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Interim Decision #3892

Matter of M-B-C-, Respondent
Decided May 18, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where the record contains some evidence from which a reasonable factfinder could
conclude that one or more grounds for mandatory denial of an application for relief may
apply, the alien bears the burden under 8 C.F.R. § 1240.8(d) (2016) to prove by a
preponderance of the evidence that such grounds do not apply.
FOR RESPONDENT: Simon Tsang, Esquire, Tampa, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: James E. M. Craig, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and LIEBOWITZ, Board Members.
MULLANE, Board Member:

In a decision dated March 12, 2015, an Immigration Judge denied the
respondent’s request for a waiver of deportability under section 237(a)(1)(H)
of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H) (2012),
and his applications for asylum and withholding of removal under sections
208 and 241(b)(3) of the Act, 8 U.S.C. §§ 1158 and 1231(b)(3) (2012). 1 The
respondent has appealed from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Bosnia-Herzegovina who was
admitted to the United States as a refugee on September 29, 1998. On
January 15, 2002, his status was adjusted to that of a lawful permanent
resident. On August 25, 2011, the Department of Homeland Security
(“DHS”) initiated removal proceedings by filing a notice to appear charging
that the respondent is removable under section 237(a)(1)(A) of the Act as an
1

Although the respondent applied for additional forms of relief from removal during the
proceedings, he has only meaningfully challenged the Immigration Judge’s decision to
deny his request for a section 237(a)(1)(H) waiver and his applications for asylum and
withholding of removal. We consider any issues regarding the other forms of relief to be
waived. See Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012).

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alien who was inadmissible at the time of entry or adjustment of status under
section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), as an
alien who procured admission and adjustment of status by fraud or willful
misrepresentation of a material fact, and under section 212(a)(7)(A)(i)(I)
as an immigrant who did not present a valid passport. These charges were
based on allegations that the respondent omitted information about his
military service during the Bosnian War from both his Registration for
Classification as Refugee (Form I-590) and his Application to Register
Permanent Residence or Adjust Status (Form I-485). The respondent
conceded removability and applied for, among other things, a waiver of
deportability under section 237(a)(1)(H) of the Act, asylum, and withholding
of removal.
The Immigration Judge heard testimony from the respondent and from
Michael MacQueen, a senior historian in the Human Rights Law Division of
the DHS, who testified as a subject-matter expert on the Bosnian War. In her
decision, the Immigration Judge found that the respondent was not a credible
witness and denied all of his applications for relief. Specifically, the
Immigration Judge denied the respondent’s application for a section
237(a)(1)(H) waiver after determining that he did not meet his burden of
establishing that he is not barred from such relief as an alien who assisted or
otherwise participated in genocide or as an alien who committed, ordered,
incited, assisted, or otherwise participated in the commission of any
extrajudicial killing. The Immigration Judge also denied the respondent’s
applications for asylum and withholding of removal, concluding that
he is subject to the persecutor bar in sections 208(b)(2)(A)(i) and
241(b)(3)(B)(i) of the Act.
On appeal, the respondent challenges the Immigration Judge’s adverse
credibility determination. He also argues that the Immigration Judge erred
in concluding that he is barred from seeking a section 237(a)(1)(H) waiver
based on his activities during the Bosnian War. Additionally, the respondent
contends that the Immigration Judge improperly determined that he is
ineligible for asylum and withholding of removal. We review the
Immigration Judge’s findings of fact, including her findings regarding the
respondent’s credibility, to determine if they are clearly erroneous. 8 C.F.R.
§ 1003.1(d)(3)(i) (2016). We review de novo questions of law, discretion,
and judgment, and all other issues on appeal. 8 C.F.R. § 1003.1(d)(3)(ii).

II. LEGAL STANDARDS
The Attorney General may, pursuant to section 237(a)(1)(H) of the Act,
waive the removability of certain aliens who are inadmissible at the time of

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Interim Decision #3892

entry or adjustment of status. However, such a discretionary waiver is
unavailable to any alien described in section 237(a)(4)(D), which includes
those described in sections 212(a)(3)(E)(ii) and (iii)(II) of the Act.
Section 212(a)(3)(E)(ii) of the Act renders inadmissible any alien who
ordered, incited, assisted, or otherwise participated in “genocide,” as defined
in 18 U.S.C. § 1091(a) (2012), which provides, in relevant part:
(a) Basic Offense.—Whoever, whether in time of peace or in time of war and with
the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial,
or religious group as such—
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the
group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished . . . .

