Interim Decision #2497

MATTER OF FLORES
In Deportation Proceedings
A-11672280
Decided by Board Apri1•29, 1976; Amended June 24, 1976
(1) Respondent was found guilty at trial of two counts of aiding and abetting certain aliens
to enter the lJnited States by a wilfully false and misleading representation of a material
fact. The aliens, involved testified at the trial and were cross-examined by respondent.
These aliens were unavailable to testify at respondent's deportation hearing brought
under section 241(a)(13) of the Immigration and Nationality Act, and a transcript of the
trial containing the sworn testimony of the aliens was received into evidence. Respondent was found deportable an charged. Where the aliens who had testified at the trial
were unavailable to testify at the deportation hearing, it was proper to receive the trial
transcript into evidence at the deporation bearing where a diligent effort had been made
by the Service to locate the missing aliens prior to the hearing; the respondent had
cross - examined the missing aliens at the earlier trial; and the deportation hearing

produced corroborative evidence.
(2) Evidence of criminal activity which has as its purpose the circumvention of the
immigration laws will adversely affect an application for discretionary relief in the
absence of outstanding equities. Where, as here, such equities are lacking, respondent's
application for the privilege of voluntary departure will be denied as a matter of
discretion.
CHARGE: Ad. of 1952—Section 241(a)(13) [8 U.S.C. 1251 (a)(13)1—Prior to entry,
smuggled aliens into the United States.
ON BEHALF 0..? RESPONDENT: Lou Sanchez, Esquire
1725 West Beverly Blvd., Suite 4
Los Angeles, California 90026

In a decision dated August 11, 1975, an immigration judge found the

respondent deportable under secton 241(a)(13) of the Immigration and
Nationality Act, ordered his deportation, and denied his request for the
privilege of voluntary departure. The respondent has appealed from
that decision. The appeal will be dismissed.
The respondent is a 36-year-old- native and citizen of Mexico. He was
first admitted to the .United States for permanent residence on February 22, 1919. He last entered the United States .on February 13, 1971.
Following this last entry, he was stopped by immigration officers while
driving towards Los Angeles. In the car with him -were his wife and two
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Interim Decision #2497
men whom he claimed he had picked up in Calexico, California in a
Safeway parking lot. The three men were arrested. The Government
charged that the respondent provided the two other aliens with documents to enter the United States and promised them transp ortation into
the interior of the country once they had entered. In return he was to be
paid $150. On February 18, 1971, five days later, the respondent was
found guilty of two counts of "aiding and abetting certain aliens to enter
the United States by a wilfully false and misleading representation of a
material fact. . . ." He was sentenced to 180 days on each count, the
sentences to run consecutively.
The respondent denies both that he aided and abetted the aliens to
enter or that he was promised any money to do so. The record contains a
transcript of the trial held before a magistrate in the United States
District Court for the Southern District of California. This transcript,
which was received into evidence, includes the sworn testimony of both
the aliens. They testified that the respondent supplied them with
"passports" with which to make their entry and that they expected to
pay him $150 each. The respondent cross-examined both aliens at the
trial. The aliens did not testify at the deportation hearing because the
Service was unable to locate either of them although a diligent effort to
do so was made.
In two recent cases, the Court of Appeals for the Ninth Circuit
allowed affidavits by aliens who could not be located at the time of the
deportation hearing to be admitted into evidence. Although there had
been no opportunity to cross-examine the missing aliens under oath, a
diligent effort was made to locate then and there was corroborative
evidence. Hernandez v. INS, 498 F.2d 919 (C.A. 9, 1974); MartinMendoza v. INS, 499 F.2d 918 (C.A. 9, 1974).
In this case, not only had a diligent effort been made to locate the
missing aliens, but also the respondent had cross-examined the aliens at
the earlier trial and the hearing produced corroborative evidence. The
record contains both a sworn statement by the direct testimony of the
respondent's ex-wife stating that the respondent supplied the aliens
with "passports" and that he was promised $150 each for helping them
to enter this country. The respondent's ex -wife was cross-examined at
the deportation hearing both on her testimony and the contents of her
affidavit.
We are satisfied that the evidence taken as a whole establishes
clearly, convincingly, and unequivocally that the respondent knowingly
and for gain aided and abetted two other aliens to enter the United
States in violation of law. He is therefore deportable under section
241(a)(13) of the Act.
The immigration judge denied the respondent the privilege of voluntary departure on the ground that he could not establish the requisite
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Interim Decision #2497
good moral character within the meaning of sections 101(f)(3) and 101(f)(7) of the Act Although he may no longer be statutorily ineligible due
to the lapse of time since his conviction and confinement, we find it
unnecessary to reach this issue, as we will deny him the privilege of
voluntary departure as a matter of discretion. Even if his conviction and

confinement may not be taken into account in the exercise of discretion.
Cf. Matter of Turcotte, 12 I. & N. Dec. 206 (BIA 1967). The respondent
was convicted of a crime the purpose of which was the circumvention of
the immigration laws of the United States. In the absence of outstand-

ing equities in his behalf, evidence of involvement in such criminal
activity will adversely affect an application for discretionary relief. Cf.
Matter of RcOs, 15 I. & N. Dec. 492 (BIA 1975).
The respondent .is divorced from his United States citizen wife, although he dces have a brother and sister in this country. He stated that
he is a butcher; however, he is not now working as such. Any equities in
his favor are insufficient to outweigh the adverse factors. The privilege
of voluntary departure will be denied.
ORDER: The appeal is dismissed.

688


Cite as 27 I&N Dec. 100 (BIA 2017)

Interim Decision #3901

Matter of Juan DELGADO, Respondent
Decided September 7, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Robbery under section 211 of the California Penal Code, which includes the element of
asportation of property, is categorically an aggravated felony theft offense under section
101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012),
regardless of whether a violator merely aided or abetted in the asportation of property
stolen by a principal.
FOR RESPONDENT: J. Elle Cox, Esquire, Las Vegas, Nevada
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jonathan Grant, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and MALPHRUS, Board
Members.
PAULEY, Board Member:

In a decision dated March 1, 2017, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien who was
convicted of an aggravated felony theft offense under section 101(a)(43)(G)
of the Act, 8 U.S.C. §§ 1101(a)(43)(G) (2012), and denied his applications
for relief from removal. The respondent has appealed from that decision.
The appeal will be dismissed.
The respondent is a native and citizen of Mexico and a lawful permanent
resident of the United States. On December 15, 2005, he was convicted of
five counts of robbery in violation of section 211 of the California Penal
Code. 1 He was sentenced to 5 years of incarceration on the first count and
an additional 1 year on each of the other four counts, to run consecutively.
To determine whether the respondent’s crime is an aggravated felony
theft offense under the Act, “we must apply the categorical approach outlined
by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990).”
Matter of Ibarra, 26 I&N Dec. 809, 810 (BIA 2016). The categorical
1

Section 211 of California Penal Code defines the crime of robbery as “the felonious
taking of personal property in the possession of another, from his person or immediate
presence, and against his will, accomplished by means of force or fear.”

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Interim Decision #3901

approach ignores the particular facts of the respondent’s crime and focuses
on whether the elements of his State statute of conviction proscribe conduct
that categorically falls within the Federal definition of the offense. See
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). “Under this
categorical approach, if ‘the elements of the state crime are the same as or
narrower than the elements of the federal offense, then the state crime is a
categorical match and every conviction under that statute qualifies as an
aggravated felony.’” Diego v. Sessions, 857 F.3d 1005, 1009 (9th Cir. 2017)
(emphasis added) (citation omitted). Whether the respondent’s crime is
categorically an aggravated felony theft offense is a question of law we
review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2017).
Generic theft under section 101(a)(43)(G) of the Act is defined as the
“taking of property or an exercise of control over property without consent
with the criminal intent to deprive the owner of rights and benefits of
ownership, even if such deprivation is less than total or permanent.” 2 Matter
of Ibarra, 26 I&N Dec. at 811 (quoting Gonzales v. Duenas-Alvarez, 549
U.S. 183, 189 (2007)). In Matter of Ibarra, we addressed whether the generic
theft element of taking “without consent” encompasses extortionate takings
—those accomplished by force or fear—under section 211 of the California
Penal Code. After examining the relevant case law, we concluded that such
takings fall within the generic definition of aggravated felony theft and
therefore held that a robbery offense in violation of section 211 is
categorically an aggravated felony under section 101(a)(43)(G) of the Act.
The issue in Ibarra is different from the question raised by the
respondent—namely, whether the “taking of property” element of
aggravated felony theft encompasses the “taking” contemplated by section
211 of the California Penal Code. The respondent argues that section 211 is
overbroad with respect to the Federal definition of theft because a “taking”
under California law requires a perpetrator to carry property away (also
known as “asportation”). See, e.g., People v. Hill, 952 P.2d 673, 703 (Cal.
1998) (stating that the “taking” element of section 211 has two components:
(1) gaining control over the property; and (2) asportation).
Asportation was an element of common law larceny and it remains a
feature of several States’ robbery statutes. See, e.g., Gutierrez v. State, 723
S.E.2d 658, 659 (Ga. 2012); Hill, 952 P.2d at 703; State v. Johnson, 558
N.W.2d 375, 377 (Wis. 1997); see also 3 Wayne R. LaFave, Substantive
Criminal Law § 20.3 (2d ed.), Westlaw (database updated Oct. 2016).
However, the asportation element of section 211 does not expand the reach
2
Section 101(a)(43)(G) of the Act defines an aggravated felony, in relevant part, as “a
theft offense (including receipt of stolen property) . . . for which the term of imprisonment
[is] at least one year.”

