Interim Decision #2540

MATTER OF TAIISIR

In Visa Petition Proceedings
A-19450829

Decided by Board December 8, 1976
(1) This is an appeal of the denial of an immediate relative visa petition based on a report
which was not shown to petitioner.
(2) The regulations provide for the use of "classified" information without the petitioner's
right to inspect it only upon a finding by the regional commissioner that the information
is relevant and classified under E.O. 11652 (8 C.F.R. 103.2(b)(2)). In addition, the
regional commissioner's authorization to use such classified information must be made a
part of the record of proceeding. Also, petitioner should be given notice of the general
nature of the information and an opportunity to rebut it if it can ha dorm without
jeopardizing the safety of the information and its source.
(3) Where denial of the petition is based upon "classified" information which is not shown
to petitioner, and the requirements of 8 C.F.R. 103.2(b)(2) are not followed, the record
will he remanded to afford petitioner an opportunity to inepeet and rebut tlac adverac
information or for appropriate classification of the information by the regional commissioner in accordance with the above regulation.
ON BEHALF OF PETITIONER: Alan E. Pilte, Esquire
18 Tremont Street
Boston, Massachusetts 02108

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Boar Members

The United States citizen petitioner applied for immediate relative
status for the beneficiary as her spouse under section 201(b) of the

Immigration and Nationality Act. In a decision dated March 5, L 976, the
District Director denied the petition on the ground that the petitioner
bad failed to establish eligibility for the status sought. The record will
be remanded for further proceedings.
The visa petition is supported by certificates attesting to the petitioner's birth in the United States on May 22, 1953, and marriage to the
beneficiary on February 3, 1975. The District Director's decision, on the
other hand, appears to be based upon a report which has not been shown
to the petitioner.
The District Director's decision recites that the petitioner and the

beneficiary appeared for an interview, together with their attorney, on
56

Interim Decision #2540
March 2, 1976. During the course of this interview, on the advice of their
attorney, the parties refused to answer specific questions which appear
to have been raised by the aforementioned report. When their attorney
advised the parties to answer no more questions until he could see
whatever report the questions came from, he was informed that he
could see only the record portion of the file. The interview was then
terminated and the visa petition was subsequently denied for lack of
prosecution.
The report, upon which the District Director appears to have based
his denial, is a part of the record before us. Although the report has
some type of security classification, it does not appear to have been
treated as such by the District Director_ The regulations provide for the
use of "classified" information without the petitioner's right to inspect it,
only upon a finding by the regional commissioner that the information is
relevant and classified under Executive Order No. 11652 (37 FR 5209;
March 10, 1972). 8 C.F.R. 103.2(b)(2). In addition, the petitioner should
be given notice of the general nature of the information and an opportunity to offer opposing evidence, if it can been done without jeopardizing
the safety of the information and its source. More importantly, the
regional commissioner's authorization to use the "classified information"
must be made a part of the record of proceeding. In this case, there is no
evi dence in the rpeord that any of these procedures have been followed.
There is nothing in the record to indicate that the petitioner was
aware of the evidence impugning the beneficiary's capacity to contract a
valid marriage with her. The regulations require that she be given an
opportunity to inspect the record. See 8 C.F.R. 103.2(b)(2); Matter of
Holmes, Interim Decision 2274 (BIA 1974); Matter of Arteaga Godoy,
Interim Decision 2171 (BIA 1972); Cf., Matter of Mata, Interim Decision 2454 (BIA 1975).
Moreover, there is no indication that the District Director's
memorandum to the Board, dated September 8, 1976, was ever served
on the petitioner. The regulations require that "an appeal, cross-appeal,
answers thereto and accompanying brief, if any, shall become part of the
record of proceeding and, if filed by an officer of the Service, a copy shall
be served on the party affected." 8 C.F.R. 103.3(a). Unless this
memorandum is served on the petitioner it cannot become a part of the
record.
Accordingly, the record will be remanded in order that the petitioner
may be given an opportunity to inspect and rebut the adverse evidence
upon which the District Director relied, or for the classification of such
evidence in accordance with 8 C.F.R. 103.2(b)(2).
ORDER: The record is remanded to the District Director for further
proceedings in accordance with the above opinion and the entry of a new
ecision.
-

57


Interim Decision #1751

MATTER OP WEEITEMIRST
In Visa Petition Proceedings
A-13007185

Decided by Board July 11,1987
The divorce secured in the United States by a U.S. citizen terminating his 1057
marriage in the Philippines to beneficiary, a native and citizen of the Philip-

pine Islands, is recognized in the latter country to the extent that •eneficiary's
subsequent, daily contracted marriage in the Philippines in 1963 to petitioner,
a native-bona U.S. citizen, will not be 'challenged by Philippine authorities
where the question of validity arises only in the issuance to her of a visa with
which to enter her husband's country (United States), which country recognizes absolute divorce.

The case comes forward pursuant to certification by the District
Director, Philippine District, of his order dated April 7, 1967 finding
that a valid marriage exists and approving the visa petition.
The petitioner, a native-born citizen of the United States, 24 years
old, seeks nonquota (now immediate relative) status on behalf of the
beneficiary as his wife. The beneficiary is a native and citizen of the
Philippines, 33 years old. The parties were married August 3, 1963 at
Angeles, Pampanga, Philippines. The visa petition indicates that the
petitioner was not married previously, that the beneficiary was mar-

ried once previously and that the marriage was terminated by divorce.

The case was last before us on December 9, 1964 pursuant to certification by the District Director of his order dated October 14, 1964
revoking the visa petition on the ground that the petitioner's marriage
to the beneficiary was not valid under Philippine law and that the
beneficiary was not entitled to nonquota status as his spouse. In a letter
dated September 21, 1961, giving petitioner notice of intent to revoke
prior approval of the visa petition on March 4, 1964, it was set forth
that the beneficiary was previously married to Calvin Mathews, a,
United States citizen, on August 5, 1957 in the Philippines. Calvin
Mathews in 1960 left his wife in the Philippines and returned to the
United States where on June 10, 1963 he obtained a divorce from the
beneficiary in Florence, South Carolina.

821-654--60-21

299

Interim Decision *1751
The District Director based his decision on Philippine law, supported by a citation of authorities. As was pointed out in our prior
order, the District Director placed great reliance upon a„ commentary
by Professor Eduardo P. Caguioa, to the effect that an absolute divorce
obtained abroad by Filipinos, residing in the Philippines, who went
abroad for the sole purpose of obtaining a, divorce, even though valid
where obtained, shall not be recognized in the Philippines because it is
contrary to its public policy. We pointed out that the facts recited by
the District Director showed that it was Calvin Mathews, the American
citizen husband, who returned to the United States and there obtained
the divorce; that the beneficiary, the divorced wife did not go abroad
to obtain the divorce. In view of the fact that the applicability of the
cases cited in the District Director's order appeared to be doubtful, we

remanded the case for an opinion by an expert on Philippine law as
to the validity of the divorce and the marriage of the parties under the
circumstances herein and for further consideration in view of the new
matters set forth in the latest letter of the petitioner reciting that the
first husband of the beneficiary left her in the Philippines and thereafter obtained a divorce in the United States, that the petitioner was
a member of the Armed Forces of the United. States presently stationed
in this country and that they had a child who at that time was less than
one month old.
The present decision of the District Director contains a letter from
the Philippine Undersecretary of Justice dated March 15, 1966, declining in general to rule upon the problem presented but concluding
that it is deemed sufficient pursuant to established procedure for executive officials to rely on the legal presumption that a marriage duly contracted by the parties is valid, especially so where the question arises
only in the issuance of a visa to a married woman desiring to enter
her husband's country which recognizes absolute divorce.
Article 59 of the Philippine Code states that the Local Civil Registrar shall issue the proper license if each of the contracting parties
swears separately before him or any public official authorized to administer oaths, to an application in 'writing setting forth that such
party has the necessary qualifications for contracting the marriage.
Such application shall, insofar as possible, contain data regarding
divorce; if divorced, how and when the previous marriage was dissolved. Article 61 of the Philippine Code states in case either of the
contracting parties is a widow or divorced person, the same shall be
required to furnish instead of the baptismal or birth certificate the
death certificate of the deceased spouse or the decree of the divorce
court, as the case may be. A certified copy of Marriage Register No.
551, Page No. fl of Angeles City, Republic of the Philippines, indi-

300

Interim Decision #1751
cates that the beneficiary was divorced. The record also indicates that
the marriage of the petitioner and the beneficiary was solemnized by a
municipal judge on August 8, 1963.
The judge performing the marriage had knowledge of the beneficiary's prior marriage and divorce prior to the time the ceremony
was performed and did not consider the fact of the divorce a bar to
marriage. There is no question that the divorce secured by the first
husband in the United States is recognized as absolute in this country.
The beneficiary's ex-husband has remarried. The marriage is not
brought into question by any legal proCeedings in the Philippines. A

legal presumption arises that a marriage duly contracted by the parties
is valid. The generally accepted rule is that the validity of a marriage
is governed by the law of the place of celebration:

Upon a full consideration of the applicable Philippine law and of
rules of law regarding the validity of marriages, it is concluded that the instant marriage constitutes a valid marriage for immigration purposes. The order of the District Director approving the
the general

visa petition will be affirmed.

ORDER: It is ordered that the order of the District Director,
Philippine District, dated April 17, 1907, approving the visa petition
be and the same is hereby affirmed.
'

Matter ; of P—, 4 1. & N. Dec. 610, 618; Beale, Conflict of Laum, 1935 Ed., Vol.

