Interim Decision *1861

MAR•TIS or LUGO-GITADIANA
In Deportation Proceedings
A-12990025
Decided by Board May 18,1968
(1) Where alienage is in issue in a deportation proceeding, there must be an
evaluation of all the evidence and a =ding with regard to Ito credibility

before the clear, convincing and unequivocal burden of proof test, as set forth
in Woodby v. Immigration and Naturalization Service, 385 U.S. 278, comes into
play.
(2) An official, contemporaneous record of respondent's birth in Mexico, supported by his prior admissions of birth in that country, satisfies the clear, convincing and unequivocal test of Woodby, supra, in establishing alienage, where
the testimony of respondent's witnesses as to his birth in the United States,
supported by a delayed birth certificate has been found lacking in credibility.
CHARM:
Order: Act of 1852—Section 241(a) (2) (8 U.S.C. 1251(a) (2) )—Entered without inspection.
ON BEHALF OF RESPONDENT:
Filemon B. Vela, Esquire
1144-1140 E. Madison Street
Brownsville, Texas 78520

ON BEHALF OF Sauvzcs:
Irving A. Appleman
Appellate Trail Attorney

Bernabe Q. Maldonado
Trial Attorney
(Brief filed)

An order to show cause, issued on March 1, 1967, charges that the
above-captioned respondent is a native and citizen of Mexico who last
entered as a. citizen of the United States at the port of Brownsville,
Texas, on or about February 26, 1967, upon presentation of a delayed
birth certificate showing birth in La Paloma, Texas, on July 17, 1914.
It also alleges that the respondent falsely claimed to have been born
in the United States and was not then inspected and admitted by an
immigration officer as an alien. The special inquiry officer in an order
entered on November 20, 1967 terminates the deportation proceeding
upon a finding that alienage has not been established by clear, unequivocal and convincing evidence. The trial attorney appeals from
this order.
726

Interim Decision #1861
It is conceded that the respondent last entered the United States at
the port of Brownsville, Texas on or about February 26, 1967; that
he was admitted as a citizen of the United States upon presentation
of a delayed birth certificate showing birth in La Paloma, Texas on
July 17, 1944. It is also conceded that the respondent was not inspected
as an alien. The only issue presented by the case is whether the
Immigration Service has established deportability by clear, unequivocal and convincing evidence that the facts alleged as grounds for de-

portation are true (8 CFR 242.14(a) ).
The respondent's father, his mother and two aunts testified that the
respondent was born on the La Paloma ranch near San Benito, Texas
during the early morning hours of July 17, 1944. The respondent's
father testified that he and his expectant wife were -visiting his grandfather who was seriously ill ; that they were admitted by the immigration authorities at Brownsville, Texas on July 16, 1944; that his wife
became ill soon after their arrival at the ranch and that their first
child was born at the ranch on the morning of July 17, 1944. The

respondent's aunt, Diogracia, testified that she assisted in the delivery,
and her testimony was corroborated by the testimony of the respondent's father, his mother and another aunt who was present in the home
at the time of the alleged birth.
The Immigration Service introduced in evidence a Mexican birth
certificate (Ex. 3) showing that the respondent's father, Jesus Lugo,
appeared on July 29, 1944 before an official of the civil registry, in
Matamoros, Tamaulipas, Mexico to report the birth of the respondent
at 11 p.m. on July 17, 1944 in Matamoros, Mexico. The evidence establishes the respondent's parents were then living in Ejido La Puerta,

within the jurisdiction of the municipality of Matamoros, Tamaulipas,
Mexico.
The respondent, assisted by his father, applied for a nonresident
alien's Mexican border crossing card (Ex. 2) at Brownsville, Texas
in 1958. He submitted in support of his application a Mexican Form
13, a document issued by the Mexican Servicio de Poblacion, as a travel
document in lieu of a passport. The Mexican document was issued by
the Mexican Government on the basis of the respondent's Mexican
birth record (Ex. 3; pp. 10 and 11) .
The respondent was accorded a hearing in deportation proceedings
at San Francisco, California, on October 12, 1962 (Ex. 8). He had
entered the United States as a citizen on February 21, 1962 upon
presentation of a baptismal certificate showing birth in the 'United
States (Ex. 4). During the deportation hearing, he admitted birth

727

Interim Decision *1861

in Mexico and justified his false claim to United States citizenship with
the following testimony:
Q.

When you were apprehended by immigration officers, did you tell them
that you were born in the United States, or did you ten them that you were
born in Mexico, when they questioned you?
A. Well, you know bow It is. When you need work, you'll do just anything;
co I told them I was born here (United States).

The respondent was deported to Mexico on October 27, 1963. He applied for permission to reapply for admission into the United States
after deportation on December 5, 1963 (Ex. 9). He stated in his
application that he was born at Matamoros, Tamaulipas, Mexico on
July 17, 1944; that he was assisted by a notary public with the application and that he voluntarily told the notary public that he was
born in Mexico (p. 98). The application for permission to reapply was
denied.
The respondent appeared at the port of Del Rio, Texas on October
17, 1965 and sought admission into the United States as a citizen.
When questioned by an immigration officer he admitted that he was
born in Mexico on July 17, 1944. He was questioned as to how he oblained the delayed birth certificate that he presented when he applied
for admission. He replied:
-

I took my fe de baptismo to a notary public there in Brownsville, Texas and he
filled out a blank form and asked me to take it to my godmother Diogracia Garcia
that lives in Harlingen, Texas and she signed it as a witness to mry birth and
stated that she was the one' who delivered me, then I took it to my father and
my mother and they signed it- After that I took it back to the notary public and he
sent It to Austin, Tama • * s.
Q. Why did you arrange false documents to show that you was born in the
U.S.?
A. I had a great need to work because I am the one who supports my family.
I only wanted and I did not have any intentions of doing any harm to
anyone.
Q. The you swear that you was born in El Ejido de la Puerta Ranch near Matamoros, Tamps., Mexico and that your birth is registered in the civil registry
office there?
A. Yes Sir that is true. (p. 2 of Er. 10)
The issue presented by the evidence before us is whether an official
certified record of the respondent's birth in Mexico (Ex. 3) supported
by his admissions of birth in that country prior to this proceeding is
rebutted by the parol evidence of the respondent's parents and two
aunts that the respondent was born in the United States. The parol
evidence of birth in the United states is supported by a delayed birth
certificates (Ex. 6) issued some 20 years after the claimed date of birth
and a baptismal record issued on November 1, 1965.

728

Interim Decision #1861
The same weight does not attach to a delayed birth certificate, such
as the one before us, as would attach to one contemporaneous with the
actual birth, Liakaleoe v. Kennedy 1 195 F. Supp. 680, 682 (U.S.D.O. for

D.C., 1961). A delayed certificate is merely prima facie evidence and
may be rebutted whereas a contemporaneous birth certificate may be
said to be almost conclusive evidence of the facts stated therein (Ibid

at p. 631).
If the documentary evidence submitted by both the respondent and
the Immigration Service stood alone, there would be no question as to
which should be given more weight. We are confronted, however, with
the testimony of the respondent's parents and aunts which corroborate
the facts set forth in the delayed birth certificate. They are competent
as witnesses by reason. of the relationship. The "competency" and
"credibility" of a witness are not synonymous terms. One may be a
competent witness and yet not credible State v. Beal, 154 S.E. 604, 617,
199 N.C. 278.
A determination of whether there is clear, unequivocal and convinc-

ing evidence that the respondent is an alien resolves itself into a determination of whether the testimony of the respondent's witnesses is
worthy of belief. Credibility involves more than demeanor. It apprehends the overall evaluation of testimony in light of its rationality or
internal consistency and the manner in which it hangs together with
other evidence. Carbo v. United States, 314 F.2d 718, 749 (C.A. 9,
1963). .

The special inquiry officer is of the opinion that the testimony of the
respondent's witnesses should be given "considerable weight" notwithstanding the fact that "the preponderance of documentary evidence

favors the Government's case . . "He concedes that the witnesses for
the respondent and the respondent "gave testimony not entirely consistent" but concludes that their testimony has not been "discredited or
that the minor discrepancies made the testimony unworthy of belief"
(p. 3, special inquiry officer's opinion) .
An overall evaluation of the respondent's testimony, the testimony of
his parents and the testimony of his aunts pursuant to the guidelines
set forth above leads us to an opposite conclusion. There is no rationality or consistency in the respondent's prior testimony under oath in
1958, 1962, 1963 and 1965 that he was born in Mexico when evaluated
with his testimony in this proceeding. The testimony of the respondent's parents with regard to the circumstances surrounding the respondent's birth at his great grandfather's home in the United States on
July 17, 1944 is not consistent with their testimony concerning the
registration of his birth in Mexico some 12 days later on July 29, 1944.

729

Interim Decision #1861
The testimony of the respondent's aunts does not "hang together" with
the other evidence. One of them testified that her grandfather died in
1950 (p. 59) whereas her brother, the respondent's father, testified
that the grandfather died "one or two months" after the respondent
was born on July 17, 1944 (p. 37). The delayed certificate of birth in the
United. States is entitled to little weight in light of the respondent's
testimony concerning the evidence he submitted in support of its issue.
The fact that the respondent's witnesses are not disinterested parties is
a factor to be considered in evaluating their testimony.
We are mindful of the fact that United States citizenship is a. privilege -Which should be guarded zealously. A claim to birth in the United
States for the offspring of Mexican parents who reside close to the
international border 3 is not uncommon. Where alienage is charged in
stick a tee° and the Government has introduced both documentary and
parol evidence in support of the charge and the opposing side has introdliced evidence intended to rebut the Government's case there must
be an evaluation and a weighing of all the evidence and a finding made
kith regard to its credibility before the test for burden of proof as set
lift.* in Woodby v. Immigration awl Naturalization. Service 2 (385
'U.S. 276) conies into play. Upon evaluating and weighing the evidence
'submitted by both the Government and the respondent, we find that the
evidence introduced by the Government is more credible than that
introduced by the respondent. Based on this finding, we conclude that
there is clear, unequivocal and convincing evidence that the facts
alleged as grounds for deportation are true. The order entered. by
the special inquiry officer will be reversed.
ORDER : It is directed that the order entered by the special inqiiiry
officer terminating the above-captioned proceedings be and the same is
withdrawn and the following order in lieu thereof is hereby entered : It
is directed that the respondent be deported to Mexico on the charge
stated in the order to show cause.
1 The residence of the respondent's parents in Mexico is only 35 miles from the
place of his alleged birth in the United States.
* The Supreme Court held that the test for burden of proof in a deportation
proceeding is as follows : "No deportation order may be entered unless it is found
by clear, unequivocal and convincing evidence that the facts alleged as grounds
for deportation are true."