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Interim Decision #3901

of the statute beyond the range of conduct encompassed by the definition of
aggravated felony theft. Instead, it narrows it.
The definitions of both robbery in section 211 and aggravated felony theft
in section 101(a)(43)(G) of the Act reach “takings” committed by gaining
control over the property of another. Compare Hill, 952 P.2d at 703, with
Matter of Ibarra, 26 I&N Dec. at 811. The only difference between the
statutes is that section 211 criminalizes a narrower subset of “takings” within
the broader universe of those encompassed by the generic offense. In other
words, the presence of the asportation element of section 211 narrows the
reach of the State statute to only some, but not all, “takings” included in the
definition of aggravated felony theft. See LaFave, supra, § 20.3(a)(2)
(“[R]obbery under the traditional view requires both a taking and an
asportation . . . of the property. Modern statutes, however, are frequently less
demanding, often reflecting the . . . position that asportation is not required
for the underlying theft . . . .” (emphasis added) (footnotes omitted)).
Because the elements of robbery in section 211 are the same as or narrower
than the elements of aggravated felony theft, all of the conduct proscribed by
the State statute necessarily falls within the Federal definition. See Diego,
857 F.3d at 1009. We therefore hold that the respondent’s robbery offense
is categorically an aggravated felony under section 101(a)(43)(G) of the Act.
The respondent relies on unpublished decisions from the United States
District Court for the Southern District of California to support his claim that
section 211 could be used to successfully prosecute an aider and abettor
whose only conduct involved the asportation of property after it had been
taken by a principal violator—conduct that falls outside the Federal
definition of generic theft. See United States v. Alonso-Sepulveda, No.
15CR3084 WQH, 2016 WL 1223355, at *2–4 (S.D. Cal. Mar. 29, 2016);
United States v. Bernal-Sanchez, No. 15CR1689 WQH, 2016 WL 727070,
*4–7 (S.D. Cal. Feb. 24, 2016). We find no merit to this argument.
In Bernal-Sanchez, the court concluded that a conviction involving only
the asportation of stolen property would not fall within the definition of an
aggravated felony. The court reasoned that “[n]o aspect of the generic theft
offense covers conduct limited solely to participation in the asportation of
the stolen property.” See Bernal-Sanchez, 2016 WL 727070, at *7. The
court further observed that the asportation requirement of section 211 “is not
confined to a fixed point in time. The asportation continues thereafter as long
as the loot is being carried away to a place of temporary safety.” Id. (citation
omitted) (internal quotation mark omitted).
We understand the reasoning in Bernal-Sanchez and similar cases.
However, we respectfully point out the Supreme Court’s statement that “a
person aids and abets a crime when (in addition to taking the requisite act)
he intends to facilitate that offense’s commission. An intent to advance some
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Interim Decision #3901

different or lesser offense is not . . . sufficient: Instead, the intent must go to
the specific and entire crime charged . . . .” Rosemond v. United States, 134
S. Ct. 1240, 1248 (2014) (emphasis added) (citation omitted).
California case law similarly reflects that “an aider and abettor must share
the specific intent of the perpetrator,” which occurs “when he or she knows
the full extent of the perpetrator’s criminal purpose and gives aid or
encouragement with the intent or purpose of facilitating the perpetrator’s
commission of the crime.” People v. Beeman, 674 P.2d 1318, 1326 (Cal.
1984). Under section 31 of the California Penal Code, “[a]ll persons
concerned in the commission of a crime, . . . whether they directly commit
the act constituting the offense, or aid and abet its commission, . . . are
principals in any crime so committed.” (Emphasis added.) Thus, as the
California courts have recognized, “The aider and abettor doctrine merely
makes aiders and abettors liable for their accomplices’ actions as well as their
own. It obviates the necessity to decide who was the aider and abettor and
who the direct perpetrator or to what extent each played which role.” People
v. Delgado, 297 P.3d 859, 863 (Cal. 2013) (quoting People v. McCoy,
24 P.3d 1210, 1216 (Cal. 2001)).
For this reason, the Supreme Court has concluded that under California
law, “one who aids and abets a theft falls, like a principal, within the scope
of [the] generic definition” of theft. Duenas-Alvarez, 549 U.S. at 189. The
United States Court of Appeals for the Ninth Circuit, in whose jurisdiction
this case arises, relied on Duenas-Alvarez in holding that aiding and abetting
a crime of violence was an aggravated felony. Ortiz-Magana v. Mukasey,
542 F.3d 653, 658 (9th Cir. 2008). The court reasoned that aiders and
abettors and principals are convicted under the same statute in California and
that “there is no material distinction between an aider and abettor and
principals in any jurisdiction of the United States including California and
federal courts: aiding and abetting [any crime] is the functional equivalent
of personally committing that offense.” Id. at 659. Accordingly, since a
violation of section 211 falls squarely within the Federal definition of theft,
a conviction for aiding and abetting such a crime must also fall within this
definition. See id.; see also Sales v. Sessions, No. 15-70885, 2017 WL
3567831, at *4 (9th Cir. Aug. 18, 2017) (holding that the offense of aiding
and abetting second degree murder under California law was an aggravated
felony).
Furthermore, while we recognize that the asportation requirement of
section 211 is not fixed in time and may continue after a principal perpetrator
has gained control over stolen property, we conclude that the time for
assessing whether a violation of section 211 is categorically an aggravated
felony theft offense is at the completion of the crime. At that time, a
California robbery offense necessarily contains all of the elements of generic
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Interim Decision #3901

theft. For example, a hypothetical aider and abettor who claims to have
assisted in just the asportation of stolen property can only be convicted
of a completed violation of section 211 if he or she had knowledge of the
perpetrator’s unlawful purpose and acted with the specific intent and purpose
of facilitating the commission of the entire crime. 3
As a consequence, a person who is convicted as an aider and abettor in a
robbery under section 211 of the California Penal Code, but who has assisted
in only the asportation aspect of the offense, is just as culpable of the “taking”
as the principal. We therefore conclude that the respondent’s conviction for
robbery under section 211 of the California Penal Code is categorically a
conviction for an aggravated felony theft offense, regardless of whether he
committed the offense as an aider and abettor. Accordingly, the respondent’s
appeal will be dismissed.
ORDER: The appeal is dismissed.

3
California Criminal Jury Instruction 3.01 provides, in pertinent part, the following jury
instructions for aiding and abetting:

A person aids and abets the [commission] [or] [attempted commission] of a crime
when he or she:
(1) With knowledge of the unlawful purpose of the perpetrator, and
(2) With the intent or purpose of committing or encouraging or facilitating the
commission of the crime, and
(3) By act or advice, [or, by failing to act in a situation where a person has a
legal duty to act,] aids, promotes, encourages or instigates the commission of the
crime.
These instructions must be given in any case in which a defendant is prosecuted as an aider
and abettor. Delgado, 297 P.3d at 864−65.

104


MAI it,R

o>r S—

In VISA PETITION Proceedings
A-11673066
Decided by Assistant Commissioner July 10, 1961
Fast preference status—Tailor—Qualifying experience must be acquired after
age

21.

First preference status will not be accorded to a tailor unless he has had at
least five years' journeyman experience in all the hand and/or machine sewing operations necessary to make an entire garment such as a suit, dress,
or uveLeuat, and such experience wee acquired after the age of 21 years
I Supersedes Master of B—S—, Inc., 7-423.)

BEFORE THE ASSISTANT COMMISSIONER

DISCUSSION: This case has been certified to the Assistant Commissioner, Examinations.
The petition in this case was submitted to classify the beneficiary
who is a tailor as a first preference quota immigrant under section
203(a) (1) of the Immigration and Nationality Act. On April 17,
1961, the District Director in Chicago, Illinois, denied the petition.
The petitioner appealed the decision to the Regional Commissioner,
St. Paul, Minnesota, and upon review the Regional Commissioner
affirmed the denial.
The nature of the petitioner's business is retail clothing and
furnishings. The business began in 1853 and it currently employs
about 250 persons. The petitioner seeks the services of the beneficiary as a tailor to make men's coats and suits from patterns and
customers' measurements, fit garments, make alterations and do some
repairs. The beneficiary is twenty-four years of age. His qualifications are attested to in a detailed statement by his former employer
describing the beneficiary's experience as a tailor from 1948 to
1960, including over seven years of journeyman experience in all
the sewing operations necessary to make men's and women's suits
and overcoats.
In order for a first preference petition to be approved, it must
be established (1) that there is an urgent need for high quality
services that can be performed only by persons of high education,
technical training, specialized experience, or exceptional ability; (2)

299

.

that the beneficiary is qualified to perform such services; and (3) ,
thaesrvicobpfmdythenicarwlbsustantially beneficial prospectively to the national economy, cultural
interests, or welfare of the United 'States.
As evidence of urgent need, there has been submitted a clearance
order from the Bureau of Employment- Security stating- that qualified workers are not available within the United States for referral

to the employer. It will be conceded that an independent investigation by this Service would confirm the existing shortage of
tailors. It will also be conceded that an investigation abroad
would establish the competence of the beneficiary as a tailor. Consequently, the sole question to be resolved is whether the services to be
performed by the beneficiary will be substantially beneficial pi lspectively- to the national economy, cultural interests, or welfare of
the United States.
large percentage of the first preference petitions filed with the