2, p. 669.

301


Interim Decision #2131

MATTER OF MANGABAT*
In Deportation Proceedings
A-19049517
Decided by Board March 29, 1972
(1) The fact that a lower federal court has disagreed with a legal conclusion of
the Board does not of itself require that the Board recede from that conclusion; the Board's jurisdiction is nationwide and the contrary ruling of a
reviewing court in one district or circuit is not necessarily dispositive.
(2) The provisions of section 241(f) of the Immigration and Nationality Act, as
amended, do not benefit an alien who entered the United States as a
nonimmigrant. [The interpretation in Matter of Cadiz, 12 L & N. Dec. 560;
Matter of Pon, 13 I. & N. Dec. 446; Matter of iforyzma, 13 I. & N. Dec. 514; and
Matter of Yee, 13 I. & N. Dec. 785, adhered to, notwithstanding Vitales v.
I&NS, 443 F.2d 343 (C.A. 9, 1971), vacated (I&NS v.Vitales, 405 U.S. 983 (1972))
and remanded with instructions to dismiss petition for review.]
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrantremained longer than permitted.
ON BEHALF OF RESPONDENT:

David C. Marcus, Esquire
215 West Fifth Street
Los Angeles, California 90013

This is an appeal from an order of a special inquiry officer dated
October 21, 1971, denying on reconsideration respondent's motion
to reopen and terminate the proceedings under section 241(f) of
the Immigration and Nationality Act. The appeal will be dismissed.
Respondent is a 34 -year - old unmarried female alien, a native
and citizen of the Philippines. She was admitted to the United
States on May 19, 1968 as a nonimmigrant visitor for a period to
expire September 20, 1968 and remained longer than permitted. At
a: deportation hearing before a special inquiry officer on March 12,
1971, at which she was represented by other counsel, respondent
* Reaffirmed. See 477 F.2d 108; cert. denied, 414 U.S. 841 (1973).

75

Interim Decision #2131
admitted the truth of the factual allegations of the order to show
cause and conceded deportability on the above-stated charge. The
special inquiry officer found her to be deportable and granted her
until June 1, 1971 to depart voluntarily in lieu of deportation.
There was no appeal and the special inquiry officer's order became
administratively final. Respondent failed to depart and the alternate order for her deportation to the Philippines vested.
On July 12, 1971, through present counsel, respondent filed a
motion to reopen and terminate. In it she alleged that when she
applied to the American consul in the Philippines for her nonimmigrant visa, she did not disclose a secret intention to remain here
permanently; that on December 12, 1969, at Los Angeles she gave
birth to a daughter, who is a United States citizen; and that by
reason of her fraud and parentage of a United States citizen child,
she is entitled to termination of the proceedings under section
241(f) of the Act. In an order dated August 16, 1971, the special
inquiry officer denied the motion for the stated reason that the
respondent had submitted no evidence to corroborate her selfserving confession of fraud.
Counsel thereupon moved for reconsideration, citing INS v.
Ei-rico, 385 U.S. 214 (1900), and the ensuing decisions of the United
States Court of Appeals for the Ninth Circuit in Muslemi v. INS,
408 F.2d 1196 (1969); Lee Fook Chuey v. INS, 439 F.2d 244 (1971);
United States v Os-Luna Picas, 443 F.2d 907 (1971); and Vitales v.
INS, 443 F.2d 343 (1971). In the order now before us on appeal, the
special inquiry officer denied the motion, concluding that the
evidence presented did not make out a case of fraud within the
meaning of section 241(f).
While this appeal was pending before us, the Supreme Court
granted the Service's petition for certiorari to review the Vitales
-

-

decision, INS v. Vitales, 404 U.S. 983. We held in abeyance further

action in this case and in certain other cases presenting the same
issue, pending definitive decision by the Supreme Court in Vitales. The Supreme Court has now terminated that case inconclusively.1 For the reasons stated below, we shall proceed to a
decision on this appeal, rather than waiting further for a possible
definitive Supreme Court decision in a case yet to be filed.
This Board has consistently taken the position that section

241(f) does not benefit an alien who entered as a nonimmigrant,
I Miss Vitales left the United States and it was suggested to the Court that
this rendered the issue either moot or unreviewable under section 106(c) of the
Act. On March 20, 1972, the Court entered an order vacating the Court of
Appeals judgment and remanding the case to that court with directions to
dismiss the petition for review, INS v. Vitales, 405 U.S. 983.

76

Interim Decision #2131
Matter of Cadiz, 12 I. & N. Dec. 560 (BIA, 1968); Matter of Pon, 13 I.
& N. Dec. 446 (BIA, 1969); Matter of lioryzma, 13 I. & N. Dec. 514
(BIA, 1970); Matter of Yee, 13 I. & N. Dec. 785 (BIA, 1971). That

position is consonant with, and indeed required by, the rationale of
the Attorney General's decision in Matter of Lee, 13 I. & N. Dec.
214 (BIA, 1967; A.G. 1969); see especially footnote 4. The Courts of
Appeals outside the Ninth Circuit have endorsed our longstanding

construction of the statute, Ferrante v. INS, 399 F.2d 98, 104-105 (6
Cir., 1968); Tsaconas v. INS, 397 F.2d 946, 948 -949 (7 Cir., 1968);
Rutledge v. Esperdg, 200 F. Supp. 231, 233 (S.D. N.Y., 1961),
affirmed per curiam 297 F.2d 532 (2 Cir., 1961). The Ninth Circuit
alone has adhered to the expansive view of the underlying
Congressional design on which its decisions are bottomed.
Where a reviewing court rejects our construction of a statute, in
treating with the same issue in subsequent cases we try to reach
an accohimodation compatible both with respect for the court's
judgment and with the needs of effective administration of the
law. The fact that a lower federal court has disagreed with a legal
conclusion of this Board does not of itself require us to recede from
that conclusion. The Board's jurisdiction is nationwide and we
hear appeals from Service decisions in all parts of the country. The
contrary ruling of a reviewing court in one district or one circuit is
not necessarily'dispositive. As we have seen with respect to section
041m, a conflictiing view may be expressed by a court in another
jurisdiction.
Where further appellate review is not sought because it is
concluded administratively that the adverse court decision is
correct, we recede from our former position and accept the court's
position as our own in future cases. See Matter of Lim, 13 I. & N.
Dec. 169 (BIA, 1969). Where, however, the Government's failure to
seek further appellate review is due to factors other than acquiescence, we try to preserve the. status quo pending definitive decision in another case. While continuing to apply our own legal
conclusion in other jurisdictions, we may apply the contrary

conclusion in eases arising within the jurisdiction of the court
which rendered it, Matter of Amado and Monteiro, 13 I. & N. Dec.
179 (BIA, 1969).
It was to avoid this unhappy solution that we have withheld
action on appeals presenting this section 241(f) issue in cases
which would normally be reviewed in the Ninth Circuit, pending
definitive decision in Vitales. In view of the inconclusive termination of that ease, we could continue to hold the many cases we now
have, until such time as a suitable case arising in another circuit
becomes the vehicle for ultimate Supreme Court decision. That

will take some time. We believe that effective administration
77

Interim Decision #2131
requires that we act now on the cases before us, without further
delay.
In declining to apply the cited Ninth Circuit decisions in this and
other cases reviewable in that circuit, we mean no disrespect for
that court. Since the issues have already been crystallized, briefed
and defined in the cited cases, our action now should pave the way
for prompt decision in that court and prompt review in the
Supreme Court. The construction of section 241(f) which we here
apply is one which the Attorney General has approved, and his
decision is binding on us. The Ninth Circuit's view represents a
minority position among the circuits. The Solicitor General's challenge to it in petitioning for certiorari in Vitales negates any
notion of administrative acquiescence. The Supreme Court's action
in granting certiorari indicates that a substantial question is
presented.
Under the circumstances, we feel justfied in continuing to
adhere to the view that section 241(f) does not benefit an alien who
entered as a nonimmigrant. We therefore dismiss the appeal.
ORDER: The appeal is dismissed.

78


Interim Decision #2017

MATTER OF SINGH

In Section 246 Proceedings
A-11430285
Decided by Board December 19, 1969
The running of the five-year limitation provision of section 246 of the Immigration and Nationality Act is tolled by the service upon the alien of "notice of intention to rescind" adjustment of status issued by the District
Director in accordance with the provisions of 8 CFR 296.1.
RESCISSION GROUNDS: Marriage not valid for nonquota status, and quota

visa not available.
ON BEHALF OF RESPONDENT:
Joseph. S. Hertogs, Esquire
580 Washington Street
San Francisco, Calif. 94111

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney
Stephen M. Suffin
Trial Attorney
(Brief filed)

The above-captioned case concerns an interpretation of the
five-year limitation provision of section 246(a) of the Immigration and Nationality Act (8 U.S.C. 1256(a) ) 1 insofar as it relates
to the rescission of •an adjustment of a nonimmigrant alien's immigration status to that of a permanent resident alien. The special inquiry officer, on December 6, 1968, concluded that it is
I The limitation provision of section 246(a) insofar as it relates to a rescission of an adjustment of status under section 245 of the Act reads as follows:
If, at any time within five years after the status of a person has been
otherwise adjusted under the provisions of section 245 . . of this Act
or any other provision of law to that of an alien lawfully admitted for
permanent residence, it shall appear to the satisfaction of the Attorney
General that the person was not in fact eligible for such adjustment of
status, the Attorney General shall rescind the action taken granting an
adjustment of status to such person and cancelling deportation in the
case of such person if that occurred and the person shall thereupon be
subject to all provisions of this Act to the same extent as if the adjustment of status had not been made.
439