Section 212(a)(3)(E)(iii)(II) of the Act renders inadmissible “[a]ny alien
who, outside the United States, has committed, ordered, incited, assisted, or
otherwise participated in the commission of . . . under color of law of any
foreign nation, any extrajudicial killing.” For purposes of this section, the
term “extrajudicial killing” is defined as
a deliberated killing not authorized by a previous judgment pronounced by a
regularly constituted court affording all the judicial guarantees which are recognized
as indispensable by civilized peoples. Such term, however, does not include any
such killing that, under international law, is lawfully carried out under the authority
of a foreign nation.

Torture Victim Protection Act of 1991, Pub. L. No. 102-256, § 3(a), 106 Stat.
73, 73.
The respondent has the burden to establish that he satisfies the applicable
eligibility requirements for his applications for relief from removal. See
section 240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A) (2012). “If the
evidence indicates that one or more of the grounds for mandatory denial of
the application for relief may apply, the alien shall have the burden of proving
by a preponderance of the evidence that such grounds do not apply.” 8 C.F.R.
§ 1240.8(d) (2016) (emphases added).

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III. ANALYSIS
A. Credibility
We are not persuaded of any clear error in the Immigration Judge’s
adverse credibility determination, which is based on specific and cogent
reasons, including inconsistencies in the respondent’s testimony, as well as
an implausible aspect of his testimony. See section 240(c)(4)(C) of the Act;
see also section 208(b)(1)(B)(iii) of the Act; Matter of J-Y-C-, 24 I&N Dec.
260, 262 (BIA 2007).
This case involves events that occurred during the Bosnian War, a
conflict arising from the dissolution of the former Yugoslavia. The war was
fought along ethnic lines between the Army of the Republic of Srpska
(“VRS”), which was primarily composed of Eastern Orthodox Serbs; the
Army of the Republic of Bosnia and Herzegovina, a group that was mostly
made up of Muslim Bosniaks; and the Croatian Defense Counsel, which was
mostly composed of Roman Catholic Croats. Mr. MacQueen explained that
the war was largely waged against the civilian population and was
characterized by ethnic cleansing. Early in the war, the Serbs were able to
dominate most of Bosnia and Herzegovina, but Bosniaks secured pockets of
resistance, including areas in and around the Bosnian city of Srebrenica. In
July 1995, the VRS commenced an offensive against Srebrenica, which
ultimately resulted in the forced removal of 25,000 women and small
children and the massacre of approximately 8,000 men and boys.
Mr. MacQueen testified that the respondent served in the VRS in the town
of Ilijaš from May 1992 until July 1992. In July 1992, the respondent
assumed a leadership role as company commander in the Bratunac Light
Infantry Brigade, where he served until the fall of 1993. The respondent then
joined the Ministry of Internal Affairs Bratunac Police, where he served until
the fall of 1994. He served in the Janja Special Police from November 1994
until June 1996.
According to Mr. MacQueen, VRS soldiers engaged in summary
executions in and around Ilijaš during the time that the respondent was
stationed there. He testified that when the respondent served in the Bratunac
Light Infantry Brigade, the unit was involved in the systematic expulsion of
the civilian population and the killing of hundreds, if not thousands, of
Muslim civilians. Mr. MacQueen further testified that the special police
units from Janja were deployed in the area of operations of Srebrenica during
the July 1995 massacre and were involved in killing and capturing Muslim
civilians who attempted to escape. 2
2

According to Mr. MacQueen, the Bratunac Police did not commit any significant human
rights abuses during the respondent’s service from the fall of 1993 to the fall of 1994.