Service has been in behalf of tailors. As a result, the Service has
acquired considerable experience with regard to tailors and the tailoring industry. Appropriate inquiries revealed that many tailors who
had gained admission as first preference quota immigrants left
the industry in a relatively short time after arrival in the United ,
Staesokmplyn.iaoreuctvfld,seh
tailor 'trade when it became personally convenient to do so. In most

cases it was found that this was primarily true of the younger
tailors many of whom had acquired almost all of their occupational
experience in their teens. Because of the serious consequences to
the tailoring industry from the continuing loss of persons specially
brought to the United States by the industry to fill tailor shortages,
it became necessary to take steps to relieve the situation in view of
the statutory requirement that a first preference classification he accorded only to immigrants whose services would be substantially
beneficial prospectively to the national economy, cultural interests,
or welfare of the United States. Accordingly, on November 19,
1958, to assure that the qualifying experience was acquired during.
maturity, and that it was acquired for the serious purpose of pursuing a lasting career, the Service established the policy that first
preference petitions for tailors Would be approved only when a
satisfactory showing was made that the beneficiary had an aggregate
of. five years' experience as a journeyman tailor subsequent to
attaining the age of twenty one years. Many months earlier, representatives of labor and industry had agreed that a minimum of
five years of actual working experience in the performance of all
-

the

hand - and/or machine sewing operations to make an entire gar-

such as a suit or overcoat., were necessary for an individual
to be recognized as a skilled tailor.
ment,

300

It is, therefore, the ruling of this Service that a first preference
visa petition for a tailor may not be approved unless it is established that the beneficiary has acquired five years' journeyman experience in all the hand and/or machine sewing operations necessary
to make an entire garment, such as a suit, dress, or overcoat, and
such experience was acquired after the age of 21 years. Matter of
I3—S—, Inc., 7 423, is superseded.
The beneficiary in this case does not have five years of the regni site

experience after age twenty-one and, therefore, fails to qualify for
a first preference quota classification as a tailor.
The decision of the Regional Commissioner is affirmed.
ORDER: It is ordered that the petition he denied.

301


Interim Decision #2882

MATTER OF MOURILLON
In Visa Petition Proceedings
A-19731000

Decided by Board September 22, 1981
(1) Under the law of Curacao, Netherlands Antilles, legitimation of a child born out of
wedlock is effected by the subsequent marriage of the natural parents together with
their prior or contemporaneous acknowledgment of the child.
(2) An act of acknowledgment of paternity in Curacao without the marriage of the natural
parents does not place the acknowledged child in the same status as a legitimated child
and, therefore, the petitioner did not qualify as his father's "child" under section 101(b)(1)(C)
of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1)(C).
(3) In order to qualify as stepsiblings, either (1) the marriage which created the steprelationships must continue to exist, or (2) where the parties to that marriage have
legally separated or the marriage has been terminated by death or divorce, a family
relationship must continue to exist as a matter of fact between the "stepsiblings."

(4) Since the petitioner and beneficiary once qualified as "children" of their stepmother/
mother and continue to maintain their family relationship, the beneficiary qualifies as
the petitioner's "sister" under section 203(a)(5) of the Act, 8 U.S.C. 1153(a)(5), even
though the record does not show whether the petitioner's father and the beneficiary's
mother are still alive and remain married.
ON BEHALF OF PETITIONER:

Mary L. Sfasciotti, Esquire
815 — 57th Street
Kenosha, Wisconsin 53140

By: • Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members

This matter is before the Board on appeal from the District Director's
decision of April 9, 1980, denying the petition to classify the beneficiary
as the sister of a United States citizen under section 203(a)(5) of the
Immigration and Nationality Act, 8 U.S.C. 1153(a)(5). The appeal will
be sustained.
The petitioner is a 52-year-old citizen of the United States who was
born out of wedlock in the British West Indies on December 16, 1928.
His parents never married, and only a few months after his birth his
mother left the household, never to return. The petitioner and his father
subsequently immigrated to Curacao, Netherlands Antilles (Dutch West
Incline). There, on July 22, 1942, his father married, and they all lived

together as a family unit until the petitioner came to the United States
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Interim Decision #2882
in late 1954. In September 1953, the beneficiary was born in Curacao to
the petitioner's father and stepmother. The petitioner and beneficiary
have apparently continued to maintain their family ties, with the record
reflecting that the beneficiary came to the United States in 1971 as a

nonimmigrant student and was residing with the petitioner at the time
the instant petition was filed on October 30, 1974.
The District Director correctly noted that in order to establish the
existence of a sibling relationship the petitioner must show that he and
the beneficiary are, or once were, "children" of a common "parent"
within the meaning of section 101(b)(1) and (2) of the Act, 8 U.S.C.
1101(b)(1) and (2). Matter of Huang, 15 I&N Dec. 145 (BIA 1974). The
District Director then examined the relationship_ of the petitioner and
beneficiary through their father, and concluded that they did not qualify
as siblings under the Act because the petitioner was illegitimate and had
not been legitimated by his father. Therefore, he denied the petition.
On appeal, the petitioner asserts that he was legitimated by his father
according to the law of Curacao, Netherlands Antilles. He also argues
that he and the beneficiary are qualified siblings by virtue of their
relationship through their other common parent, their stepmother/
mother.
The petitioner has now submitted for the record certain provisions of
Title XII, Book I of the Civil Code of Curacao ("the Code") which

pertain to paternity and filiation in Curacao, Netherlands Antilles.' The
petitioner contends that under either the legitimation provisions of Title
XII, section 2, or the acknowledgment provisions of section 3 of that
title, he qualifies as a legitimated child under section 101(b)(1)(C) of the
Act.2 A careful examination of these provisions reveals that this argument is without merit.

These materials were prepared by Dr. Karel Weamink, Legal Analyst in the European

Law Division, Law Library of the Library of Congress, and come from an 1875 translation,
J.H.R. Beaujon, grans., Civil Code for the Colony of Curacao (1875). Dr. Wenninh
indicates in his cover letter that, "The latest Dutch text available in the Library of
Congress and at the Embassy of the Netherlands in Washington, D.C., is dated 1950, and
a comparison of it with the translation shows that the appended text was still in effect in

1929 and 1936."
2 "The term 'child' means an unmarried person under twenty-one years of age who is—

(C) a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the United States, if
such legitimation takes place before the child reaches the age of eighteen years and the
child Is In the legal• custody of the legitimating parent or vorr.nts at the thus of such

legitimation."

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Interim Decision #2882
Under section 2 of the Code, legitimation of a child born out of wedlock occurs only by the subsequent marriage of the natural parents
together with a prior or contemporaneous acknowledgment of the child. 3
Upon legitimation, the child acquires the same rights as if he were
legitimate at birth 4 Thus, it is clear that because the petitioner's natural parents never married he has not been legitimated under the law of
Curacao, Netherlands Antilles.

As for the petitioner's acknowledgment claim, we note preliminarily
that the general rule outside of communist-bloc countries is that acknowledgment alone does not constitute legitimation; there must also be a
subsequent marriage of the natural parents.' Matter of Van Pamlen,
12 I&N Dec. 11, 13 (BIA 1966). See, e.g., Matter of Reyes, 16 I&B Dec.
475 (BIA 1978); Matter of Quispe, 16 I&N Dee. 174 (BIA 1977); Matter
of Mandewirth, 12 I&N Dec_ 199 (BIA 1967); Matter of The, 10 I&N
Dec. 744 (BIA 1964). A "legitimated" child is one placed "in all respects
upon the same footing as if begotten and born in wedlock." Pfeifer v.
Wright, 41 F.2d 464, 466 (10th Cir. 1930), cert. denied, 283 U. S. 896
(1931). Only where acknowledgment places the child In the same status

as a legitimated child will acknowledgment be deemed the equivalent of
legitimation. See Matter uf Reyes, 171&N Dec. 512 (BIA 1980). Such is
not the case here. Acknowledgment under section 3 of the Code merely
creates "civil rights" between the acknowledged child and his parents."
While this term is apparently not defined, the acknowledgment provision, unlike the preceeding legitimation provision, does not declare that
an acknowledged child enjoys the same rights as if he were born
legitimate. Therefore, it must be said that because the law of the Netherlands Antilles does not place an acknowledged child in the same status as a legitimated child, it does not make acknowledgment the equivalent of legitimation. This conclusion also finds support in the fact that
because the law of the Netherlands Antilles specifically differentiates
between acknowledgment and legitimation in the two statutory provisions it is reasonable to presume, absent an affirmative showing to the
contrary, that the law does not create-a distinction without a difference.
See Zeigler Coal. Co. v. Kleppe, 536 F.2d 398, 406 (D.C. Cir. 1976) —
("[A] statute should not be construed in such a way as to render certain
provisions superfluous or insignificant."); EA D. Sands, Satkerland

Statutory Construction, section 46.06 (Rev. 3d ed. 1973).
' Title XII, § 2, art. 321. In the event that the parents neglected to acknowledge their
natural child at or before the time of their marriage, or where one of the parents dies
before their intended marriage, legitimation can occur by a "letter of legitimation" issued
by theGovernor, after consultation with the "high court of justice." Title XII, § 2, arts.
323 and 324.
Title XIL 4 2. art. 326.
5 Or, in some instances, a royal or presidential decree of legitimation will suffice.
6 Title XII, § 3, art. 329.

