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Matter of Alcibiades Antonio PENA, Respondent
Decided June 16, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien returning to the United States who has been granted lawful permanent resident
status cannot be regarded as seeking an admission and may not be charged with
inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a) (2012), if he or she does not fall within any of the exceptions in
section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). Matter of
Koloamatangi, 23 I&N Dec. 548 (BIA 2003), distinguished.
FOR RESPONDENT: Michele H. Kane, Esquire, Boston, Massachusetts
BEFORE: Board Panel: COLE and WENDTLAND, Board Members.
Opinion: PAULEY, Board Member.

Dissenting

COLE, Board Member:

In a decision dated November 14, 2011, an Immigration Judge found
the respondent inadmissible under sections 212(a)(6)(C)(i), (ii)(I),
and (7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1182(a)(6)(C)(i), (ii)(I), and (7)(A)(i)(I) (2006), and ordered him
removed from the United States. The respondent has appealed from that
decision. The appeal will be sustained and the record will be remanded to
the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of the Dominican Republic. The
record reflects that he was married to a United States citizen who filed a
visa petition on his behalf. Based on the September 9, 1996, approval of
the visa petition, the respondent filed an application for adjustment of status
on December 1, 1999. He indicated on his application that he had no prior
arrests. However, at an interview in connection with his application, the
Government notified the respondent that its records showed that he had
been charged with passport fraud by the Department of State passport
office on December 28, 1998. The respondent was asked to provide
documentation regarding the final disposition of these charges, which he
submitted. On June 5, 2000, the respondent’s application for adjustment of
status was granted and he was accorded lawful permanent resident status.
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On May 24, 2010, the respondent sought to reenter the United States
after a trip abroad. At that time he gave a sworn statement in an interview
with immigration officials. When asked whether he had ever been arrested,
the respondent first replied that he had been arrested in 1998 for applying
for a United States passport using the birth certificate and Social Security
card of another person. When asked why he indicated that he had never
been arrested on his adjustment of status application, the respondent said he
thought he had not been arrested in relation to the passport application
because he had voluntarily appeared at the passport office after learning
from his wife that he was being investigated.1 He stated that he was
fingerprinted at the office and released. He further explained that he was
neither charged with nor convicted of passport fraud or any other offense.
After the respondent’s interview on May 24, 2010, the Department of
Homeland Security (“DHS”) issued a notice to appear charging the
respondent as inadmissible based on his alleged fraud and prior ineligibility
for adjustment of status. At a hearing before the Immigration Judge, the
respondent denied the charges. Applying Matter of Koloamatangi, 23 I&N
Dec. 548 (BIA 2003), the Immigration Judge determined that the
respondent had never been accorded lawful permanent resident status
because he was ineligible for adjustment of status at the time that he
applied. Specifically, the Immigration Judge found that the respondent
made a false claim to United States citizenship by knowingly purchasing an
illegally obtained birth certificate and Social Security card and that he did
not disclose his arrest in this regard in his adjustment of status application.
Based on these findings, the Immigration Judge concluded that the
respondent’s permanent resident status was unlawfully obtained and that he
could therefore be deemed an “arriving alien” and charged under section
212(a) of the Act.2 He then found the respondent inadmissible as charged.
The Immigration Judge further found the respondent ineligible for relief
from removal and ordered him removed from the United States.

II. ISSUE
The threshold issue in this case is whether the respondent, who was
granted lawful permanent resident status, can be charged in removal
proceedings under section 212(a) of the Act as an arriving alien seeking
admission, since he does not fall within any of the exceptions listed in
1

The evidence in the record is not entirely clear as to whether the respondent, in fact,
voluntarily presented himself at the passport office.
2
The term “arriving alien” is defined in relevant part as “an applicant for admission
coming or attempting to come into the United States at a port-of-entry” or by certain
other means. 8 C.F.R. §§ 1.2, 1001.1(q) (2015).

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section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012), which
allow for an alien lawfully admitted for permanent residence to be regarded
as seeking admission to the United States.3
We must resolve the question whether a returning lawful permanent
resident can be treated as an arriving alien based on an allegation that he
acquired his status unlawfully. We conclude that an alien returning to the
United States who has been granted lawful permanent resident status
cannot be regarded as seeking admission and may not be charged with
inadmissibility under section 212(a) of the Act if he does not fall within any
of the exceptions in section 101(a)(13)(C) of the Act.

III. ANALYSIS
The respondent argues that he has not been properly charged and that
these proceedings should have been terminated. He first contends that he
should not have been charged as an arriving alien when he returned to the
United States because his eligibility for adjustment of status had not been
determined at the time of his return. He asserts that if the DHS suspected
he was inadmissible at the time he adjusted his status, he should have been
allowed to enter as a returning resident and charged with a ground of
deportability in section 237(a) of the Act, 8 U.S.C. § 1227(a) (2012).
The respondent also disputes the Immigration Judge’s determination
that he “willfully misrepresented a material fact” in his application for
adjustment of status, in which he indicated that he had never been arrested.
The respondent claims that he was not aware that his contact with the
Department of State’s passport office constituted an arrest. He notes that
3

Section 101(a)(13)(C) of the Act provides:
An alien lawfully admitted for permanent residence in the United States shall not
be regarded as seeking an admission into the United States for purposes of the
immigration laws unless the alien—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of
180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking
removal of the alien from the United States, including removal proceedings under
the Act and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2), unless since such
offense the alien has been granted relief under section 212(h) or 240A(a), or
(vi) is attempting to enter at a time or place other than as designated by
immigration officers or has not been admitted to the United States after
inspection and authorization by an immigration officer.

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his adjustment application was granted after he submitted all of the
information requested in that regard.
A. Returning Lawful Permanent Residents as Arriving Aliens
In deciding whether the respondent is an arriving alien, we examine the
language of the statute to determine whether Congress expressed a plain
and unambiguous intent that aliens in the respondent’s circumstances
should be considered applicants for admission under section 101(a)(13)(C)
of the Act. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our
first step in interpreting a statute is to determine whether the language at
issue has a plain and unambiguous meaning with regard to the particular
dispute in the case.”); Matter of Valenzuela, 25 I&N Dec. 867, 869
(BIA 2012). Whether language is plain and unambiguous is “determined
by reference to the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.”
Robinson v. Shell Oil Co., 519 U.S. at 341.
The plain language of section 101(a)(13)(C) indicates that an alien who
does not fall within one of the statutory exceptions and who presents a
colorable claim to lawful permanent resident status is not to be treated as
seeking an admission and should not be regarded as an arriving alien.
See also Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988) (stating that
the Government has the burden to show that an alien should be deprived of
his lawful permanent resident status if he has a colorable claim to returning
resident status).
In addition to the plain language of the statute, we find further
support for our position in our case law interpreting the “Fleuti doctrine,”
which predated section 101(a)(13)(C) of the Act. Rosenberg v. Fleuti,
374 U.S. 449 (1963).4 For example, in Matter of Rangel, 15 I&N Dec. 789
(BIA 1976), we addressed whether a lawful permanent resident’s attempted
return constituted an “entry” where her original admission for permanent
4

Before section 101(a)(13)(C) of the Act was enacted by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208,
110 Stat. 3009-546 (“IIRIRA”), the question whether a returning lawful permanent
resident was considered to be making an “entry” was initially governed by the so-called
“reentry doctrine.” See Leal-Rodriguez v. INS, 990 F.2d 939, 942−43 (7th Cir. 1993).
However, the Supreme Court announced a departure from the long-established concept of
“entry” under former section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1958),
stating that a new entry did not occur when the trip outside the United States was
“innocent, casual, and brief.” Rosenberg v. Fleuti, 374 U.S. at 462. We subsequently
recognized that the Fleuti doctrine applied only to absences by aliens who had previously
been lawfully admitted for permanent residence. See Matter of Castillo-Pineda, 15 I&N
Dec. 274 (BIA 1975); Matter of Dabiran, 13 I&N Dec. 587 (BIA 1970).

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residence was unlawful because it involved a false claim. In that case, we
had to decide first whether the proper forum in which to adjudicate the
lawfulness of an original admission was a deportation proceeding or an
exclusion proceeding.5 We held that the alien was not making an entry
within the meaning of the Act and, therefore, that the proper forum for
adjudicating the lawfulness of her original admission was a deportation
proceeding. Id. at 791−92.6
The question addressed in Matter of Rangel is analogous to that now
before us, namely, whether a returning permanent resident who is suspected
of unlawfully acquiring his or her status should be placed in exclusion
proceedings (now charged with inadmissibility) or deportation proceedings
(now charged with deportability). Our decision in Rangel comported with
the Supreme Court’s recognition of the constitutional right of due process
that is owed to lawful permanent residents. See Landon v. Plasencia,
459 U.S. 21, 30−32 (1982) (citing Chew v. Colding, 344 U.S. 590 (1953)).7
Prior to the 1996 enactment of section 101(a)(13)(C) of the Act, the
proper forum for determining whether a lawful permanent resident had
unlawfully obtained his status would have been a deportation proceeding,
rather than an exclusion proceeding, unless he was making an “entry.”
Applying the same rationale to the current law, an alien in the respondent’s
circumstances should be charged under section 237(a) of the Act, rather
than section 212(a), unless he can be regarded as seeking an admission
under section 101(a)(13)(C).8
5

At that time, the immigration system was bifurcated into two types of proceedings. In
general, aliens who were already present in the United States were subject to deportation
proceedings, and aliens seeking to enter the country were placed in exclusion
proceedings. The IIRIRA revised this system. Generally, both classes of aliens are now
placed into removal proceedings, but they are charged with either deportability under
section 237(a) of the Act or inadmissibility under section 212(a).
6
We have applied this reasoning from Matter of Rangel in other contexts. For
example, in Matter of Umale, 16 I&N Dec. 682 (BIA 1979), we held that a petitioner’s
lawful permanent resident status cannot be attacked in visa petition proceedings based on
an allegation that such status was improperly obtained if the petitioner is residing in the
United States. In that case, we held that “until the petitioner has been found deportable
according to the procedures specified by law, she remains a lawful permanent resident of
the United States.” Id. at 683 (emphasis added).
7
The dissent is misguided in not recognizing that the rationale of the Supreme Court
and Board case law was to confer advantages on the class of lawful permanent residents
such as the respondent.
8
We recognize that in Matter of Collado, 21 I&N Dec. 1061, 1065 (BIA 1998), we
determined that the Fleuti doctrine had not survived the enactment of section
101(a)(13)(C) of the Act by the IIRIRA. However, since our decision was issued, the
Supreme Court has held that at least one aspect of the Fleuti doctrine survived the
IIRIRA amendments. See Vartelas v. Holder, 132 S. Ct. 1479 (2012) (holding that the
(continued . . .)