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The respondent testified that he served in the VRS from 1992 to 1993.
Although he denied possessing an “official” rank, he confirmed that he was
elevated to the position of company commander in the Bratunac Light
Infantry Brigade and that he commanded approximately 100 soldiers in that
role. He claims to have never had a part in capturing, killing, or forcibly
expelling civilians during his service in the VRS. The respondent also
confirmed that he was transferred to the Bratunac Police in late 1993.
The respondent denies that he served with the special police in Janja,
testifying instead that he served in Janja’s reserve police force. This
testimony is inconsistent with that of Mr. MacQueen, as well as documentary
evidence in the record. The record contains a decision prepared by the
Municipality of Bijeljina Department of Veterans and Civil Protection,
certifying that the respondent served as a member of the “Ministry of Internal
Affairs of the Republic of Srpska, Local Police Unit Janja,” from November
1994 until June 1996. Mr. MacQueen testified that the English translation of
this document is incorrect and that the original Serbo-Croation document
indicates that the respondent served in the Janja special police. The
respondent concedes that this is the case on appeal.
The record also contains photographs showing the respondent wearing a
uniform that Mr. MacQueen testified was indicative of service in the special
police. Finally, the respondent submitted written pleadings admitting the
factual allegations contained in the notice to appear, including the allegations
that he served in the Ministry of Internal Affairs Special Police Brigade. In
light of this evidence, we are not persuaded of any clear error in the
Immigration Judge’s finding that the respondent served in the special police
force in Janja from November 1994 until June 1996, and we agree that the
respondent’s testimony to the contrary undermines his credibility as a
witness.
When questioned, the respondent testified that he had never heard of any
Muslim civilians being captured, killed, or forced to leave their homes during
the time of his service, apart from some incidents that occurred on the other
side of Bosnia. We agree with the Immigration Judge that it is implausible
that the respondent would be ignorant of the human rights abuses that
occurred in and around Ilijaš during the time of his service in the VRS or of
those committed by members of the Bratunac Light Infantry Brigade when
he served with that group. It was reasonable for the Immigration Judge to
conclude that the respondent’s professed ignorance of such abuses further
undermines his credibility as a witness.
In view of the foregoing inconsistencies and the implausibility of the
respondent’s testimony, and upon consideration of all relevant evidence, we
conclude that the Immigration Judge’s adverse credibility determination is
not clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i).
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B. Extrajudicial Killing
The respondent has not offered any evidence to rebut or otherwise
challenge the accuracy of the description of events outlined by
Mr. MacQueen—namely, the summary executions (1) in and around Ilijaš
between May and July 1992; (2) in and around Bratunac between July 1992
and November 1993; and (3) in and around Srebrenica in July 1995. The
respondent also has not meaningfully challenged the Immigration Judge’s
determination that these events constitute extrajudicial killings within the
meaning of section 212(a)(3)(E)(iii)(II) of the Act. In addition, the
respondent concedes that he operated under color of law throughout his
police and military service. Nevertheless, the respondent contends that the
record evidence is insufficient to indicate that he may have committed,
ordered, incited, assisted, or otherwise participated in the commission of any
extrajudicial killings because the DHS has not provided any direct evidence
that he was ever personally involved in or aware of the summary executions
and other human rights abuses outlined above.
It is well settled, however, that the terms “committed, ordered, incited,
assisted, or otherwise participated” under the Act “are to be given broad
application” and “do not require direct personal involvement in the acts” in
question. Matter of A-H-, 23 I&N Dec. 774, 784 (A.G. 2005), remanded on
other grounds, Haddam v. Holder, 547 F. App’x 306 (4th Cir. 2013). Rather,
“there is a continuum of conduct ranging from passive acceptance, which
does not meet the legal standard, to active, personal participation, which
clearly does.” Matter of D-R-, 25 I&N Dec. 445, 453 (BIA 2011), remanded
on other grounds, Radojkovic v. Holder, 599 F. App’x 646 (9th Cir. 2015).
We have concluded that an alien is inadmissible under section 212(a)(3)(E)
of the Act where it is established that “an alien with command responsibility
knew or should have known that his subordinates committed unlawful acts
covered by the statute and failed to prove that he took reasonable measures
to prevent or stop such acts or investigate in a genuine effort to punish the
perpetrators.” Id.
Moreover, unlike Matter of D-R-, where the DHS bore the burden of
demonstrating the alien’s removability under section 237(a)(4)(D) of the Act
by clear and convincing evidence, in this case we must determine whether
the respondent is ineligible for a section 237(a)(1)(H) waiver. Thus, the
relevant inquiry under 8 C.F.R. § 1240.8(d) is whether the evidence indicates
that the grounds for mandatory denial in sections 212(a)(3)(E) and
237(a)(4)(D) of the Act may apply to him so that he then has the burden to
show that they do not apply.
In using the terms “indicates” and “may apply” together, 8 C.F.R.
§ 1240.8(d) does not create an onerous standard and necessarily means a
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showing less than the preponderance of the evidence standard. Otherwise,
the regulation would have simply employed the preponderance standard.
Accordingly, we hold that where the record contains some evidence from
which a reasonable factfinder could conclude that one or more grounds for
mandatory denial of the application may apply, the alien bears the burden
under 8 C.F.R. § 1240.8(d) to prove by a preponderance of the evidence that
such grounds do not apply.
The decision of the United States Court of Appeals for the Eighth Circuit
in Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017), supports our holding in
this regard. In that case, the court ruled that under 8 C.F.R. § 1240.8(d),
once evidence is presented that “indicates” that an alien “may have
participated in . . . extrajudicial killings,” the alien bears the burden of
proving “by a preponderance of the evidence that the statutory bar in
[section 212(a)(3)(E)(iii)] did not apply.” Id. at 523.
Mr. MacQueen’s testimony establishes that local VRS units were
responsible for the extrajudicial killings that occurred in and around Ilijaš
between May and July 1992 and that the Janja Special Police were
responsible, in part, for the extrajudicial killings that occurred in and around
Srebrenica in July 1995. The record further establishes that the respondent
served in the VRS in Ilijaš between May and July 1992 and that he served in
the Janja Special Police in July 1995.
We agree with the Immigration Judge that the respondent’s service in the
VRS, in a location where VRS soldiers engaged in extrajudicial killings and
during the time those extrajudicial killings occurred, is sufficient to indicate
that he may have committed, ordered, incited, assisted, or otherwise
participated in those extrajudicial killings and that he therefore may be an
alien described in section 212(a)(3)(E)(iii)(II) of the Act. The respondent
therefore bore the burden of proving by a preponderance of the evidence that
he is not an alien described in that section. The sole evidence offered by the
respondent to meet this burden is his testimony that he had no knowledge of
any extrajudicial killings that occurred in or around Ilijaš during the time in
question. We agree with the Immigration Judge that this testimony, which
lacks credibility, is insufficient to meet the respondent’s burden.
Similarly, the respondent’s service in the Janja Special Police, in a
location where its members engaged in extrajudicial killings and during the
time they occurred, is sufficient to indicate that he may have committed,
ordered, incited, assisted, or otherwise participated in those extrajudicial
killings. His incredible testimony denying that he served in or around
Srebrenica at that time is insufficient to meet his burden to prove by a
preponderance of the evidence that he did not engage in any of extrajudicial
killings that occurred there.