730


Interim Decision #2315

MATTER OF BARRAGAN-GARIBAY

In Exclusion Proceedings
A-20000136

Decided by Board August 7, :1974
The applicant was returning to the United States and presented a false Alien Registration
Card, Form I-151. He was paroled into the United States for prosecution. He was
thereafter convicted in a criminal proceeding for a violation of Section 275 of the
Immigration and Nationality Act, (8 U.S.C. 1325). Sven though he was paroled into the
United States he was prosecuted for an illegal entry. Therefore, the exclusion proceedings will be terminated because under the doctrine of collateral estoppel, the Government is prevented from denying that applicant made an entry.
EXCLUDABLE! Act of 1952— Scetion 212(a)(2f) (8 U.S.C. 1182(a)(20)I—Immigrant with

no valid immigrant visa and not exempt therefrom.
ON BEHALF OF APPLICANT:

ON BEHALF OF SERVICE

John McGonagle, Esquire

Irving A. Appleman

1701 Pennsylvania Avenue N.W.
Washington, D. C. 20006
Lewis A. Wenzell, Esquire •
325 West "F" Street
San Diego, California 92101

Appellate Trial Attorney

In an undated decision, the immigration judge found the applicant
excludable as charged. The applicant has appealed from that decision.
The appeal will be sustained, and the proceedings will be terminated.
The applicant is a 22-year - old alien who is a native and citizen of

Mexico. The facts arenot in dispute and are as follows.

The applicant came to the port of entry in San Ysidro, California on
August 26, 1972, for the purpose of entering the United States and
returning to San Fernando, California where he had been living for
some time. When he applied for admission he presented a false Alien
Registration Receipt Card, Form 1-151, which he had purchased_ The
applicant was paroled into the United States for prosecution and was
confined in jail.
On August 28, 1972, a complaint was issued charging the applicant
with entering the United States on August 26, 1972 by knowingly and

willfully presenting a counterfeit Alien Registration Receipt Card in
77

Interim Decision #2315
violation of section 275 of the Immigration and Nationality Act (8
U.S.C. 1325). On September 12, 1972, the applicant was convicted of

the preceding criminal charge upon his plea of guilty. He was sentenced
to imprisonment for 21 days and thereafter served his sentence.
The issue on appeal is whether the applicant is properly in exclusion
proceedings. Counsel argues that the applicant's conviction for illegal
entry is a conclusive determination that the alien has made an "entry"
into the United States, and that therefore the applicant is not a proper
subject for exclusion proceedings. The Service contends that the conviction has no effect on the applicant's status as a parolee into the United
States. It is well established that parole into the United States is not an
"entry" for purposes of the immigration laws. Kaplan v. Tod, 267 U.S.
228 (1925); Leng May Ma v. Barber, 357 U.S. 185 (1958).

The term "entry" is defined in section 101(a)(18) of the Act. The
applicant cannot be held in exclusion proceedings if he made an "entry"
into the United States at San Ysidro on August 26, 1972, and if he has
not departed since that date. See Matter of Farmer, 14 I. & N. Dec. 737
(BIA 1974); Matter of Hoffman-Arvayo, 13 I. & N. Dec. 750 (BIA 1971).
The section 101(a)(13) definition of "entry is applicable to all sections of
the Act, and therefore is used in making determinations under the

criminal pro visions of section 275 of the Act. Consequently, the court's
determination that the applicant made an illegal "entry" under section
275 of the Act, if binding in these exclusion proceedings, would require
termination of the proceedings.
The doctrine of collateral estoppel is derived from the doctrine of res
judicata. According to the doctrine of collateral estoppel, when a matter
previously litigated, and necessary to the judgment in the prior case,
arises in the course of subsequent litigation between the same parties
upon a different cause of action, the judgment in the prior case operates
as an estoppel. Cromwell v. County of Sac, 94 U.S. 351, 853 (1877); Tait
v. Western Md. Ry. Co., 289 U.S. 620, 623 (1933); Commissioner v.
Sunnen, 383 'U.S. 591, 598 (1948); Lawlor v. National Screen Service
Corp., 349 U.S. 322, 326 (1955). The policy basis for the doctrine of
collateral estoppel is the interest of the public and the parties in pre-

venting relitigation of previously determined issues.
"Ordinarily a court decision will be res judicata in a later administrative proceeting in the same circumstances in which it would be res
judicata in a later judicial proceeding." 2 K. Davis, Administrative Law
Treatise, section 18.11, at 619 (1958, Supp. 1970). We have applied the
doctrine of collateral estoppel to prevent the relitigation of issues that
have been determined in previous court litigation between the Government and the alien. Matter ofZ—, 5 I. & N. Dec. 708 (B IA 1954); Matter
of Campos, :13 I. & N. Dec. 148 (BIA 1969); Matter of Grandi, 13 I. & N.
Dec. 798 (BIA 1971). The doctrine has also been applied by federal
78

Interim Decision #2315
courts to prevent the relitigation of issues determined in previous court
proceedings under the immigration laws. Pena-Cabanillas v. United
States, 394 F.2d 785 (9 Cir. 1968); United States v. Rangel-Perez, 179 F.
Supp. 619 (S.D. Cal. 1959); see Anselmo v. Hardin, 253 F.2d 165 (3 Cir.
1958).
In Matter of Grandi, supra, we concluded that collateral estoppel was
applicable to exclusion proceedings. Our holding in that case was that
the applicant was estopped from contending that he was brought to the
United States against his will where, in criminal proceedings, a court
had considered the same contention and had found that the applicant
came to the United States voluntarily.
In Title v. INS, 322 F.2d 21 (9 Cir. 1963), rev'g Matter of 7'—, 9 I. &
N. Dec. 127 (BIA 1960), the court held that a determination of Communist Party membership in a denaturalization proceeding did not estop
the alien from disputing such membership when the issue arose in a
subsequent deportation hearing. We distinguished that case in Matter
of Grandi, supra.
Collateral estoppel is not an inflexible doctrine. It may he modified or
rejected when its application "would contravene an overriding public
policy or result in manifest injustice."

Tiplor v. E. I.

duPont

deNemours & Co., 443 F.2d 125, 128 (6 Cir. 1971).

In the present case, the Government brought the charge of illegal
accepted the applicant's plea of guilty. As a consequence of the conviction for illegal entry, the applicant served a prison
sentence, and he is now subject to the provision of section 275 which
makes any subsequent conviction a felony punishable by a fine of $1,000
or two years in prison, or both.
We conclude that since the Government has chosen to subject the
applicant to the serious consequences flowing from an illegal "entry"
entry, and the court

into the United States, the doctrine of collateral estoppel should be

applied to prevent the Goyernment from denying the fact of such "entry" for the purposes of this exclusion proceeding. See Matter of
Grandi, supra. There is certainly no manifest injustice in this approach,
nor does the result violate any overriding public policy. Public policy
would seem to favor consistency in the Government's dealings with
individuals under the various provisions of the immigration laws.
The appellate trial attorney has suggested that the conviction for
illegal entry was erroneous (Oral argument, p. 14). Nevertheless, the
Government has taken no action to have the judgment vacated and the
charge dismissed Moreover, the sentence imposed on the applicant has
already been executed.
The Government had its opportunity to litigate the issue of "entry."
We hold that it should now be bound by the court's determination that
an "entry" into the United States was made on August 26, 1972. Con79

Interim Decision #2315
sequently, these exclusion proceedings are improper and will be terminated. See Mater Farmer, supra.
ORDER: The appeal is sustained, and the proceedings are terminated.

80


Cite as 26 I&N Dec. 904 (BIA 2017)

Interim Decision #3884

Matter of Yovany CALCANO DE MILLAN, Beneficiary of a
visa petition filed by Jorge Arturo Millan, Petitioner
Decided January 12, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
For purposes of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No.
109-248, 120 Stat. 587, and section 204(a)(1)(A)(viii)(I) of the Immigration and
Nationality Act, 8 U.S.C. § 1154(a)(1)(A)(viii)(I) (2012), a United States citizen or
lawful permanent resident petitioner has been “convicted” of an offense where either a
formal judgment of guilt has been entered by a court or, if adjudication of guilt has been
withheld, where (1) a plea, finding, or admission of facts established the petitioner’s guilt
and (2) a judge ordered some form of punishment, penalty, or restraint on his or her
liberty.
FOR PETITIONER: Marie-A. Michaud, Esquire, Torrance, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter N. Schmalz, Deputy
Chief
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; GUENDELSBERGER
and MANN, Board Members.
MANN, Board Member:

In a decision dated July 3, 2012, the Service Center Director
(“Director”) denied the Petition for Alien Relative (Form I-130) filed by the
United States citizen petitioner on behalf of his beneficiary spouse. The
Director concluded that the petitioner is barred from obtaining an approved
visa petition by the provisions of the Adam Walsh Child Protection and
Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (“Adam Walsh
Act”). The petitioner has appealed from that decision. The appeal will be
dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
In 2001, the petitioner was convicted of sexual battery by restraint in
violation of section 243.4(a) of the California Penal Code. The Director
decided that the conviction is for a “specified offense against a minor,” as
defined in section 111(7) of the Adam Walsh Act, 120 Stat. at 592 (codified
as amended at 42 U.S.C. § 16911(7) (2012)). He further determined that
904

Cite as 26 I&N Dec. 904 (BIA 2017)

Interim Decision #3884

the petitioner has not established that he poses no risk to the beneficiary,
which would permit the visa petition to be approved notwithstanding his
conviction. The Director therefore concluded that the petitioner is
ineligible to have the visa petition approved as a result of his conviction.
The petitioner conceded that he was convicted of sexual battery, had his
sentence to 4 years of imprisonment suspended, and was required to
comply with California’s sex offender registration requirements. However,
he submitted records showing that his conviction was set aside in 2006
pursuant to section 1203.4 of the California Penal Code and argued that he
was therefore not “convicted” of a specified offense against a minor under
the Adam Walsh Act.
The Director concluded that the petitioner’s post-conviction relief under
section 1203.4 does not negate his conviction for purposes of the Adam
Walsh Act because it was obtained pursuant to a rehabilitative statute,
rather than as a result of a procedural or substantive defect in the underlying
criminal proceedings. In support of this conclusion, the Director cited
Board precedent regarding the effect of post-conviction relief on the
immigration consequences of criminal convictions, including Matter of
Pickering, 23 I&N Dec. 621 (BIA 2003), Matter of Rodriguez-Ruiz,
22 I&N Dec. 1378 (BIA 2000), and Matter of Roldan, 22 I&N Dec. 512
(BIA 1999). According to the petitioner, these decisions are inapposite
because they address the definition of a “conviction” in section
101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(48)(A) (2012), which he argues relates only to aliens and is
therefore inapplicable to United States citizens like himself.
We requested supplemental briefing on whether the definition of the
term “conviction” in section 101(a)(48)(A) applies to United States citizens
in proceedings under section 204 of the Act, 8 U.S.C. § 1154 (2012), and
whether our case law regarding the effect of post-conviction relief is
applicable in visa petition proceedings. We appreciate the thoughtful briefs
submitted by the parties.