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In light of the plain statutory language of section 101(a)(13)(C) of the
Act and the above-mentioned decisions of the Supreme Court and the
Board, we believe that the long-established principles regarding the
constitutional rights of lawful permanent residents are equally applicable to
returning lawful permanent residents today as they were in the past.
See generally United States v. Texas, 507 U.S. 529, 534 (1993) (stating that
statutes are to be read with a presumption that favors the retention of
familiar principles, except when a contrary purpose is evident). Therefore,
we conclude that a returning lawful permanent resident who does not fall
within one of the exceptions in section 101(a)(13)(C) of the Act cannot be
regarded as seeking admission to the United States.
B. Application to the Respondent
The Immigration Judge found that the respondent was never “lawfully
admitted” as a permanent resident because he had obtained his status
through fraud. He therefore concluded that the respondent could be
regarded as an arriving alien. In making this determination, he relied on
our decision in Matter of Koloamatangi, 23 I&N Dec. 548, where we held,
in the context of eligibility for relief, that an alien who acquired permanent
resident status through fraud or misrepresentation had never been “lawfully
admitted for permanent residence” and was therefore ineligible for
cancellation of removal under section 240A(a) of the Act, 8 U.S.C.
§ 1229b(a) (2000).9 See also Mejia-Orellana v. Gonzales, 502 F.3d 13
(1st Cir. 2007). Applying this rationale, the Immigration Judge adjudicated
the issue of the lawfulness of the respondent’s status and found that it had
been fraudulently obtained. He therefore found that the respondent was
_______________________________________

Fleuti doctrine still applies to lawful permanent resident aliens who traveled abroad after
a conviction that predated the IIRIRA). The extent to which Fleuti remains good law
after section 101(a)(13)(C) of the Act was adopted by the IIRIRA continues to be a
vigorously contested issue. The Board and some Federal courts have considered the
question whether the Fleuti doctrine survived the enactment of section 101(a)(13)(C)
in the broader context of deciding whether the exceptions listed in sections
101(a)(13)(C)(i)−(vi) of the Act applied to the returning lawful permanent residents in
those cases. However, section 101(a)(13)(C) of the Act does not address or otherwise
include within its exceptions a lawful permanent resident in the respondent’s
circumstances. The resolution of this case does not implicate the larger issue of the
extent to which the Fleuti doctrine has, in fact, survived the IIRIRA.
9
In Matter of Koloamatangi, we relied on the rationale from our prior decision in
Matter of T-, 6 I&N Dec. 136 (BIA, A.G. 1954). However, we note that in that case the
issue was whether the alien was returning to an unrelinquished “lawful domicile,” not
whether he had been lawfully admitted for permanent residence.

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never a lawful permanent resident and thus could be treated as an “arriving
alien.”
The question whether a returning lawful permanent resident can be
regarded as an arriving alien and charged under section 212(a) of the Act
was not before us in Matter of Koloamatangi because the alien, who was
suspected of having procured his status by fraud, was charged with
deportability under section 237(a) of the Act. He was therefore afforded
the due process owed to him as one who “was facially and procedurally in
lawful permanent resident status.” Matter of Koloamatangi, 23 I&N Dec.
at 549. His ineligibility for the relief he sought was determined after the
Immigration Judge resolved the issue of the unlawfulness of his permanent
resident status, not prior to the commencement of proceedings. See id.;
see also Matter of Wong, 14 I&N Dec. 12 (BIA 1972).10 We therefore
conclude that Matter of Koloamatangi is not controlling in this case.
Because the respondent is a lawful permanent resident who does not fall
within one of the exceptions in section 101(a)(13)(C) of the Act, he should
not have been regarded as seeking admission to the United States.
Therefore, he cannot be charged under section 212(a) of the Act,
notwithstanding any questions regarding the lawfulness of his status.
However, the DHS is not precluded from charging an alien such as the
respondent under section 237(a) of the Act. The grounds of deportability
contain a provision that is clearly applicable to an alien who allegedly
obtained his lawful permanent resident status through fraud or
misrepresentations. See section 237(a)(1)(A) of the Act (providing that
“[a]ny alien who at the time of entry or adjustment of status was within one
or more of the classes of aliens inadmissible by the law existing at such
time is deportable”); see also section 212(a)(6)(C) of the Act.
We will remand the record to allow the Immigration Judge to address
these issues in the first instance, if necessary. If the DHS can meet its
burden of proving that the respondent is deportable as an alien who
acquired lawful permanent resident status through fraud, then in terms of
available relief from removal, the respondent will be in the same position
he would have been in if he had never obtained such status. See Matter of
Koloamatangi, 23 I&N Dec. 548. We express no opinion as to whether the
DHS can meet its burden in this particular case.

10

Given our disposition in this case, we need not decide which party would bear the
burden of proving admissibility if a returning permanent resident were properly charged
under section 212(a) of the Act based on an allegation that he had unlawfully obtained his
status. See generally Matter of Rivens, 25 I&N Dec. 623, 626 (BIA 2011) (noting the
“open question of who . . . bears the burden of showing admissibility, or a lack of
inadmissibility, once it has been determined that an alien is an applicant for admission”).

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IV. CONCLUSION
We conclude that the respondent, a lawful permanent resident who does
not fall within one of the exceptions in section 101(a)(13)(C) of the Act,
cannot be regarded as an arriving alien. Therefore, the charges brought by
the DHS under section 212(a) of the Act should not have been sustained.
Accordingly, we will sustain the respondent’s appeal and remand the record
to give the DHS an opportunity to properly charge him under section 237(a)
of the Act. If necessary, the Immigration Judge may then determine
whether the respondent lawfully obtained his permanent resident status and
allow him to apply for any relief from removal for which he may be
eligible.
ORDER: The respondent’s appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

DISSENTING OPINION: Roger A. Pauley, Board Member
I believe that the respondent was properly charged under section 212(a)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012). As an
ostensible returning lawful permanent resident, he did not need to be
charged under section 237(a) of the Act, 8 U.S.C. § 1227(a) (2012),
because the Immigration Judge found at his removal proceeding that he was
never lawfully admitted for permanent residence.
The majority arrives at the opposite result by, in effect, limiting our
decision in Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), where
we held that an alien who acquired permanent resident status through fraud
or misrepresentation has never been “lawfully admitted for permanent
residence,” to the context in which an ostensible lawful permanent resident
seeks relief. The majority therefore finds that Matter of Koloamatangi
does not apply to the situation in which a returning lawful permanent
resident is found to have wrongly obtained his status during removal
proceedings. The majority explains that such a person must be charged
under section 237(a) of the Act because he does not fall into any of the six
enumerated categories at section 101(a)(13)(C) of the Act, 8 U.S.C.
§ 1101(a)(13)(C) (2012), allowing for a returning lawful permanent
resident to be charged as an applicant for admission. I disagree.
The majority’s position embodies a stark violation of the bedrock
principle of statutory construction that a term, in this case “lawfully
admitted for permanent residence,” appearing in the same statute should be
given an identical construction and not be accorded two different meanings.
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In that regard, we have consistently held, and the courts of appeals
have uniformly endorsed our interpretation, that the phrase “lawfully
admitted for permanent residence” means that the alien must have
been in substantive compliance with the immigration laws. See Injeti
v. U.S. Citizenship & Imm. Serv., 737 F.3d 311 (4th Cir. 2013);
Estrada-Ramos v. Holder, 611 F.3d 318 (7th Cir. 2010); Kyong Ho Shin
v. Holder, 607 F.3d 1213 (9th Cir. 2010); Walker v. Holder, 589 F.3d
12 (1st Cir. 2009); De La Rosa v. U.S. Dep’t of Homeland Sec., 489 F.3d
551 (2d Cir. 2007); Savoury v. U.S. Att’y Gen., 449 F.3d 1307 (11th Cir.
2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005); Matter
of Koloamatangi, 23 I&N Dec. 548. Moreover, this understanding long
preceded the 1996 enactment of section 101(a)(20) of the Act. See, e.g.,
Monet v. INS, 791 F.2d 752 (9th Cir. 1986); Matter of Longstaff, 716 F.2d
1439 (5th Cir. 1983); Matter of T-, 6 I&N Dec. 136 (BIA, A.G. 1954).
Significantly, Congress chose to use the same term in section
101(a)(13)(C) of the Act, which is applicable to returning lawful permanent
residents, demonstrating that Congress intended that only lawful permanent
residents with valid status are subject to its regime. It would have been
easy for Congress to preface section 101(a)(13)(C) of the Act with language
asserting the construction that the majority would engraft on that section,
such as that an alien “admitted for lawful permanent residence, whether or
not such status was rightly conferred,” shall not be regarded as seeking
admission unless one or more of the six enumerated exceptions applies.
However, by using the very term it defined in section 101(a)(20) of the Act
(indeed, the same subsection!), Congress clearly expressed its intent that
the definition therein applies. Thus, the Immigration Judge correctly
determined that Matter of Koloamatangi governs. The fact that a different
regime existed prior to the 1996 enactment of section 101(a)(13)(C) of the
Act is irrelevant where we have found that Congress intended to abandon
that regime for returning lawful permanent residents in significant respects.
See Matter of Collado, 21 I&N Dec. 1061 (BIA 1998).
The majority maintains that the respondent was entitled to be treated as
a lawful permanent resident for entry purposes because at the time he
arrived at the point of entry, it had not yet been determined that his
permanent resident status had been improperly conferred, and none of the
six exceptions in section 101(a)(13)(C) of the Act was implicated. Once
again, I disagree. Just as we determined in Matter of Valenzuela-Felix,
26 I&N Dec. 53 (BIA 2012), the ensuing removal proceeding is the proper
forum in which to make a determination whether the respondent was
correctly charged under section 212(a) of the Act.
Fortunately, not much damage will result from the majority’s erroneous
decision. As the majority opinion observes, the Department of Homeland
Security (“DHS”) may charge a returning lawful permanent resident who it
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believes has wrongly obtained his or her status as having been inadmissible
at the time of adjustment of status. See section 237(a)(1)(A) of the Act. If
such charge is upheld, Matter of Koloamatangi will apply to render the
alien ineligible for relief to the extent relief is sought based on lawful
permanent resident status. However, the majority decision does have a
modicum of practical import because an alien charged under section 237(a)
(as opposed to section 212(a)) may seek a waiver of deportability under
section 237(a)(1)(H) of the Act, if he or she is subject to removal as having
been inadmissible at the time of admission because of fraud. That section
contains more generous provisions allowing for such a waiver than does the
comparable provision at section 212(i) of the Act.1
To the extent that the majority confers an advantage on the class of
lawful permanent residents who wrongly obtained their status—as
compared to the class of lawful permanent residents who obtained their
status rightfully but are charged as applicants for admission under section
101(a)(13)(C)—I find it an unlikely expression of congressional intent.
The former class, which includes the respondent in this case, generally
represents a less deserving group inasmuch as they ordinarily will have
obtained their status by fraud or other wrongful means.2
For the foregoing reasons, I would find that the Immigration Judge
correctly applied Matter of Koloamatangi to sustain the charges under
section 212(a) of the Act.