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Mr. MacQueen’s testimony and the documentary evidence provided by
the DHS also establish that the Bratunac Light Infantry Brigade was involved
in the extrajudicial killing of Bosniak Muslims between late 1992 and early
1993, while the respondent was serving as a company commander. We agree
that this evidence is sufficient to establish that the respondent, as an
individual with command responsibility, either knew or should have known
of the extrajudicial killings that took place in his area of responsibility, and
therefore it indicates that the respondent may be an alien described in
212(a)(3)(E)(iii)(II) of the Act. We also conclude that the respondent’s
incredible testimony that he was unaware of any such killings is insufficient
to meet his burden to prove by a preponderance of the evidence that he is not
an alien described under that section of the Act.
C. Genocide
The respondent does not challenge the Immigration Judge’s
determination that the summary execution of 8,000 Bosniak Muslims in
Srebrenica in July 1995 constitutes genocide within the meaning of section
212(a)(3)(E)(ii) of the Act. As previously discussed, the record shows that
the Janja Special Police were responsible, in part, for those killings. The
respondent’s service in the Janja Special Police, in a location where its
members engaged in genocide and during the time the genocide occurred, is
sufficient to indicate that he may have assisted, or otherwise participated in
the genocide. As before, the respondent’s incredible testimony denying that
he served in or around Srebrenica at that time is insufficient to meet his
burden to prove by a preponderance of the evidence that he did not assist or
otherwise participate in the genocide that occurred there.
D. Asylum and Withholding of Removal
Finally, the respondent has not challenged the Immigration Judge’s
determination that the summary executions discussed above qualify as
persecution of Bosniaks on account of a statutorily protected ground. Based
on the above discussion, we conclude that the evidence presented is sufficient
to indicate that the respondent may have assisted or otherwise participated in
this persecution and that his incredible testimony is insufficient to prove by
a preponderance of the evidence that he did not. Consequently, we agree
with the Immigration Judge that the respondent is ineligible for asylum and
withholding of removal because he is subject to the persecutor bar under
sections 208(b)(2)(A)(i) and 241(b)(3)(B)(i) of the Act. See Matter of J. M.
Alvarado, 27 I&N Dec. 27, 29–30 (BIA 2017) (holding that an alien who has
assisted or participated in persecution based on a protected ground is subject
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to the persecutor bar, without regard to the alien’s personal motivation for
assisting or otherwise participating in the persecution).