Interim Decision #2882
land Statutory Construction, section 46.06 (Rev. 3d ed. 1973).
In view of the foregoing, we find that the petitioner does not qualify
as a legitimated child under section 101(b)(1)(C) of the Act. Therefore,
he and the beneficiary do not qualify through their father as "brother"
and "sister" under section 203(a)(5) of the Act.
Turning next to the issue of the petitioner's relationship to the beneficiary through their stepmother/mother, it is clear that the beneficiary
once qualified as the legitimate "child" of her mother under section
101(b)(1)(A) of the Act. As for the petitioner, section 101(b)(1)(B) defines
the term "child" as an unmarried person under the age of 21 years who
is a "stepchild, whether or not born out of wedlock, provided the child
had not reached the age of eighteen years at the time the marriage
creating the status of stepchild occurred." Here, the petitioner's natural
father married when the petitioner was 13 years of age, thus giving rise
to a valid stepmother/stepchild relationship under the Act. Matter of
McMillan, 17 I&D Dec. 605 (BIA 1981). Therefore, pursuant to Matter
of Hem', supra, at the time of the beneficiary's birth she and the
petitioner were qualified siblings as the "children" of a common "parent."
See Matter of Ferreira, 16 I&N Dec. 494 (BIA 1978); cf. Matter of
Bourne, 16 I&N Dec. 367 (BIA 1977).
One further issue remains. Unlike consanguineous relationships, steprelationships can be terminated by the death 'or divorce of the parties
whose marriage created the step-relationship.' Thus, in the case of
stepsiblingss it is appropriate to determine not only whether the petitioner and beneficiary were once the "children" of a common "parent,"
but also whether the marriage which created the step-relationships still
exists at the time the visa petition to accord the stepsibling classification
is being considered. Where that marriage does still exist, the stepsibling
'relationship likewise continues to exist. Difficulties arise, however, where

this is not the case.
In the context of stepparent and stepchild, we recently held that
where the parties to the marriage which created that step-relationship
have legally separated or where the marriage has been terminated by
divorce or death, the appropriate inquiry is whether a family relationship has continued to exist as a matter of fact between the stepparent
and stepchild. Matter of Mowrer, 17 I&N Dee_ 612 (BIA 1981); accord,
7 See, e.g., Brotherhood of Locomotive F. & S. v. Hogan, 5 F. Supp. 598, 605 (D. Minn.
1934): "The relationship of stepchild and stepparent is predicated on marriage, as are all

other relationships of affinity. . . . The entire structure of relationship by affinity is based
on a subsisting marriage, not a dissolved one."
" While the petitioner and the beneficiary are indeed also half siblings by virtue of their
common father, they cannot qualify as brother and sister through him. See pp. 3 5, supra.
Therefore, they can only seek to qualify as stepsiblings through the petitioner's stepmother.
the beneficiary's mother.
-

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Brotherhood of Locomotive F. & E. v. Hogan, supra; see also Matter of
Pagnerre, 13 I&N Dec. 088 (BIA 1971). A similar inquiry is no less

appropriate in the case of stepsiblings. Accordingly, we hold that in
order to qualify as stepsiblings either (1) the marriage which created
the step-relationships must continue to exist, or (2) where the parties
to that marriage have legally separated or the marriage has been terminatea by death or divorce, a family relationship must continue to exist
as a matter of fact between the "stepsiblings." Whether the stepsiblings
continue to maintain a family relationship is a question of fact which
must be determined under the particular circumstances of each case.
Here, the record does not clearly show whether the petitioner's father
and the.beneficiary's mother are still alive and remain married. Nevertheless, as noted earlier, the record reflects that the petitioner and the
beneficiary do continue to maintain their family relationship, including
the fact that the beneficiary has lived with the petitioner during her
stay in the United States as a nonimmigrant student. Therefore, it has
been established that they were "children" of a common "parent" and
that their relationship as stepbrother and stepsister continues to exist.
Accordingly, the beneficiary qualifies as the petitioner's sister under
section 203(a)(5) of the Act.
ORDER The appeal is sustained and the petition is approved.

12t3


Interim Decision #2163

MATTER OF TREASURE CRAFT OF CALIFORNIA
LOS—N-14623
In Visa Petition Proceedings

Decided by Regional Commissioner September

7, 1972

Since the burden of proof to establish eligibility for the benefits sought rests

with petitioner, who seeks to accord beneficiaries classification as trainees
under section 1 01(a)(15)(IMi) of the Immigration and Nationality Act, as
amended, the contention that petitioner need only go on record as stating that
training is not available outside the United States is rejected; likewise
rejected is the contention that petitioner may rely solely upon his statement
"on record" that beneficiaries will not displace U.S. workers, particularly
when such statement is contradicted by other evidence of record. Accordingly,
the petition is denied for failure of petitioner to submit an adequate training
program, fir

to establish why the alleged training could not he

obtained in beneficiaries' country, and because productive employment is
involved which would displace United States workers.
ON BEHALF OF PETITIONER: Emanuel Braude, Esquire
356 S. Broadway, Suite 207
Los Angeles, California 90013

This is an appeal from the District Director's decision denying
the petition.
The petitioner is engaged in the manufacture of ceramic giftware. This business was established in 1946 and currently employs 225 persons. The petitioner proposes to train the beneficiaries in one of the various phases of pottery manufacturing for 18
months, with wages of $66.00 per week and up, depending on
ability shown, for 40 hours per week.
The beneficiaries are all natives and citizens of Mexico, presently unlawfully in the United States. The petitioner's resume of
their employment history is as follows:
Guadalupe Ruiz Martinez—hired February 23,1972—has been employed as
a kilnman's helper and sometimes as a caster's helper.
Rafael Salazar Gait/en—hired October 15, 1971—has been employed as a
caster's assistant.
Jesus Murillo Guardado—hired November 24, 1971—has been employed as
a wareman. Duties consist of bringing items to packers to be packaged, and
taking packaged items away from packers after packing complete.

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Interim Decision #2163
Rosario Martinez Ramirez—hired December 29, 1971—Employed as a
production worker in the conveyor casting section. Fills molds with clay
and sttips them.

The beneficiaries were interviewed by an officer of this Service
on August 8, 1972, at which time it was ascertained that Jesus
Murillo-Guardado had been employed by the petitioner previously
from April 1969 until June 1971. He stated that he was a foreman
at the time of his interview.

Guadalupe Ruiz-Martinez stated that he had also been previously employed by the petitioner for one year in 1969 while the
other two beneficiaries stated that they had been employed only
as stated by the petitioner.
The petitioner submitted job descriptions of four position's utilized in the pottery making industry which are entitled as follows:
Clay Batching, Stain Department, Mold and Die Maker, and Glaze

Preparation Handling and Application of Glazes. The petitioner
has stated that the beneficiaries will be trained in these jobs, but
it is not possible to submit a course outline which reflects training
in stages, as the beneficiaries will learn the separate duties when,
as and where the opportunity affords. It was added that there
would be no academic training as all training is on-the-job training, with productivity estimated at 30% at the beginning of
training, rising, hopefully, to 85% towards training's completion.
The petitioner stated that the beneficiaries will become competent In one phase of pottery manufacture, and upon completion,
they will be able to perform their Rib duties in a Mexican pottery
factory or in a United States subsidiary pottery factory in Mexico.
It was also stated that the Mexican pottery industry, at present, is
far behind us with respect to methods, equipment, technology and
know-how. The petitioner then alleged that no United States
workers will be displaced or replaced, as this is a training program
only, which is open to everyone in the United States who is
susceptible to training.
In his decision denying the petition, the District Director stated
in part as follows:
The record in this case has been carefully considered. Other than self-serving
assertions, no evidence has been furnished that would establish that competent
training for employment in a pottery factory is unavailable in Mexico. In view of
the beneficiaries' employment experience with the petitioner, it appears that the
training program as outlined by the petitioner is not properly applicable to the
beneficiaries. They have already acquiz'ed the basic knowledge and training
required for performance in the occupation. Continuous and repetitious training
in the basic skills would no doubt make them more proficient, but section
101(a)(15)(H)(iii) contemplates the training of an individual so that he acquires
basic skills for adequate performance in the occupation and not to provide him
with further day-by-day on-the-job repetitious experience and application of his
skills for the sake of higher degree of proficiency.

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Interim Decision #2163
In view of the foregoing, the petitioner has failed to establish the need for
beneficiaries to be trained in this country; that the beneficiaries' presence in the
United States is sought principally and primarily for the purposes of training,
any productive labor being incidental thereto; and that their presence in the
United States would not have the effect of displacing or replacing available
United States resident labor.

On appeal, counsel argued that the petitioner needs only to state
that the proposed training . cannot be obtained outside of the
United States and that available labor is not a material issue as
evidenced by the obvious absence of a labor determination/requirement in connection with the provisions of section 101(a)(15)(H)(iii).
He then added that the petitioner has complied with the spirit of

the law as he offers a training program to an alien desirous of
receiving such training, and that he has "gone on record" as
stating no displacement of resident . labor will occur and the
training is not available outside of the United States.
Counsel argued further that the petitioner has met the requirements of law and the intent

of Congress, but the District Director

asked for more as evidenced by his decision. He then alleged as
follows:
1. Competent training in this field is not available in Mexico.
The petitioner is only required to state "whether such training can be
obtained outside the United States". 8 CFR 214.2(h)(2)(iii). This, the
petitioner has done (item 10, fourteen reference point attachment). The
fact that the petitioner has been in his field since 1946 qualifies him to
speak with authority on the quality of the industry and the training
available. He certainly is in a better position to so judge and the Service
offers no evidence contradicting such statement.
Congress previously acknowledged U.S. superiority in training (Senate
Report, supra).

2. The productivity is incidental in that "on the job training" will necessarily
result in some productivity by the very nature of the system of training.
The beneficiaries' presence is sought principally and primarily for the
purpose of training.
Although the beneficiaries have been in the employ of the petitioner, the
training program has not been implemented and/or completed. Each
beneficiary has maintained a position which has not progressed through
the contemplated training. The employment has ascertained an ability
and will to learn which provided the petitioner with assurance that the
training will be fruitful; his efforts will be well expended. The loss of
trainer time lowers the overall productivity. And such productivity will
immediately decrease upon implementation of the training.

3. No displacing or replacing of available labor will occur.
As stated before, the Service led Congress to believe that the petitioner's
statement "on record" would be sufficient protection for U.S. labor. The
petitioner went on record in his petition (item 12 of fourteen reference

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Interim Decision #2163
point attachment). There will be no change in biting policies as a result
of the trainees' presence or departure. All qualified and willing applicants will be employed notwithstanding the training program.
In summation, the District Director has failed to implement the intent of
Congress and places too restrictive an interpretation on the regulations.
Even under such restrictive interpretation the petitioner has overcome
all objections.