For example, section 212(i) of the Act generally requires a showing of “extreme
hardship” to a qualifying relative, whereas section 237(a)(1)(H) of the Act contains no
such requirement.
2
Indeed, the majority decision seemingly requires that even an alien who purchased a
fraudulent green card, but was not convicted of that offense, is entitled to be charged
under section 237(a) of the Act. I recognize that, on occasion, a lawful permanent
resident who obtained status wrongly may not be at fault, for example, where a child
obtained status derivatively and was unaware of his or her parent’s wrongful acts in
obtaining lawful permanent resident status, or where the DHS erred in conferring lawful
permanent resident status despite full disclosure by an alien of facts that should have led
to the denial of adjustment. But such instances are relatively rare and, in any event, such
an alien has nevertheless benefited from a status wrongly conferred.
1

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Interim Decision #2146

MATTER OF YEE

In Visa Petition Proceedings
A-19428311

Decided by Board April 28, 1972
Petitioner's adoption of beneficary in mainland China subsequent to 1950 (in
1956) by written agreement of adoption which was examined and approved by
an agency of the Government of the People's Republic of China is a valid
adoption for Immigration purposes, since new evidence indicates that Article
13 of the Marriage. Law of the People's Republic of China relates to adoptive
relationships; that the courts of the People's Republic of China have recognized the existence of adoptive relationships; and that the procedure for
effecting adoption has been adequately spelled out in court decisions and
other legal writings. Wutte/ of Yee, 13 L & N. Dec. 620, overruled_]

ON BEHALPOF SERVICE:

ON BEHALF OF PETITIONER:

R. A. Vielhaber
Appellate Trial Attorney
(Brief filed)

Benjamin Gim, Esquire
217 Park Row
New York, New York 10038
(Brief filed)

The lawful permanent resident alien petitioner applied for preference status for the beneficiary as his adopted son under section
202(02) of the Immigration and Nationality Act. The District
Director, on October 14, 1970, found that an adoption had been
established and approved the petition. However, his initial approval was revoked on September 30, 1971, on the basis of this
Board's decision in the case of another Chinese with the same

family name, Matter of Yee,'13 I. & N. Dec. 620 (BIA, 1970). From
the revocation the petitioner appeals. His appeal will be sustained.
The beneficiary was born in the People's Repuhlie of China on
August 22, 1955. The record indicates that he was adopted in
Canton on January 31, 1956. The file contains a copy of a document
signed by the natural parents entitled "Deed on Giving Own Son
Away to Other Persons for Adoption." A translation of it reads as
follows:
We, Moy Sam Nui and Chew Hon You, the undersigned, residing at No. 10,
Chou Yuet Lane, Canton City, Residence I.D. Card Nos. 2283737 and 1007540,
due to poverty and having too many children to take care of, have agreed to

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give our own baby child, Moy Hor Foo, to our friend, Yee Ken Kee, as his
adopted child. A mutual agreement has been filed with the Community Office
and the Police. This child's birth certificate, No. 5518, has also been given to
Mr. Yee Ken Kee and a new name has been given to the child. From this date
on, this child will be under the care of Mr. Yee, and we will have no rights
whatsoever to claim him back.

The adoption was registered with the local civil authorities on
January 31, 1956. The file contains a translation of an instrument
styled "A Guaranty on Children Adoption." It was signed by both
natural parents and was endorsed by The People's Committee,
North District of Canton. Although the adoption agreement only
mentioned the petitioner as the adoptive parent, the "Guaranty"
mentions both him and his spouse as the "receivers." •
Foreign law is a matter of fact which, like any other fact, must
be established by evidence. In Matter of Yee, supra, we found, on
the basis of the evidentiary material presented to us, that the Civil
Code of the Nationalist Republic had been suspended when the
Chinese Communist Government seized control of the niainland of
China in 1950. We also found that the People's Republic of China
had not enacted any adoption law and that there was no evidence
of any intention to revert to traditional Chinese custom and
practice with respect to adoption. The actual legal basis for our
decision in that case revolved around our construction of Article 13
of the Marriage Law of the People's RepubliC of China. We held (1)
that Article 13 related only to foster children and not to adopted

children, and (2) that even if it did relate to adopted children, it did
not outline a procedure for effecting adoptions.
Our decision in Matter of Ye's, supra, was founded upon an
opinion prepared by the Far Eastern Law Division of the Library
of Congress, which observed that the People's Republic of China
had not yet promulgated a statute governing adoption. The opinion quoted a 1952 Peking translation of Article 13 of the Marriage
Law which interpreted the Chinese characters "yang tzu to
mean "foster children."
Counsel maintains that a subsequent opinion from the Far
Eastern Law Division of the Library of Congress and other legal
materials not previously available tend to indicate that our holding in Matter of Yee, supra, was incorrect. He contends that (1)
Article 13 of the Marriage Law does relate to adoptive relationships, (2) the courts of the People's Republic of China have
recognized the existence of adoptive relationships, and (3) the
procedure for effecting adoptions has been adequately spelled out
in court decisions and other legal writings.
We have received a new memorandum from the Chief of the Far
Eastern Law Division of the Library of Congress,• dated January'
133

Interim Decision #2146
19, 19'72, which apparently supersedes the opinion referred to
above. It concludes that the Chinese characters "yang tzu nfi"
appearing in Article 13 of the Marriage Law should properly be
translated as "adopted children," and not as "foster children." This
new opinion also contains translations of a number of court
decisions and legal writings emanating from the People's Republic
of China.1 This evidence supports the three contentions of counsel listed above. We agree that the new evidence now made
available to us requires a change in the conclusion we had reached
in Matter of Yee, supra.
In the present case a valid adoption was initially established to
the satisfaction of the District Director. There is no dispute as to
the facts surrounding the adoption. The approval of the District
Director was subsequently revoked on the basis of our decision in
Matter of Yee, supra. Inasmuch as we have receded from our
decision in that case, it no longer serves as a bar to the approval of
the present petition.
In the present case we find that (1) a written agreement of
adoption has been presented, and (2) the adoption was examined
and approved by an agency of the government of the People's
Republic of China. Accordingly, we find that the beneficiary
qualifies as an adopted child for purposes of section 101(bX1)(E).
He, therefore, is entitled to preference classification under section
203(aX2), having met all the other requirements. The approval of
the application for preference status was incorrectly revoked and
should be reinstated. The appeal will be sustained and the following order will be entered.
ORDER: It is ordered that the District Director's revocation of
the approval of the petition granting preference classification to •
the beneficiary be and the same is hereby set aside, and the
approval of the petition granting preference classification be and
the same is hereby reinstated as of the date of original approval.
Some of the new sources which are cited by the Library of Congress, and
which we have carefully considered in reaching our conclusion, are the following:

a. Marriage Law and Policy in the Chinese People's Republic by M. J. Meijer
(Hong Kong University Press, 1971).
b. An undated document entitled "Several Opinions Concerning Questions of

Adoption Relationships Expressed by the Supreme People's Court of the Central
People's Government."
c. An editorial entitled "Several Questions Concerning Adoption," appearing in
Chinese Law and Government: A Journal of Translations, Vol. II, No. 1 (Spring
1969).
d. An article entitled "General Discussion of the Marriage Law of the People's
Republic of China," by Ma Ch'i, Tung pei jen min to 1u3uhlt jen wen k'o hew& pao
(Academia Journal of the Humanistic Sciences of Northeastern People's University), No. 3 (1956).