II. ANALYSIS
Generally, under section 204(a)(1)(A)(i) of the Act, “any citizen of the
United States” may file a visa petition based on a qualified relationship.
However, that section further states that its provisions “shall not apply to a
citizen of the United States who has been convicted of a specified offense
against a minor.” Section 204(a)(1)(A)(viii)(I) of the Act (emphasis
added). Such a citizen may only obtain an approved visa petition if the
Secretary of Homeland Security determines that the citizen presents “no
risk” to a beneficiary of the petition. Id.
905

Cite as 26 I&N Dec. 904 (BIA 2017)

Interim Decision #3884

A. Conviction
The parties agree that the Adam Walsh Act and section
204(a)(1)(A)(viii)(I) of the Act do not provide a definition of the term
“conviction” that is specifically applicable to United States citizens in visa
petition proceedings. However, section 101(a)(48)(A) of the Act does
define the term “conviction” as follows:
The term “conviction” means, with respect to an alien, a formal judgment of guilt
of the alien entered by a court or, if adjudication of guilt has been withheld,
where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a finding of
guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.

This provision explicitly defines the term “conviction” with respect to
“an alien.” The requirements for establishing a “conviction” are also
defined with reference to “the alien.” However, section 101(a) of the Act
states that it defines terms “[a]s used in this Act.” Section 204(a)(1)(B)(i)
also extends the provisions of the Adam Walsh Act to lawful permanent
residents, so the definition in section 101(a)(48)(A) necessarily applies to
lawful permanent resident aliens who file a visa petition on behalf of a
relative. We see no reason to apply a different interpretation of the term
“conviction” to United States citizens and therefore find it appropriate to
adopt a definition for purposes of section 204(a)(1)(A)(viii)(I) of the Act
that is consistent with section 101(a)(48)(A).
With regard to the applicability of section 101(a)(48)(A) to citizens, we
recognize that although the term “conviction” is commonly used in legal
parlance, it lacks a single common meaning. See Clarke v. United States,
184 So. 3d 1107, 1113 (Fla. 2016) (observing that “conviction” is “a
‘“chameleon-like” term that has drawn its meaning from the particular
statutory context in which the term is used’” (quoting State v. McFadden,
772 So. 2d 1209, 1215 (Fla. 2000))); see also United States v. Bridges, 741
F.3d 464, 470 (4th Cir. 2015) (discussing the ambiguity of the term
“conviction” in the Sex Offender Registration and Notification Act
(“SORNA”) at 42 U.S.C. § 16911(1)); Herrera-Inirio v. INS, 208 F.3d 299,
305 (1st Cir. 2000) (noting that Congress enacted section 101(a)(48)(A) of
the Act “to produce the desired uniformity” in the definition of a
“conviction”).
In light of the ambiguous meaning of the term “conviction,” we
consider it proper to provide a uniform definition that applies to section
204(a)(1)(A)(viii)(I) of the Act with respect to United States citizen
906

Cite as 26 I&N Dec. 904 (BIA 2017)

Interim Decision #3884

petitioners. A single definition is consistent with the goal of administering
this Federal statute in a uniform manner. See Matter of Small, 23 I&N
Dec. 448, 450 (BIA 2002) (acceding to appellate court authority “in the
interest of uniform application of the immigration laws”); see also
Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004) (noting
that there is a “strong interest in national uniformity in the administration of
immigration laws”); United States v. Cisneros, 112 F.3d 1272, 1280
(5th Cir. 1997) (stating that “in the absence of clear language to the
contrary, federal law governs the application of federal legislation”).
Accordingly, we conclude that a definition of the term “conviction” that
includes the same elements as those in section 101(a)(48)(A) of the Act
should be adopted for the purpose of determining whether a United States
citizen petitioner has been “convicted” within the meaning of section
204(a)(1)(A)(viii)(I) of the Act. Therefore, a United States citizen
petitioner will be considered to have been “convicted” of an offense where
either a formal judgment of guilt has been entered by a court or, if
adjudication of guilt has been withheld, where (1) a plea, finding, or
admission of facts established the petitioner’s guilt and (2) a judge ordered
some form of punishment, penalty, or restraint on his or her liberty.
This definition is consistent with the purpose of the Adam Walsh Act
“[t]o protect children from sexual exploitation and violent crime” and is
within the scope of Federal and State provisions pertaining to sex offenders
that have been adopted to protect public safety. Adam Walsh Act, 120 Stat.
at 587; see also 42 U.S.C. § 16901 (stating that the purpose of the Adam
Walsh Act is “to protect the public from . . . offenders against children”). It
is also consistent with guidelines set forth by the Attorney General
regarding the implementation of the SORNA, which is title I of the Adam
Walsh Act. See Office of the Attorney General; The National Guidelines
for Sex Offender Registration and Notification, 72 Feg. Reg. 30,210
(May 30, 2007). Those guidelines provide that an offender who has been
subject to penal consequences as the result of an offense has been
“convicted,” regardless of the terminology employed in the particular
system of criminal justice or any subsequent action to limit the public
availability of the conviction for reasons other than the ground of
innocence. Id. at 30,216. 1
1

The Federal Sentencing Guidelines also provide support for this interpretation. The
guidelines state that a “diversionary disposition resulting from a finding or admission
of guilt, or a plea of nolo contendere, in a judicial proceeding is counted as a
sentence under § 4A1.1(c) even if a conviction is not formally entered, except that
diversion from juvenile court is not counted.” U.S. Sentencing Guidelines Manual
§ 4A1.2(f) (U.S. Sentencing Comm’n 2016) (emphasis added).

907

Cite as 26 I&N Dec. 904 (BIA 2017)

Interim Decision #3884

B. Effect of Section 1203.4 of the California Penal Code
We are unpersuaded by the petitioner’s argument that he does not have
a “conviction” within the meaning of the Adam Walsh Act because he was
granted rehabilitative relief in 2006 under section 1203.4(a)(1) of the
California Penal Code. See People v. Mgebrov, 82 Cal. Rptr. 3d 778, 781
(Cal. Ct. App. 2008) (discussing the function and purpose of section
1203.4). While we recognize that the petitioner was “released from all
penalties and disabilities resulting from the offense of which he or she has
been convicted” pursuant to section 1203.4(a)(1), there are considerable
limitations on such rehabilitative relief under California law. See Matter of
Marroquin, 23 I&N Dec. 705, 714 n.7 (A.G. 2005) (citing Matter of
Luviano, 21 I&N Dec. 235, 246–47 (BIA 1996) (Hurwitz, dissenting)).
For instance, although section 1203.4(a)(1) indicates that an offender
will generally be released from disabilities resulting from his or her
conviction, it does not affect the existence of a conviction for the purpose
of revoking or suspending a driver’s license. Additionally, it provides that
the prior conviction continues to exist for the purpose of any subsequent
criminal proceedings and must be disclosed in any application for public
office or licensure by a State or local agency.
According to section 1203.4(a)(2) of the California Penal Code,
dismissal of the conviction does not remove any of the restrictions of a
conviction that affect an individual’s ability to own or possess a firearm.
Moreover, section 1203.4(a)(3) does not permit a dismissal to remove any
criminal prohibitions on an offender’s eligibility for public office. Finally,
section 290.007 of the California Penal Code requires a sex offender to
continue to register “regardless of whether the person’s conviction has been
dismissed pursuant to Section 1203.4, unless the person obtains a certificate
of rehabilitation and is entitled to relief from registration pursuant to
Section 290.5.” In view of these limitations, we are not convinced that
the petitioner’s rehabilitative treatment under section 1203.4 has any effect
on his conviction for purposes of the Adam Walsh Act and section
204(a)(1)(A)(viii)(I) of the Act.
C. Treatment of Sex Offenders in Other States
Like California, most States also place limitations on their rehabilitative
statutes for sex offenders and permit various disabilities to continue to
inhere, even where a State may otherwise offer rehabilitative relief.
These disabilities include requirements that a defendant register as a sex

908

Cite as 26 I&N Dec. 904 (BIA 2017)

Interim Decision #3884

offender notwithstanding a deferred adjudication or participation in a
similar diversionary program. 2
A consistent policy goal is apparent from the considerable number of
States that expressly prohibit sex offenders from benefitting from
diversionary adjudicative processes and post-conviction relief statutes,
particularly where the victim of such an offense is a minor. 3 We therefore
2