It has been decided that the burden of proof to establish
eligibility for, the benefits sought rests with the petitioner in visa
petition proceedings (Matter of Brantigan, 11 I. & N. Dec. 493).
Therefore, counsel's argument that the petitioner need only go on
record as stating that training is not available outside the United
States is rejected in this matter. It is commonly known, and
administrative notice is taken of the fact, that Mexico exports
pottery of many types and ceramic giftware to the United States
in successful competition with United States manufacturers. One
need only travel to the Mexican border city of Tijuana to observe
the vast quantity and variety of the beautiful and artistically
designed ceramic giftware that is manufactured in Mexico as
evidence that Mexico has a thriving pottery industry. One can also
observe tourists from the United States examining and purchasing this famous Mexican giftware in many other Mexican cities
along the United States border. Under these circumstances, it is
reasonable and proper to require the petitioner to do more than
merely state that the proposed training cannot be obtained outside of the United States.
It has also been decided that the question of productive employment is an issue to be considered in connection with the approval
of visa petitions to classify aliens as industrial trainees (Matter of
Kraus Periodicals, Inc., 11 I. & N. Dec. 63; Matter of Sasano,11 I. &
N. Dec. 363; Matter of International Transportation Corp., 12 I. &
12 I. & N.
Dec. 768). In this case, the beneficiaries have been employed by the
petitioner for periods of time ranging from more than seven
months to over two years, performing purely productive labor. The
petitioner now proposes that the beneficiaries be permitted to
remain in the United State's for an additional 18 months under the
thinly veiled allegation that they will now undergo a training
program; yet, he has not found it possible to submit a training
program which reflects training in planned and logical phases
showing the periods of time required for each phase of training. A
careful examination of the positions involved reveals that they
consist of two to three basic functions and seven to nine major
duties, which are clearly and distinctly outlined by the petitioner.
A training program designed principally for the purpose of
providing the beneficiaries substantial and meaningful training
N. Dec. 389; Matter of Brains Municipal Hospital Center,

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Interim Decision #2163
can reasonably be expected to offer more than learning "the
separate duties when, as, and where the opportunity affords".
Training in this manner will provide the beneficiaries with little, if
any, training which is not incidental to the employment of any
worker in a position which involves purely productive labor.
We also reject the argument that the petitioner may rely solely
upon his statement "on record" that the beneficiaries will not
displace United States workers. In fact, he has qualified that
statement on appeal wherein he states: "No displacing or replacing of available labor will occur." (Emphasis added.) It is proper to
consider all of the facts in a visa petition proceeding of this nature
in arriving at a conclusion regarding the issues. The petitioner's
statement must be given due consideration; however, this Service
is not precluded from rejecting such statement when it is contradicted by other evidence in the record of the matter under
consideration.
Section 214(c) provides that a petition to import an alien as a
nonimmigrant under section 101(a)(15XH) shall be in such form
and contain such information as the Attorney General shall
prescribe. 8 CFR 214.2(h)(4)(ii) provides in pertinent part that a
trainee shall not be permitted to engage in productive employment
if such employment will displace a United States resident.
It has been stated that there will be productive employment
performed by the beneficiaries of this petition. Thus, it must be
decided if United States residents would be displaced by such
employment.
The fact that there are employable unemployed United States
resident workers in Los Angeles County is well known. The
petitioner's offer to employ trainees with wages of $1.65 an hour
can certainly, be expected to reduce the number of United States
resident workers desirous of such employment. The job descriptions submitted with the petition reveal that the performance of
such work consists primarily of the use of the hands and the
manipulation of hand and machine tools in the preparation of
liquid clay, pressing clay, mixing and applying stain, and making
plaster and other mixes. Employment of this nature further
reduces the number of interested workers. On the basis of the
petitioner's offered salary and the working conditions of the
employment involved, it is concluded that the productive employment which would be performed by the beneficiaries would displace United States resident workers which would be available if
offered wages at an acceptable level.
The entire record in this matter has been carefully considered.
It is concluded that the District Director properly denied the
petition and the statements made on appeal do not warrant,
,

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Interim Decision #2163
overruling that decision. The petitioner has not met his burden of
proof as required to establish that the petition should be approved.
The appeal will be dismissed.
ORDER: It is ordered that the appeal be dismissed.

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Interim Decision #3996

Matter of J-G-T-, Respondent
Decided September 25, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In assessing whether to admit the testimony of a witness as an expert, an Immigration
Judge should consider whether it is sufficiently relevant and reliable for the expert to
offer an informed opinion, and if it is admitted, the Immigration Judge should then
consider how much weight the testimony should receive.
(2) In considering how much weight to give an expert’s testimony, the Immigration Judge
should assess how probative and persuasive the testimony is regarding key issues in
dispute for which the testimony is being offered.
FOR RESPONDENT: Christian Gabriel Andreu-von Euw, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Stephanie Groff, Assistant
Legal Advisor; Monica Mubaraki, Assistant Chief Counsel
BEFORE:
Board Panel:
Immigration Judges.

MALPHRUS, MULLANE, and CREPPY, Appellate

MALPHRUS, Appellate Immigration Judge:

In a decision dated November 17, 2017, an Immigration Judge granted
the respondent’s application for asylum under section 208(b)(1)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(A) (2012). 1 The
Department of Homeland Security (“DHS”) has appealed from that decision.
The panel heard oral argument in this case. The DHS’s appeal will be
sustained in part, and the record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who sought admission
to the United States on May 26, 2011. In August 2011, the DHS initiated
removal proceedings, charging that the respondent is removable as an
1

The Immigration Judge did not address the respondent’s request for withholding of
removal or protection under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,
G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984)
(entered into force June 26, 1987; for the United States Apr. 18, 1988).

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immigrant who had no valid entry document at the time of his arrival. In a
hearing before the Immigration Judge, the respondent conceded removability
and filed an application for asylum, claiming that he feared persecution from
Iranian agents in Mexico.
The respondent claimed that after starting college in 2010, he began
working with a group of students for one of his professors. This group was
involved in an effort to gather evidence about the alleged activities of foreign
governments to launch cyberattacks against the United States. Although
most of the work involved transcribing secret recordings taken from the
various embassies in Mexico, the respondent became more deeply involved
with the project. At the behest of his professor, the respondent feigned a
conversion to Islam, fostered a relationship with the Iranian Ambassador to
Mexico, and secured an invitation from the Ambassador to attend a religious
school in Iran.
In early 2011, the respondent traveled to Iran under the pretense of
attending a religious school, but with the actual intent to develop additional
relationships with Iranian officials and make clandestine recordings of Iran’s
suspected cyberwarfare efforts. The respondent attended the school, which
he discovered was an indoctrination center for Latin American students
operated by an Iranian cleric, who was believed to be the architect of the
1994 bombing of the Argentine Israelite Mutual Association building in
Buenos Aries, Argentina. Eventually, he attracted unwanted attention, and
the devices he used to secretly record the religious leaders at the school were
discovered. The respondent was accused of being a spy. He feared for his
life, went to the Mexican Embassy, and fled from Iran. Because the
respondent believed that Iranian agents pursued him in Mexico and would
continue to do so, he fled to the United States.
In support of his application, the respondent and his mother testified
about his experiences in Iran and Mexico. In addition, the respondent
presented the testimony of a witness to provide background knowledge and
context for his claim. The witness is a national security consultant and
analyst whose focus is on issues relating to Latin America, Iran, and
transnational organized crime. The respondent’s evidence also included
news articles that referenced his activities in Iran.
In an oral decision, the Immigration Judge granted the respondent’s
application for asylum, finding that he established a well-founded fear of
persecution on account of his political opinion. 2 He determined that the
2

The Immigration Judge found that Iran’s “opposition to the respondent” was because of
his “attempt[] to investigate and invite admission of interest in possible politically
motivated cyberattacks, . . . ultimately exposing a school program which appeared to have
political goals beyond simply education regarding religion.” Based on these findings, the

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Interim Decision #3996

respondent and his mother were credible. The Immigration Judge
specifically said that he gave “significant weight” to the witness’s testimony
that Iran would seek to punish the respondent for spying in Iran because
“pro-Iranian regime actors,” such as Hezbollah and Mexican drug cartels,
would seek “to engage in potentially politically beneficial schemes,
especially if there was an added layer of plausible deniability, but without
always careful aforethought to the plan.” The Immigration Judge also
credited the witness’s claim that the Mexican Government lacks the ability
to protect the respondent from harm.
On appeal, the DHS does not dispute the respondent’s credibility or the
veracity of his claim. 3 Rather, it challenges the Immigration Judge’s reliance
on the witness’s testimony and his conclusion that the respondent established
a well-founded fear of persecution from Iran in Mexico. The DHS argues
that because of concerns regarding this witness’s expertise on the key issues
in the case, the Immigration Judge erred in not qualifying him as an expert
witness before considering his testimony. In addition, the DHS asserts that
the Immigration Judge erred in giving greater weight to the witness’s
testimony than to other evidence contained in the record.