134


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Interim Decision #3835

Matter of Margarita Del Pilar FITZPATRICK, Respondent
Decided May 7, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien who has voted in an election involving candidates for Federal office in
violation of 18 U.S.C. § 611(a) (2012) is removable under section 237(a)(6)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(6)(A) (2012), regardless of whether
the alien knew that he or she was committing an unlawful act by voting.
FOR RESPONDENT: Rick Hodge, Esquire, Wichita, Kansas
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:

In a decision dated June 19, 2009, an Immigration Judge ordered the
respondent 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 Peru whose nonimmigrant
status was adjusted to that of a lawful permanent resident of the
United States on June 4, 2004. On August 5, 2005, she applied for an
Illinois driver’s license and signed a voter registration application in which
she checked a box indicating that she was a United States citizen.
The respondent filed an application for naturalization dated April 17,
2007, in which she indicated that she had registered to vote and had voted
in an election in the United States. During an interview regarding her
application, she disclosed that she had voted in 2006.
On January 11, 2008, the Department of Homeland Security (“DHS”)
issued a notice to appear, alleging that the respondent voted in the general
election in Illinois on November 7, 2006, in violation of 18 U.S.C. § 611
(2006), and charging her with removability under section 237(a)(6) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(6) (2006), as an alien
1

The Immigration Judge previously issued a written decision dated April 21, 2009, in
which he found the respondent removable on the charges in the notice to appear.

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Interim Decision #3835

who voted in violation of law. The DHS also charged the respondent with
removability under section 237(a)(3)(D) of the Act as an alien who falsely
represented herself to be a United States citizen. The Immigration Judge
found that the respondent was removable on both charges.2
The respondent asserts that the Immigration Judge erred in finding her
removable. We disagree and conclude that the respondent is removable
under section 237(a)(6)(A) of the Act as an alien who voted in violation
of a Federal statute, namely, 18 U.S.C. § 611(a). See 8 C.F.R.
§ 1003.1(d)(3)(ii) (2014) (providing that the Board reviews de novo
questions of law, discretion, and judgment and all other issues in appeals).

II. ANALYSIS
According to section 237(a)(6)(A) of the Act, “Any alien who has voted
in violation of any Federal, State, or local constitutional provision, statute,
ordinance, or regulation is deportable.”3 Under 18 U.S.C. § 611(a), it is
“unlawful for any alien to vote in any election held solely or in part for the
purpose of electing a candidate for the office of President, Vice President,
Presidential elector, Member of the Senate, Member of the House of
Representatives, Delegate from the District of Columbia, or Resident
Commissioner.”
The respondent does not dispute that she voted in a general election
involving candidates for Federal office in November 2006 and that she
knew she was not a United States citizen at the time she voted. She
contends, however, that the DHS has not shown that she intended to vote in
violation of 18 U.S.C. § 611. Therefore, the respondent argues that the
charge of removability under section 237(a)(6) of the Act cannot be
sustained. We do not agree.
In meeting its burden of proof to establish the respondent’s removability,
the DHS need not show that the respondent knew she was committing an
unlawful act by voting in the election. The relevant Federal statute,
18 U.S.C. § 611(a), contains no specific intent requirement. It is, instead, a
general intent statute, which does not require “proof that the alien knew
2

The respondent also voted in an Illinois State primary election on March 21, 2006,
which the DHS alleged in the notice to appear as an additional factual basis for her
removability under section 237(a)(6) of the Act. However, the Immigration Judge did
not address whether the respondent is removable based on her voting in the State primary
election, and neither party has raised this issue on appeal.
3
There is an exception to this ground of removability in section 237(a)(6)(B) of the Act,
but it does not apply to the respondent and is not at issue in this case.

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Interim Decision #3835

that it was unlawful for him to vote.” Kimani v. Holder, 695 F.3d 666,
669 (7th Cir. 2012); see also United States v. Knight, 490 F.3d 1268,
1270−71 (11th Cir. 2007) (stating that 18 U.S.C. § 611 is a general intent
statute); cf. section 237(a)(6)(A) of the Act (containing no requirement that
an alien have knowledge that voting was in violation of law).
Since a violation of § 611(a) is a crime of general intent, the only proof
required is “that the defendant performed the acts that the law forbids,
understanding what he was doing.” Kimani v. Holder, 695 F.3d at 669;
see also United States v. Knight, 490 F.3d at 1271.4 The respondent does
not dispute that she knew she was not a United States citizen and that she
voted in the general election. We therefore conclude that her act of voting
in the 2006 election was in violation of 18 U.S.C. § 611(a).
The respondent contends, however, that her act of voting falls within the
exception to § 611(a). Under the statute, an alien is prohibited from voting
in a Federal election unless all three of the following criteria apply:
(1) the election is held partly for some other purpose;
(2) aliens are authorized to vote for such other purpose under a State constitution
or statute or a local ordinance; and
(3) voting for such other purpose is conducted independently of voting for a
candidate for such Federal offices, in such a manner that an alien has the
opportunity to vote for such other purpose, but not an opportunity to vote for a
candidate for any one or more of such Federal offices.

18 U.S.C. § 611(a)(1)−(3) (emphasis added).5
The respondent asserts that she falls within the exception in § 611(a)(1)
because the election in which she voted was “held partly for some other
purpose,” namely, to elect members of the local school board. However,

4

The respondent has cited McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), in
support of her contention that a specific intent to violate Federal law is necessary to
sustain her removability. However, the United States Court of Appeals for the Seventh
Circuit, in whose jurisdiction this case arises, rejected this argument in Kimani v. Holder,
695 F.3d at 669−70. The court distinguished McDonald v. Gonzales because it involved
a State statute with different language, which unlike 18 U.S.C. § 611(a), required “proof
of an alien’s knowledge that voting [was] forbidden.” Id. In any case, we are not bound
by the decision of the Ninth Circuit in this circuit. See Matter of U. Singh, 25 I&N Dec.
670, 672 (BIA 2012).
5
The statute also contains an exception to § 611(a) if “the alien reasonably believed at
the time of voting . . . that he or she was United States citizen.” 18 U.S.C. § 611(c)(3).
However, the Immigration Judge found that this exception was not applicable because the
respondent conceded that she knew she was not a United States citizen at the time she
voted.

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Interim Decision #3835

regardless of whether the respondent meets the criterion of § 611(a)(1), the
statute requires that all three criteria of § 611(a) be met.
The respondent appears to allege that aliens were “authorized to vote for
such other purpose,” as required by § 611(a)(2), apparently referring to
local school board elections. But she has not identified any legal authority
indicating that she was authorized to vote in that local election or that
lawful permanent residents were authorized to vote in any election in the
State of Illinois. The criterion of § 611(a)(2) has therefore not been
satisfied.
In any case, the respondent does not claim that the criterion under
§ 611(a)(3) has been met. The record contains no evidence that voting for
local school board officials was conducted independently of voting for
candidates for Federal office. Although the respondent argues that she had
no control over whether voting for a local school board election was
independent of voting for candidates for Federal office, she has not
established that voting in the election in which she participated was, in fact,
conducted independently.
Moreover, the record contains election ballots from the November 2006
general election, which included candidates for both Federal offices and
the local school superintendent. The respondent’s concession that she
intentionally voted in this election therefore forecloses any claim that she
would have had “the opportunity to vote for such other purpose, but not an
opportunity to vote for a candidate for any one or more of such Federal
offices,” as required by § 611(a)(3).
Finally, the respondent asserts that 18 U.S.C. § 611 is overbroad
and unconstitutional. However, we have no authority to rule on the
constitutionality of the laws enacted by Congress. See Matter of
Fuentes-Campos, 21 I&N Dec. 905, 912 (BIA 1997).
Because our determination that the respondent is removable under
section 237(a)(6)(A) of the Act is dispositive of the appeal, we need not
address whether she is also removable under section 237(a)(3)(D). See INS
v. Bagamasbad, 429 U.S. 24, 25−26 (1976); Matter of J-G-, 26 I&N Dec.
161, 170 (BIA 2013). The respondent has not claimed that she is eligible
for any relief from removal. Accordingly, her appeal will be dismissed.
ORDER: The appeal is dismissed.

562


MATTER OF B—
In DEPORTATION Pr0000dings

A-5731074
Dooidod 51, Board Docembrr 31, 1935

Crime involving moral turpitude—"Single scheme" not present where all of
the separate criminal acts were performed pursuant to over-all scheme to
embezzle funds.
(1) Single scheme of criminal misconduct is not established where respondent
was convicted on separate counts of an indictment for passing forged checks
on two different occasions (August 1 and August 10, 1957) notwithstanding
general criminal intent to defraud victims so long as trust funds remained
available to respondent.
(2) The same conclusion is reached in respect to respondent's conviction on
separate sounfs of an indictment for larceny by trust committed at different
times (1995 and 1957) despite continuing over-all plan to embezzle funds
entrusted to respondent by the members of a partnership.