See Ala. Code § 15-20A-4(4) (2016); Alaska Stat. Ann. § 12.63.100(3) (West 2016);
Ark. Code Ann. § 12-12-905 (West 2016); Colo. Rev. Stat. Ann. § 16-22-102(3)
(West 2016); Fla. Stat. Ann. § 943.0435(1)(b) (West 2016); Ind. Code Ann.
§ 35-38-9-6(e) (West 2016); La. Stat. Ann. § 15:541(7) (2016); Neb. Rev. Stat. Ann.
§ 29-2264(5)(j) (West 2016); S.C. Code Ann. § 23-3-430(F) (2016); Tenn. Code Ann.
§ 40-39-212 (West 2016); Tex. Code Crim. Proc. Ann. art. 62.001(5) (West 2015); Utah
Code Ann. § 77-41-109(2) (West 2016); Doe v. Brown, 99 Cal. Rptr. 3d 209, 210–11
(Cal. Ct. App. 2009) (holding that a person who obtained relief under section 1203.4 of
the California Penal Code remains subject to sex offender publication provisions); State
v. Robinson, 142 P.3d 729, 732–33 (Idaho 2006) (holding that dismissal of a case under
section 19-2604(1) of the Idaho Code does not eliminate the requirement to register as a
sex offender); R.W. v. Sanders, 168 S.W.3d 65, 71 (Mo. 2005) (en banc) (holding that a
suspended imposition of sentence does not exempt a person who pled guilty to a sex
offense from having to register as a sex offender); Smith v. Devane, 898 N.Y.S.2d 702,
703–04 (N.Y. App. Div. 2010) (holding that deferred adjudication after a guilty plea to a
sex offense in Texas constitutes a conviction in New York that requires registration as a
sex offender); see also Ga. Code Ann. § 42-1-12(8) (West 2016) (providing that a
defendant who is discharged without adjudication of guilt must register as a sex offender
until completion of the sentence); Vt. Stat. Ann. tit. 13, § 5401(15) (West 2016) (defining
a “conviction” to include a judgment of guilt pursuant to a deferred sentence but releasing
a sex offender from the duty to register after successful completion of a deferred
sentence). But see N.M. Stat. Ann. § 29-11A-3(B) (West 2016) (providing that a
“conviction” includes a deferred sentence but not a conditional discharge); Walters
v. Cooper, 739 S.E.2d 185, 187–88 (N.C. Ct. App. 2013) (holding that a “prayer for
judgment continued” is not a final conviction and does not trigger sex offender
registration obligations), aff’d per curiam, 748 S.E.2d 144 (N.C. 2013) (mem.); People in
Interest of Z.B., 757 N.W.2d 595, 599 (S.D. 2008) (noting that adult defendants who
receive a suspended imposition of sentence and comply with certain requirements may be
removed from the sex offender registry).
3
See Ariz. Rev. Stat. Ann. § 13-907(E)(4) (2016); Ark. Code Ann. § 16-93-303(a)(1)(B)
(West 2016); 20 Ill. Comp. Stat. Ann. 2630/5.2(a)(1)(L), (3)(A)(i) (West 2016);
Kan. Stat. Ann. § 21-6614(e) (West 2016); Ky. Rev. Stat. Ann. § 533.250(1)(d)
(West 2016); Mich. Comp. Laws Ann. § 780.621(3) (West 2016); Nev. Rev. Stat. Ann.
§ 179.245(5)(a) (West 2015); N.J. Stat. Ann. § 2C:52-2(b) (West 2016); Okla. Stat. Ann.
tit. 22, § 991c(G) (West 2016); Utah Code Ann. § 77-40-105(2)(a)(vi) (West 2016);
Vt. Stat. Ann. tit. 13, § 7041(c) (West 2016); Wash. Rev. Code Ann. § 9.94A.640(2)
(West 2016); Smith v. Com., 743 S.E.2d 146, 148 (Va. 2013) (noting that after enactment
of the Adam Walsh Act, Virginia passed legislation limiting the availability of
expungement for certain sex offenses); cf. D.C. Code. Ann. §§ 16-801(8), (9)(C),
16-803(c) (West 2016) (excluding a person convicted of an offense for which sex
(continued . . .)

909

Cite as 26 I&N Dec. 904 (BIA 2017)

Interim Decision #3884

conclude that the substantial limits on rehabilitative relief for sex offenses
that exist in the majority of the States support the adoption of a uniform
definition of a “conviction” for purposes of the Adam Walsh Act that
recognizes a conviction where there has been an adjudication or admission
of guilt or responsibility and the imposition of a punishment, even if the
offender is afforded some measure of relief under a rehabilitative statute. 4
See Matter of Salazar, 23 I&N Dec. 223, 230 (BIA 2002).
D. Remaining Arguments
We also reject the petitioner’s alternative argument that his violation
of section 243.4(a) of the California Penal Code does not constitute a
“specified offense against a minor.” In support of this assertion, the
petitioner relies on Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir.
2012), abrogated in part by Descamps v. United States, 133 S. Ct. 2276
(2013). In that case, the court found that sexual battery in violation of
section 243.4(a) of the California Penal Code could not qualify as an
aggravated felony “sexual abuse of a minor” offense under a categorical
analysis because the age of the victim was not an element of the statute. Id.
at 1016–19.
However, in Matter of Introcaso, 26 I&N Dec. 304, 309−10 (BIA
2014), we concluded that an adjudicator is not limited to a categorical
analysis of a State statute in determining whether a petitioner’s
conviction is for a “specified offense against a minor.” We held instead
that the “circumstance-specific approach” discussed in Nijhawan v. Holder,
557 U.S. 29 (2009), is appropriate because it permits inquiry into the facts
and circumstances of the offense to ascertain both the age of the victim and
the conduct underlying the conviction.
The record in this case reflects that the petitioner was charged with six
offenses that were ultimately dismissed as part of a plea agreement. All
of those charges identified the victim as a child under the age of 14 or 15.
_______________________________

offender registration is required from eligibility for sealing of criminal records); Miss.
Code Ann. § 99-15-26(1)(a)–(b) (West 2016) (providing that the procedure for
withholding of acceptance of a plea and sentence is not available for “crimes against the
person”); Mont. Code Ann. §§ 46-18-201, -204, -205(1) (West 2015) (providing that the
dismissal of charges after the deferred imposition of a sentence is unavailable for certain
sex offenses).
4
Although rehabilitative procedures do not affect the determination whether a petitioner
has been “convicted of a specified offense against a minor” under the Adam Walsh Act,
the petitioner may nevertheless submit information regarding any rehabilitative relief to
the Director to establish that he or she presents no risk to the beneficiary of the visa
petition. See generally Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014).

910

Cite as 26 I&N Dec. 904 (BIA 2017)

Interim Decision #3884

The petitioner submitted no evidence that the remaining charge of which he
was convicted did not arise from the same complainant or that the victim
was not a child. Further, as the Director noted, the petitioner submitted an
investigative background report indicating that the victim was a minor and
that he agreed to plead guilty to the remaining charge of sexual battery as
part of a plea agreement.
Although the petitioner was given an opportunity to dispute that the
victim of the offense was a minor, he has not done so. We therefore
conclude that the Director properly examined the circumstances
surrounding the petitioner’s offense in ascertaining whether his conviction
brought him within the ambit of the Adam Walsh Act. Accordingly, we
affirm the Director’s determination that the petitioner did not meet his
burden of establishing that he was not convicted of a specified offense
against a minor. See Matter of Introcaso, 26 I&N Dec. at 307.
The petitioner also argues that the Director erred in assessing the risk he
may present to the beneficiary. However, we lack jurisdiction to consider
the Director’s assessment in this regard because Congress committed
the “no risk” determination to the “sole and unreviewable discretion” of
the Secretary of the Department of Homeland Security. See Matter of
Aceijas-Quiroz, 26 I&N Dec. 294, 297, 300 (BIA 2014).
Finally, to the extent that the petitioner claims that the Adam Walsh
Act provision at section 204(a)(1)(A)(viii)(I) of the Act is unconstitutional,
we have held that as a general matter, we may not entertain constitutional
challenges to the provisions of the Act. See, e.g., id. at 301.

III. CONCLUSION
For the foregoing reasons, we conclude that the Director properly found
that the petitioner was convicted of a specified offense against a minor
under section 204(a)(1)(A)(viii)(I) of the Act. We lack jurisdiction to
review the Director’s determination that the petitioner did not establish he
poses no risk to the beneficiary of the visa petition. Accordingly, the
petitioner’s appeal will be dismissed.
ORDER: The appeal is dismissed.

911


Interim Decision #2758

MATTER

OF MICHELIN TIRE CORPORATION

In Proceedings to Classify Alien as Nonimmigrant

under section 101(a)(15)(L)
ATL-N-4931
Decided by Regional Commissioner January 9, 1978
(1) In order to be eligible for nonimmigrant classification under section 101(a)(15)(L) of
the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L), the beneficiary must
have been employed continuously fort year by the petitioner at the time the petition is
filed with the Service. Having worked for the company for only 9 months, beneficiary
failed to meet this time requirement.

(2) Where a beneficiary seeks to qualify for "L" classification on the basis of specialized
knowledge, that knowledge must be relevant to the business itself and directly
concerned with the expansion of commerce or it must allow an American business to
become competitive in overseas markets. In this case beneficiary's specialized knowledge was of the French Educational System. The petition sought to allow her to enter
thi, country to teach the children of the French employees who would be coming here
to start the plant, so their children's educational development would not suffer. This
was not the specialized knowledge contemplated by the statute but was related to the
provision of a fringe benefit for the company's employees. For that reason it does not
qualify the beneficiary for admission under section 101(a)(15)(L) of the Act.
ON BEHALF OF PETITIONER:

Pro se

The petition was denied by the District Director, Atlanta, Georgia,

and is now considered on appeal.
The petitioner, an international tire manufacturing company, has
petitioned to accord the beneficiary classification as an intra company
-

transferee, to be a French education specialist for the company. The
petition filed on June 6,1977, indicates the beneficiary will be employed
in a capacity which involves specialized knowledge.
Section 101(a)(15)(L) of the Act, as amended, defines an intra-company transferee as: .
"An alien who immediately preceding the time of his application for admission into
the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter
the United States temporarily in order to continue to render his services to the same

248

Interim Decision #2758
employer or subsidiary or affiliate thereof in a capacity that is managerial, or executive or involves specialized knowledge, ..."

The petition was denied on the basis that at the time of filing the
petition, the beneficiary had not been employed by the petitioner for
the required period of one year, and, that the knowledge possessed by
the beneficiary was general knowledge, rather than the specialized
knowledge contemplated by the statute.
On appeal, it is pointed out that during the start up period for a new
plant, it was necessary to bring temporarily a large number of French
employees from their subsidiary in that country, and in order that
their children will not suffer an educational set-back upon return to
France, a teacher graduated from the French Educational System is
required. It is also pointed out that by the time the beneficiary commences her employment here, she will have the required 1 year of
experience.
According to the information contained on the nonimmigrant visa
petition, at the time of filing the petition with the Service, the beneficiary had approximately 9 months of employment with the petitioning
firm- This does not meet the statutory requirement of the beneficiary
having been employed continuously for 1 year immediately preceding
the time of application for admission. In Matter of Katigbak, 14 I&N
Dec. 45 (R.C. 1971), although an immigrant visa petition case, it was
held that the beneficiary must be qualified at the time of filing the visa
petition. In view of the language of section 101(a) (15)(L) of the Act, it
must be concluded that the intra-company transferee must likewise
have the required 1 year of experience at the time of filing the nonimmigrant petition in her behalf.
The remaining issue to be decided is whether or not the beneficiary
would be employed in a capacity which "involves specialized
knowledge." A review of available published precedent decisions has
not disclosed a case ruling on the issue presented by the District
Director. It is necessary, therefore, to turn to the legislative history.
H.R. 851, 91st Congress, 1st Session, by the Committee on the Judiciary, cited the broad purposes of the then-proposed legislation, subsequently enacted as section 101(a)(15)(L) of the Act. On page 3 of that
Report, there is stated:
"The testimony of witnesses clearly establishes that existing law restricts and inhibits the ability of international companies to bring into the United States foreign
nationals with management, professional, and specialist skills and thereby enable
Ant erican business to maintain and improve the management effectiveness of international companies to expand U. S. exports and to be competitive in overseas markets.
Existing nonimmigrant provisinne of the Immigration and Nationality Act offer little
or no relief in the transfer of executive personnel since such entries are also limited to
specific positions which are temporary in nature. Consequently, visas must be denied
to alien executive personnel who are transferred to the United States to continue
-

249

Interim Decision #2758
employment with a domestic corporation or firm, or a domestic affiliate or subsidiary
of a foreign corporation.
This interchange of personnel is important since it an opportunity for an individual to
advance within the worldwide organizations without regard to nationality, it enables
foreign nationals to learn American management techniques by placing them in key
positions in the United States and thus more> effectively manage the affiliate operations in the U. S. companies when they return overseas. Experience has demonstrated
that a real contribution in the conduct of international business results from the
cross-fertilization of ideas through the use of special skills of personnel of different
nationalities."