Interim Decision #2017
impossible to enter an order of rescission "at any time within five
years after the status of [the respondent] has been adjusted"
under section 245 and terminated the proceeding. He relies upon
Quintana v. Holland, 255 F.2d 161 (3 Cir., 1958). The trial attorney appeals on the ground that service of a "Notice of Intention
to Rescind" within the five-year period is sufficient to toll the
running of the statute.
The respondent is a native and citizen of India who was admitted to the United States at the port of New York on January 10,
1959 as a nonimmigrant student. He married a United States citizen at Reno, Nevada on July 24, 1963. An application for permanent residence status was granted on October 18, 1963. The notice
of intention to rescind charges that the respondent's marriage to
a United States citizen was entered into solely for the purpose of
enabling him to acquire the status of a permanent resident of the
United States because he never cohabited in a husband and wife
relationship with his citizen wife.
The notice of intention to rescind was mailed to the respondent
on September 12, 1968 by "certified mail—return receipt requested" (ex. 1). The return receipt shows that it was received
by the respondent on September 19, 1968. Counsel by letter dated
October 11, 1968 requested a hearing before a special inquiry officer. The hearing was held on December 6, 1968, during the
course of which, counsel moved for termination of the proceeding
on the ground that the proceeding is not in accord with "precedent decisions of the Board of Immigration Appeals and the Service" since "more than five years elapsed from the granting of permanent resident status on October 18, 1963, and the date of any
entry of any decision in connection with the rescission proceeding" (p. 3).
Counsel in his brief on appeal relies upon Quintana v. Holland,

255 F.2d 161 (3 Cir., 1958), the Assistant Commissioner's decision in Matter of T—, 8 I. & N. Dec. 96 (1958), and an unreported decision by this Board in Matter of Ettlinger, A-12548706
(1966 and 1968). One of the issues presented in Matter of T—
was whether appellate rights preserved for the alien under 8
CFR 246 prevented final disposition of the case within the fiveyear period of limitation provided by the statute. The Assistant
Commissioner ruled that since the alien's application for adjustment of status was granted on June 11, 1953, the entry of an
order by rescission by the District Director on June 3, 1958 tolled
the five-year-period of limitation provided by the statute notwith-

440

Interim Decision #2017
standing that the appellate rights to which the alien was entitled
have prevented final disposition of the case within the five years. 2
A similar issue was before us in Matter of Ettlinger (supra).
Ettlinger's status was adjusted on October 6, 1961 and the special
inquiry officer's order of rescission was entered on August 17,
1966, within the five-year period of limitation. We noted in our
opinion of December 1, 1966 that the case of Quintana v. Holland
is distinguishable. The case was again before us in deportation
proceedings on February 7, 1968. We remanded in order to have
the special inquiry officer reconsider the evidence in light of the
burden of proof of clear, unequivocal and convincing evidence
pursuant to the Waziri decision of the Ninth Circuit (392 F.2d
55, 1968) and the Rodrigues decision of the Third Circuit (389
F.2d 129, 1968). We said in our opinion, "Reconsideration for the
purpose of applying this burden of proof does not affect our prior
holding that the rescission order of the special inquiry officer on
August 17, 1966 was timely, and that thereafter the statute of
limitations in section 246 was tolled."
We find little support for either counsel's position or that of the
special inquiry officer in Matter of T—, or Ettlinger, because in
those cases the issue was whether appellate rights when exercised
granted the alien an immunity if the appellate proceeding was
not completed within the five-year period of limitation. In this
case we are concerned with whether the service of a notice to rescind or the date of the decision of the special inquiry officer tolls
the running of the statute.
The Court of Appeals in Quintana v. Holland (supra) had before it a case involving the rescission of suspension of deportation on the ground that the alien's membership in the Communist
Party made him ineligible therefor. Quintana's deportation was
suspended by the Immigration Service on December 3, 1947, and
reported to the Congress on December 15, 1947. He paid the fee
on July 22, 1948, and on July 6, 1949 a congressional resolution
approved suspension of deportation. The District Director notified
Quintana on July 9, 1953 of his intention to rescind the grant of
suspension of deportation. Following hearings in 1954 and 1955,
the District Director on March 30, 1955 approved a recommendation for rescission of suspension of deportation. The Acting Regional Commissioner approved on April 11, 1955. Congress on
Quintana 17_ I inlIond (supra) was decided on May 23, 1958 and the Assistant Commissioner made no reference to the decision of the Third Circuit
Court of Appeals in his decision of July 31, 1958.

441.

Interim Decision #2017
April 9, 1956 passed a concurrent resolution withdrawing suspension of deportation.
The Government took the position that the rescission proceedings were timely because Quintana was notified of the intention
to rescind within five years of the date he paid his fee for suspension of deportation on July 22, 1948. The Government also argued
that suspension of deportation is a "matter of legislative grace
within a field of congressional supremacy the disposition of which
Congress had reserved for itself," and the courts cannot either
review or overrule an action taken by Congress.
The court stated in effect that the Government's argument was
not based on a sound or valid premise. It stated, "We think ...
that Congress meant to require the Attorney General to take the
described action within five years and to be bound by that limitation itself ... The giving of notice within the five-year period is
not enough ..." Referring to the phrase used in the statute "it
shall appear to the satisfaction of the Attorney General," the
court interpreted this as meaning that the Attorney General must
make a "reasonable determination ... in good faith after such investigation and hearing as is required." The court stated that
"the Attorney General could have made no such determination by
the end of the five-year period from the latest possible date that
can be considered" (255 F.2d 164).
We do not agree with the court's interpretation of the limitation provision of section 246. The ruling of a reviewing court in
one circuit is not necessarily dispositive of the issue; a conflicting
view may be expressed by a court in another circuit. See e.g. Errico v. INS, 349 F.2d 541 (9 Cir., 1965), and Scott v. INS, 350
F.2d 894 (2 Cir., 1965). Similarly the Government's failure to ap)eal from a court's adverse decision does not of itself indicate aciuiescence. The determination not to appeal may be based on
ether considerations, such as the inadequacy of the record as a
'chicle for appeal or factors outside of the record which render
n appeal undesireable. Cf. Matter of Lint, Interim Decision No.
947 (BIA, 1969).
There was conflict between the circuits with regard to the limiation provisions found in section 19(a) of the 1917 Act.' The
'bird Circuit in the case of Hughes v. Tropello, 296 F. 306
1924), and McCandless v. U.S. ex rel. Swystun, 33 F.2d 882
1929), construed the phrase "at any time within [five or three]
ears after entry" as "words of limitation." The court said that
8 Section 19(a) of the 1917 Act limited the deportability of certain desigitted aliens to "at any time within [five or three] years after entry."

442

I

1

Interim Decision #2017
in order to give effect to them "the warrant of deportation and
not merely the warrant of arrest" must be issued within the statutory period and if not "the power of deportation is exhausted"
(33 F.2d 883).
The majority of the Circuit Courts of Appeal did not adhere to
the interpretation of the "words of limitation" enunciated by the
Third Circuit. The most recent case is that of Miller v. U.S. ex
rel. Hunt, 181 F.2d 363 (5 Cir., 1950). The question before the
court was whether a timely-issued warrant of arrest, as distinguished from a warrant of deportation, served to toll the running
of the limitation provision as set forth in section 19 (a) of the
1917 Act. The court referred to the fact that there was a diversity of opinion prevailing between several of the circuits and the
Third Circuit. The court ruled that a timely issuance of the warrant of arrest suffices and in support of its position said:
This position is warranted by the express phraseology of the statute and
is rendered persuasive by consideration of the universal rule prevailing in
the various states and federal courts, 4 that the filing of charges, whether by
information or by indictment, tolls the running of the statute of limitations
against a criminal prosecution and is effective even though the warrant be
not served upon the accused until after the running of the statute.

We find no basis for applying a different rule with regard to
the limitation provision of section 246. The function served by
any statute of limitation is to give the accused notice of the assertion of a claim against him before it has become stale, in order
that he may be duly warned to preserve his evidence if he wishes
to contest the asserted claim, D'Onofrio Construction Company v.
Pecan Company, 255 F.2d 904, 908 (1 Cir., 1958). The Attorney
General has said: "The effect of the five-year limitation on rescission is simply to bar the Attorney General from returning an
alien with adjusted status [under section 245] to the category of
a nonimmigrant," Matter of S—, 9 1. & N. Dec. 547, 554 (A.G.,
1962).
Here the respondent seeks to bar the rescission of his adjusted
status by claiming immunity under the five-year limitation provided by section 246. The Supreme Court has said that where one
The court cited in support of its position the following immigration case:
289 F. 60 (2 Cir., 1923); U.S. ex rel. Patton v.
Tod, 297 F. 385 (2 Cir., 1924) ; 'U.S. ex rel. Danikas v. Day, 20 F.2d 733 (2
Cir., 1927) ; U.S. ex rel. Ginal v. Day, 22 F.2d 1022 (2 Cir., 1927) ; Metaxis
v. Weedin, 44 F.2d 539 (9 Cir., 1930) ; Marty v. Nag/e, 44 F.2d 695 (9 Cir.,
1930) ; Tillinghast v. Cresswell ex rel. Di Pierre, 54 F.24 459 (1 Cir., 1931);
Rat tery ex rel. Giacornazzi v. Tillinghast, 63 F.2d 9'7 (1 Cir., 1933); Bun
Chew v. Connell, 233 F. 220 (9 Cir., 1916).
4

