,
207 N.Y.S. 195; Moller v. Sommer, 150 N.Y.S. 1097).

When subjected to these criteria the weight of the evidence points
strongly to the conclusion that respondent and V C never
entered into a valid common-law marriage. An insurmountable bar
to a finding that a marriage between the parties ever existed are the
statements made by both respondent and V C long before
the institution of immigration proceedings in July of 1950 that they
were not married (see exhibits R1 and 9).
The fact that respondent and V
lived together, used the
C
same name, were regarded as husband and wife and were the parents
of issue does not prove a mutual bona fide intention and agreement to
marry. Mutuality of consent and intention are the essential elements
in the establishment of a valid common-law marriage (In re Reynolds' Estate, and cases cited at page 275, supra; Castellani v. Castellani, supra).

PAccordingly, we find that respondent's marriage to L
on March 6, 1943, was not bigamous and that his relationship with
her since March of 1943 is not adulterous. Respondent has submitted affirmative evidence of his good moral character. The order
directing respondent's deportation will be withdrawn and voluntary
departure will be granted.
564

Order: It is directed that the order of deportation entered by the
special inquiry officer on October 6, 1959, be and the same is hereby
withdrawn.
It is furth,er direc t ed 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 directed that if the alien does not depart from the
United States in accordance with the foregoing, the order of deportation he reinstated and executed.

565


Interim Decision #2708

MATTER OF TAUSINGA

In Deportation Proceedings
A-22460962

Decided by Board June 6, 1979
(1) A respondent, seeking to adjust her status as a nonpreference immigrant exempt from
the labor certification requirements of section 212(a)(14) of the Immigration and Nationality Act, 8 U. S.C. 1182(a)(14), must establish that she does not intend to enter the
labor market in th e United States and that she will not have to seek employment in the
foreseeable future.
(2) An alien's age and health, her financial status and that of her supporting family, and the
closeness of the family relationship, are all relevant to whether an aged, handicapped,
or otherwise dependent relative who is a member of the household of a United States
citizen or a lawful permanent resident, may be able to establish exemption from the labor
certification requirements of section 212(014).
(3) Where a person is of an age or physical condition which would not preclude working,
there is a presumption that employment will occur and the burden will be on the
respondent to overcome this presumption.
(4) As the respondent—a widow without independent means, living with her married son,
and dependent upon his earnings and those of her daughter-in-law—who is in good
health and employable for years to come, failed to overcome presumption that employment will occur, the application for adjustment of status was properly denied based on
her failure to establish an exemption from the labor certification requirements of section
212(a)(14) of the Act.
CHARGE:

Order: Act of 1952—Section 241(a(2) [8 U.S.C. 1251(a)(2)]--Nonimmigrant visitor—
remained longer
ON BEHALF OF RE...91'01%1116NT: Donald L. Ungar, Esquire

M5 Washington Street, #302
San Francisco, California 94111
BY: =law Chairmen; Manintis, Appleman, Maguire, and Farb, Board Members

The respondent appeals from a decision of an immigration judge,
dated October 27, 1978, finding her deportable as charged, denying her
application for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, and granting her the privilege
of voluntary departure. The appeal will be dismissed.
The respondent, a widow, is a 56-year-old native and citizen of Tonga.
758

Interim Decision 442708
She was admitted to the United States as a nonimmigrant visitor in
1975, and lived with her daughter and son-in-law until August 1976
when her daughter became "mad" at her because she would not convert
to her daughter's religion. She then moved into her son's apartment and
lived with him, his wife, and their child. In May 1977, the District
Director denied the respondent's application for status as a permanent