Page 5 of the report added:
"This amendment would help eliminate problems now faced by American companies
having offices abroad in transferring key personnel freely within the organization.
This proposal would meet the objective of American industry which has been seriously
hampered in transferring personnel, particularly from Canada.
Testimony before the committee established that the present immigration law and its
administration have restricted the exchange and development of managerial personnel from other nations vital to American companies competing in modern-day world
trade. Executives of American companies detailed for assignments in foreign branch
offices, or subsidiaries and affiliate companies abroad, find little difficulty in being
admitted to foreign countries as noninmmigrants_for duty tours of several years
duration. Such intra-company transfers have contributed immeasurably to the
growth of American enterprise throughout the world and to the international trade of
the United States."..
-

In the ease before me, the beneficiary is a graduate teacher trained
in the French Educational System. She is qualified by experience to
continue the French-required system of education here in the United
States. According to the petitioner, such education is necessary in
order that the children of their French employees will not retrogress
in their studies upon their return to France. In a sense, the beneficiary
can be said to possess a specialized knowledge, that of the requirements of the educational system in France.
The educational opportunities offered by the petitioner to its French
employees is a fringe benefit, offered to induce certain foreign employees to come to the United States temporarily. This inducement is
not concerned with the expansion of commerce, or with the movement
of key personnel within an international corporation, as cited in the
House Report, supra. The specialized knowledge required by the statute must directly concern the expansion of commerce or it must allow
an American business to be competitive in overseas markets. Such an
interpretation, I believe, is consistent with the purpose and intent of
this legislation. Accordingly, I find that the proposed employment does
not meet the statutory requirement of specialized knowledge, and the
decision of the District Director was correct and proper.
ORDER* The decision of the District Director is affirmed, and the
appeal is dismissed.
250


Interim Decision #1516

MATT= or

QUINTE310-COBREA

In Deportation Proceedings
A-12774443
Decided by Board January 14, 1964

Arrival in the *United States as a workaway aboard. a freighter does not preclude adjustment of status wider section 245, Immigration and Nationality
Act, as amended, in the, case of an alien who has no background as en occupational seaman, who was in possession of a valid unexpired nonimmigrant visa, and who was inspected and admitted as a 'temporary visitor for
pleasure.

Osman:
Order: Act of 1952--Section 241(a) (2) IS
1251(a) (2)]—Nonimmigrant (temporary visitor for pleasure)—remained
longer.
The special inquiry officer, in a decision dated Septbmber 23, 1963,
denied the respondent's application for adjustment of status, ante;
granted him the privilege of voluntary departure; and provided for
his deportation to Colombia on the charge contained in the order to
show cause in the event of his failure to so depart. The appeal,
which brings the case before this Board for consideration, challenges
Only the denial of adj -qs4ent of status, ante.
The record relates to a 21-year-old single male alien, a waive and
citizen of Colombia, who arrived in the United States on February
16, 1962. He was then in possession of a valid unexpired nonimmigrant visa of the B-2 type (temporary visitor for pleasure). He
was admitted in•that status and thereafter authorized to remain here
therein until October 5,-1962. He has remained here since the expiration of the temporary period of his admission without authority.
The foregoing establishes the. respondent's depo4ability un they
above stated charge, and it is uncontested. This aspect of the eases
therefore, requires no further comment.
The special inquiry officer has found the respondent eligible for
voluntary departure and granted such relief. The record supports
-

S

ig

•

Interim Decision #1516
said official in this respect. Accordingly, no further discussion of
this phase of the case is required.
Denial of adjustment of status to this respondent is based on the
fact that, although he arrived in the United States in possession of
a nonimmigrant visa and was admitted by an immigration officer as
a temporary visitor for pleasure, he made the trip to this country
aboard a freighter (which ordinarily carries no"passengers) by paying a half-fare passage to the Master and working out the other
half of his passage by serving meals to the crew and washing dishes
after meals. The special inquiry officer's opinion reflects that he
did not think that section 245 of the Immigration and Nationality

Act was intended to apply, in a case such as this. However, he felt
constrained to deny the application for -adjustment of status thereunder because of the provisions of 8 CFR 245.1. The former provides that :
The status of an alien, other than an alien crewman, who was inspected and
admitted or paroled into the United States • • • may be adjusted to that of
an alien lawfully admitted for permanent residence • • •. (Emphasis
supplied.)

The latter states that:
An alien who on arrival in the United States was serving in any capacity on
board a •oessel • * • is not eligible for the benefits of section 245 of the Act
• • *. (Emphasis supplied.)

Reduced to its essence, the issue here is whether the exception contained in section 245 applies only to persons who are occupationally
crewmen, or includes a person whose only service as a crewman• was
in connection with the trip which brought him to the United States.
In other words, the question to be answered here is whether the Congress intended to hold ineligible for adjustment of status under section 245 an alien who, by happenstance, arrived as a crewman but
was properly documented for admission as a nonimmigrant visitor
and was so admitted: Our answer to this question is in the negative,
for the reasons hereinafter stated.
According to the record, the respondent's high school education
was interrupted by a call to military service.. He served in the Colombian Navy from about August of 1957 to about May of 1958, but
was never on a boat. Alter his release from military service, the
respondent completed his high school education by taking correspondence courses. Then, commencing in about 1959 and continuing
for a period of approximately two years, he worked in his father's
place of. business, selling automobile accessories, helping with the
bookkeeping, and performing similar other duties. This was the
only employment he had after completing his schooling.
844

Interim Decision. #151:6'
Eventually, he decided to come to the United States for a via'it
and applied for a visitor's visa at the American Consulate in.Bogota,
Colombia. He pUrchased a round-trip airplane ticket between.
Colombia and the United States, and exhibited same to the American
Consul pursuant to the latter's request. The records of said official
indicate that the Vice Consul required. a latter from the subject's
father, a letter from the father'S - bank, and the round-trip plane
ticket before issuing the alien a tourist visa on February 6, 1962.
After the alien received his visa, a female friend connected with
a shipping company suggested that he might be able to save money
on his passage by going to the United States by boat rather than by
plane. Apparently, she thereafter referred him to the captain of the
ship on which he arrived in this country. Their meeting resulted in
an agreement whereby the respondent paid the Master $100 (alleged
to be half fare, although the ship never had taken passengers) and
was to work out the remainder of his pasiage money by performing
duties aboard the ship. They consisted of serving the crewmen during meal and coffee times, and cleaning up afterwards and washing
the dishes.
The alien did not sign the articles of the vessel. He
not sleep
in the crew's quarters but in the state room normally assigned to the
pilot who would come aboard in connection with the entry or clearance of the vessel at any given port. He did not associate with the
crew members of the vessel when off duty. He saw no other passen:gers and indicated that the ship carried none.
Ito testified that his reason for redeeming his round trip air ticket
and coming by boat in the manner he did was to economize on expenses because he felt he might like to stay in the United States
somewhat longer than his father expected and did not want to ask
his father for additional money. He also testified that after he had
been in this country six months he decided he would like to remain
here and was informed by friends that he could apply for adjustment of status to that of a permanent resident.
The manifest of the vessel on which this alien arrived in the
United States indicates that he was employed as a workaway. His
name was originally listed on the crew list of the vessel as a workaway. However, the manifest further shows that, pursuant to the
action of the inspecting immigration, officer, his name was transferred from the immigration crew list to a. separate passenger manifest. He was then admitted for a period of two months as a. tera •
porary visitor for pleasure.
The foregoing facts reveal that the respondent had no history of
-

-

-

being occupationally a crewman. He obviously was not a; stranded
345

•

Interim Decision #1516
or repatriated individual and concededly had not signed the vessel's
articles, so that he was not properly classifiable as -a "workaway."
He clearly was not hired or accepted as a member of the crew and
had no permanent connection with the -vessel, so that he was not

classifiabld as a "seaman." 2 Therefore, he had to be either a business invitee, a visitor or a passenger. 3
It seems only logical to conclude that the Master handled the case
of this alien's passage as he did so that; in the light of the foregoing
considerations, neither he (the Master), the vessel, nor the parties
responsible for its operation would be subjected to liability under
the Jones Act,' The inspecting immigration efficer also presumably

took these same factors into consideration, together with the facts
specifically relating to the respondent's passage, in finding the latter
a passenger. That being the case, his admission of the respondent,
who was in possession of a valid unexpired nonimmigrant visa of
the B--2- type (temporary victor for pleasure), was proper. In our
opinion, it was also highly significant since he was the officer in the
position toinake the best judgment in the matter_ Furthermore, his
evaluation of the situation was accorded Service approval, in the
course of the deportation proceedings which.'were based throughout
on the ground that - the respondent was a temporary visitor for
pleasure -who had remained'longer.
On the basis of the foregoing factors, the special inquiry officer
was of the opinion- that the respondent was not the type of alien
that Congress intended to exclude from eligibility for adjustment of
status under section 245, Immigration and Nationality Act.. In
forming this opinion, said official gave consideration to a prior precedent decision of this Board wherein, in resolving a somewhat related problem, we explored the Congressional intent in enacting this
legislation.5 We therein expressed the belief that it was the intent
of the Congress to bar all aliens who are -occupationally crewmen
and who entered by reason of their occupation. We pointed out that
this result would best meet the problem which faced the Congress—
the fact that seamen who have relatively easy access to the United
States have• used the seaman's route to enter the United States for
permanent residence—a problem which has engaged a good deal of
the Service energies and which would be aggravated if persons having easy access to the United States were allowed to believe that they
Norris, Who Law of Seamen,

• Id., see. 4.