IV. CONCLUSION
The DHS has presented extensive evidence showing not only that the
respondent was a member of military and police units that engaged in
extrajudicial killings and genocide during the Bosnian War, but also that his
service in those units corresponds with the times and locations of
extrajudicial killings and genocide. Based on this evidence, it was reasonable
for the Immigration Judge to conclude that the respondent may have
committed, ordered, incited, assisted, or otherwise participated in
extrajudicial killings and genocide and, consequently, that he might be an
alien described in sections 212(a)(3)(E)(ii) and (iii)(II) and 237(a)(4)(D) of
the Act. Apart from his testimony, which lacks credibility, the respondent
did not offer sufficient evidence to meet his burden of proving by a
preponderance of the evidence that he is not an alien described in those
provisions. It was also reasonable for the Immigration Judge to conclude that
the respondent may have ordered, incited, assisted, or otherwise participated
in persecution and that his incredible testimony does not establish by a
preponderance of the evidence that he is not subject to the persecutor bar.
We will therefore uphold the Immigration Judge’s adverse credibility
finding and affirm her determination that the respondent has not established
eligibility for a waiver of deportability under section 237(a)(1)(H) of the Act
or for asylum or withholding of removal. Accordingly, the respondent’s
appeal will be dismissed.
ORDER: The appeal is dismissed.

39


Interim Decision #2032

MATTER OF YANEZ-JAQUEZ

In Deportation Proceedings
A-105326C7
Decided by Board March 26, 1970
The six-month period specified in section 106(a) (1) of the Immigration and
Nationality Act, as amended, for the filing of a petition for judicial review is not a limitation on the power of the Service to execute a final deportation order during that period when judicial review has not been
sought.
CHARGE:
Order: Act of 1952—Section 241 (a ) (4) [8 U.S.C. 1251 (a) (4 ) ]—Convicted
of a crime involving moral turpitude, to wit, passing a forged instrument (1968), committed within
five years after entry (1967), and sentenced to
confinement therefor in a prison or corrective institution for a year or more.
ON BEHALF OF RESPONDENT:
Albert Armendariz, Esquire
593 Magoffin Avenue
El Paso, Texas 79901

ON BEHALF OF SERVICE:
William E. Weinert
Trial Attorney
(Brief filed)

Counsel for respondent has moved for reconsideration of our
order dated January 16, 1970, Interim Decision No. 2019. We
have carefully reexamined the record in the light of the matters
assered in the motion. We are satisfied that our decision of January 16. 1970 was correct. The motion for reconsideration will he
denied.
Counsel has requested, in the alternative, that if we deny the
motion we should stay execution of the deportation order "during
the full period allowed by law" for the filing of a petition for review under section 106 (a) of the Immigration and Nationality
Act, 8 U.S.C. 1105a (a). He asserts that the statute "grants the
[respondent] and his Counsel a full six months after the final decision of this Board to formulate and file his appeal to the Federal Judiciary" and complains that "the local immigration authorities attempt to deport the alien involved prior to the six-month