resident. In August 1978 an Order to Show Cause was issued charging
the respondent with being deportable under section 241(a)(2) of the Act,
8 U.S.C. 1251(x)(2), as an "overstayed" visitor.
At the deportation proceeding held in October 1978, the respondent
conceded deportability, but applied for adjustment of status as a nonpreference immigrant exempt from the labor certification requirements
of section 212(aX14) of the Act as one not entering the United States for
the purpose of performing skilled or unskilled labor. In support of this
position, the respondent indicated that her son and daughter-in-law
were providing virtually all of her support. Her son held two job's and
worked some 80 hours a week and his wife worked full time_ The
respondent shared their one-bedroom apartment and helped care for her
grandchild. The respondent's son testified at that time it was not hard
for him to support his mother as 'well as his family. He also stated that
he did not think his mother would get a job because she was "too old"
and not capable of finding employment.
Although the respondent stated that she had never previously
worked, the immigration judge found that she was in good health and
potentially employable. He also expressed doubts as to how long the
respondent's son could continue with his present working hours and
continue providing for the full support of his mother. Analogizing the
facts in this case to those in issue in Matter of Fulgencio, Interim
Decision 2588 (BIA 1977), the immigration judge concluded that the
respondent had failed to meet her burden of establishing that she -would
not perform skilled or unskilled labor in the United States. He, therefore, determined that she was neither exempt from the labor certification requirements of section 212(a)(14), nor presently eligible for
adjustment of status under section 245.
On appeal, the respondent, through counsel, states that the rationale
underlying the decision in Matter of Fulgencio, supra, is inapplicable
here. Counsel submits that the fact that the respondent was married in
Fulgencio and, if admitted, could have sought to bring her husband to
the United States (also without a labor certification) was the principal
reason for denying adjustment to that respondent. Because the respondent here is a widow, it is urged that adjustment should be granted.
The fact that the respondent in Fulgencio was married was a consideration in the resolution of that case. Of inure significance, however,
was the fact that the respondent therein failed to establish that she
759


Interim Decision #2572

MATTER OF CHOULIARIS
In Deportation Proceedings
A-151'74696
Decided by Board March 29, 1977
(1) Neither the statute nor the regulations contain any provision limiting the amount of
voluntary departure time which may be granted by an immigration judge. The decision
is within his sole discretion.
(2) Timely filing of an appeal stays the execution of the decision of the immigration judge
during the pendency of the appeal, and also tolls the running of the voluntary departure
authorization. See Matter of Villegas Aguirre, 13 I. & N. Dec. 139 (BIA 1969).
(3) Matter of Villegas Aguirre, 13 I. & N. Dec. 139 (BIA 1969) is affirmed to the extent it
holds that the taking of an appeal shall not jeopardize a grant of voluntary departure.
(4) To the extent that Matter of Villegas Aguirre dictates that the same amount of
voluntary departure time which was originally granted by the immigration judge should
be reinstated after the Board has rendered its decision, it is disapproved.
(5) With regard to the formula for reinstatement of voluntary departure time, Matter of
Viltegas Aguirre, 13 I. & N. Dec. 139 (BIA 1969) is modified as follows: If an immigration judge provided for voluntary departure period of 30 days or less, the Board shall
reinstate the original grant. Where a period exceeding 30 days has been granted,
respondent will be given 30 days from the date of the Board's decision in which to depart
voluntarily. Where the original grant has not yet expired, and the remaining period
exceeds 30 days, respondent shall be permitted to depart voluntarily on or before the
date specified by the immigration judge.
CHA RGE_

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)J—Remained longer—
crewman

Om BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:
George Indelicate
Appellate Trial Attorney

James J. Orlow, Esquire
636 Public Ledger Building
6th & Chestnut Streets
Philadelphia, Pennsylvania 19106

BY: Milbollan, Chairman; Wilson, Maniatis, and Appleman, Board Members

In a decision dated December 3, 1975, the immigration judge found the
respondent deportable as charged and granted him voluntary departure
in lieu of deportation. The respondent has appealed from that decision.
The appeal will be dismissed.
168

Interim Decision #2572
The respondent, a native and citizen of Greece, admitted the truth of
the allegations in the Order to Show Cause and conceded his deportability as a nonimmigrant who remained beyond the authorized period of
admission. The only issues on appeal involve his application for voluntary departure.
At the hearing the respondent stated that he had married a lawful
permanent resident on November 5, 1975, and that a visa petition had
been submitted in his behalf. He claimed that, if he were to return to
Greece, he risked being drafted into the army in Greece. He requested
that the immigration judge grant him until November 17, 1976, almost
one year, in which to depart voluntarily, thereby enabling him to remain
here and to apply for adjustment of status once his visa petition was
approved. Having found the respondent statutorily eligible for voluntary departure under section 244(e) of the Immigration and Nationality
Act and deserving of the relief, the immigration judge stated that the
discretion given to him under the Act did not contemplate such a
lengthy grant of voluntary departure time. He did, however, give the
respondent five months within which to depart voluntarily.
On appeal counsel for the respondent contends that the immigration
judge erred in concluding that he was without authority to grant the
amount of voluntary departure time requested. Counsel is correct.
Neither the statute nor the regulations contain any provision limiting
the amount of voluntary departure time which may be given. Although 8
C.F.R. 244.1 provides that the alien applying for the privilege of departing voluntarily must establish that he is willing and has the immediate
means with which to depart promptly, it expresses no limitation on the
amount of time the immigration judge may grant. That decision lies
solely within the discretion of the immigration judge.
The respondent in the present case requested permission to depart
voluntarily before November 17, 1976. Inasmuch as that date passed
while the appeal was pending, we see no reason to remand the record to
the immigration judge for a new decision. Consequently, we shall dismiss the appeal.
Another issue remains to be discussed: whether the taking of an
appeal tolls the running of the grant of voluntary departure made by the
immigration judge_ This issue was raised by the Immigration and Naturalization Service at oral argument, and briefs have been submitted by
both parties.
In Matter of Villegas Aguirre, 13 I. & N. Dec. 139 (BIA 1969), we
held that a timely appeal not only stays the execution of the immigration
judge's decision during the pendency of the appeal but it also tolls the
ru nning of the voluntary departure authorization. Our holding in
Aguirre, where a 30 -day period of voluntary departure was involved,
was designed to guard against any possibility that the taking of an
169