CHARGEs
Order: Act of 1952—Section 241 (a) (5) [8 U.S.C. 1251(a) (5)1—Willful and
unexcusable failure to his alien address report.
Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
aster entry of two crime, Invulviu, wolal turpitude: not urIoing
out of a single scheme of criminal misconduct—larceny after trust,
and uttering and passing forged check.
BEFORE THE BOARD

Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation upon the grounds
stated above. The appeal will be dismissed.
Respondent, a 51-year-old divorced female, was born in China
and is it national of Great Britain. She was admitted to the United
States for permanent residence on July 11, 1920. She alleges that
she was outside the United States in 1935 with her husband, a
United States citizen, who was employed in the Canal Zone by
this government, and that she had a reentry permit when she returned.
The criminal grounds of deportation are based upon the fact
that after her last entry, the respondent was convicted of crimes
involving moral turpitude. The issue is whether these convictions
928

were based on offenses "arising out of a single scheme of criminal
misconduct." We hold that a single scheme did not exist.
Respondent was convicted in De Kalb County Superior Court,
Georgia, for larceny by trust (2 counts) and pawing a forged
check (2 counts). A grand jury sitting in the December 1957
term of the Superior Court, De Kalb County, Georgia, handed
down two indictments concerning the respondent. Indictment No.
7022, in two counts charged the respondent with larceny after trust.
The first count charged that on August 3, 1955, and other unspecified times frnrn January 1955 to December 1956, the respondent had
converted to her own use money which she had been given by a
partnership of 3 doctors for the use of the partnership. The sum
involved was over a hundred-thousand dollars. The second count
charged her with the same crime committed on June 28, 1957,
and other unspecified times from January 1, 1957, to July 31,
1957, and involved over fifty-thousand dollars. The money described
in the second count was the property of the partnership consisting
of the same three doctors and a fourth doctor. This partnership
used the name "The Decatur Clinic." Respondent was first tried on
indictment 7022. She entered a plea of not guilty but was found
guilty. On February 10, 1958, she was sentenced to 5 years on
each count, the sentence to be served concurrently.'
I Larceny by trust occurs when one entrusted by another with property of
the other to be used for the benefit of the other takes it with intent to steal.
If larceny of an aggregate amount over a period of time is charged, it is not
necessary to prove the theft of the whole amount charged (Hagood v. State,
5 Ga. Ap. 80, 62 S.E. 641). The State is permitted to give evidence showing
the larceny of the full amount or part thereof at any time within the period
of the statute of limitations. (There is no indication that the government
relied upon acts committed on dates other than those set forth in the indictment.) Only one judgment can be given on such an indictment, and the
judgment of conviction will enable the convicted person to enter a plea of
autrefois convict in bar of a subsequent charge of larceny of either the full
amount or any part thereof, irrespective of what evidence was introduced to
obtain the conviction. If a judgment of acquittal is entered, the plea of
autrefois acquit would be available (Lewis v. State, 82 Ga. Ap. 280, (i0 S.E.
2d 663). If, however, the State set forth a series of conversions on designated
dates and stated that the dates were of importance, convictions for larceny of
trust could be obtained as to each date and separate punishment could be
imposed on each count. (See Martin v. State. 73 Ga. Ap. 573, 37 SM. 24 411.)
In the inotant onto, tho data tun,: not rnsde n mntprthl element The ennvi elion obtained on the first count would bar any further conviction for larceny
by trust based on any act occurring in the period specified. The conviction
on the second count was apparently possible only because in the eyes of the
law the money taken belonged to an entirely different entity. However, it
would appear that the conduct described in count two was merely a continuation in the new partnership, of the unlawful course of action respondent
had begun when employed by the original partnership.
237

Indictment No. 7023 charged the respondent with fraudulently
passing a forged check on 2 occasions. Count 1 charged that she
had drawn check No. 803 on The Decatur Clinic payable Lu C
in the sum of $65.69. The check was dated July 15, 1957,
C
and was passed on August 1, 1957. Count 2 charged the passing
of forged check No. 806 drawn upon the same bank and same
account. The check was also dated July 15, 1957, but was passed on
August 10, 1957. It was payable to and was in the
cum of $92.62. On the same day nn which she was sentenced on
the larceny counts she entered a plea of guilty to both counts in
indictment 7023 for passing forged checks, and on the same date
received a sentence of from 2 to 5 years on each count concurrently,
the sentences to run concurrently with those imposed on indictment
7022.
If convictions arise out of a single scheme, the law prevents
their use for deportation purposes where proceedings are brought
on the ground that the alien had been twice convicted [section
241(a) (4), Immigration and Nationality Act; 8 U.S.C. 1251(a)
(4)]. The problem of interpreting the phrase "single scheme" has

been before us since the passage of the Immigration and Nationality
Act of 1952 in which it appeared for the first time. The problem of
intorprotatinn is particularly difficult in a case such as this which
involves continuing criminal misconduct. The pull of logic is to
find a "single scheme" because there exists a planned scheme of
crime involving the same criminal and victim. However, viewed
with the insights gained from immigration history, we have found
that Congress could not have intended that the words be given
such a meaning, but rather that Congress intended to continue the
protection which existed against. Lhe deportation of an alien who
had been twice convicted for what was essentially ane act.
Before the Immigration and Nationality Act, there existed this
safeguard against the deportation of an alien who had been convicted of two offences arising out of one act or transaction; one act
resulting in two convictions could not result in deportation. To
make the alien deportable, he had to commit one crime for which
he was convicted, and sentenced, confined, and then, despite the
judicial deterrent, he again had to commit a crime for which he
was convicted, sentenced, and confined. In the Immigration and
Nationality Act, Congress removed the necessity for the intervening
judicial action, and the necessity for the confinement. Had nothing
further been said, a question would have existed as to whether two
convictions arising from the commission of one act or episode should
serve as a ground of deportation. By the use of the term "single
scheme" Congress indicated that it still desired to retain the protection against the deportation of the alien whose conviction arose
238

out of one episode. The difficult question was whether Congress
intended the protection to extend strictly to the situation where there
was only one act affecting one person (counterfeiting and possession
of counterfeit money) or whether Congress intended to protect the

alien who had committed several acts, which, factually viewed,
were in essence one act or episode (assault on home owner and burglary). We decided in favor of the broader construction because
of the nature of deportation proceedings and the injunction of the
courts to interpret the law in favor of the alien if a doubt existed.
Therefore, we have found the existence of a single scheme in any
situation in which essentially one episode existed (Matter of ,1—,
, 6 I. & N. Dec. 167; Matter of
6 I. & N. Dec. 382; Matter of Z
0
, 7 I. & N. Dee. 539). We have found a number of situations
which fit this description. Following are categories in which we find
one episode or single scheme to exist :
(1) Where there is in fact one physical act affecting one person (counterfeiting and possession of counterfeit money; laceny and unlawfully receiving
stolen goods, etc.), the law looks upon the same act from two viewpoints.
(2) Where there are a series of similar acts which occurred at "one time."
(A, B, & C are robbed by the alien at the same time ; A & B are indecently
Klugle seneme if the alien robs A and after
mama at tne same time. It is mn
completing this crime and escaping, shortly thereafter robs B in a separate
episode of crime.)
(3) Where the acts occur within a comparatively short time of each other,
involve ins same parties, and the nest net vr acts are umutultten for the pun
pose of making possible the specific criminal objective accomplished by the
last of the criminal acts (assault on home owner and robbery of his house).
It is not a single scheme if the first acts are meaningful in and of themselves
in that they have no relation to the completion of the second act which would
have happened whether or not the first had taken place (submitting fraudulent
bills for painting to the same person over a period of time; sale of illegal
liquor to A on occasions two weeks apart). Intent to make a living by criminality does not make the separate unrelated acts a singie scneme.

We shall now attempt to apply the rules to the convictions for
passing forged checks on August 1, 1957, and on August 10, 1957.
The situation does not fit any of the categories we have set forth.
The third category which is the closest one, does not apply because
each act of passing is meaningful in and of itself. There is no
relation between the commission of the first act and the second.
The second passing could have taken place whether or not the first
passing had been performed. Nor does the passing of the two
checks impress itself as being in other respects essentially the same
criminal episode. The criminal purpose to pass the forged check
described in count 1 had no relation to the specific criminal purpose to pass the check described in count 2. The existence of a
general criminal intent to rob and rob as long as funds remained
winch could be reached, did not make a single scheme of what is
in fact two separate unrelated acts. In situations similar to that
239

found in indictment 7023 where there was a continuing plan to
commit similar actions on different occasions, but separate unrelated acts were performed, we have held that a single eshemo dove
not result (Matter of Z, 6 I. & N. Dec. 167). These convictions
alone would support the order of deportation.
The larceny convictions resulted from acts one of which occurred
on August 3, 1955, and the other on June 28, 1957. Here again, the
situation falls into no category although the third category is the
closest. Thorn is no evidence that the criminal act which was
planned and performed in 1955 was necessary to the accomplishment
of the criminal act planned and performed in 1957. Each act is
meaningful standing alone. The second act could have been performed even though the first never existed. (The time which
elapsed between the two acts, the fact that two different partnerships were involved, and the rule that under an indictment worded
such as is the one involved here, there can be only one conviction
for larceny by trust arising out of the continuing course of conduct involving the same parties, make it clear that the second conviction was not for the doing of an act which had for its end the
achievement of the specific criminal purpose which was described in
the first count.) A single scheme is not present and the convictions
for larceny by trust would by themselves satisfy the requirement of
the law concerning two convictions for crimes involving moral
turpitude not arising out of a single scheme.
The convictions for larceny or the convictions for passing would
by themselves support an order of deportation. May the conviction
for larceny be used with one for passing? We think it can. If a
conviction for passing had been based on the same act which served
as the basis for a larceny conviction, are would hold that both convictions arose out of a single scheme. It would not appear that
such convictions are possible in Georgia (See, Harris v. State, 193
Ga. 109, 17 S.E. 2d 573; Haden v. State, 196 Ga. 850, 28 S.E. 2d
71). However, we do not rely upon such a belief. This record
does not show that identical transactions were relied upon to obtain convictions for larceny and for passing. The indictments for
larceny specify different days than do the indictments for passing.
The respondent doesn't allege that proof of unlawful acts varied
from those charged in the indictments. Thus, even looking upon
the passing of the forged checks as a step in the plan to einbevrie or
commit larceny by fraud, we find that the unlawful acts of passing
are separate and independent from those of larceny. Whatever
may have been the general purpose of the respondent in passing
the checks, the passing was not necessary to complete the specific
criminal purpose set forth in the larceny counts. The convictions
for larceny may, therefore, be used with those for passing as the
basis for deportation.
240

The failure to register is established. Respondent's explanation of
the circumstances surrounding her alleged registration and her failure to register in previous years is difficult to accept. We believe

the first charge

is sustained. Ws find no prejudicial error corn

mated in the conduct of the hearing or in the receipt of evidence.
Order: It is ordered that the appeal be and the same is hereby
dismissed.