Vol. 1, 2d

ed., see.

5.

.

'Id., sec. 3.

`46 II.S.C. 888, covering hospitalization, damages, penalty, double wages, etc.
Matter of
A-9948279, 6/4/63; Int. Dec. No. 1285, with citations of
legislative history.
'

34t

Interim Decision #1516
could obtain legal residence by deserting and hiding out. We indicated that in the light of this problem, the statute would bar from
eligibility for relief any alien who was occupationally - a crewman
and was brought to the United States as a passenger or workaway
on one vessel to reship as a, seaman on another. This, of course,
would be true because such an alien would be entering this country
in pursuit of his calling as a seaman (which is not the situation involved here).
Despite the foregoing,.however, the speeial inquiry officer felt constrained to deny relief to this alien because of the wording of 8 CFR
245.1 which, again provides:
An alien who on arrival in the United States was serving in any capacity on
board a vessel * * • is not eligible for the benefits of section 245 of the
Act. • *

'

We, however, do not agree that the regulation has such a limiting
effect.
Section 245, being a remedial statute, is to be liberally construed
to suppress the evil and advance the remedy .° The regulation, which
cannot exceed the scope of the statute on which it depends, 7 must
likewise receive liberal construction. And contrary to the old rule
which required strict interpretation of exceptions, the existing rule
is that exceptions are to be interpreted principally in view of the
legislative intents Accordingly, and in view of the intent of the
Congress spelled out in Matter of G—. ( 5 ante), as well as the following considerations:
(1) the alien had no backgr,ound. as a seaman :
(2) he was not classifiable as such under maritime law;
,

(8) he did not sign the chip's articles;

(4) the immigration officer required that he be manifested as
a passenger;
(5) he was in possession of a visitor's visa and was admitted
as such; and
(6) the deportation proceedings against him were conducted
on the basis of his being a temporary visitor for pleasure who
had remained longer;

is our conviction that the respondent does not fall within the
statutory exception and that he is eligible to have his status adjusted.
The special inquiry officer has pointed. out in his opinion that he is
otherwise eligible.°
it

° Sutherland, Statutory Construction, 3d ed., Vol. 2, sec. 3302.
United States v. Entuil, 236 U.S. 405.
Staley' aand, Statutory Oottatruotion,3d on., Vol.

'p. 7,

"

:14Z

2, 4e3e.

Interim Decision #1516
Our strong persuasion to this 'viewpoint is, we believe, strengthened when we apply the foregoing rules of statutory (and regula-

tory) construction to 8 CPR 245.1 in its entirety. That is, the phrase
therein reading " * * * or was destined to join a vessel or aircraft in
the United States to "serve in any capacity thereon * * * " is 'indicative of Congressional intent to have the alien's occupation control
rather than the particular manner of his arrival. This, of course, is
in keeping with section 101(a) (15) (D) of the Act (8 U.S.C. 1101)
which defines as an immigrant every alien except an alien within
one of the nonimmigrant classes, to wit:
4n alien serving in good faith as such in any capacity required for normal
operation and service on board a vessel • • * who intends to land temporarily
and Solely in pursuit of his calling as a crewman and to depart from the
United States with the 'vessel or aircraft on which he arrived or some other
vessel or aircraft.

Finally, we do not think it can be seriously contended that our
rulin • in this case will create an enforcement problem of the nature
the Congress was intending to cure. In the first place, were convenience of enforcement cannot justify a straine • construction. in the
language used." Secondly, our decision will nor result in a spate of
aliens coming into the United. States in. the manner this one did, for
the same reasons which led the Muster of the vessel involved in this
case to handle the alien as he did. That is, Masters would be extremely reluctant to subject themselves, their vessel, or the parties
responsible for its operation to the possibility of liability under the
Jones Act ( 4, ante)

and if they did the owners and agents would

certainly not tolerate such a practice.
ORDER: It is ordered that the appeal be sustained.
It is further ordered that the special inquiry officer's decision be
withdrawn.
It is further ordered that the respondent's application for adjustment of status to permanent resident under section 245 of the Immigration and Nationality Act be granted.
Allen It. Cozier, Member, -Dissenting:
I am unable to agree with the views of the majority of the Board
in this case. I reach this conclusion on the strength of the express,
unambiguous terms of both the applicable statute and the regulation
promulgated thereunder.
The statute (section 215(a), immigration and Nationality Act)
states in clear language: "The status of an alien, other than an
10

United States v. J. H. Winchester 4i Co.,
348

Inc., 40 F.2d 472.

Interim Decision #1516
alien crewman * * * may be adjusted * * 41 (Emphasis supplied.)
."

It is my view that the respondent was a "crewman" during the entire voyage. In the language of the majority the name of this alien
was originally placed on the crew list of the vessel, where it remained

until after arrival in the United States. It was not until after arrival in the United States that, because of some act of the inspecting
immigration ace; the alien's name was taken. from the crew list
and placed :on a passenger list, presumably as an expedient to facilitate his admission as a temporary visitor.
The original placing of the alien's name on the crew list, the assignment to him of the normal duties of a member of the crew and
the fact that he was compensated (in kind) for the services performed by him during the voyage, indicate quite clearly that the
Master regarded him as a crewman and are strong evidence of his
real status as such.
The language of the applicable regulation (8 CPR 245.1) makes
it even more certain that respondent is statutorily ineligible for section 245 relief. It states; "An alien. who on. arrival in the United
States Was serving in any capacity on board a vessel * * is not
eligible for the benefits of section 245 of the Act * * s." (Emphasis"
supplied.) Nothing is clearer to me than that the alien here was
serving in some capacity on board a vessel on arrival in the United
States.
Robert E. Ludwig, Member, Dissenting:

I disagree with the decision. of the majority finding the
eligible for relief under section 245 of the . Immigration and Nationality Act [8 U.S.C. 1255] and granting relief thereunder. Even
were the respondent found to be eligible for relief under the section
cited, I would also doubt whether the facts merit such action.
The facts are simple. The pertinent part of the section. is clarified
by the regulations in Title 8, section. 245 )1, under eligibility as
follows:
245.1 Eligibility. An alien who on arrival in the United States was serving
in any capacity on board a vessel or aircraft, or was destined to join a vessel
or aircraft in the United States to serve in any capacity thereon, or was not
admitted or paroled following inspection by an immigration officer is not eligible for the benefits of section 245 of the Act . .." (Emphasis supplied.)

The respondent was employed aboard the vessel. He admits this.
He stated that he worked from approximately 7 a.m. until 6 p.m:
serving meals, washing dishes, etc., and that he served- the crevi)
(Tr..-p. 14) He also stated. that by taking this employment the Mtis:
349

Interim Decision #1516
ter was able to assign the regular on that job to other tasks, specifically stating at page 12:
Q. In any event, this so-called subordinate assigned you to serving certain
naval personnel and other officers of the vessel_ is that so?

.a. Well yes. He told me to serve the crew of the ship as there had beeu another man who was doing this work and they assigned him to do something
'else and they gave me his work to serve breakfast, lunch and the other meals
to the crew.

The respondent stated that he paid $100 plus the work that he did
for his passage and that the understanding was that he was to pay
approximately half of his passage. Since the voyage from Colombia
to the United States was only six or seven days, payment of $100 in
United States currency for this amount of work was substantial and
in all probability equalled if not exceeded the normal rate of pay.
This is not the case of a Captain who out of sympathy or generosity assisted an alien wishing tosome to the United States. It was
a legitimate ftill-time employment at substantial wages, relieving a
regular member of the crew who was thereby able to take another
assignment. It may be true that the respondent was only interested
in passage to the United States. However, from the standpoint of
the Captain there was no question but that he was a regular member
of the crew and he was so manifested at the time he was employed •
in Colombia. It is true that the immigrant inspector upon arrival .
conludethaRwsimprolynfetdas,mbroh
craw, but this does not change the basic thought in the Captain's
mind at the time he employed the respondent.

It may be true as stated by the majority decision that Congress
did not intend to •preclude workaways from the benefit of the provisions of section 245, supra. However, the regulation which has the
full force of law definitely •and unequivocally states otherwise:

It

may be that it is a bad regulation. However, if this be true the way
to remedy it is by amendment under the regular procidure provided
therefor and not by erroneous interpretation. Many persons applying for admission to the United States for permanent residence arrive as workaways, It is a large group and this is not an isolated
case not likely to occur again. If the interpretation given by the
majority is to be the guide for the future it should be made so by an
amendment to the regulations, so stating. •
Even were the respondent to be found eligible for section 245 relief, I seriously doubt whether he should be given the benefit thereof.
He is single, has no ties in the United States and came here for a
few days as a temporary visitor. He is a noninnnigrant alien and
in my opinion should be required to comply with the law and secure
a nonquotu immigration visa in his native country.
• 350


Interim Decision #1658

MATTER

or NEELY AND WuTLTE

In Deportation Proceedings
A-17429494
A 17129199
-

Decided by Board October 27,1966
A nonimmigrant visitor for pleasure is deportable under section 241(a) (9)
of the Immigration and Nationality. Act since her commission and conviction
of the crime of stealing, even though not incarcerated as a result thereof,
constitutes a violation of her nonimmigrant status. Waiter of C—, 9 I. & N.
Dec. 100, distinguished.]
CHARGE:

Order: Act of 1952--Section 241(a) (9) (8 U.S.C. 1251(a) (9)1—Failed to
comply with conditions of nonimmigrant status.