Interim Decision #2572
appeal might result in the loss of the privilege of voluntary departure.
The application of the rule of Aguirre to the present case would rest in the
reinstatement of the five-month grant of voluntary departure as of the
date of this decision. The Service urges that we overrule our decision in
Aguirre.
The alien in deportation proceedings must be assured that he will not
risk losing a grant of voluntary departure by filing an appeal from an
adverse decision of an immigration judge. To the extent our decision in
Aguirre holds that a grant of voluntary departure made by an immigration judge shall not be jeopardized by taping an appeal, it is affirmed.
The fact that the voluntary departure period is tolled during the
pendency of the appeal protects the alien's right to appeal. However, in
some cases the precise rule as enunciated in Aguirre has had another,
less desirable effect: it has provided a mechanism to prolong unduly the
departure of deportable aliens. Aguirre dictates that the amount of
voluntary departure time which was originally granted by the immigration judge be reinstated after we have rendered our decision. The
particular purpose for a lengthy grant may be fulfilled while the case is
before us on appeal, or it may no longer exist. To the extent that
Aguirre requires that we reinstate the same amount of voluntary departure time, it is disapproved and is modified as follows: If an immigration
judge provided for a voluntary departure period of 30 days or less, we
stall reinstate the original grant. In those eases in which a period

exceeding 30 days has been granted, the respondent will be given 30
days from the date of our decision in which to depart voluntarily. Where
the original grant has not yet expired and the remaining period exceeds
3() days, the respondent shall be permitted to depart voluntarily on or
before the date specified by the immigration judge.'
At the hearing in the present case, the respondent was granted five
months in which to depart voluntarily. He requested almost a year.

Over a year has elapsed since the hearing in December 1975. At the
time of the original grant, a visa petition had been filed in his behalf by
his lawful permanent resident spouse. The petition hag since been withdrawn. There is no longer any reason to prolong his departure. Accordingly, the respondent will be given 30 days from the date of this decision
to depart voluntarily from the United States.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is permitted to depart from
the United States voluntarily within 30 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.
We note that the District Director is authorized to extend the period during which the

al ien may depart the United States voluntarily. (8 C.F.R. 244.2)

170


Interim Decision #1663

MATTER

or

LECIIKAIT

In section 249 Proceedings
A-12017122
Decided by Regional Commissioner November 10, 1908
Notwithstanding his intent to reside permanently in this country, an alien
_ agricultural worker who, following his initial entry in 1944, thereafter
retained to Jamaica for short periods every three years upon the expiration
of his work contracts, has failed to establish a continuous residence in the
United States since prior to June 80, 1948, and, therefore, is statutorily
ineligible for the creation of a record of lawful admission for permanent
residence pursuant to the provisions of section 249 of the Immigration and
Nationality Act, as amended.

This matter is before the Regional Commissioner for review as
a result of certification by the District Director of his order of
March 7, 1966 approving the application.
The applicant is a citizen of Jamaica, West Indies, born - in
' Darliston, Westmoreland, Jamaica on October 8, 1922. His application shows he first arrived in the United States in April 1944
when he was inspected and admitted by an immigration officer; that
lie was then coining as an agricultural worker; that his residence
has since been in the United. States; that he has returned to Jamaica
every three years fol• short absences, the longest of which was five
months from April 1950 to September 1950; that he was married
June 25, 1950 to a native and citizen of Jamaica who still resides
in that country; and that he last entered the United States on
July 5, 1968 as a "contract worker". Widence has been submitted
that he has been employed, with the exception of the absences mentioned, since April 1948 as an agricultural worker by a tobacco
grower with an office in Hartford, Connecticut.' At least until 1959,
his residences in the United States have been in a camp or other
living quarters furnished by an employer to its agricultural laborers,
presumably pursuant to the contracts or agreements under which
the services of alien agricultural workers were made available for
temporary employment.
878