U.S. ex rel. David v. Tod,

443

Interim Decision #2017
resorts to a statute of limitations in order "to bar the rights of
Government," such statute "must receive a strict construction in
favor of the Government," E. I. Dupont De Nemours and Company v. Davis, 264 U.S. 456, 462, 68 L. Ed. 788, 791 (1924). If
rescission proceedings must be concluded and not merely begun
within the five-year period, the immigration authorities to whom
the Attorney General has delegated his authority would of necessity in some cases be constrained to hasty and otherwise drastic
pr ocedure in order to avoid failure in their duty to obey the statute. Cf. Nocchi v. Johnson, 6 F.2d 1 (1 Cir., 1925). The Third
Circuit's interpretation of the limitation provision of section 246
as stated in Quintana places a premium on the use of any and all
means to delay a decision by the special inquiry officer. We cannot
believe that the Congress intended that the power and authority
to rescind would cease merely because the time accorded to the
alien in which to have his day in court had run beyond five years,
notwithstanding the fact that the notice to rescind had been
served upon him within the five-year period of limitation. Cf.
U.S. ex rel. Patton v. Tod, 297 F. 385, 397 (2 Cir., 1924). The
statute must be given a fair and reasonable interpretation in
order to effectuate its purpose, namely, to prevent undue delay in
the bringing of actions, Missouri, K. and T. R. Company v. Harriman Brothers, 227 U.S. 657, 57 L. Ed. 690 (1913).
The notice of intention to rescind (Ex. 1 ) , served upon the respondent by registered mail within the five-year period of limitation, fully sets forth the essential facts for commencement of rescission proceedings under section 246 of the Immigration and
Nationality Act. Furthermore, it appears from a reading of the
lotice to rescind that there was probable cause for believing that
:he respondent had obtained his adjustment of status unlawfully.
It has been held that where the foregoing factors are clearly set
'orth in a complaint served upon the accused, the service of the
ornplaint tools the running of the statute of limitations, Jaben v.
7nited States, 333 F.2d 535 (8 Cir., 1964), aff'd 381 U.S. 214, 14
I.,. Ed. 2d 346 (1966).
Contrary to the rationale applied by the Third Circuit in Quinana, we find nothing in the statute which says when the Attorley General must make "a reasonable determination ... in good
'aith ... after ... investigation and hearing ..." (255 F.2d 165)
5 It appears that the reasoning of the court with regard to whether the
imitation provision of the statute had been met was influenced by the fact
hat at the time the notice to rescind suspension of deportatiton was served
pon Quintana, the investigation with regard to his membership in the Corniunist Party had concluded negatively and the Service was then engaged in

444

I

Interim Decision #2017
In fact, a reading of the notice to rescind in the case before us
makes it clear that the immigration officers to whom the Attorney
General has delegated his authority had made "a reasonable determination ... in good faith . .. after investigation ..." because
otherwise the notice to rescind would not have been served upon
the respondent. All that remained was the hearing provided by 8
CFR 246.5 which affords the alien an opportunity to rebut the allegations set forth in the notice to rescind. The allegations by
their very nature are notice to the respondent that the Attorney
General is not satisfied that he "was ... in fact eligible for such
adjustment of status."
We conclude on the basis of the foregoing that the five-year
limitation provision of section 246 of the Act is tolled when the
notice to rescind is issued by the District Director in accordance
with 8 CFR 246.1. The decision and order of the special inquiry
officer will be reversed and the case remanded for further proceedings in conformity with this opinion.
ORDER: It is ordered that the order entered by the special inquiry officer on December 6, 1968 terminating this proceeding be
and the same is hereby withdrawn.
It is further ordered that the case be remanded to the special
inquiry officer for further proceedings in conformity with the
foregoing opinion.

evidence with which to convince the special inquiry officer
that Quintana had been a member of the Communist Party (see 255 14'.2d
165). This factor is not present in the case before us.
seeking further

445


Interim Decision #2719

MATTER OF MENA
In Deportation Proceedings
.A-34033024

Decided by Board July 12, 1979
Transcript from court proceedings which resulted in conviction for possession of controlled substances under section 11350 of the California Health and Safety Code, and
at which the respondent, under questioning by judge as part of the arraignment prior
to acceptance of a guilty plea, admitted possession of heroin, with knowledge that the
substance was heroin, can be considered as part of the "record of conviction," and a
finding of deportability under section 241(a)(11) of the Immigration and Nationality
Act, 8 U.S.C. 1251(a)(11), can thus be based on it. Matter of Paulus,11 1&N Dec. 274
(BIA 1965), and Matter of Cassisi, 10 I&N Dec. 136 (BIA 1963), distinguished.
.CHARGE:

Order. Act of 1952-9ec. 241(a)(11) [8 U.S.C. 1261(a)(11)] Convicted of law relating
to illicit possession of a controlled substance, to wit, heroin,
—

in violation of section 11350 of the California Health and
Safety Code
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE

Pro se
BY:

Ingrid K. Hrycenko
Trial Attorney

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The Immigration and Naturalization Service has appealed from a

decision of the immigration judge, dated October 17, 1977,' terminating deportation proceedings brought against the respondent. The appeal will be sustained.
The respondent is a native and citizen of Mexico who was admitted
to the United States as an immigrant on December 11, 1972, when he
was 14 years old. On April 1, 1977, the respondent pleaded guilty to
unlawful possession of "controlled substances," in violation of section
11350 of the California Health and Safety Code. Based on this conviction, an Order to Show Cause was issued against the respondent on
' The record file in this case was not received by the Board until February 15, 1979,
some 16 months after the immigration judge rendered his decision. We consider such a
delay in forwarding the record to be unacceptable.

38

Interim Decision #2719
September 6, 1977, charging him with deportability under section
241(a)(11) of the Immigration and Nationality Act, 8 U.S.C.
1251(a)(11). At a deportation hearing held on October 17, 1977, the
respondent admitted the allegations in the Order to Show Cause, and
conceded deportability. The immigration judge nevertheless terminated the deportation proceedings. The termination was based on his
finding that the respondent's conviction record contained no reference
to heroin, or to any other specific drug. The immigration judge therefore determined that the Service had failed to meet its burden of
showing, by clear, convincing, and unequivocal evidence, that the
respondent had been convicted of a violation of a law relating to
narcotic drugs or marijuana.
The Service, in its brief on appeal, argues that the transcript from
the court proceeding at which the respondent was convicted should be
considered part of the "record of conviction." That transcript contains
a colloquy between the judge and respondent at the latter's arraignment, wherein, before accepting a guilty plea, the judge asked the
respondent what he had done that made him believe he was guilty of
possession of a controlled substance, and the respondent answered
that he had had in his pocket a balloon containing heroin, and that he
had known it was heroin; if considered as part of the conviction record,
this transcript would clearly support a finding of deportability under

section 241(a)(11). As pointed out by the immigration judge in his
decision, the "record of conviction" has generally been held to consist
of the charge, the indictment, the plea, the verdict, and the sentence.
Hirsch v. INS, 308 F.2d 562 (9 Cir. 1962); Robinson v. Day, 51 F.2d 1002
(2 Cir. 1931); Matter of Paulus, 11 I&N Dec. 274 (BIA 1965); Matter of
S , 4 I&N Dec. 509 (C.O. 1951; BIA 1952). However, we agree that
reference can be made in this case to the court transcript dated April 1,
1977, and headed, "Proceedings on Entering a Plea of Guilty." At this
proceeding, the respondent was fully and carefully advised of his
rights, and of the consequences of a guilty plea (including probable loss
of his immigrant status), prior to the judge's acceptance of that plea.
We hold that this transcript is part of the record of conviction. As the
transcript reveals beyond doubt that the "controlled substance" the
respondent had in his possession was heroin, the 241(a)(11) charge of
deportability has been proven by clear, convincing, and unequivocal
evidence.
Two prior Board decisions, Matter of Paulus, supra, and Matter of
Cassis
. i, 10 I&N Dec. 136 (BIA 1963), need to be distinguished from the
present ease. In Paulus, it was Charged that the respondent, in violation of California law, "did offer unlawfully to sell and furnish a
narcotic to a person and did then sell and deliver to such person a
substance and material in lieu of such narcotic." The respondent was
—

39

Interim Decision #2719
convicted on this charge. We upheld the immigration judge's decision
terminating deportation proceedings, on the ground that the record
was silent as to what narcotic was involved, and it could have been a
substance considered to be a narcotic under California law, but not
under federal law. Giving the respondent the benefit of the doubt, the
conviction was found not to be one relating to narcotic drugs for
immigration purposes. In that case, however, there was no evidence to
indicate precisely what narcotic was involved. In the present case, the
respondent admitted, both at his arraignment and at his deportation
hearing, that the drug he had possessed was heroin.
In Cassisi, supra, we held that recourse could not be had to the
remarks made by the State's Attorney to the court at the time of

sentencing in order to determine whether or not the crime for which
the respondent had been convicted involved moral turpitude. The law
under which the respondent was convicted was a broad, divisible
statute enumerating several acts, which may or may not have involved
moral turpitude. Our decision in the instant case is in no way contrary
to that in Cassisi. The consideration of admissions freely made by the
respondent himself is far different from the consideration of remarks
made by a prosecutor.
The respondent is clearly deportable as an alien convicted of a law
relating to narcotic drugs or marijuana. The Service's appeal will

accordingly be sustained.
ORDERS The appeal is sustained, and the record is remanded to the
immigration judge for further proceedings consistent with this
opinion.