The Government appeals from a decision of the special inquiry
officer, finding neither of the respondents deportable as charged, and
terminating proceedings as to both.
Respondent Neely is a 34-year-old married female alien, whose
husband is a lawful permanent resident of the United States. She
was admitted to the United States es a B-2 visitor for pleasure on
September 11, 1966. Respondent Whylie is a 35-year-old divorced
female al!en, who was admitted to the United States as a B-2 visitor
for pleasure on September 4, 1966. Both respondents are natives of
Nassau, in the Bahamas, and citizens of Great Britain. Both were
admitted to the United States for a period to expire on October 30,
1966.
On October 3, 1966, both respondents were arrested in the city of
Miami, Florida, upon the charge that each:
"did then and there steal, take and carry away [specified items of specified
value], said items then and there being the goods and chattels of Crandway
Discount Center, against the peace and dignity of the City of Miami, Florida,
and in violation of Section 811.021, FLORIDA STATUTES, and Chapter 43,
Section 38 of the Code." (Ess. 3 and 4)

On October 5, 1966, each respondent was convicted in the Municipal

Court of the City of Miami, on her plea of guilty, and sentenced to
864

Interim Decision #1658
pay a fine of $50, or in lieu thereof to serve 20 days in jail. Both
respondents paid the fine.
The special inquiry officer, citing Matter of C , 9 L N. Dec.
100, stated the applicable law to be that conviction of an offense or
crime, regardless of whether it involves moral turpitude, does not
constitute a violation of nonimmigrant status if it does not result in
actual incarceration of the alien.
We believe this is too broad a reading of the decision in Matter
of C— . That case involved a bona fide student who was charged
with enticing an adult person for lewd and immoral purposes. It
was his first offense. The original charge was nollo pressed and n.
charge of disorderly conduct (sex) was substituted. The alien, in
effect, pleaded guilty by forfeiting his $100 collateral, and was
placed on probation. During the period of proceedings and probation, he continued his studies without interruption, and was not suspended or expelled by the school. We found, further, that he had
not accepted employment, or in any other way "failed to abide by
all the terms and conditions of his admission or extension" as a
student. The conviction, without more, did not prevent or interfere
with the alien's pursuit of his studies, the basic purpose for which
he had been admitted. We did hot them, nor do we now, condone
the conduct which resulted in the criminal proceedings.
We believe, however, that there is a qualitative difference between
the situation of the student in Matter of '0 , and the visitors for
pleasure in Mate,. of A. , 6 I. & N. Dee. 762 (convicted of "jostling"
and *Bed for 30 days) and the two cases presently before us. The
bona fide student, on the one hand, has been admitted for and is
working toward a definite goal, at an accredited school, college or
university. The purpose of his stay is not necessarily vitiated by a
conviction for illegal activity where the same does not result in his
suspension of expulsion from school, or the interruption of his
studies. The visitor for pleasure, on the other hand, is admitted for
no fixed or specific purpose, but merely for his own pleasure. The
termination of the student's stay may deprive him of all opportunity
to complete his education. The termination of the visitor's stay is
merely the shortening of a pleasure trip.
In the absence of a definition, by statute or regulations, of acts
which constitute a violation of nonimmigrant status, each case must
be looked into on its own facts, and the decision arrived at should
strike a fair balance between the character of the act committed and
the consequences which will flow from it. While this absence of incarceration and attendant interruption of studies is a significant
factor in determining whether a bona fide student has violated his
—

—

—

865

Interim Decision #1658
status, it does not carry the same weight in the case of a visitor for
pleasure. The presence of the incarceration factor has led us to hold
that visitor for pleasure status has been violated, Matter of A—,
supra. The scommission of a crime or offense involving moral turpitude, by a visitor for pleasure, even where sentence is suspended, and
incarceration does not result, is, we believe, violative of the visitor's
status, and we so hold here. The respondents were both within a
month of their entry conviction of an offense amounting to petty
larceny, which does involve moral turpitude (Tillinghast v. Edmead,
31 F.2d 81; 1Vilson v. Carr, 41 F.2d '704; Pine, v. Nicholls, 215 F.2d
23T; Quilodran Brau v. Holland, 232 F. 183; etc.).
We, therefore, sustain the Government's appeal, and find the respondents deportable as charged.
Inasmuch as the special inquiry officer terminated proceedings
upon a finding that respondents were not deportable, there was no
discussion of their eligibility for voluntary departure. Section
244(e) requires that a person establish five years of good moral
-

character, immediately preceding the application, to be eligible for

voluntary departure. In view of respondents' recent conviction of a
crime or offense involving moral turpitude, they cannot establish
good moral character for the required period (section 101(f) (3))
and hence are statutorily ineligible for that relief. They designated
Nassau, in the Bahamas, as the country of deportation, and deportation will accordingly be directed to Nassau.
ORDER: It is ordered that the appeal be find the same is hereby

sustained.
It is further ordered that the respondents be deported from the
'United States to Nassau, Bahamas, on the charges contained in the
orders to show cause.

866


Interim Decision #22O5

MATTbR OF ANDRADE

In Deportation Proceedings
A-11351779

Decided by Board May 31, 1973
Expungement under California law of a conviction as a youth offender is not
tantamount to an expungement pursuant to the provisions of the Federal
Youth Corrections Act (18 U.S.C. 5021(a)); hence, respondent is deportable
under section 241(a)(11) of the Immigration and Nationality Act, as amended,
on the basis of his conviction of the offense of possession of marijuana in
violation of section 11530 of the Health and Safety Code of California,
notwithstanding an expungement of the conviction under section 1772 of the
California Welfare and Institutions Code.*
CHARGE:

Order: Act of 1952—Section 241(aX11) [8 U.S.C. 1251(a)(11)]--Any time has been
convicted of a violation of any law or regulation relating to the illicit possession of marijuana.
ON BEHALF OF RESPONDENT: Gary H. Manulkin, Esquire
3609 North Mission Road
Los Angeles, California 90031
(Briefs filed)

This is an appeal from a decision of an immigration judge
denying the respondent's application for suspension of deportation
pursuant to section 244(aX2) of the Immigration and Nationality
Act, finding him deportable as charged in the order to show cause,
and denying him the privilege of voluntary departure. The appeal
will be dismissed.
The respondent is a 22 year-old single male, native and citizen of
Mexico. He entered the United States as an immigrant on November 19, 1957. On January 26, 1971 he was convicted in the Superior
Court of the State of California, for the County of Los Angeles, of
the offense of possession of marijuana in violation of section 11530
of the Health and Safety Code of the State of California. Respond* Superseded. See Matter of Andrade, Interim Decision No. 2276 (B IA, Apr. 5,
1974).

364

Interim Decision #2205
ent conceded his deportability on the charge contained in the
order to show cause (Tr. pp. 3, 4).
Counsel in his brief on appeal contends (1) the immigration
judge wrongfully and erroneously denied the respondent's application for suspension of deportation; (2) the immigration judge
wrongfully and erroneously denied the respondent's application
for voluntary departure; (3) the immigration judge improperly
considered the respondent's conviction to be a bar to a finding of
good moral character, notwithstanding the fact that the conviction
had subsequently been expunged pursuant to the California Penal
Code. Counsel also submitted evidence of the expungement of the
record of the conviction here.
After careful consideration of the record, including contentions

made by counsel on appeal, we are satisfied that the hearing was
fair, that deportability has been established by evidence that is
clear, convincing and unequivocal. Since the respondent would
have been found excludable under section 212(aX23) he may not be
regarded as a person of good moral character under the provisions
of section 101(fX3). Accordingly, not having established good moral
character the respondent is ineligible for the discretionary relief of
suspension of deportation or voluntary departure.
With reference to respondent's claim that the conviction has
been expunged, we note that the Attorney General has ruled that

an expungement of a narcotic conviction under the law of the
State of California has no effect upon a final finding of deportability under section 241(aXll) of the Immigration and Nationality
Act, Matter of A—F---, 8 I. & N. Dec. 429 (B IA, 1959). See alsb
Matter of G--; 9 I. & N. Dec. 159 (BIA, 1961). The courts have
sustained the Attorney General's ruling. See Garcia-Gonzales v.
INS, 344 F.2d 804 (CA. 9, 1965), cert. denied 382 U.S. 840; ;idly v.
INS, 349 F.2d 473 (C.A. 9, 1965), cert. denied 389 U.S. 932; Brcrumrigg v. INS, 356 F.2d 877 (C.A. 9, 1966); Cruz-Martinez v. INS, 404
F.2d 1198 (C.A. 9, 1968), cert. denied 394 U.S. 955; Gonzalez de Lard
v. United States, 439 F.2d 1316 (C.A. 5, 1971). Moreover, the mere
fact that the alien here was a minor at the time the crime was
committed does not of itself exempt him from the operation of the
deportation statute, U.S. ex rel. Circelta v. Sahli, 216 F.2d 33 (C.A.
7, 1954), cert. denied 348 U.S. 964; Matter of R- 5 1 I. & N. Dec. 613
;1943). C£ Adams v. United States, 299 F.2d 327 (C.A. 9, 1962);
Vernanclez-Valensuela v. Rosenberg, 304 F.2d 639 (C.A. 9, 1962).
Counsel in his supplemental brief on appeal urges that a
comparison of the California expungement statute (section 1772 of
the California Welfare and Institutions Code) with the expimgenent of a narcotic conviction pursuant to the Federal Youth
Dorrections Act (18 U.S.C. 5021(a)) indicates that the effect and
365

Interim Decision #2205
purpose are precisely the same, citingMorera v. INS, 462 F.2d 1030
(CA. 1, 1971). We do not agree with this contention. What counsel
is urging is that if the State of California expunges the conviction,
disabilities flowing from it are eliminated and the federal penalty
of deportation should not then be imposed.
Deportation is a function of federal and not of state law. It
would be anomalous for a federal action, based upon a state
conviction, to be controlled by how a state may choose subsequently to treat the event. It is the fact of state conviction, not the
manner of state punishment for that conviction, that is crucial,
Garcia-Gonzales v. INS, supra. Moreover, it is clear from the
legislative history of the Federal Youth Corrections Act that
Congress intended that a "youth offender" would not have a
continuing criminal record if his conviction was set aside pursuant
to 18 U.S.C. 5021. But Congress made it equally clear that this was
a federal law binding only in the federal courts and excluding any
state action. Here, unlike Morera, supra, expungement of the
narcotic conviction was pursuant to state law under a procedure
not on the merits. On the other hand, section 5021 of the Federal
Youth Corrections Act clearly contemplates more than a "technical erasure."
In our review of this record we find that the respondent was
accorded a fair hearing; that the decision of the immigration judge
was based upon the evidence adduced at the hearing; that the
evidence upon which the decision was based was clear, convincing
and unequivocal; and that the immigration judge properly applied
the pertinent legal principles. We are aware of the sympathetic
factors present in this case. Respondent's suspension application
reflects that he has numerous close relatives in the United States,
including four brothers, who are United States citizens, and his
father, mother and a sister, who are lawful permanent residents.
Nevertheless, we have no alternative but to affirm the decision of
the immigration judge and dismiss the appeal. Accordingly, the
following order will be entered.
ORDER; The appeal is dismissed.