Interim Decision #2032
period." Implicit in this contention is the notion that the sixmonth period specified in section 106(a) (1) of the Act is a limitation on the power of the Service to execute a final deportation
order.
The provision in question is not susceptible of such a construction. The six-month period is clearly a limitation only on the
right to bring a direct review action in the Court of Appeals, Liadakis v. INS, 339 F.2d 447 (4 Cir., 1964); Lopez v. INS, 356 F.2d
986 (3 Cir., 1966) , cert. denied 385 U.S. 839; Yamada v. INS, 384
F.2d 214 (9 Cir., 1967). There is nothing in the statute to indicate that Congress intended that deportation should be deferred
for the six-month period and section 106(a) (7) specifically provides that, [N]othing in this section shall be construed to require the Attorney General to defer deportation of an alien after
the issuance of a deportation order because of the right of judicial review of the order granted by this section ..."
Under section 106(a) (3), there is an automatic stay of deportation once the review action is begun and the petition for review
is served on the appropriate Service officer. If an attorney needs
a respite to formulate and file his petition for review under section 106(a), he has an adequate remedy in an application to the
District Director for a stay of deportation under 8 CFR 243.4. A
stay by this Board under such circumstances is unwarranted.
ORDER: The motion for reconsideration is denied.

513


MAI1hR OF

F—

In DEPORTATION Proceedings
A-15710815

Decided by Board June 6, 1961
Voluntary departure—"immediate means."
Eligibility requirement in 8 CFR 244.1 that alien have the "immediate means"
to depart voluntarily is satisfied if facts, in each case considered individually. indicate distinct probability that alien will be able to effectuate voluntary departure within a reasonable period of time.
CHARGE :

Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ]—Admitted as
nonimmigrant under section 101(a) (15)—Remained longer.

BEFORE THE BOARD

DISCUSSION; In a decision dated March 10, 1961, the special
inquiry officer directed that the respondent herein be deported from
the United States on the charge set forth in the order to show
cause. He denied the discretionary relief of voluntary departure.
From that decision the respondent, through his attorney, has appealed to this. Board and has contested the finding by the special
inquiry officer that the respondent is statutorily ineligible for the
privilege of voluntary departure.
The respondent is a 28-year-old unmarried male who first entered
the United States in 1951 as an apprentice seaman. He last entered
the United States at New York City on or about July 24, 1959, at
which time he was admitted as a nonimmigrant crew man authorized
to remain in the United States for a period not to exceed 29 days.
He has remained without authority since that time and deportability

is conceded.
In considering the eligibility of the respondent for discretionary
relief, the special inquiry officer concluded that under the pertinent.

regulations an alien must show that he has the immediate means of
departing from the Unitea States in order to be considered eligible.
The special inquiry officer concluded that "immediate means" contemplates not only financial ability but also the present ability to
333

enter some other country. He found that the respondent did not
possess that ability and that he was, therefore, statutorily ineligible
for voluntary departure.
On appeal at oral argument respondent's counsel stated that respondent could not establish his ability to depart• immediately for
the reason that having left a Yugoslav vessel and being an ex-member
of the Cummunibt Party he felt that his return to Yugoslavia would

cause persecution and prosecution and, therefore, he would not voluntarily return to that country. Counsel for the respondent also
pointed out that respondent, by training, is a highly intelligent
ship's officer and that he has made contact with a shipping line
sailing out of Trinidad, British West Indies, which line has indicated that they would give him employment if he can obtain proper
documentation. Counsel also indicated that she has applied for the
respondent to go to Trinidad, and it has been her experience that
obtaining visas for Yugoslav seamen generally takes two months'
time.
Counsel for the respondent also stated that the discretionary relief
of voluntary departure cannot be incorporated in the regulations
to the extent of the interpretation given it by the special inquiry
officer. She pointed out that under section 244.1 of Title 8, Code
of Federal Regulations, the term "immediate means" is a comparatively new term, having been first inserted in the regulations on
January 23, 1960.