40


Interim Decision #2718

MATTER OF HINOJOSA
In Exclusion Proceedings
A-17299766

Decided by Board July 10, 1979
(1) Applicant who was admitted to the United States in February 1966, as a lawful
permanent resident and who traveled to Mexico in April 1972, for 1 week, returning
with 60 pounds of marijuana for which he was convicted, after parole for prosecution,
of the offense of importing marijuana in violation of 21 U.S.C. 952(a) and 960(a)(1),
was correctly found excludable under section 212(a)(23) of the Immigration and
Nationality Act, 8 U.S.C. 1182(0(23), when he sought readmission to the United States
as a lawful permanent resident in March 1973. Rosenberg v. F1euti, 374 U.S. 449 (1963),
distinguished; Laredo-Miranda v. INS, 555 F.2d 1242 (5 Cir. 1977); Matter of AlvarezVerduzco, 11 I&N Dec. 625 (BIA 1966), follovied.
(2) A lawful permanent resident who, following a narcotics conviction which renders
him excludable, seeks readmission within the 7-year period of lawful permanent
residence required for section 212(c) relief, 8 U.S.C. 1182(c), but whose continuing
application for reentry as a lawful permanent resident is not adjudicated until after
the 7 years, is eligible to apply for that relief.
(3) In the absence of an event fixing its termination, such as an adjudication of deportability or an intervening unlawful entry, the lawful resident status of an alien
who has slipped into an excludable class subsequent to acquisition of that status is
deemed to continue to exist at the time of the application for section 212(c) relief.
Matter of S—, 6 I&N Dec. 392 (BIA 1954; A.G. 1955), followed; Matter of M—, 7 I&N
Dec. 140 (BIA 1956), distinguished.
(4) Lawful domicile short of the 7 years necessary for a waiver of inadmissibility under
section 212(c) of the Act may be perfected as to length during an alien's temporary
absence from the United States. Matter of C—,1 I&N Dec. 631 (BIA 1943; A.G. 1944),
followed.
EXCLUDABLE:

Act of 1952—Sec. 212(a)(23) [8 U.S.C. 1182 (a)(23)]—Convicted of
marihuana law violation

ON BEHALF OF APPLICANT:

Laurier B. McDonald, Esquire
Pena, McDonald, Prestia & Zipp
600 South Closner Avenue
P.O. Box 54

•Edinburg, Texas 78539
By: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

34

Interim Decision #2718
In a decision dated August 10, 1977, the immigration judge found the
applicant inadmissible under section 212(a)(23) of the Immigration
and Nationality Act, 8 U.S.C. 1182(a)(23), denied his application for
relief under section 212(e) of the. Act, and ordered him excluded and
deported from the United States. The applicant has appealed. The
record will be remanded to the immigration judge for further
consideration.

The applicant, a native and citizen of Mexico, was admitted to the
United States for lawful permanent residence in February 1966. In
March 1972, the applicant traveled to Mexico for 3 week and sought
readmission as a returning resident on April 3, 1972. In the course of
inspection, approximately 60 pounds of marijuana were discovered in
the applicant's automobile. He was paroled into the United States
under section 212(d)(5) of the Act pending prosecution. On June 12,
1972, he was convicted in the United States District Court at Brownsville, Texas, of the offense of importing marijuana in violation of 21
U.S.C. 952(a) and 960(a)(1), and sentenced to serve 6 months of a 3-year
sentence, the balance of the term suspended. After release on
November 12, 1972, the applicant was placed on probation, his immigration parole status was revoked, and he was allowed by Immigration and Naturalization Service officials to voluntarily return to Mexico, ostensibly for the purpose of pursuing his application for
admission.' The applicant did not, in fact, seek admission until March
1973, some 4 months after his arrival in Mexico. At this date, more
than 7 years had elapsed since the applicant had been admitted to the
United States for lawful permanent residence.
In a decision dated August 10, 1977, the immigration judge found the
applicant excludable under section 212(a)(23) on the basis of the
marijuana conviction? He further held that the applicant was
statutorily ineligible for a section 212(c) waiver for lack of 7 consecutive years of lawful unrelinquished domicile and that, even if eligibility
could be established, relief should nonetheless be denied in the exercise
of discretion. While we agree that the applicant is excludable as
charged, we must reverse the immigration judge's holding with
respect to the section 212(c) waiver.
Section 212(c) of the Immigration and Nationality Act provides, in
pertinent part, that aliens lawfully admitted for permanent residence
' The record does not show that, at that time, he was notified of his options, i.e., to
abandon his right of residence or to defend it in an exclusion hearing. Cf. 8 C.F.R.
212.5(3),

In so holding, the immigration judge correctly concluded that the entry doctrine
enunciated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), was not applicable to Mr.
'

Hinojcsa's case. See Laredo Miranda v. INS, 555 F2d 1242 (5 Cir. 1977); Matter of Rico,
16 1&N Dec 151 (BIA 1977); Matter of Alvarez-Verduzco, 11 I&N Dec. 625 (BIA 1966).
-

35

Interim Decision #2718
who temporarily proceed abroad voluntarily, and not under an order of
deportation, and who are returning to a lawful unrelinquished
domicile of 7 consecutive years, may be admitted in the discretion of
the Attorney General without regard to certain specified grounds of
exclusion enumerated in section 212(a) of the Act. Section 212(a)(23),

under which the applicant is charged, is one of the specified grounds of
inadmissibility which may be waived under section 212(c).
In finding the applicant statutorily ineligible for relief, the immigration judge relied on Matter of M—, 7 I&N Dec. 140 (BIA 1956). That
decision involved an alien who had been admitted to the United States
as a lawful permanent resident on December 22, 1945. In 1950, she was
institutionalized in New York with involutional psychosis, melancholia. After her release from the hospital, she traveled to Europe for
approximately 4 months and was readmitted to the United States on
March 3, 1952, upon presentation of a reentry permit. In connection
with a subsequent departure, the alien attempted to obtain a waiver of
the ground of inadmissibility relating to the prior attack of insanity.
The Board found the applicant ineligible for the 'waiver, noting that
when she reentered the United States upon presentation of her reentry

permit on March 3, 1952, she was in fact in the state of being inadmissible. Despite the fact that she had gained admission to the United
States as a returning resident on March 8, the Board held that from
the date of that entry, she no longer had a lawful domicile to which to
return and could not thereafter acquire the 7 years of lawful domicile
required for relief under section 212(c). Thus, the consequence of the
holding in Matter ofM— is that a lawful permanent resident is forever
barred from establishing eligibility for a section 212(e) waiver if he
leaves and reenters within the first 7 years of his lawful permanent
residence subsequent to an act or event which renders him excludable.
This result follows regardless of the fact that the alien is duly inspected and admitted by immigration officials upon his reentry and

any subsequent exclusion or deportation proceeding which may be
brought is not instituted before the requisite 7-year period has
elapsed.
Applying the rationale 'of Matter of M— to the present case, the
immigration judge made the following observation:
When applicant was seeking admission to the United States on April 3, 1972, he was
excludable under the provisions of section 212(a)(23) of the Act, for which offense he
was convicted on June 12,1972; therefore, applicant could not be returning to a lawful
unrelinquished domicile after April 3, 1972—applicant no longer had a lawful admission for permanent residence upon which to base a waiver under the provisions of
section 212(c) of the Act. (Immigration judge's decision at 6.)

We conclude that Matter of M— is distinguishable from the present
case. In both cases, the event which put the alien in an excludable class
occurred before the alien had accumulated 7 consecutive years of
lawful domicile. Also, in both eases, the alien was outside the United
36

Interim Decision #2718
States temporarily after completing less than '1 years lawful domicile.
Another similarity is that in both cases, the first formal adjudication
of excludability occurred after the passage of 7 years from the commencement of lawful United States domicile.
The essential distinction lies in this: In Matter of M—, a completed
entry occurred after the act or event rendering the alien excludable
and before the alien had completed the 7 years necessary for the
waiver. The date of the reentry could be neither ignored nor amended,
nor was any other type of waiver of excludability available as of that
date. In the present case, no entry occurred.
The law is settled that after an illegal entry, an alien does not
continue to be a lawful resident. Matter of Kolk, 11 I&N Dec. 103 (BIA.
1965). Every entry is critical Volpe v. Smith, 289 U.S. 422 (1933). Matter
of M— is to be understood on that basis, that because the reentry
occurred at a time when no waiver of excludability was available, the
alien could no longer accumulate lawful permanent residence to tack
on to that which she had accumulated before the reentry on March 3,
1952, after becoming excludable. On the facts before us, applicant
Hinojosa made no entry within the 7 year period and after deportability arose, nor has there been any other termination of lawful status,
such as an adjudication of deportability, within the 7-year period. His
application for admission has been a continuing one up to the present
date. In the absence of a significant event fixing the date of its termination, the lawful resident status of an alien who has slipped into an
excludable class subsequent to acquisition of resident status is deemed,
for the purpose of the availability of section 212(c) relief, to continue to
exist at the time of the application for relief. Matter of —, 6 I&N Dee.
392 (BIA 1954; A.G. 1955). See also Matter of Salmon, 16 I&N Dec. 734
(BIA 1978). Moreover, this Board has ruled that domicile short of 7
years may be perfected as to length during an alien's temporary
absence from the United States. Matter of C— 1 I&N Dec. 631 (131A
1943; A.G. 1944). In Matter of M , we noted the existence and continued vitality of both Matter of S— and Matter of C—. These are the
-