366


Interim Decision #2369

MATTER OF AKINSETE

In Visa Petition Proceedings
A-20241104

Decided by Board April 16,1975
Petitioner who alleged that a prior marriage had been terminated by a Nigerian customary divorce had the burden to prove the native law and custom had been complied with
by some credible corroborative evidence, in addition to petitioner's unsupported assertions. Where such corroboration was lacking, denial of the petition to classify the
petitioner's spcuse as an immediate relative under section 201(b) of the Immigration and
Nationality Act was proper.
ON BEHALF OF PETITIONER:

ON BEHALF OF

Samuel Y. Aldnsete, Rep.
1660 Lanier PI , N.W.

SERVICE:

Irving A. Appleman, Esquire

Appellate Thal Attorney

Washington, D.C. 20009

The United States citizen petitioner applied for immediate relative
classification for the beneficiary as her spouse under section 201(b) of the
Immigration and Nationality Act. In a decision dated May 28, 1974 the
district director denied the petition on the ground that the beneficiary, a
native and citizen of Nigeria, has a previous marriage which was performed according to the native law and custom of that country, and has
not been legally dissolved. The petitioner appeals from the district

director's denial. We find that the district director's decision was correct
and the appeal will be dismissed.
The petitioner contends that the beneficiary's prior marriage has been

validly terminated in Nigeria according to the native law and custom. In
support of this. assertion the petitioner has submitted a sworn statement
executed in a Nigerian Magistrate Court by the beneficiary's father,
attesting that the customary marriage has been dissolved and that the
beneficiary's first wife has remarried. In addition, the petitioner's representative, the brother of the beneficiary, has attempted to set forth
the applicable customary law. The district director found this evidence
to be self-serving and insufficient to sustain the petitioner's burden of
proving eligibility for the benefit sought.
According to a report entitled "Customary Divorce Law in the MidWestern State of Nigeria" prepared by the Library of Congress, Near
254

Interim Decision #2369
Eastern and African Law Division, a Nigerian customary divorce requires the institution of certain quasi-judicial proceedings. Such proceedings are held in a customary court which will ascertain and apply
the applicable customary law. The party seeking the divorce has the
burden of proving the customary law to the satisfaction of the court,
either through written or oral evidence, or through witnesses called
"assessors," tribal elders who are experts in the details of local customary law. It seems dear that in order to prove the native law and custom,
some credible corroborative evidence is required in addition to the
representations of the person who asserts it.

The petitioner is this case has neither claimed nor shown that the
beneficiary's customary marriage has been dissolved pursuant to such
formal customary proceedings, although the beneficiary is, of course,
free to institute them at any time_ Accordingly, we must concur in the
district director's conclusion that the proof thus far submitted does not
support agrant of immediate relative status to the beneficiary. Should
the beneficiary succeed in obtaining a valid customary divorce from his
Nigerian wife, and remarry the petitioner, then the petitioner can file a
new visa petition in his behalf. The following order will be entered.
ORDER: The appeal is dismissed.
Irving A. Appleman,

this ease.

Board Member, abstained from consideration of

255


Interim Decision #2126

MATTER OF WV "OCEANIC PEACE"
In Fine Proceedings

NYC-10/52.1962
Decided by Board February 14, 1972
(1)Where a vessel, following arrival and crew inspection at Los Angeles sailed for
New York via the Canal Zone making a port call in Balboa, Canal Zone for the
purpose of transaction of ship's business (sign on a replacement engineer),
such vessel upon arrival at New York was arriving from foreign and,
therefore, subject to all the requirements of the immigration laws.
(2) Hence, liability to fine for failure to detain on board for inspection lies under
section 254(a)(1), Immigration and Nationality Act, as to the six crewmen
reported by the carrier (Forms 1-418) to have deserted the ship after its arrival
at New York (sec. 254(b)). As to the remaining 36 alien crew members, fine
does not lie under section 254(a)(1) of the Act in the absence of affirmative
evidence that they did, in fact, leave the vessel before inspected.
BASLS FOR FINE: Act of 1952—Section 254(0(l) [8 U.S.C. 1284]
lu ttr.• MW "OCR A WC PRAM" which arrived at the port of New York. from
the Canal Zone, on October 19, 1969. Alien crewmen involved: HUI SIN
HO, Master and 41 others
ON BEHALF OF CARRIER: John J. Quigley, Jr., Esquire
26 Broadway
New York, New York 10004

This appeal is directed to an administrative penalty of $42,000,

$1,000 as to each of the alien members of the crew of the vessel,
including its Master, which the District Director has ordered
imposed on the vessel's owner, agent, charterer, or consignee,

ASCA Marine Corporation, for failure to detain the crewmen
aboard the vessel until they had been inspected by an immigration
officer. The penalty will be reduced to $6,000, for the reasons
hereinafter set forth.
The vessel arrived at the port of Los Angeles, California, from
foreign, on October 1, 1969. Immigration inspection was then and
there accorded its crew. While the vessel was still in the port of
Los Angeles, the chief engineer had to leave the ship because of
illness.
The vessel sailed from Los Angeles for New York, by way of the

51

Interim Decision #2126
Canal Zone. On October 12, 1969, it made a three-hour port call in
Balboa, Canal Zone. The purpose of that port call was to sign on a
replacement engineer, Chen Chon Shai.
The ship then proceeded to New York, arrived at anchorage
there on October 19, 1969, and proceeded to the Yonkers Sugar
Refinery Docks, Yonkers, New York, on October 21, 1969. The
Master then entered and cleared his vessel for Customs purposes.
He did not, however, request immigration inspection and none was
made. The vessel proceeded coastwise from New York to Baton
Rouge, Louisiana, and Los Angeles, California. The departure
manifests (Forms 1 -418) filed at those ports indicate that the
following Chinese crewmen deserted the ship in the United States
after its arrival at New York: Chung Pak Hop, Kwok Kam Yuen,
Lam Yat Kuen, Wong Chi Chung, Chin Kwong and Chung Nam
Sang.
The carrier's basic contention, which we reject, is that any
immigration fine to be imposed here must be limited to a failure
solely with respect to the crewman signed on at Balboa, Canal
Zone. The answer to this argument, simply stated, is that ports in
the Canal Zone are foreign ports. Any vessel calling at them is
required to enter and clear formally_ And when it subsequently
enters a United States port, it is deemed to be arriving from
foreign. It is, therefore, then subject to all the requirements of the
immigration laws.
Exceptions to the foregoing have traditionally been made where
a vessel entered a port in the Canal Zone solely for the purpose of
passing in transit, bunkering, or landing a crewman for medical
treatment. But no such exclusions have been made where the
purpose of the port call was the transaction of ship's business, e.g.,
taking on or discharging cargo, passengers, or crew members. This
case falls clearly within the last mentioned category.
The carrier's awareness of the true situation can be found in the
fact that it requested Customs inspection in New York. Also, its
foregoing argument appears to concede the point, albeit to a
limited extent. But most important, the following record evidence
dispels any doubts we might otherwise have had on the point.
On October 3, 1969, A. Levkovitch, Operations Manager, Orient
Maritime Agencies, Los Angeles, California, sent a memorandum

to Wilford and McKay, Inc., agents at Balboa, Canal Zone, requesting information on the transactions of the vessel .in the Canal
Zone. The Balboa agents replied by way of a "Note" added to Mr.
Levkovitch's memorandum which reads, as follows: "Business
transactions at Canal. Chen Chon Shai—Chief Engineer who
arrived on PAA 517 was signed onboard vessel in Balboa." The text
of the memorandum renders it abundantly clear that the parties
52

Interim Decision #2126
responsible for the vessel's operation were fully aware that this
"business transaction" made complete compliance with the immigration laws necessary at the vessel's next United States port of
call.
In connection with the foregoing, the California agents received
the reply from the Canal Zone agents on October 16, 1969. This was
three days before the vessel arrived at anchorage in New York,
and five days before it docked at that port. Under these circumstances, we find no valid excuse for the failure to have the New
York agents and/or the Master, if he actually was unaware of the
requirement, informed of the necessity of immigration inspection
at that port. Again, support for this finding, if such be necessary,
can be derived from the fact that Customs inspection was requested there.
It is our conclusion, based on the foregoing, that liability to a
penalty of $6,000 has been established, i.e., a fine of $1,000 as to each
of the alien crewmen named above as having deserted the ship
after its arrival at New York. The reports (manifests and crew list)
of the carrier itself show that they did not sail foreign with their
vessel. Thus, the provisions of section 254(b) are operative as to
them. In other words, a prima facie ease for imposition of fines
based on failure to detain them for inspection has been established. The Service does not have to show otherwise that they did,
in fact, leave the vessel.

The contrary, however, is true with respect to the other thirtysix (36) alien members of the ship's crew. Under section 254(aX1) of
the Act, a fine for failure to detain an alien crewman on board
until he has been inspected by an immigration officer does not lie
for merely failing to present him for inspection. Accordingly, the
Government has the burden, other than as indicated above, of
establishing by affirmative evidence that the crewman did, in fact,
leave the vessel before he was inspected, Matter. of MAT "Pacific

Ocean, 11 I. & N. Dec. 475 (BIA, 1966), and we find no such evidence
as to 26 members of this ship's crew.
On this point, the alleged violations occurred in October of 1969,

and these proceedings were instituted on December 10, 1970.
Hence, the Service has already had adequate opportunity to make
its case, but has failed to do so. But, in the unlikely event it can
and does develop appropriate evidence, it will then have available
an adequate remedy by way of a motion for reconsideration.
Finally, there remains only the question of mitigation of the
fines we have found properly imposed. As indicated above, the
carrier's failure to detain the six (6) deserters until they had been
inspected cannot reasonably be considered unintentional because

of lack of awareness of the requirement therefor, or traceable to
53

-

Interim Decision #2126
lack of an opportunity to request inspection in timely manner. All
we need add is that no claim has been advanced or showing made
that the carrier took any precautions to prevent desertions,
despite the fact that the manifests show several crew members
were refused landing privileges at the time of initial inspection at
Los Angeles. We conclude, therefore, that no mitigation of the
penalty incurred is merited.
ORDER: It is ordered that the District Director's decision of
September 16, 1971, be amended to provide for the imposition of a
penalty of $6,000, $1,000 as to each of the six (6) alien crewmen
reported by the carrier to have deserted the ship after its arrival
in New York, and that as so modified the decision of the District
Director be and the same is hereby affirmed. The penalty of
$36,000 ordered imposed by the District Director as to the thirtysix (36) crewmen not shown to have gone ashore at New York or
thereafter is not sustained.

54