Counsel for the Immigration Service claims that the respondent's
argument would mean that deportable aliens have a right to remain
in the United States in illegal status for an indefinite period of time;
that such remaining on the part of the crewmen constituted criminal
offenses.
This Board has carefully considered the record in this case, together with representations made by counsel and the Service representative on appeal. It is our conclusion that the regulations regarding voluntary departure must be applied in the light of the
facts of each individual case. We find that the facts here indicate
distinct probability that the respondent will be able to effectuate
voluntary departure within a reasonable period of time. Here we

consider as important the fact that respondent and his counsel are
making substantial efforts to depart to some country other than
Yugoslavia. We deem it only proper that a sufficient and reasonable
time be allotted respondent to conclude his arrangements. Accordingly, the following order will be entered.
ORDER: It is ordered that the outstanding order of deportation
be withdrawn and the alien bo permitted to depart from the United
States voluntarily without expense to the Government, to any country
334

of his choice, within such period of time, and under such conditions
as the officer-in-charge of the District deems appropriate.
It is further ordered that if the alien does not depart from the
United States in accordance with the foregoing the order of deportation be reinstated and executed.

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Interim Decision #3987

Matter of R. I. ORTEGA, Beneficiary of a visa petition filed by
Celeste Argentina Rodridguez De Ortega, Petitioner
Decided June 19, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien who has conspired to enter into a marriage for the purpose of evading the
immigration laws by seeking to secure a K-1 fiancé(e) nonimmigrant visa is subject
to the bar under section 204(c)(2) of the Immigration and Nationality Act, 8 U.S.C.
§ 1154(c)(2) (2018).
(2) For purposes of section 204(c)(2) of the Act, a conspiracy requires an agreement to
enter into a marriage for the purpose of evading the immigration laws and an overt act
in furtherance of that agreement.
FOR PETITIONER: Jorge Guttlein, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter N. Schmalz, Deputy
Chief
BEFORE: Board Panel:
Immigration Judges.

MALPHRUS, MULLANE, and LIEBOWITZ, Appellate

MALPHRUS, Appellate Immigration Judge:

In a decision dated the November 13, 2017, the Field Office Director
(“Director”) revoked the approval of the visa petition filed by the petitioner
on behalf of the beneficiary, holding that the approval is barred by section
204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2012).
The petitioner has appealed from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The facts of this case are not in dispute. The petitioner is a United States
citizen, and the beneficiary, her son, is a native and citizen of the Dominican
Republic. On November 17, 2004, the beneficiary’s then-fiancée, a United
States citizen, filed a Petition for Alien Fiancé(e) (Form I-129F) on his
behalf. The petition was approved on November 29, 2004. The beneficiary
appeared for an interview at the United States Consulate in Santo Domingo
on July 7, 2005, after which the case was referred for a dual interview.
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During that interview, the beneficiary and his fiancée provided inconsistent
answers in response to questions about their relationship. On June 21, 2006,
the United States Citizenship and Immigration Services (“USCIS”)
informed the beneficiary’s fiancée of its intent to revoke the approval of the
visa petition, because it had determined that the beneficiary attempted or
conspired to enter into a marriage for the purpose of evading the immigration
laws. No response was received, and the visa petition was terminated on
February 13, 2007. It is undisputed that the beneficiary’s engagement with
his former fiancée was not bona fide.
On June 12, 2008, the petitioner filed a Petition for Alien Relative (Form
I-130) to accord the beneficiary preference status as her unmarried son under
section 203(a)(1) of Act, 8 U.S.C. § 1153(a)(1) (2006). The petition was
approved on August 11, 2008. On September 12, 2017, the USCIS informed
the petitioner of its intent to revoke the approval of the visa petition on the
grounds that the approval is barred by operation of section 204(c) of the Act.
The petitioner filed a response to the notice of intent to revoke, which was
received by the USCIS on October 17, 2017. The Director revoked the
approval of the visa petition, and the petitioner has appealed.
The issue presented in this case is whether an alien who has entered
into a fictitious or “sham” engagement that served as the basis for a K-1
nonimmigrant fiancé(e) visa petition has attempted or conspired to enter into
a marriage for the purpose of evading the immigration laws and is therefore
subject to the bar at section 204(c) of the Act. We review all issues arising
in visa petition appeals de novo. 8 C.F.R. § 1003.1(d)(3)(iii) (2020).