—

controlling precedents in the present case. Accordingly, we find that

the applicant did not lose his lawful domicile on April 3, 1972, that he
has maintained a lawful unrelinquished domicile for a 7-year period as
required by the statute, and that he is therefore statutorily eligible for
the relief he seeks.
However, we find that remand of the record is necessary in order to
enable the immigration judge to exercise his administrative discretion
on the basis of current facts. See generally Matter of Merin, 16 I&N
Dec. 581 (BLA 1978). After receipt of any documentary or testimonial
evidence which either party may wish to offer, the immigration judge
should enter a new decision as expeditiously as he is able and, if again
adverse to the applicant, should certify the decision to the Board for
review.
ORDER, The record is remanded to the immigration judge for
the action indicated in the foregoing opinion.
37


Interim Decision #2609

MATTER OF

M/V

"Rio CALCHAQUI"

In Fine Proceedings
SFR 10/28.322 (T-3)

Decided by Board August 25, 1977
Form 1-259, Notice to Detain, Deport, Remove or Present Aliens, must be served on the
carrier before liability for fines under section 273(d) of the Immigration and Nationality
Act can attach. Listing of persons to be detained on Form 1-410, "Receipt for Crew
List," furnished the Master of the Vessel, standing alone, does not provide sufficient
notice under section 273(d) of the Act.
In re: MN "RIO CALCHAQUI", which arrived at Oakland, California from foreign, on
January 26, 1976. Alien passengers involved: Roberto Cortez-Portillo, dose
Clement* Lafaux- Ortiz, Modesto numprmn Cedeno-Montes. Jose Luis
Garces-Valencia
Basis for Fine: Act of 1952—Section 273(d) [8 U.S.C. 1323(d)]
ON BEHALF OF CARRIER: Transpacific Transportation Co.

650 California Street
San Francisco, California 94108
BY: Milhollan, Chairman; Wilson, Appleman, and Maguire, Board Members

This matter comes to us on certification from the District Director for
Transpacific
Transportation Company, had incurred liability for a fine in the total
amount of $4,000, to be imposed under section 273(d) of the Immigration
and Nationality Act, as amended. We do not agree and hold that
liability to fine has not been incurred in this case.
This case arose as a result of the carrier's failure to detain four alien
stowaways on board when so ordered by an immigration officer. The
stowaways had boarded the vessel in Colombia and were discovered on
the high seas. The Service was notified of their presence before the
vessel's arrival at Oakland, California, on January 26, 1976. The inspecting immigration officer ordered them detained and deported from the
United States by service of Form 1-259 on the agent. The vessel then
departed from Oakland for Canada with the stowaways detained on
board. Canadian Immigration refused permission to land the stowaways
for the purpose of their repatriation.
The vessel returned to the United States and arrived at Vancouver,
review and final decision. He found that the carrier's agent,

323

Interim Decision #2609
Washington, on February 4, 1976, at which time the stowaways were
again ordered to be detained on board. This was done without the
issuance of another Form 1-259. However, the immigration officer did
sign and deliver to the Master of the vessel a "Receipt for Crew List"
(Form 1-410) which listed the four stowaways under "Detentions." The
receipt bears a notation "IMPORTANT NOUICE" which states, inter
alia, "The crewmen listed under "Detentions" are to remain on board
the vessel at all United States ports on the voyage. Failure to detain will
result in fine proceedings." The above form was attached to the Form

1-418 Crew List. The vessel then sailed coastwise and arrived at San
Francisco on February 6, 1976. Shortly thereafter, the four stowaways
eluded the custody of the vessel and illegally entered the United States.
Their escape allegedly was affected by the aid of an outside agent,
unconnected with the vessel. Two of the above-named aliens, CortezPortillo and Garces-Valencia, were later apprehended and deported.
Cedeno-Montes was also apprehended by the Service. Lafaux-Ortiz
apparently is still at large in the United States.
The District Director contended that the inspecting officer in Vancouver properly ordered the stowaways detained on board, not-

withstanding that a second Form 1-259 was not served on the carrier.
Although conceding that the stowaways were securely incarcerated and
escaped only through outside assistance, the District Director further
contended that the statute places an absolute duty on the carrier to
detain stowaways on board when so ordered by an immigration officer.
The District Director concluded that the carrier, therefore, had incurred liability for a fine despite the cautions taken or the diligence used
to detain the stowaways on board, citing Matter of British f IV
"Spencer", 5 I. & N. Dec. 563 (BIA 1953). The District Director reconirn-ended that a fine of $4,000 or $1,000 for each stowaway be imposed,
under the provisions of section 273(d) of the Act, with no mitigation
thereof.
Under section 273(d), liability for a fine is incurred by a carrier for
failure to detain on board any alien stowaway until such stowaway has
been inspected by an immigration officer, or for failure to detain such
stowaway on board or at such other designated place after inspection if
ordered to do so by an immigration officer.

It appears from the record that there is no dispute as to the basic facts
in this matter. Nevertheless, we agree with the contention made in
behalf of the carrier that when the vessel departed from California and
sailed to a foreign port, the carrier's duty under the Form 1-259 served
upon it in Oakland on January 26, 1976, was fully discharged and the
order then became a nullity. In any event, a new Form 1-259 was not
se:rved on any party when the vessel returned to the United States in
February, 1976. Forms 1-410 and 1-418 were served on the Master, but
324

Interim Decision #2609
there is no evidence to show that either or both of these notices came to
the attention of the carrier before the escape of the stowaways. It is an
essential prerequisite to imposition of a fine that both notice to detain
and notice of liability be served upon the one fined. Since the vessel
actually touched foreign, a new notice to detain (Form 1-259) should
have been served on the carrier. This was not done. On the basis of the
foregoing, it is clear that the carrier was under no duty to detain the
stowaways after the return from Canada because it was not notified to
do so.
Liability to fine presupposes a duty to detain.' In this instance, that
duty was never created by notice to the carrier. See Matter of SS
"Morning Light," 7 I. & N. Dec. 280 (INA 1956). Accordingly, we find
that imposition of a fine on the carrier is not -warranted in the circumstances of this case.
ORDER: It is ordered that no fine be imposed on the carrier.

See Gordon & Rosenfield, Vol. 2, Chap. 9.13, wherein it is pointed out that under this
particular phase of section 272(d) of the Act, notice is a prerequisite to liability and a fine
cannot be imposed against a party to whom an order was not communicated.
325


i16CE1111 JJtUblUll

if G00.1.

MATTER OF WANG
In Deportation Proceedings
A-20549207
Decided by Board May 24, 1978
An alien, who has applied for adjustment of status as a nonpreference immigrant, cannot
establish exemptionfrom the labor certification requirements of section 212(a)(14) of the
Act as an alien who does not intend to enter the labor market, when her sole source of
income is $000 a month which her husband in Hong Kong sends to her under a Hong
Kong legal separation agreement.
CHARGE:
Order: Act of 1952--Section 241(a)(2) [8 U.S.C. 1201(a)(2))—Nonimmigrant visitor•
remained longer
ON BEHALF OF RESPONDENT: John F. Sheffield, Esquire
442 Pacific Mutual Building
523 West Sixth Street
Los Angeles, California 90014
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated June 7, 1976, an immigration judge found the
respondent deportable under section 241(a)(2) of the Immigration and
Rationality Act, 8 U.S.C. 1251(a)(2), as a. nonimmigrant visitor for
pleasure who remained longer than authorized, ordered her deported,

but granted her the privilege of voluntary departure in lieu of deportation. He also denied the respondent's application for adjustment of
status under section 245 of the Act, 8 U.S.C. 1255. The respondent has
appealed from that denial. The appeal will be dismissed.
• The respondent, a 38-year-old native and citizen of China, last entered the United States, with her 14 year-old daughter, as a nonimmigrant visitor for pleasure on August 14, 1973. She did not depart as
required. At the deportation hearing, the respondent admitted that the
allegations of fact in the Order to Show Cause were true and conceded
that she was deportable as charged. We, therefore, agree with the
immigration judge that deportability as charged has been established by
clear, convincing, and unequivocal evidence. The only issue remaining on
appeal is the immigration judge's denial of the respondent's application to
adjust her status to that of a lawful permanent resident.
528

interim Decision eztfoi.
,

The respondent first applied for adjustment of status with the District
Director on May 29, 1974. At that time, she applied for a nonpreference
immigrant visa. She claimed that she was exempt from the labor certification requirement of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14),
because she did not intend to enter the labor market. She stated that
her living expenses were provided by her husband who sent her money
each month from Hong Kong for her support. The District Director
denied her application, finding that she did not have sufficient income to
support herself and her daughter without the income derived from her
husband's employment in Hong Kong, and that if he exempted her on

the basis of income supplied from her husband's employment, he would
also be granting her husband an exemption from the labor certification
requirement since he would then be eligible to enter the United States
as a second-preference spouse of a lawful permanent resident, exempt
from the labor crtification requirements. The District Director denied
the application in the exercise of discretion on the basis that the respondent's application wa part of an attempt to circumvent the requirement
of section 212(a)(14) of the Act.
The District Director certified the record and his decision to the
Regional Commissioner of the Immigration and Naturalization Service,