II. ANALYSIS
An asylum applicant bears the burden of establishing eligibility for
asylum. Section 208(b)(1)(B) of the Act; 8 C.F.R. § 1208.13(a) (2020). To
meet this burden, the applicant must establish that he or she is a “refugee,”
or one who is unable or unwilling to return to the country of removal
“because of persecution or a well-founded fear of persecution on
Immigration Judge held that the respondent’s imputed political opinion would be “at least
one central reason” for any future harm. Section 208(b)(1)(B)(i) of the Act. The DHS did
not challenge the Immigration Judge’s findings regarding political opinion in its
supplemental brief or during oral argument. Given our disposition in this case and our
decision to remand, we need not further consider this issue at this time.
The Immigration Judge also determined that the respondent did not establish eligibility
for asylum based on his religion or his membership in a particular social group, namely the
group of students working for the professor. The respondent filed a cross-appeal from the
Immigration Judge’s decision denying his request for asylum based on his membership in
a particular social group, but he subsequently withdrew it.
3
The DHS has also not challenged the Immigration Judge’s conclusion that the
respondent does not present a national security risk to the United States. During the hearing,
the DHS submitted a report from the Federal Bureau of Investigation regarding the
respondent, which stated that it could not rule out the possibility that he poses such a threat.
However, the Immigration Judge found the respondent credible and specifically ruled that
he does not present a national security risk.

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account of race, religion, nationality, membership in a particular social
group, or political opinion.” Section 101(a)(42)(A) of the Act, 8 U.S.C.
§ 1101(a)(42)(A) (2018). In addition, the applicant must show that any
past or future harm was or will be inflicted by government officials or private
individuals the government was or is unable or unwilling to control. See
Matter of K-S-E-, 27 I&N Dec. 818, 823 (BIA 2020); see also Davila v. Barr,
968 F.3d 1136, 1141 (9th Cir. 2020).
The two key substantive issues in dispute regarding the respondent’s
eligibility for asylum are (1) whether the Iranian Government has the ability
to harm the respondent in Mexico, and (2) whether the Government of
Mexico is unable or unwilling to protect the respondent from Iranian
operatives. 4 The Immigration Judge relied extensively on the testimony of
the respondent’s witness to find that these elements were satisfied. However,
we cannot discern from the record if the Immigration Judge’s reliance on that
testimony was based on a reasoned consideration. In this regard, it is unclear
if the witness had the relevant expertise to opine on whether the Iranian
Government is able to engage in extra-territorial assassination efforts
in Mexico, and whether the Mexican Government has the ability and
willingness to protect the respondent from Iranian operatives.
As an initial matter, the Immigration Judge stated that “there is no such
thing as an expert witness” in immigration proceedings. However, the
Immigration Judge relied extensively on the testimony of the respondent’s
witness, presumably as a lay witness, to find that the respondent met his
burden to establish both of the disputed issues in this case. Moreover, the
Immigration Judge did not allow the DHS to voir dire the witness before he
provided his testimony, despite a request by the DHS based on concerns
regarding his expertise on key issues in the case.
Immigration Judges have long relied on expert testimony in immigration
proceedings to help them make factual determinations “regarding matters on
which they possess little or no knowledge or substantive expertise.” Matter
of Marcal Neto, 25 I&N Dec. 169, 176 (BIA 2010). 5 An expert is defined
“as someone who ‘is qualified as an expert by knowledge, skill, experience,
4
The respondent claims to fear harm, not from his own Government, but from Hezbollah
or the cartels in Mexico operating on behalf of or in support of the Government of Iran.
5
In fact, Federal courts have considered an alien’s right to present expert testimony to be
part of his or her statutory and due process rights to a fair hearing. See, e.g., Tassi v. Holder,
660 F.3d 710, 721–22 (4th Cir. 2011) (concluding that the Immigration Judge erroneously
rejected corroborative expert testimony); Rodriguez Galicia v. Gonzales, 422 F.3d 529,
538–40 (7th Cir. 2005) (holding that the Immigration Judge denied the alien’s due process
rights when he precluded two experts from testifying to offer corroborating evidence, even
though one of them had submitted an affidavit); Lopez-Umanzor v. Gonzales, 405 F.3d
1049, 1056–58 (9th Cir. 2005) (finding that the Immigration Judge’s refusal to hear
testimony from the alien’s domestic violence experts violated due process).

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training, or education.’” Matter of D-R-, 25 I&N Dec. 445, 459 (BIA 2011)
(quoting Fed. R. Evid. 702), remanded on other grounds, Radojkovic
v. Holder, 599 F. App’x 646, 648 (9th Cir. 2015).
An expert is distinct from a lay witness. An expert witness “may testify
in the form of an opinion or otherwise” if his or her “scientific, technical, or
other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). An expert
may make reasonable inferences based on facts and data. Matter of D-R-,
25 I&N Dec. at 460 (citing Fed. R. Evid. 703). By contrast, lay witnesses
generally cannot provide opinions but, instead, testify based on personal
experience and perception. Matter of Y-S-L-C-, 26 I&N Dec. 688, 690 (BIA
2015) (citing Fed. R. Evid. 602); see also United States v. Lopez, 762 F.3d
852, 863 (9th Cir. 2014) (“Personal knowledge means knowledge produced
by the direct involvement of the senses.”). In this case, since the respondent’s
witness does not have personal experience related to the facts and
circumstances of this case, his testimony was appropriate only to the extent
it constitutes expert opinion.
A key purpose of qualifying a witness as an expert is to provide a
framework for the Immigration Judge to evaluate the evidence. In assessing
whether to admit the testimony of a witness as an expert, an Immigration
Judge should consider whether it is sufficiently relevant and reliable for the
expert to offer an informed opinion. See United States v. Ruvalcaba-Garcia,
923 F.3d 1183, 1188 (9th Cir. 2019) (per curiam) (stating that the trial judge
must ensure that an expert’s testimony is both relevant and reliable). If the
testimony is determined to be admissible, the Immigration Judge should
consider how much weight it should receive. Id. at 1189; Matter of D-R-,
25 I&N Dec. at 460 n.13.
Generally, evidence is considered relevant “if it has any tendency to make
a fact more or less probable than it would be without the evidence” and
“the fact is of consequence in determining the action.” Fed. R. Evid. 401;
see also Ruvalcaba-Garcia, 923 F.3d at 1188 (“Relevancy simply requires
that ‘the evidence logically advance a material aspect of the party’s case.’”
(citation omitted)). Expert testimony in immigration proceedings is relevant
if it will help the Immigration Judge understand the evidence or decide a fact
in issue. Matter of D-R-, 25 I&N Dec. at 459 (citing Fed. R. Evid. 702). 6
6

There may be instances where an expert’s testimony is deemed irrelevant and therefore
inadmissible. See, e.g., Kholyavskiy v. Mukasey, 540 F.3d 555, 565–66 (7th Cir. 2008)
(upholding an Immigration Judge’s refusal to recognize a witness as an expert because he
lacked an academic or research background on the topic at issue). However, given the low
standards for admissibility of evidence in immigration proceedings, expert testimony
generally warrants being admitted in most cases. See Bouchikhi v. Holder, 676 F.3d 173,

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To be reliable, an expert’s testimony must be “based on sufficient facts
or data” that the expert “has been made aware of or personally observed” or
from sources that “experts in the particular field would reasonably rely on.”
Fed. R. Evid. 702(b), 703; see also United States v. Hankey, 203 F.3d 1160,
1167–70 (9th Cir. 2000) (finding a police gang expert reliable based on his
years of experience with gangs and his contact with the specific gang
members involved).
There is no uniform, rigid process for qualifying an expert witness in
immigration proceedings. 7 The Immigration Court Practice Manual states
that a proposed expert’s curriculum vitae or résumé must be made part of the
record. Immigration Court Practice Manual § 3.3(g), at 53 (July 2, 2020). In
addition, an opposing party should have the opportunity to cross-examine the
proposed expert witness about his or her qualifications and the scope of the
testimony and to object to the admission of the testimony. See id. § 4.16(d),
at 80. We have also recognized that “Immigration Judges have broad
discretion to conduct and control immigration proceedings and to admit and
consider relevant and probative evidence,” including witness testimony.
Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010); see also section
240(b)(1) of the Act, 8 U.S.C. § 1229a(b)(1) (2018); 8 C.F.R. §§ 1003.10(b),
1240.1(c) (2020); cf. Ruvalcaba-Garcia, 923 F.3d at 1188 (noting that trial
courts have broad latitude to assess an expert’s testimony).
In this case, the Immigration Judge did not allow the DHS counsel to voir
dire the respondent’s witness before he testified, although he gave counsel
an opportunity to challenge the witness’s qualifications on rebuttal, both
during cross-examination and in written closing argument. While it was
within the Immigration Judge’s authority to conduct the hearing in this
manner, this case illustrates why it is a better and more efficient practice to
allow the parties to question the proposed expert about his or her expertise
before substantive testimony is offered, if they request to do so. Voir dire
would have allowed the parties to establish the parameters of the witness’s
testimony, potentially limiting and focusing it on the specific issues within
his expertise. Instead, we are now considering his qualifications after he
provided almost 100 pages of testimony, requiring us to evaluate whether he
180–81 (5th Cir. 2012) (per curiam) (stating that the Immigration Judge’s “categorical[]
reject[ion]” of an expert’s testimony was “not optimal” and that a “better practice would
be to allow the expert to explain the scope and basis of his particular expertise, and then to
hear counsel out regarding how that expertise will bear on the material issues”).
7
During oral argument, the DHS requested that we adopt a uniform standard for
qualifying expert witnesses. We decline to do so. Although we have looked to the Federal
Rules of Evidence as guidance, we have never adopted those rules when considering
evidentiary issues in immigration proceedings, and it would not be practical to do so. See
Matter of D-R-, 25 I&N Dec. at 458 n.9.