Interim Decision .#1663
When interviewed on his application by an officer of this Service,
the applicant alleged he has resided continuously in the United
States since April 1948; that notwithstanding his departures from
the United States every three years upon the expiration of his work

contracts, it was his intention to work and to reside in the United.
States permanently; that he always intended to return to the United
States on his next contract; that even though his wife, to whose
support he contributes each month, has continued. to live in Jamaica,
be has not considered Jamaica to be his residence; and that he intends to bring his wife here. No children were born of this marriage.
Section 249 of the IMmigration. and Nationality Act, as amended,
provides:
A record of lawful admission for permanent residence may, in the discretion
of the Attorney General and under such regulations as he may prescribe,
be made in the case of any alien, as of the date of the approval of his
application or, if entry occurred prior to July 1, 1924, as of the date of such
entry, if no such record is otherwise available and such 'alien shall satisfy
the Attorney General that he is not inadmissible under section 212(u) Insofar
as it relates to criminals, procurers and other lionioral persons, subversives,
violators of the narcotic laws or smugglers of aliens, and he establishes
that he- (a) entered the United States prior to Jane 80,1948;
(13) bee had his residence in the United States continuously since such entry;
(c) is a person of good moral character; and
(d) is not ineligible to citizenship.

The term "residence" is defined in section
Immigration and-Nationality Act to mean:

101(a) (38) of the

the place . of general abode f the place of general abode of a person means his
principal, actual dwelling pleeeln fact, withant rezard to intent..: .

The various entries of the applicant' hive been as en agricultural
worker for a temporary period conditioned upon his departure from
this country upon the termination of such emplo&ment and in any
event upon the expiration of his period of authorized stay. His
residence here during such periods was temporary in nature, incidental to and dependent upon his employment which was not to exceed a definite, fixed period. - His intent as to his permanent residence, as distinguished from his principal actual dwelling place in
tact, is not material to determining his. eligibility for permanent
residence under section 249 on the ground of residing continuously
in the United States for the requisite period. Man Wing Meting
v. Hamilton:D. C., R. I., 1961, 198 F. Supp. 154, affirmed 298 F.2d
459. His departures at- the conclusions of the respective periods
of temporary employment terminated any residence he may have
879

Interim. Decision *1668
had in the United States. During such absences from the United
States, and.specifimlly the five-month period in 1950, his principal
actual dwelling place in fact was in Jamaica.
'This is not an appropriate case for relief under section 249 of the
Immigration and Nationality Act, as amended. Section 249 is an
ameliorative prat-Men; designed apparently to aid a person who has
foimed a substantial tie to the United States and who should not

automatically be denied naturalization because of an inability to
locate a record of permanent admission it the time of his basic entry.
Sit Jay Bing v. Nice, 182 F. Supp. 292 (ND. Cal., S.D. 1960);
affirmed 287 F. 2d 561 (C.A. 9, 1951); 2 United States Code Cong.
Adm. News (85th Cong., 2d Seision 1958),. p. 4349. In •substauee,
this application is a request for a change of status from that of a
nonimmigrant to that of a permanent resident for which the applicant could not qualify under section 245 of the Act, as amended,
since he is a native of a country of the Western Hemisphere or
of an adjacent island. Our applicant has not shown any close family

or other substantial ties in the United States. On his numerous
entries since December 26, 1952, the effective date of the Immigration
and Nationality Act, he obtained nonimmigrant status under a Section of law which required that he have "a "residence in a foreign
country which he has no intention of abandoning" (sec. 101(a) (15)
(H); IMmigration and Nationality Act). He should not now be
permitted. to benefit by his concealment on relatively recent entries
of his admitted intent to reside permanently in the United States.
We conclude that the applicant has failed to establish continuous
residence in the United States since prior to June 30, 1948. Furthermore, the facts and circumstances here present do not warrant
favorable exercise of the discretionary administrative authority contained in section 249 of the Immigration and Nationality Act, as
tunended. For these reasons, the decision of the District Director
will be reversed. .
It is ordered that the decision of the District Director be withdrawn.
It is tardier ordered that the application be and hereby is denied.