241


Interim Decision #1739

Ms min or

MIISLED11

In Deportation Proceedings
A-17256526
Decided by Board May 31,1967
In the absence of overriding equities, adjustment of status under section 245,
Immigration and Nationality Act, as amended, is denied, as a matter of discretion, in the case of respondent who entered the United States as a nonimmigrant but with the preconceived intent to marry his United States citizen
paramour and remain here permanently.
CHARGE •

Order: Act of 1952—Section 241(a) (1) r8 U.S.C. 1251(a) (1)1—Excludable
by law existing at time of entry (section 212(a) (20),
Immigration and Nationality Act; 8 U.S.C. 1182)—
Immigrant, no visa.
ON BEHALF OF RESPONDENT :
Milton T. Simmons, Esquire
Phelan, Simmons & Ungar
1210 Mills Tower
220 Bush Street
San Francisco, Calif. 94104
(Counsel not present at oral argument but submitted a brief in
support of the special inquiry
officer's decision)

ON BEHALF OF SERVICE:

Robert A. Vielbaber
Appellate Trial Attorney
(Oral argument)
Stephen 11. Suffin
Trial Attorney
(Brief flied)

The Immigration and Naturalization Service has appealed from a
special inquiry officer's order of January 25, 1967, directing that the
respondent's application for adustment of his status to that of a permanent resident, under section 245 of the Immigration and Nationality Act, be granted. Its appeal will be sustained.
The record relates to a 23-year-old male alien, a native of India
And citizen of Iran, who last entered the United States on or about
January 4, 1966, He was then admitted as a. nonimmigrant temporary
visitor, and he was subsequently authorized to remain in this country
in that status until September 3, 1966. It was his intention, after coming to the United States, to apply for status as a permanent resident
249

Interim Decision #1739
and to stay permanently, if he could. He was, therefore, an immigrant
at the time of his entry. However, he was not then in possession of an
immigrant visa.
On the basis of the foregoing, we concur in the special inquiry
officer's conclusion that the respondent's deportability on the charge
contained in the order to show cause is sustained_ This is unchallenged here.
The special inquiry officer felt constrained to grant this respondent's
application for adjustment of his status to that of a permanent resident because of a prior precedent decision of this Board (Matter of
Tonga, A 14674907, 5/23/66; Int. Dec. No. 1588). Counsel for the
respondent, in his brief in support of the special inquiry officer's decision, also expresses the opinion that our decision in that case required the action taken by the special inquiry officer. Before proceeding to a. disposition of this respondent's application on the merits, we
will briefly'point out the reasons why their reliance on that precedent
decision was misplaced.
The trial attorney, in his succinct appeal brief, has cited numerous precedent decisions of this Board holding that circumvention of
the visa-issuing function of an American Consul abroad is a major
adverse factor to be considered in the evaluation of an application
for adjustment of status which, in the absence of exceptionally strong
intervening equities, should result in the denial of adjustment of
status, aS a matter of discretion. Our decision in Matter of Tonga,
avyta, was not intended to and did not overrule the precedent decisions referred to by the trial attorney. The sole basis for our initial
decision in Tonga was his then statutory ineligibility for relief. Obviously, therefore, any discussion in our opinion at that time as to
the question of whether or not favorable exercise of relief was warranted was of secondary importance and not decisive. We did discuss that aspect of the case at that time, but only because it was
then apparent to us that the special inquiry officer had concluded
his inquiry along those lines with the establishment of the fact that
the-respondent had formed a "preconceived intent" to remain in
the United States and, thus, to circumvent the normal visa-issuing
process. We then merely pointed out that there were other factors
which had to be considered, to wit, intervening equities. We did
not then decide, because we were not called upon to do so, that the
factors in Tonga's case were of such an unusually meritorious nature
as to call for favorable exercise of discretion. (Note: On May 3,
1967, we found they were not.)
The respondent is. now married to a native-born citizen of the
United States whom he met in Bombay, India. At the time, she was
-

250

Interim Decision #1739
living with her first husband who was then an employee of the
Bank of America there, was as the respondent. Marriage in India
being impractical, the respondent and his now wife evolved a plan

whereby she would return to the United States and obtain a divorce;
the respondent would enter the United States as a visitor; they would
be married; and he would then apply for adjustment of his status
to that of a permanent resident.
In furtherance of the foregoing plan, the respondent obtained a

nonimmigrant visitor's visa from the American Consulate General at
Bombay, India. On his application for the visa, he stated that he intended to visit in the United States for three months (p. 9). He did not
tell the Consul his true purpose in coming to the United States, because
he was afraid that if ha had told the truth he might not obtain his

visa (p. 7).
As indicated above, the respondent was admitted to the United
States as a visitor on January 4, 1968. His citizen wife subsequently
obtained a divorce terminating her first marriage. She and the respondent were thereafter married. at Reno, Nevada, on September 7,
1966.
The respondent is employed as a waiter and dishwasher in a restaurant earning $16 a day. His wife makes approximately $300 a month
for her services as a clerk-typist. The two children of her first marriage reside with and are cared for by the parents of her first husband.

We agree with the Service that the foregoing factors establish that
the respondent was not a bona fide nonimmigrant at the time of his
entry, inasmuch as he then had a preconceived intent to remain in
the United States permanently. His citizen wife,, who accompanied
him to the United States, was a major motivating factor of and a
participator in his plan to circumvent the normal Consular visa issuing process. In our opinion, the misrepresentation to the Consul abroad
thus established constitutes an unfavorable factor which outweighs
the favorable one, to wit, the presence here of a citizen wife.
In other words, the respondent's only equity in this case is the
presence here of a citizen wife. In our opinion, this is more than offset
by her participation in the deceit practiced by her husband, the respondent. We do not think they should be permitted to plead their
own deceit as the basis for the favorable exercise of discretion. Accordingly, we conclude that the special inquiry officer has improperly
granted the respondent's request for the extraordinary discretionary
relidf of adjustment of status to that of a permanent resident. His decision, therefore, is reversed.
Both the respondent and his wife have admitted that they lived together as husband-wife before she obtained the divorce terminating
251
321-654-69----418

Interim. Decision #1739
her first marriage. In addition, the respondent has testified that when
applying for an extension of his stay in the United States as a temporary visitor, on or about September 1, 1966, he lied to an immigration officer about having an airline ticket with which to depart from
the United States (p. 16) ; and that he did not admit the truth of the
matter to the immigration officer until the latter came to his apartment about an hour later (p. 17). Under these circumstances, we do
not think that favorable exercise of discretionary relief in the form
of voluntary departure is warranted in these premises.
In conclusion, the respondent reluctantly specified India as the
country to which he should be deported, in the event such action became necessary. That is the country of his nativity. We will direct
his deportation thereto.

ORDER: It is ordered that the Service appeal be sustained; that
the special inquiry officer's order of January 25, 1967, be withdrawn;
and that the respondent be deported from the United States to India
on the Charge contained in the order to show cause.

252


Interim Decision 401491

MATrER OF MANION

In Sectioi 223. Proceedings
-•

A-11469109

Decided by District Director June 24, 1907
An applicant for d.reentry penult pursnahf to section 223, Immigration and
Nationality Act, is eligible therefor since be has nut abandoned his residence
in the United States where his absence from this country since his entry for
permanent residence in January 1959 has been in the employ of an Ameyietni
firm; at the time of admission. he was accompanied by his family which lie
established and has maintained here since entry; one !inn has petitioned for
citizenship and the other plans to do so;, applicant has returned from time
to time to be with his family; and when. his employment permits be plans
to remain in the United States and acipiire citizenship.

Applicant is a native of Dublin, Ireland, born August 21, 1915,
who resided in Nairobi, Kenya, prior to entry to United States . for
permanent residence on January 15, 1959, at New York, New York.
The immigrant visa shows that he was divorced at the time of the
visa issuance; that his two children, Alden Douglas Manion and
Earl Russell Manion accompanied him to the United States; that
he was destined 'to Mrs. E. Dargen, 693 Borth Pearl Street, Albany,
New York; that his home country was then Dublin, Ireland; that
he traveled on South African passport No. N 344-1; and that his
occupation was regional manager. The visa contains an affidavit
of support submitted by Eileen Dargan (nee Manion) of the above
Albany address, in which she identifies herself as the sister of applicant and states that her brother is employed as regional manager
by a South African firm which is a --wholly owned subsidiary of .an
Americait firm; that her brother's work will require that he . be
absent from the United States; and that while her brother is away
1'113111 the United States; she will provide a' home for and supervise
the education of the children, Aldei. and Earl Manion.
On January 19, 1959, applicant applied for a reentry permit. The
application shows his home address as 693 North Pearl Street,.
261

Interim Decision #1491
Albany, New York, and states that he will be absent in Kenya
and Nigeria on. busine,si for a possible period in excess of twelve
months. His occupation is shown as regional manager, East Africa,
and his employer as Starling Drug, Inc.,1450 Broadway, New York,
New York. In this application, applicant stated. that upon his.
return from abroad he expected to "return to home office and business" and that he expected to depart on January 22, 1959. A. permit
was issued on March 6, 1959, valid to March 6, 1960, and was delivered to applicant abroad" through the American Consul in Nairobi, Kenya.
Applicant applied for

further reentry permits on December 21,

1959, January 10, 1961, February 7, 1962, and April 15, 1963. Each
of these applications shows his employer as the same American firm
by which he was employed prior to entry to United States for
permanent residence. A permit was issued in each case.