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was, in fact, an expert on all the issues he testified about and whether his
opinion was sufficient for the respondent to meet his burden of proof.
Counsel for the DHS objected to the scope of the witness’s testimony
when he stated during direct examination that Iran’s extra-territorial
assassinations were not his “full area of expertise.” Despite the witness’s
concession, the Immigration Judge found his testimony to be admissible
and deserving of “significant weight.” The parties do not dispute the
Immigration Judge’s finding that the witness’s testimony was admissible.
However, the Immigration Judge did not sufficiently explain why he gave so
much weight to the witness’s testimony and extensively relied on it to
establish the respondent’s claim, particularly given the admitted limits on the
scope of his expertise. Although the witness may be an expert on country
conditions in Latin America generally, the issues in this case are specific to
Iran’s ability and intent to harm the respondent in Mexico and the Mexican
Government’s ability and willingness to protect him. The Immigration Judge
found that the witness “came with a wealth of background knowledge,” but
he made no specific findings regarding the witness’s expertise as to the issues
in dispute.
In order to give significant weight to the testimony of a person qualified
as an expert, the Immigration Judge should determine that the witness’s
testimony is probative and persuasive regarding the key issues in dispute in
the case. See Matter of D-R-, 25 I&N Dec. at 460 n.13 (“An Immigration
Judge who finds an expert witness qualified to testify may give different
weight to the testimony, depending on the extent of the expert’s
qualifications or based on other issues regarding the relevance, reliability,
and overall probative value of the testimony as to the specific facts in issue
in the case.”). Questions regarding an expert’s testimony in Immigration
Court often go to the weight given to testimony, rather than to its
admissibility, in part because a court’s traditional “gatekeeping” function of
screening out expert testimony that is “not sufficiently reliable or
trustworthy” for a jury is less significant where the judge is the trier of fact,
as in the immigration context. United States v. Brown, 415 F.3d 1257,
1266–70 (11th Cir. 2005); see also United States v. Hodge, 933 F.3d 468,
478 (5th Cir. 2019) (stating that questions relating to the reliability of an
expert’s opinion generally affect the weight given to the opinion, rather than
its admissibility); Akinfolarin v. Gonzales, 423 F.3d 39, 43 (1st Cir. 2005)
(holding that the Immigration Judge’s reasons for finding an expert’s
evidence unreliable were valid and supported the Immigration Judge’s
conclusion that the evidence should not be “given much credence”).
An Immigration Judge should only find an expert’s opinion to be
persuasive if there is a reliable factual or evidentiary basis for his or her
conclusions. See United States v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003)
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(stating that if an expert’s opinion is “to be of value,” there must “be a link
between the facts or data the expert has worked with and the conclusion the
expert’s testimony is intended to support”); see also Kenosha Liquor Co.
v. Heublein, Inc., 895 F.2d 418, 420 (7th Cir. 1990) (“Experts’ opinions are
worthless without data and reasons.”). There is no indication that the
Immigration Judge reasonably considered whether the witness’s opinion had
a sufficient factual basis to essentially establish the respondent’s claim.
For example, despite finding that the witness’s testimony was “supported
by the documents he offered,” the Immigration Judge did not identify what
evidence provided the basis for his testimony that Hezbollah and Mexican
drug cartels may work together to target the respondent on behalf of
Iran. The witness testified that Iran has targeted political opponents in
Latin America, but he cited no evidence that Iran carries out such activities
in Mexico. The only reference to Hezbollah in Mexico relates to the
organization’s work with cartels to smuggle drugs and people.
In addition, the Immigration Judge did not identify the facts or data
supporting the witness’s testimony that the Mexican Government is unable
and unwilling to protect the respondent from pro-Iranian actors, particularly
Hezbollah or Mexican drug cartels. In this regard, we note that the witness
only discussed the “weaknesses in Mexico’s criminal justice system” and
provided an example of a well-known journalist who was killed in Mexico.
We also note the respondent’s testimony that he believes Iranian agents
chased another student in his group when he went to the airport to pick up
the respondent’s bags. He claimed that those agents also surveilled his home
on numerous occasions, cut his telephone and power lines, and entered and
searched his home in Mexico after he came to the United States. The
respondent’s aunt testified that she reported the possible surveillance and
break-in to the police and that the police conducted an investigation.
However, the Immigration Judge did not explicitly consider any of this police
action when determining whether the Mexican Government has the ability or
willingness to protect the respondent.
The Immigration Judge did not make a finding that there was a reliable
factual or evidentiary basis for the expert’s opinion to support his conclusion
that the opinion was so persuasive as to deserve “significant weight.”
Without such a finding, we cannot exercise our de novo review of the
Immigration Judge’s determination that the respondent met his burden of
proof to establish eligibility for asylum. See Matter of Z-Z-O-, 26 I&N Dec.
586, 591 (BIA 2015) (“[W]e will accept the underlying factual findings of
the Immigration Judge unless they are clearly erroneous, and we will review
de novo whether the underlying facts found by the Immigration Judge meet
the legal requirements for relief from removal . . . .”).

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Moreover, the Immigration Judge did not address the issues raised by the
DHS regarding the greater weight that was given to the witness’s testimony,
compared to the other evidence that was presented. A factual basis for the
witness’s testimony is especially important in this case since it does not
appear to be consistent with the State Department country reports entered
into the record. Although the witness insisted that Hezbollah works with
Mexican drug cartels in Mexico, the 2016 Country Reports on Terrorism
states that “there are no known international terrorist organizations operating
in Mexico.” U.S. Dep’t of State, Bureau of Counterterrorism, Country
Reports on Terrorism 2016–Mexico (July 19, 2017); see also id., Country
Reports on Terrorism 2019–Mexico (June 24, 2020), https://www.state.gov/
reports/country-reports-on-terrorism-2019/mexico/ (stating that “there was
no credible evidence indicating international terrorist groups established
bases in Mexico, worked directly with Mexican drug cartels, or sent
operatives via Mexico into the United States”).
Although the State Department country reports should not be given
dispositive weight to the exclusion of all other country conditions evidence,
the reports provide important evidence that should be given reasoned
consideration. See Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008)
(“U.S. Department of State country reports are ‘the most appropriate and
perhaps the best resource for information on political situations in foreign
nations.’” (citation omitted)); see also Ali v. Holder, 637 F.3d 1025, 1030–31
(9th Cir. 2011) (noting the importance of the State Department reports, but
emphasizing the need for an “individualized determination” of an asylum
applicant’s eligibility); Chand v. INS, 222 F.3d 1066, 1077 (9th Cir. 2000)
(acknowledging that the State Department reports may not contain all the
information relevant to an asylum applicant’s claim).
In this case, the Immigration Judge did not address the State Department
reports, except to state that the witness’s testimony “was not rebutted by the
government, including with the articles offered by the [DHS].” This general
statement is insufficient to explain why his testimony was more reliable than
the Department of State reports. See Cole v. Holder, 659 F.3d 762, 771–72
(9th Cir. 2011) (remanding where potentially dispositive evidence of country
conditions was not given reasoned consideration); Bromfield v. Mukasey, 543
F.3d 1071, 1077 (9th Cir. 2008) (remanding where the Immigration Judge
did not address key aspects of the State Department country report).
In sum, in assessing whether to admit the testimony of a witness as an
expert, an Immigration Judge should consider whether it is sufficiently
relevant and reliable for the expert to offer an informed opinion, and if it is
admitted, the Immigration Judge should then consider how much weight the
testimony should receive. If a party challenges the expert’s qualifications, it
is generally best to allow the party, upon request, to voir dire the witness
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before the testimony is presented in full. In considering how much weight
to give an expert’s testimony, the Immigration Judge should assess how
probative and persuasive the testimony is regarding key issues in dispute for
which the testimony is being offered. However, to the extent that the record
contains contradictory evidence, the Immigration Judge should explain why
inferences made by the expert are reasonable and more persuasive than the
other evidence presented. Without such findings, we are unable to determine
whether an Immigration Judge’s reliance on an expert’s testimony was
reasonable.
Given our limited fact-finding ability on appeal, we conclude that a
remand is necessary for the Immigration Judge to make specific findings
regarding the scope of the witness’s expertise as to the key issues in dispute
and to determine whether there is evidence in the record that would support
his opinions. On remand, the Immigration Judge should also explain why he
finds the witness’s testimony more persuasive than the other evidence in the
record, to the extent they may be inconsistent. See Matter of S-H-, 23 I&N
Dec. 462, 465–66 (BIA 2002) (emphasizing the need for Immigration Judges
to include in their decisions clear and complete findings and analysis, in view
of the Board’s inability to conduct fact-finding on appeal).
Accordingly, the DHS’s appeal will be sustained in part and the record
will be remanded for further proceedings. In remanding, we express no
opinion as to the ultimate outcome of the case.
ORDER: The appeal of the Department of Homeland Security is
sustained in part.
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.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See Section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

106


Interim Decision #1769

MATTER OF BELLIDO

In Adjustment of Status Proceedings
A 12438949
-

Deckled by Regional Commissioner July 31, 1987
Applicant, who neither is a native or citizen 'of Cuba nor is residing with her

Cuban citizen husband in the United States, is ineligible for adjustment of
status pursuant to the provisions of section 1 of the Act of November 2, UM

The District Director denied the application and certified the case
to this office for review and final decision.
The record relates to a 39-year-old female, native and citizen of
Venezuela, who was born on July 16, 1926 in San Fernando de Apure,
Venezuela. She was validly married on August 9, 1945 to Adrian
Belli& de Limes, a native and citizen of Cuba, and resided with her
spouse in Cuba from 1945 to 1961. Four children were born of this
union and now reside with their mother in Miami, Florida.
On February 19, 1961, the applicant departed Cuba and arrived in
the United States at Miami, Florida as a nonimmigrant visitor for

pleasure. She was in possession of a Venezuelan passport and was
authorized to remain in the United States until July 16, 1961. Due to
the political situation existing in Cuba, the applicant was subsequently
granted an indefinite period of time in which to depart voluntarily
from the United States.
On November 21, 1966, the applicant applied for adjustment of
status to permanent resident under section 1, Act of November 2, 1966.
The application was denied by the District Director on the grounds
that the applicant was not a native or citizen of Cuba nor was she
residing with her Cuban citizen husband in the United States.
Section 1, Act of November 2, 1966, reads in pertinent part as
follows:
. .. the status of any alien who is a native or citizen of Cuba and who has

been inspected and admitted or paroled into the United States subsequent to
January 1, 1959 and has been physically present in the United States for at least
two years, may be adjusted by the Attorney General in his discretion and under
such regulations as he may prescribe, to that of an alien lawfully admitted for