Southwest Region, for review. The Regional Commissioner in his decision, Matter of Wang, Interim Decision 2404 (R.C. 1975), found that
there was nothing in the record to contradict the District Director's
finding that the respondent was attempting to evade the labor certification requirement of the Act. He agreed that the respondent-was dependent on income which her husband earned, and, stated that, since, there
was no indication that her marriage was not viable, it followed that her
husband would probably come to the United States to join her and their
daughter, as soon as the respondent became a lawful permanent resident. He, therefore, agreed that her application for adjustment of
status should be denied.
The respondent reapplied for adjustment of status before the immigration judge in deportation proceedings on April 1, 1976. She again
claimed to be a nonpreference immigrant exempt from the labor certification requirements of section 212(a)(14) of the Act. She again stated
that her husband provided her support and that she did not intend to
work in this country. By the time of the deportation hearing, the

respondent had procured a legal separation from her husband in Hong
Kong under which he was required to pay her support in the amount of
$600 a month.
The respondent testified at the hearing that she now intended to
remain in the United States permanently since she did not see any
possibility of a reconciliation with her husband in Hong Kong. Despite
this testimony, the immigration judge also found that the respondent
529

Interim Decision #2651
and her husband were attempting to evade the labor certification requirements of section 212(a)(14) of the Act. The immigration judge
stated that he did not find credible the respondent's statement that she
had no intention of seeing her husband again. He found that, since the
respondent had admitted that she was dependent on her husband for
support and because there is no guarantee that he will continue sending
support payments, the respondent was statutorily ineligible for adjustment• of status under section 212(a)(14) of the Act.
The immigration judge also found that the respondent's application
fur adjustment of status should be denied in the exercise of discretion

because he believed that she had entered the United States in 1972 with
a preconceived intent to remain permanently and there were no outstanding favorable equities to outweigh this adverse factor. See Matter
of Blas, Interim Decision 2485 (BIA 1974; A.G. 1976); Matter of Arai , 13
I. & N. Dec. 494 (BIA 1970).
On appeal, the respondent claims that the immigration judge incorrectly found both' that she was ineligible for adjustment of status, and
that the requested relief should be denied in the exercise of discretion.
The respondent also argues that the immigration judge should not have
considered her husband's finantial 1.vurth in these proceedings since he is

not a party in the present deportation proceedings. She stated that
although the evidence submitted should be sufficient to establish that
her husband is a wealthy man, no attempt was made to show his entire
financial worth, since she was merely attempting to establish her husband's ability to continue to support her. The respondent also argues
that her husband's future plans and intentions are irrelevant to the
present proceedings. She claims that whether once she is granted adjustment of status, she then applies for preference status for her husband, should not be an issue since the Act provides for just such an
application.

Although the respondent does state that she has income in the amount
of approximately $100 a month in interest from money she has invested
in this country, the bulk of her income comes from her husband in Hong
Kong. It is clear that if she were not receiving the money every month
from her husband, she would not be able to pay her living expenses
without taking some kind of job. The $600 a month which she receives
from her husband is the amount specified in a legal separation agreement which she obtained from her husband after the Regional Commis-

sioner had affirmed the District Director's denial of her application for
adjustment of status. However, there is no assurance either that this
separation agreement will stay in effect for any specified period of time,
or that her husband will continue to abide by the terms of the agreement. If her husband did refuse to continue to pay her support, it would
be quite difficult for her to enforce the agreement in Hong Kong while
530

Interim Decision #2651
residing in this country. Since it is clear that this support from her
husband is essential to the respondent's ability to live in this country
without working, if she were to stop receiving this support she would be
forced to enter the labor market. We, therefore, find that the respondent has not established that she is exempt from the labor certification
requirements of section 212(a)(14) of the Act on the basis of income from
a source in another country, when that income - may stop at any time.
Moreover, an unsecured assurance of support by a nonresident relative
does not even measure up to the normal requirement for satisfying this
Government that an alien is not likely at any time to become a public
charge. Foreign Affairs Manual, Part III, Vol. 9, 22 C.F.R. 42.91(a)(15),
Note 1.2(c). It takes the combination of respondent's husband's promised
remittances and her employability to overcome this ground.
Since the respondent is applying for adjustment of status as a nonpreference immigrant and she has not shown that she is exempt from
the labor certification requirements of section 212(a)(14) of the Act, she
is statutorily ineligible for relief under section 245 of the Act. Accordingly, her appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is granted the privilege of
voluntary departure without expense to the Government 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.
.

531


Interim Decision 401498

MATTER or Mumtaz
In Deportation Proceedings
A.-7908074
Decided by Board July 28, 1965
Conviction of lewd and lascivious conduct (by public and indecent exposure)
in violation of section 944.20(2) of the Wisconsin Statutes not conviction
of a crime involving moral tnrpiture.
CHARGE:
Order: Act of 1852—Section 241(a) (4) (8 U.S.C. 1251(a) (4).1--Convicted
after entry for two crimes involving moral turpitude, not arising out of a single scheme of criminal
misconduct, to lewd and lascivious conduct,
' committed On live .occasions.

This case Comes forward •on appeal by the trial attorney from
the order of the special inquiry officer entered May•19, 1965 ordering that proceedings be terminated..
The record relates to a native and citizen of Germany, 84 years
old, male, divorced, who last entered the United States at New
York, New York on or about December 6, 1950 for peimanent residence. The respondent admittad,..and the evidence establishes that
the respondent was convicted on August 30) 1959, September 17,
1959, October 9, 1959, May 11, 1964, and July. 24, 1964 for the offense of lewd and lascivious conduct by unlawfully, publicly and
indecently exposing his sex organ in violation of section 944.20(2)
of the Wisconsin Statutes which provides as follows:
.whoeirer does any of the folloiving may be lined not more than $500 or imprisoned -not more than one year in the_ county jail or both:
'
. (1) Com mi ts an indecent act of sexual gratification—with another with knowledge that they are in the presence of others; or
(2) 'Publicly and• indecently exposes a sex organ; or
(8) Openly cohabits and associates with a person he knows is not his
spouse. under circumstances that imply sexual intercourse.

' The respondent admitted that these offenses did not arise out of a
pines scheme of criminal misconduct.
268

Interim Decision #1493
Section 939.23, Wisconsin Statutes, provides that when criminal
intent is an element of a crime in the Criminal Code, such intent
is indicated by the term "intentionally", the phrase "with intent
to," the phrase "with intent that," or some form of the verbs
"know" or "believe". Paragraph (2) of section 944.20, Wisconsin
Statutes, does not contain any of these words or phrases.
Most statutory crimes require criminal intent. But because of
the complicated nature of modern society, the legislatures of the
states have found it necessary in order to protect the public safety
and welfare, to pass laws which make the mere performances of
certain prohibited acts, or the failure to perform other commanded
acts, unlawful, regardless of the actor's intention. The acts defined
as public welfare offenses are usually not makum in, as but are
wrong merely because they are prohibited by statute'
The term "moral turpitude" within the deportation statute is an
act of baseness, vileness, or depravity in the private and social
duties owing to fellow men, or society in general, contrary to accepted and customary rules.' Moral turpitude is dependent upon
the depraved or vicious motive of the alien. It is in the intent that

moral turpitude inheres.' A crime, committed without contemplating death, without malice, and without intent, and ordinarily committed while engaged in a lawful act but committed through carelessness or because of the absence of due caution or circumspection
does not include an evil intent and therefore does not invoke
moral turpitude.4

The crime under consideration, section 942.20(2), Wisconsin
Statutes, does not require a specific intent and it does not appear
that it is essential that the defendant have a vicious motive or corrupt mind. All that appears to be necessary for conviction under
the statute is that the act be done consciously. There is nothing in
the complaint indicating the circumstances under which the indecent exposure was made. The special inquiry officer has stated that
a person who does the forbidden act through physical necessity
could be convicted under the statute, even though he had no lewd
or lascivious intent.
The trial attorney suggests that section 939.47, Wisconsin Statutes, which provides that the presence of the natural physical
forces which causes the actor reasonably to believe his act is the
Sloane, W.J. 26 Marquette Law Review 92 (1942).
27A. Words and Phrases 192.
25renth71/ Review. L a N. 8sruiee, Crimes Involving Moral Turpitude, p. 5
eo red Meyer v. Day, 54 P.25 335 (2nd Gin) 1931.
(march 1944) ;
Mongiovi v. Harnuth, 80 F.2d 825 (W.D.N.Y. 1929).
'

269

Interim Decision #1493
only means of pfeventing imminent- public disaster or imminent
death or great bodily harm to himself, or another and which causes
him. so to act, is a defense to prosecution for nny crime based upon
that act. It is believed that the trial attorney's application of this
Elation to the crime is' erroneous and that the section in question
refers to emergency or reflex. actions to counteract or avoid the
events set forth in that section.
It is not believed that the specification in the Wisconsin Statute
of the particular organ is a significant departure from other statutes which' d6 not- so' specify, inasmuch as generally the wives
parts or organs are Involved. The attempt to distinguish this case
from Matter of H , 7 I. & N. Dec. 301, which involved a knowing
open or indecent exposure of the person, appears to be a distinction
—

without a difference. 5

The statute in question, section 944.20(2), Wisconsin 'Statutes,
does not require a specific intent, a criminal intent or any intent
whatsoever. The mere perforinanee of the act is prohibited and
made unlawful iegarAlless 'of the actor's intention. A person may

be convicted under the statute even though' the act was done carelessly, or with absence of due caution or circumspection: The offense is not one which is nuguut in, se. It is concluded that the offense involved herein. does' 'not hivolve moral turpitude' . The-appeal of the trial attorney will be dismiSted and the order of the
special inquiry officer will be affirmed.
ORDER:.It is ordered that the aipeal of the trial attorney be

and the same is hereby dismissed.
It is further ordered - that the order of the special inquiry officer
entered May 19, 1965 that the proceedings be terminated be and the
seine is hereby affirmed.
'Of Matter of P—, 2 L & N. Dec. 117; Matter of
8 L & N. Dee. 272, p.
274, where a differentiation was made between an act merely accompanied by
negligence or carelessness and one done maliciously and wantonly.