On April 30, 1965, applicant mak'taie application now under
consideration. The application Shows that his address is % 845.
Jay Street, Albany; that he expected to depart from United State

on May 6, 1965, for• a period of twelve months to return to his
duties as general 'manager for Sterling Drug International in Central Africa; that his present occupation is general manager; 'and
that his employer is Sterling Drug International, Inc., 90 Park
Avenue, New York City, New York. In a statement accompanying
the application, applicant states that for the past twenty years he•
has been employed. by Sterling Winthrop, a United .States Corporation, engaged in the development of commerce for the United
States in Africa; that he has a sister resident in New York State
and a citizen of this country; that his two sons also reside in
Albany; that one of these sons is serving with the United. States
Navy and has applied for citizenship; that the other son will become•
a citizen nn reaching the age of eighteen years; kid that applicant
is anxious.' to retain his 'status as a resident of United States and
hopes to live immanently in. the United States as soon as it can
be arranged. The officer in charge of. this Service at Albany has
referred the application to the Regional Commissioner,. through
official channels, with the comment that he does not believe applicant
is a permanent resident of ,United States and that applicant has
been employed continuously by the Sterling Drug International in
different sections of Africa from 1945 to the present time.
The statute provides taht the Attorney General may issue a reentry
permit if he finds that the '.applicant has been, lawfully -admitted to
-

.the. United States for permanent• insidenee; that the application is,
262

.

Interim Decision #1491
made in good faith; and that the alien's proposed departure would
not be contrary to the interests of the United States. It has been
held that an unexpired reentry permit is the equivalent of a nonquota immigrant visa (Matter of 8—, 5 L & N. Dec. 185), and that
upbn return to the United States of an alien with a reentry permit
which has not been procured by fraud or misrepresentation, such
reentry permit must be accepted as establishing that the alien to
whom it was issued is returning from a temporary visit abroad.
The visa in the file shows lawful admission, for permanent residence.
Since entry, applicant has been absent' from the United States in

the employ of a United States firm. Applicant was accompanied
to United States by his family. His family has resided in United
States since his' entry with them. One child is now petitioning for
citizenshiP• and the other plans to. The record shows that applicant has returned to the United. States to be with his family from
time to time. He 'states that when it is possible he hopes to remain
here and acquire citizenship in the United States. - Applicant is a
native of Ireland, ha's no quota problem, and, since his admissibility
to United States has never been ,questioned, could undoubtedly
obtain an immigrant visa should this application be denied. The
record shows that on three occasions his reentry permits have been
'revalidated by United States consuls* abroad, who had opportunity
to be entirely' familiar with the circumstances of his entry to 'United
States and the reasons for his absences from this country.
Interim Decision No. 1376 (Matter of Sehonfeld,
decided by the Acting Regional Commissioner May 26, 1964) is
distinguished. The circumstances recited in that decision bear small
resemblance to the instant ease. This applicant established his
family in United States following entry, and has maintained his
family here since that time. He has been absent in the employ of
an American firm. He reported to Federal income tax officials prior
to his departures from United States. When the convenience of his
employer permits, he hopes and Plans to remain in United States
without the necessity of proceeding abroad to his employment. It
is not believed that he has abandoned his residence in United States
or obtained his various reentry Permits by, fraud or misrepresentation.
ORDER: It is ordered that the application be granted: .

263


Interim Decision #2927

MATTER OF MATELOT
In Exclusion Proceedings
A-26007558
Decided by Board November 1, 1982
(1) An immigration judge's refusal to admit as evidence findings of fact that are contained'
in a reported federal decision does not deprive an alien of the opportunity to fully present

an asylum claim.
CHARGE:

Orden Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant not in possession
of valid unexpired immigrant visa or other valid entry document
ON BEHALF OF SERVICE:

ON BEHALF OP APPLICANT:

Debra Gordon
General Attorney

James W. Gardner, Esquire
Brown, Bucalos, and Gardner
, 712 Lexington Building
201 West Short Street
Lexington, Eentucky 40507
BY:

Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

This matter is before the Board on appeal from the immigration judge's
decision of December 9, 1981, finding the applicant excludable from
admission to the United States under section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(20), and denying his application for asylum under section 208 of the Act.' The appeal will be
dismissed.

The applicant is a 27-year-old native and citizen of Haiti who arrived
in the United States on July 14, 1981, by boat near Miami, Florida. He
hafino documents with which to enter the United States and was held in
detention by the Service. On September 1, 1951, he was served with
Form 1 122, "Notice to Applicant for Admission Detained for Hearing
-

Before Immigration Judge," alleging that he was excludable from admisThe filing of an application for asylum in exclusion proceedings shall also be considered
as a request for withholding of exclusion or deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. 1253(h). 8 C.F.R. 208.3(b); see Mailer of Exilits, 18
I&N Dec. WO (NIA 1982); matter of Portales, 16 I&N Dee. 239 USIA 1982); matter of
Castellon, 17 l&N Dec: 616 (BIA 1981).

334

Interim Decision #2927
sion to the United States under section 212(a)(20) of the Act as an
immigrant not in possession of a valid immigrant visa. Following his
initial two hearings before the immigration judge which were continued
to permit the applicant to have counsel prepared and to submit an
asylum application, the applicant filed Form 1-589, "Request for Asylum
in the United States," on October 16, 1981. 2 Upon receipt of an advisory
opinion from the United States Department of State, Bureau of Human
Rights and Humanitarian Affairs (BHRHA), 3 the exclusion hearing was
resumed on December 9, 1981. The immigration judge found the applicant excludable as indicated above and denied his asylum application.
On appeal, the applicant submits that the Service has the burden of
proving that exclusion proceedings are proper. He alleges it was error
to deny his request to have the government's primary inspector verify
that exclusion proceedings are appropriate. The applicapt's argument is
misplaced.. It is clear that an applicant in exclusion proceedings has the
burden of establishing that exclusion proceedings are improper. See
section 291 of the Act; Matter of Phelisna, 18 I&N Dec. 272 (BIA
.1982); Matter of Lie La Nues, 18 1&N Dec. 140 (BIA 1981); Matter of
Pierre, 14 I&N Dec. 467 (BIA 1973); but cf. Matter of Salazar, 17 I&N
Dec. 167 (BIA 1979) (colorable claim to lawful permanent resident status).
The applicant has not alleged that he "entered" the United States, but.
rather, testified that he intended to work in the United States, that he
intended to live here permanently and that he had no document which
would permit him to reside in this country. Thus, the record clearly
establishes that the applicant is excludable under section 212(a)(20) of
the Act as an immigrant without a valid immigrant visa or other valid
entry document.
The applicant also raises various other arguments. He objects to the
denial of his motion for "simultaneous translation" of the exclusion
hearing. We find no error in the denial of this motion. See Matter of
Exilus, 18-I&N Dec. 276 (BIA 1982).
Although the applicant apparently filed an incomplete 1-589 with the District Director,
he states that he advised the District Director that a thorough 1-589 would be submitted
within 45 days. Because the District Director presumably denied the asylum application in
2

letter received by the applicant an November :40, 1981, the applicant submits that he

was never given the opportunity to file:a thorough 1-589.
The applicant's contention is without merit. Although harmless, it was error for the
District Director to rule on the 1-589. Where an applicant for admission to the United
States files an 1-589 after being placed in exclusion proceedings, jurisdiction over his
asylum claim lies exclusively with the immigration judge. See Matter of Dee, 18 l&N Dec.
269 (BIA 1982). The applicant was placed in exclusion proceedings on Septemlier 1, 1981,
with the service of Form 1-122. His asylum application was subsequently filed on October
16, 1981. Therefore, as the District Director had no authority to rule on the original 1-589,
the applicant has no basis upon which to submit an amended 1-589 to the District Director
fiir adjudication.
3 See 8 C.F.R. 208.7 and 208.10(b). •
385

Interim Decision #2927
The applicant contests the'denial of his motion for parole. We find no
error in the denial of this motion. The District Director has exclusive
jurisdiction to parole an alien into the United States pursuant to 8

C.F.R. 212.5(a). Neither the immigration judge nor this Board has
jurisdiction to exercise parole power. Matter of Castellon, 17 I&N Dec.
616 (BIA 1981); Matter of Niayesh, 17 I&N Dec. 231 (BIA 1980); Matter
of Lepofsky, 14 I&N Dec. 718 (BIA 1974); Matter of Conceiro, 14 I&N
Dec. 278 (BIA), affd, Conceiro v. Marks, 360 F. Supp. 454 (S.D.N.Y.
1973).
The applicant argues that the denial of background information relating to conditions in Haiti deprived him of the opportunity to fully present his asylum claim. In Matter of Exame, 18 I&N Dec. 303 (BIA
1982), we found that the applicant was not afforded a full and fair opportunity to present his persecution> claim because the immigration judge
categorically refused to admit background evidence pertaining to conditions in Haiti. These proceedings are distinguishable from Exame,
however, in that the applicant's counsel admitted that he did not have
the documents which he wished to present to the immigration judge for
consideration (fr. p. 20). Under the circumstances of these proceedings,
we find no error in the immigration judge's refusal to receive unsubmitted
documents. Moreover, some of the documents which the applicant sought

to introduce were attached to his amended asylum application and were
received into evidence.
In addition, we fmd no error in the immigration judge's refusal to
admit the findings of fact in Haitian Refugee Center v. Civiletti, 503 F.
Supp. 442 (S.D. Fla. 1980). These findings were made in proceedings
separate and distinct from those in the instant case. Further, it is not
necessary to introduce federal decisions into the proceedings inasmuch
as the findings and conclusions set forth therein are a matter of record
and can be cited. Moreover, on appeal, the Fifth Circuit agreed in part
with the government's contention that the district court erred in entering findings of fact on life in Haiti and found that the district judge
exceeded his authority to the extent he implied by his findings and
conclusions that the plaintiffs' claims of fear of persecution merited the
granting of asylum. See Haitian Refugee Center v. Smith, 676 F.2d
1023, 1042 (5 Cir. 1982).
The applicant alleges that he was denied effective assistance of counsel because his present counsel was not competent to handle this case,
having no prior experience in immigration law. After reviewing the
proceedings and the brief on appeal, we are unpersuaded that the applicant has sustained his burden of establishing that he was denied effective assistance of counsel.
Similarly, the applicant alleges that the immigration judge erred in
refusing to grant a continuance because his counsel only had 9-days'
336