880


Interim Decision #1522

MATTER

or

DOLEANCEE

In Deportation Proceedings
A-6556208

Decided by Board November 5 ; 1965
The records of conviction of respondent on a plea of guilty of 8 separate
offenses or prostitution anO assignetieu, coupled with her admission that
the records of conviction relate to her, constitute adequate evidence of
record to sustain a charge of. deportability under section 241(0 (12),
Immigration and Nationality Act, as one who haa:engaged in prostitution
after entry.
CHARGE:

Order: Act of 1052—Section 241(a) (12) [8 U.S.C. 1251(a) (12)3—Engaged
in prostitution after entry.

The respondent, a native and citizen of France, appeals from an
order entered by the special inquiry officer on August 20, 1965, directing her deportation to France on the charge stated in the order to
show cause. Exceptions have been taken to the finding of deportability.
The respondent last entered the 'Diked States through the port
of 'Sew York on or about May 29, 1946. She was admitted as a non-

quota immigrant, the wife of a United States citizen. She testified
she has resided continuously in the United States since her admission
in May of 1946.
The order to show cause alleges that the respondent was convicted •
on a plea of guilty in the Court of Quarter Sessions of the Peace
for the County of Philadelphia, Pennsylvania on March :3. 1'04 of
three separate offenses of prostitution and assignation in that on or
about April 4, April 16, and May 17, 1963, she unlawfully used a
building at 130T Sansom Street in the City of Philadelphia for the •
purpose of prostitution and assignation. The order to show cause
also alleges that the respondent unlawfully committed assignation
and prostitution; unlawfully directed, took and transported a persOn
to building and place with the knowled.re . that the purpose of melt
375

Interim Decision #1522
taking and transporting was prostitution and assignation and that

she unlawfully aided and abetted prostitution and assignation.
There is also an allegation that the respondent "engaged in prostitution during April and May 1963." The record of conviction supporting the allegations set forth in the order to show cause are entered
in the record as Exhibits 4, 5 and 6. The respondent concedes that
Exhibits 4, 5 and 6 relate to her.
Exhibit 2 is a statement made by the respondent on July 23, 1964.
She testified that this convictions set forth in Exhibits 4, 5 and 6
arose out of her activities in connection with her operation of a
massage parlor at 1307 Sansom Street in the City of Philadelphia,

Pennsylvania. She testified that the arrest took place at her plaoe

of business and that she was the owner and operator at the time.'
When questioned as to whether her husband received any of the
earnings of the business the respondent replied "he was getting several hundred dollars a week, including the things I bought for the

home . . . nobody makes $200 or $300 a week giving massages and
he was just playing dumb" (p. 6 of Ex. 2). The respondent when
questioned as to whether she committed acts of prostitution testified
"I pleaded guilty. That's the only way I want to answer this" (p.
6 of Ex. 2).

The respondent when questioned as_to whether she committed oral
sodoral while operating the massage parlor testified "I did it in a
certain way . I was particulari I would not take the first one
that came along" (p. 7 of Ex. 2) Oral sodomy as p'Srformed_by
the respondent is an act of prostitution. '

The respondent in her notice of appeal (Form I-290A) maintains
that she is not deportable because "I was not responsible at that
time . . ." due to illness. She maintains that her arrests and convictions were not for prostitution. She testified further that she
pleaded guilty to the offenses set forth in Exhibits 4, 5 and 6 upon
advice of counsel.
While a conviction of having engaged in prostitution is not a
requirement to support a charge under section 241(a) (12) of the
Immigration and Nationality Act nevertheless the records of conviction in this particular case when considered in light of the respondent's admissions found in Exhibit 2 amount to substantial
evidence in support of the charge that after entry she engaged in
prostitution. The records of conviction in the instant case spell out
the proscribed conduct in detail and the respondent admits that the

records of conviction relate to her. We find that the evidence of
record adequately sustains the charge laid under section 241(a) (12)
of the Immigration and Nationality Act.

376

• Interim' Decision #1522
The respondent stated that she wishes to remain in the United.
States "because I have my son who was born in the United States
. . . I am very attached to him and don't want to leave him." The
only relief for which the respondent may be eligible is an application
for an adjustment of status under section 245 of the Immigration.,
and Nationality Act, as amended, coupled with an*application for'
a waiver of the grounds. of inadmissibility arising becimse of he3
prostitution. There is no application for relief before us and the
respondent has stated that she does not have the fee for filing the application under section 245. An appropriate order dianicsling the .
appeal will be entered.

ORDER: It is directed that the appeal be and the same is hereby
dismissed.