270

,


MAT'DER OF R—

In VISA PETITION Proceedings
A-11327320
Decided by Board January 25,1962
Visa petition—Section 205(c) of 1952 act—Effect of "sham" marriage on subsequent petition.
1981 amendment to section 205 of the 1952 Act precludes approval of a visa

petition based on present marriage to a United States citizen where beneficiary is shown previolisly to have been accorded nonquota status through
marriage contracted for the purpose of evading the immigration laws.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the District Director, Los Angeles District, dated October 30,
1961, denying the petition to classify the status of the alien beneficiary for issuance of an immigrant visa as the spouse of a citizen
of the United States for the reason that the alien beneficiary previously was accorded a nonquota status under section 101(a) (27) (A)
of the Immigration and Nationality Act as the spouse of a citizen
of the United States on the basis of his marriage which the Attorney
General has determined was entered into for the purpose of evading the immigration laws; that when these circumstances exist, the
law prohibits the approval of a petition for such alien.
The petitioner, a native of Mexico, naturalized citizen of the
United States, 41 years old, female, seeks nonquota status under
section 101(a) (27) (A) of the Immigration and Nationality Act on
behalf of the beneficiary, her husband, a native of Funchal, Madeira,
citizen of Portugal_ The parties were ma rried on January 6, 1960,
at Winter Haven, California.
The record contains a sworn statement from the beneficiary taken
on July 16, 1959, which indicates that he obtained a divorce from
his Portuguese wife in Juarez, Chihuahua, Mexico, on June 1, 1956;
married one S K—W— in Tijuana, B.C., Mexico, on November 7,
1956; and that this marriage was terminated by a divorce on February 11, 1958, in Tijuana or Juarez, Mexico. As result of investigation, a warrant of arrest and order to show cause were issued charging the beneficiary to be deportable under section 241(a) (2) and
544

241(c) of the Immigration and Nationality Act. After due hearing,

a warrant of deportation was issued by the District Director, Los
Angeles District, on September 25, 1961, finding the beneficiary subject to deportation under the following provisions of law, to wit :
Sections 241 (a ) (2 ) and 241 (a) of the Immigration and Nationality Act, in
that he is in the United States in violation thereof because he is an alien
who entered in violation of section 212 (a ) (19 ) with an immigrant visa or
other documentation which was procured by fraud on the basis of a marriage

entered into less than two years prior to such entry, which marriage was
judicially annulled or terminated within two years subsequent to any entry.
Section 241 (a ) (5 ) of the Immigration and Nationality Act, in that he has
been convicted under section 154C of Title 18 of the United States Code.

The procedure for granting nonquota status or preference status
by reason of relationship, including nonquota immigrant status under
section 101 (a) (27) (A) as the spouse of a United States citizen, is set
forth in section 205 of the Immigration and Nationality Act.' Section 205(c) of the Immigration and Nationality Act, as amended by
section 10 of the Act of September 26, 1961, 2 provides, as follows:
Notwithstanding the provisions of this subsection, no petition shall be
approved if the alien previously has been accorded, by reason of marriage
determined by the Attorney General to have been . entered into for the
purpose of evading the immigration laws— ( 1) a nonquota status under
section 101 ( a ) (27 ) (A) as the spouse of a citizen of the United States
* *.

The legislative history indicates that the amendment. was proposed to strengthen existing law by giving the Attorney General a
new legal instrumentality to counteract the increasing number of
fraudulent acquisitions of nonquota status through sham marriages
between aliens and United States citizens. The legislation was
prompted by a recent report of the Attorney General to Congress
about the increasing number of such sham marriages, indicating the
existence of marriage schemers operating in various parts of the
country arranging, for high fees, for deceitful marriages involving
in most instances alien seamen . 3
The record establishes that the beneficiary of the instant visa petition filed by his third wife, has previously been granted nonquota
status under section 101(a) (27) (A) as the beneficiary of a visa
petition filed by his second wife. The Attorney General, through
his duly appointed representative, after due hearing, has determined
that the alien procured his prior nonquota status as the result of a
fraudulent marriage entered into for the purpose of evading the
immigration laws. As a result of this determination, the alien beneficiary comes within the prohibition contained in section 205 (c) of
8 U.S. C. 1155.
8 U.S.C. 1155(c) note (C.A.P.P., 1961).
a H. Rept. No. 1086, 87th Cong., 1st Sess., pp. 36, 37.
1
2

545
654877-63

36

the. Immigration and Nationality Act as amended by section 10 of
the Act of September 26, 1961 (Public Law 87-301), and is unable
to qualify as the beneficiary of a visa petition to again accord him
nonquota status in accordance with the procedure set forth in section 205 of the Immigration and Nationality Act. The appeal will
be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed


Interim Decision #2891

MATTER OF SIO
In Bond Proceedings
A-23110685
Decided by Board November 4, 1981
(1) An immigration judge has authority to consider an application for release or amelioration of the conditions of release from custody after an initial determination with respect to custody has been made by a District Director or other specified officer of the
Immigration and Naturalization Service and at anytime before a deportation order
becomes administratively final, but if an alien is released from custody, such application
must be made to an immigration judge within 7 days from the date of release; thereafter,
the application may only be made to a District Director. 8 C.F.R. 242.2(b).
(2) Where the respondent did not avail himself of his regulatory right to submit an
application for change in custody status to an immigration judge before the expiration
of the 7-day period, jurisdiction over the appliiation rested with the District Director
and recourse from the District Director's decision lay in an appeal to the Board of
Immigration Appeals, filed within 5 days after service of written notification of that

decision. 8.C.F.R. 242.2(a) and (b).
ON BEHALF OF RESPONDENT: William F. Thompson, III, Esquire
Blackfield Hawaii Building

Penthouse Suite
1221 Kapiolani Boulevard
Honolulu, Hawaii 96814
Milhollan, Chairman; Maniatis, Magqire, Morris, and Vacca, Board Members

On September 18, 1981, the District Director denied the respondent's
request for amelioration of the conditions for release from custody initially set in his case. The respondent has appealed from that decision.
The appeal will be dismissed.
The respondent, a native and citizen of Western Samoa, was released
from custody on or about August 19, 1981, upbn posting bond in the
amount of $2,500; the bond carried a condition prohibiting unauthorized
employment. At deportation proceedings conducted on September 15,
1981, the respondent was found deportable as an overstayed nonimmigrant on the basis of his concessions at the hearing and was granted
voluntary departure to Januaiy 14, 1982, with an alternative order of
deportation to Western Samoa in the event of his failure to depart
within the time authorized.
On September 16, 1981, the respondent through counsel wrote to the
District Director requesting modification of the terms of his custody
status, specifically, release on his own recognizance and cancellation of
176

Interim Decision #2891
the "no work rider." In his decision of September 18, 1981, the District
Director denied the respondent's request in its entirety, stating the
reasons for his determination. The respondent thereupon requested a
redetermination hearing before the immigration judge who denied the
request for lack of jurisdiction in a decision dated September 25, 1981.
The regulations authorize an immigration judge to consider an application for change in the conditions of an alien's release after an initial
determination with respect to custody has been made by the District
Director or other specified Service officer and at anytime before a
deportation order becomes administratively final. However, if an alien
is released from custody, such application must be made to the immigration judge within 7 days of the date of release; thereafter, the application may only be made to the District Director. 8 C.F.R. 242.2(b). See
generally Matter of Vea, 18 I&N Dec. 171 (BIA 1981).
In the present case, the respondent, who was released from custody
in mid-August, did not avail himself of his regulatory right to submit an
application for change of custody status to the immigration judge before
the expiration of the 7 day period. Accordingly, the immigration judge
correctly determined that he lacked jurisdiction over the matter which
was instead vested in the District Director with a right of direct appeal
to the Board.' As previously noted, the District Director had already
considered and denied the respondent's application for amelioration of
the conditions of his release; under the regulations, the respondent's
recourse from the District Director's decision lay in an appeal to the
Board. 8 C.F.R. 242.2(a) and (b).
Pursuant to 8 C.F.R. 242.2(b), an appeal to the Board from an appealable determination by a District Director or other designated Service
officer must be taken within 5 days of the date written notification of the
determination is served upon the respondent and the Service. The record
reflects that the parties were notified of the District Director's decision
not later than September 21, 1981, the date the respondent submitted
his request for a redetermination hearing to the immigration judge. The
respondent's notice of appeal to the Board, submitted on October 6,
1981, was untimely filed. Upon careful review of the record, we have
decided not to assume jurisdiction over the case by certification' as provided in 8 C.F.R. 3.1(c). The respondent's appeal will therefore be
dismissed for lack of jurisdiction and the District Director's denial of the
respondent's request for change of custody status will be permitted to
stand.
ORDER The appeal is dismissed.
-

' Direct appeal to the Board from a determination of the District Director or other,
authorized only after a deportation order becomes administratively

dosignated offerer is

final or where recourse to the immigration judge• is no longer available because of the ,
See generally Matter of Vea,
supra.

177

expiratonfh7-dy.8CFR24(a)ndb.