Interim Decision #2927
notice to prepare for the hearing and because he had received the State
Department's advisory opinion immediately before the hearing. This
argument is without merit. The record reflects that counsel's partner
was present and had represented the applicant at his original hearing on
September 1, 1981. Further,•the record contains Form G-28, "Notice of
Entry of Appearance as Attorney or Representative," which was filed
by the applicant's counsel and which was received into evidence by the
immigration judge on September 29, 1981. Therefore, at a minimum,
the applicant's counsel had over two months and, more likely, had over
three months to prepare for this else. The 9-day notice in advance of the
continued hearing held on December 9, 1981, was not insufficient notice
inasmuch as the applicant's counsel actually had a substantially greater
period of time in which to prepare for the proceedings.
In addition, we find no error with the denial of a continuance to rebut
the State Department's advisory opinion. The applicant does not allege
what evidence would have been forthcoming if the continuance 11111 been
granted. Further, the applicant was given the opportunity to rebut the
opinion expressed by the State Department and, in fact, did su by
testifying and submitting an amended asylum application in support of
his position. Moreover, the opinion is not binding on the immigration
judge or this Board.

Finally, the applicant asserts that he has established his asylum claim,'
based on his rationale for escaping from Haiti and belief of the consequences of his return to that country. The applicant also contends that
there is no evidence to show why he is not entitled to asylum inasmuch
as the Service did not call any witnesses or present any proof to rebut
his case. An applicant for asylum or withholding of deportation must show
that, if deported, he would be subject to persecution or that he has a
well-founded fear of persecution based on his race, religion, nationality,membership in a particular social group, or political opinion. Section
208(a) of the Act. See section 243(h) of the Act; Rejai© v. INS, 691 F.2d
139 (3 Cir. 1982); McMullen v_ INS, 658 F.2d 1312 (9 Cir. 1981); Kashani
v. INS, 547 F.2d 376 (7 Cir. 1977); Matter of Portales, 18 I&N Dec. 239
(BIA 1982); Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981);
Matter of Dunar, 14 I&N Dec. 310 (BIA 1973). See also Stem v. Sava,
678 F.2d 401 (2 Cir. 1982). It is clear that, when presenting a claim, the
applicant has the burden of proof in such proceedings. See 8 C.F.R.
208.5; Haitian Refugee Center v. Smith, supra at 1042-43; McMullen v.
INS, supra; Matter of Exiles, supra. Moreover, an alien.who makes an
illegal departure from Haiti does not necessarily establish a well-founded
fear of persecution under the Act. See Matter of Exiles, supra. See also
Matter of Nagy, 11 I&N Dec. 8 (BIA 1966); Matter of Liao, 11 I&N Dec.
113 (BIA 1965).
337

Interim Decision #2927
Liao, 11 I&N Dec. 113 (BIA 1965).
The applicant believes that his claim should be granted because of his
,problems xxith the Ton Ton Macoutes and because he departed from

Haiti without authorization. In essence, the applicant states that his
father was imprisoned by the Ton Ton Macoutes for an unknown reason,
but was released upon the payment of $60.00. The applicant further
states that because he was responsible for his father's release, he was
questioned many times by the Ton Ton Macoutes. After a friend told
him that tile Ton Ton Macoutes were looking for him, the applicant
decided to leave Haiti.
The applicant has not established that he will be persecuted or that he
has a well-founded fear of persecution within the contemplation of
section 20a(a) or 243(h) of the Act, regardless of whether his claim is
assessed in terms of whether he has demonstrated a "clear probability,"
a "good reason," or a "realistic likelihood.' The applicant states that he
departed from Haiti without permission. However, if returned, he has
not shown how his perceived treatment will be different from other
Haitians whio departed from that country without authorization or that
the penalty, if any, imposed by the Haitian government is within the
meaning of the Act. Further, on this record we are unable to conclude
that the questioning and possible arrest of the applicant by the Ton Ton
Macoutes qualifies the applicant for asylum and section 243(h) relief,
particularly when the contents of the questioning and reason for the

perceived arrest are not a matter of record.
Accordingly, the appeal will be dismissed.
ORDER:The appeal is dismissed.

4

Therefore, we find no error with the zefueal of the immigration judge to outunit the

amended asylum application to the BHRHA of the Department of State for a second
advisory opinion. See 8 C.F.R. 208.10(b).
338


Interim Decision #2457

MATTER OF SILVA
In Exclusion Proceedings
A-18670171

Decided by Board December 4, 1975
Evidence that the wife and children of applicant, a lawful permanent resident, live in
Mexico and that applicant visits them does not, by itself, establish that he is a commuter. It must be shown that he himself resides in Mexico. In the absence of such a
showing, it has not been established that he is a commuter. Hence, applicant's overnight departure to Mexico to visit his family was an innocent, casual and brief excusion
within the ambit of Rosenberg v. Heidi, 347 U.S. 449, and upon his return he did not
make an "entry" within the meaning of section 101(a)(13) of the Immigration and
Nationality Act upon which to predicate a ground of exclusion.
EXCLUDABLE: Act of 1952—Section 212(a)(5) [8 U.S.C. 1182(a)(5)]--Narcotic drug
addict—chronic alcoholic.
ON BEHALF OF APPLICANT:

Edwin W. Sano, Representative
Legal Aid Society of San Diego
3040 Imperial Avenue
San Diego, California 92102

This is an appeal from an order of an immigration judge, dated May
15, 1975, in which he found the alien inadmissible and ordered his
exclusion from the United States. The appeal will be sustained.

The alien, a native and citizen of Mexico, was admitted to the United
States for lawful permanent residence on September 6, 1963. He departed from the United States for Mexico on or about October 12, 1973
and, when he reapplied for admission the next day, he was referred to
the immigration judge for an exclusion hearing. The alien was charged
with being excludable under section 212(a)(5) of the Ithmigration and
Nationality Act as an alien who is a narcotic drug addict and a chronic
alcoholic. Two Class A medical certificates were entered into evidence
in support of these charges.
The alien claims that his departure was brief, casual and innocent and
that, therefore, as a lawful permanent resident, he did not make an
"entry" within the meaning of section 101(a)(13) of the Act as interpreted by the Supreme Court in Rosenberg v. Meta., 347 U.S. 449
(1963). He contends that, since he did not make an entry, he is not
531

Interim Decision #2457
subject to the exclusion provisions of the Act. Matter of Farmer, 14 I. &
N. Dec. 737 (BIA 1974); Matter of Pierre, 14 I. & N. Dec. 467 (BIA
1973). The Service, however, argues that the applicant is a commuter
and as such is not within the Fleuti doctrine. Matter of Diaz, Interim
Decision No. 2443 (BIA October'28, 1975) Matter of Hoffman-Arvayo,
13 I. & N. Dec. 750 (BIA 1971); Matter of Moore, 13 I. & N. Dec. 711
(BIA 1971).
The resolution of this case depends on whether the applicant is, in
fact, a commuter inasmuch as the applicant's departure otherwise falls
within the smbit of Fleuti.

The Serv:ce asserts that the applicant has been a commuter. It has
the burden of establishing that he is. On this record, it has not met its
burden. Sea. Matter of Hoffman-Arvayo, supra; Matter of Kane,
Interim Decision No. 2371 (BIA1975); and Matter of Becerra-Miranda,
12 I. & N. Dee. 358 (BIA 1967).
A "commuter" is an alien lawfully admitted for permanent residence
who has employment of a permanent nature in the United States, and
who possesses the right to take up physical residence in the United
States althcugh he does not elect to do so, but usually returns to his
actual hnme in Canada or Mexien every night. Matter of Moore, supra_

Thereare two types of commuters, those who commute regularly,
normally entering at least twice weekly, and those who enter to perform
seasonal work for extended periods, but whose annual stay in the
United States is for less than six months. Matter of Hoffman-Arvayo,
supra.
No evidence was presented at the hearing that the applicant had ever
been classif.ed administratively as a commuter. On the basis of the
applicant's testimony at the hearing, the immigration judge concluded
that he is a commuter. The testimony on this issue, however, is unclear
and its appears that the applicant may have been confused. He testified
that he has lived with his mother in the United States (Tr. pp. 5, 11, 16)
and had left the United States on October 12, 1973 only in order to visit
his wife and children, who were living in Mexico. At the same hearing
he also testified that he has lived with his wife both in the United States

and Mexico since his marriage in 1970, although he stated that they
were separated due to marital problems in 1973 (Tr. p. 5). He also
claimed that he visited his family in Mexico about twice a week and on

the weekends (Tr. p. 11). He said that his wife was living with her
family and therefore his visits lasted only a few hours (Tr. p. 18).
Evidence that the applicant's wife and children live in Mexico and-that
the alien visits them does not, by itself, establish that the applicant is a
commuter. See Matter of Hoffman-Arvayo, supra. It must be shown
that he himself resides in Mexico. On the record before us the Service
has failed tc establish such residence.
532 .

Interim Decision #2457
On this record, we conclude that the applicant's departure was an
innocent, casual and brief excursion which does not subject him to the
consequences of an "entry." Rosenberg v. Fleuti, supra. Accordingly,
the appeal will be sustained, the order of exclusion will be withdrawn,
and the applicant's admission as a returning resident will be ordered.
ORDER: The appeal is sustained and the applicant is admitted to the
United States as a returning resident.

533