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Interim Decision #1769
permanent residence if the alien makes an application for such adjustment and
the alien Is eligible to receive an immigrant visa and is admissible to the United
States for permanent residence. . . . The provisions of this Act shall be ap•
plicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien
in the United States. (Emphasis supplied.)
In a sworn statement taken before an officer of this Service on
July 6, 1967, the applicant testified that she was a native and citizen of
Venezuela; that she had never acquired Cuban nationality; that she
has been separated from her spouse for approximately four years;
and that there is no likelihood of a reconciliation.
The language of the Act dearly restricts its benefits to aliens who
are natives or citizens of Cuba and to their spouses and children who
are residing with them in the United States.
The applicant is, in fact, a political refugee, and we are in sympathy
with her desire to become a permanent resident of the United States;
however, the facts in her ease do not support a finding of eligibility
and the application will be denied.
ORDER: The decision of the District Director, Miami, Florida, is
affirmed, and the application is denied.

370


Interim Decision 4p1443

Manna or Sons
In Deportation Proceedings
A-3987977
Decided by Board Apra 2, 1986
A lawful permanent resident, who, following a brief, casual visit of 4 or 5
hours in Mexico, reentered Um United States upon a. talae claim a citizenship thereby avoiding inspection as an alien, made an entry under section
101(a) (13), immigration and Nationality Act, upon which to predicate a
gropnd of deportation. (Rosenberg y. Fietiti, 374 U.S. 449, inapplicable.]
Casson:
Order; Act of 1952—Section 241(a) (2) (8 U.S.C. 1251(a) (2)1—Entered
without inspection.

The respondent, a native and citizen of the Netherlands, male
46 years of age, has been found deportable as an alien who entered.
the United States without inspection (section 91104 (9), Inunigra-

don and Nationality Act; 8 U.S.C. 1251(a) (2)). An application for
waiver of documents, maw pro Juno, under the provisions of section
211(b), Immigration and- Nationality Act was denied by an order
entered by the special inquiry officer on March. 30, 1962 (8 U.S.C.
1181(b)). An appeal from this order was dismissed by the Board
of Immigration Appeals on July 25, 1962. The case is again before
us on motion of the trial attorney to reopen the proceedings in the
light of the Supreme Court's decision in the case of Rosenberg
Floutir, rendered on June 17, 1963.
The respondent has resided continuously in the United States since
his admisaion for permanent residence at the port of New York on
March 29, 1930. He was 11 years of age at the time of his original
entry. The respondent testified that he reentered'the United States
Texas, $03310 time in 1959 by falsely elp-Imlne to be a
citizen of the United States thereby avoiding inspection as an alien
at Reynosa,

(pp. 10 & 11). The respondent- last entered the United States
2 374

U.S. 449; 10 L. ed. 2d 1000.

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Interim Decision 4E1413
of Hidalgo, Texas, on or about July 30, 1960. He
testified that he returned to the United States with a group ... . "we
stopped at the bridge at Hidalgo, Texas, and the inspector asked us
if we were all United States citizens and I nodded my head, yes"
(p. 2 of Ex. 2). AcCording to the record the respondent was in
Mexico for only four or five hours on each occasion.
The issue presented by the .trial attorney's motion is whether the
respondent's return to the United States after the two brief casual
visits to .a border town in Mexico subjected him to the consequences
of an "entry" into the United States in light of the Fleuti decision
through the port

(supra). The Fleuti case concerns an alien who was originally admitted. to the United States for permanent residence in 1952 and had

resided here continuously except for a brief visit of about a couple
of hours in Mexico in 1956. He was ordered deported on the ground
that at the.time of his 1956 return he was excludable under section
212(a) (4) of the Immigration and Nationality Act as an alien "af-

flicted with psychopathic personality." The Supreme Court held.
that under section 101(a) (13) of the Act 2 an innocent, casual and
brief excursion by a resident alien outside- the borders of the -United
States may not have been "intended" as a departure disruptive of his
resident alien status and therefore may ,not sgbject him to the consequences of an "entry" into the United States on his return.
We are of the opinion that a reopening of the proceedings for the
purpose of reconsidering our decision of July 25, 1962 in light of the
Supreme Court's ruling in the Fleuti case .(supra), decided some 11
months later on June 17, 1963, would serve no useful purpose because Fleuti does not apply to an alien who ranters the United States
without inspection. The immigration laws have provided for the
inspection of aliens entering the United States since the Act of

March 8, 105 (18 Stat.,477). section 235 of the Immigration and
Nationality Act provides, inter alia, that "all. aliens arriving at ports
' of the United States shall be-examined by one or more immigration
officers at the discretion of the Attorney General' and under such
regulations as he may prescribe" (8 U.S.C. 1226). 8 CFR, 235.1
sets .forth in detail the-requirements which must be met by an alien
seeking to enter the United States regardless of .the purpose foi
3 Section 101(a) (15) of the Immigration and, Nationality Aci.defines the
term "entry" as "any coming of an alien into the United States, from a

foreign port or place . except that t alien having a lawful permanent

residence in the United States shall, not
no be regarded as making an entry into
the United States for the purpose of the immigration laws If the alien proves
to the satisfaction of the Attorney General that his departure to a foreignport or place . ... was not Wended ty him . (Emphasis supplied.)

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Interim Decision 41443
which he seeks to enter. Among the requirements are the following:
an alien must apply in person at a place designated as a. port of
entry and such an alien has the burden of establinlvirz his admissibility.

The Supreme Court in the Pleuti case (supra) concluded that it
would effectuate Congressional purpose to construe the intent provision in section 101(a) (18) of the Immigration and Nationality Act
(supra 2 as meaning an intent to depart in. a manner which can be
regarded as meaningfully disruptive of the alien'i permanent residence. The Court also stated that one of the factors relevant to inferring such an intent is whether the alien by leaving the United
States "accomplish(ed) some object which is itself contrary to some
policy reflected in our immigration. laws." It was the opinion of the
Court that if this be the case "the interruption of residence thereby
occurring would properly be regarded as meaningful" (374 U.S. at
p. 462; 10 L. ed. 2d 1009).
There is no question but that the respondent intended to resume
his residence when he reentered the "United States in 1959 and 1960.
However, this intent in and of itself does not preserve to the alien
the right to return to the United States in a manner which is contrary to the immigration laws, viz., knowingly evading inspection.
'The respondent by claiming to be a citizen avoided the inspection
process. Such action is contrary to a policy which has been reflected in our immigration laws since 1875. If the immigration laws '
and the established techniques of inspection are to have any meaningful and rational application it must be held that the respondent
made an entry friim a foreign port or country under section 101
(a) (13) of the Immigration and Nationality Act (eupraf) when
he returned from Mexico in 1959 and 1960. We conclude that the
case of Rosenberg v. Pleuti does not apply where a resident alien is
charged wits entry without inspection follo.wing a casual visit to a
foreign country. The motion will lie denied.
ORDER: It is directed that the motion be and the same is hereby
denied.
)

• 105


Interim Decision #1501

MATTER- OF TOBA

In Visa Petition Proceedings
A 11076092
-

Divided by. Acting Regional Commissioner July 21, 1985
Since judo training is substantially benefidal to the welfare and cultural interests of the United States as it helps build physical fitness, courage, and

alertness in man, eligibility for first preference status under section 203(a)
(1), Immigration and Nationality Act, as amended, as a judo instructor, Is
established by an alien who is a high school graduate, who holds a fourth
degree judo belt diploma, and who has had one year of experience as a
judo instructor.

This case is on appeal from the decision of the district director
who denied the petition. The reason for denial was that . the petitioner Inid not established an urgent need for the services of the
beneficiary nor that such services would be beneficial to the national
economy, cultural interests or welfare of the United States.
The.petitioner, Obukan Judo Dojo, Inc., is a nonprofit organization whose purpose is to promote the physical fitness program. The
organization has about 100 student members and an annual income
from dale% fees, donations, and gifts of about $10,000. The petitioner desires to employ the beneficiary to fill an existing vacancy
as a physical instructor to teach judo to the member students .for
periods totaling 25 hours per week. He can teach individuals
private lessons when not employed in regular class periods. The
petitioner has stated that the position requires a person who is a
high school graduate and holds a fourth grade judo belt federation
diploma, and who has had one year of experience as a judo-dojo
instructor.
The beneficiary is a 25 year old citizen of Japan who is presently
in the 'United States. He has been employed by the petitioner in
the position of instructor of 'judo since the petition was filed. He
is a graduate of Nihon University-and holds the rank of fourth
degree black belt in judo. He instructed in judo at the Shiina Dojo
-

-

293

Interim Decision .#1501

,

at Tochigi Prefecture, Japan, from March 1, 1992, to December
31, 1962, and. at Nihon University, Tokyo, Japan, from April 10
through July 10, 1963.
The informatioh submitted with the appeal has been carefully

reviewed. It is concluded that judo training is substantially beneficial to the welfare and cultural interests of the United States as
it helps to build physical fitness, courage, and alertness in man. We
also find that the petitioner has established a need for the services
of the beneficiary as an instructor. Therefore, the petition will be
approved.
•
ORDER; It is ordered that the appeal be and the same is hereby
sustained.

•294 .