II. ANALYSIS
The petitioner contests the Director’s revocation of the approval of the
visa petition she filed on the beneficiary’s behalf. Under section 205 of the
Act, 8 U.S.C. § 1155 (2018), the approval of a visa petition may be revoked
for “good and sufficient cause.” Matter of Ho, 19 I&N Dec. 582, 588 (BIA
1988). Good and sufficient cause to revoke an approved visa petition exists
if the evidence in the record at the time of the decision, including explanatory
and rebuttal evidence, warrants a denial based on the petitioner’s failure to
sustain his or her burden of proof. See Matter of Estime, 19 I&N Dec. 450,
451–52 (BIA 1987).
Before a decision revoking the approval of a visa petition can be issued,
a notice of the Director’s intent to revoke must be sent to the petitioner, and
the petitioner must be afforded an opportunity to rebut derogatory evidence
and to present evidence in support of the visa petition. See 8 C.F.R.
§ 103.2(b)(16)(i)–(ii) (2020); see also Matter of Obaigbena, 19 I&N Dec.
533, 536 (BIA 1988). As is the case in the underlying visa petition
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proceedings, the petitioner bears the ultimate burden of proof in visa petition
revocation proceedings. Matter of Ho, 19 I&N Dec. at 589.
A. Section 204(c) of the Act
Section 204(c) of the Act provides, in pertinent part, that
no petition shall be approved if (1) the alien has previously been accorded, or has
sought to be accorded, an immediate relative or preference status as the spouse of a
citizen of the United States or the spouse of an alien lawfully admitted for permanent
residence, by reason of a marriage determined by the Attorney General to have been
entered into for the purpose of evading the immigration laws, or (2) the Attorney
General has determined that the alien has attempted or conspired to enter into a
marriage for the purpose of evading the immigration laws.

A visa petition will be denied (or revoked) pursuant to section 204(c)(2)
of the Act where there is substantial and probative evidence in the record that
the beneficiary previously attempted or conspired to enter into a fraudulent
marriage. 1 See Matter of P. Singh, 27 I&N Dec. 598, 602 (BIA 2019);
8 C.F.R § 204.2(a)(1)(ii) (2020) (“The director will deny a petition for
immigrant visa classification filed on behalf of any alien for whom there is
substantial and probative evidence of such an attempt or conspiracy,
regardless of whether that alien received a benefit through the attempt or
conspiracy.”); see also Matter of Kahy, 19 I&N Dec. 803, 807 n.3 (BIA 1988)
(stating that an alien who agreed to pay a United States citizen to marry him
so that he would not have to return to his native country “attempted or
conspired to enter into a marriage for the purpose of evading the immigration
laws” at the point they reached the agreement, prior to the actual marriage).
The terms “attempted” and “conspired” are not defined in the Act.
B. K-1 Nonimmigrant Visa Petitions
The fiancé or fiancée of a United States citizen who qualifies for
a nonimmigrant visa under section 101(a)(15)(K)(i) of the Act, 8 U.S.C.
1

Prior to 1986, the section 204(c) bar was inapplicable if an alien did not actually enter
into a marriage. See Matter of Anselmo, 16 I&N Dec. 152, 153 (BIA 1977) (“In the absence
of an actual marriage, section 204(c) does not apply.”); Matter of Concepcion, 16 I&N Dec.
10, 11 (BIA 1976) (holding that an alien who acquired immediate relative status based on
falsified documents was not subject to the section 204(c) bar because her marriage never
took place and was, in fact, a fiction). This is no longer the case after the enactment of
section 4(a) of the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639,
100 Stat. 3537, 3543, which added the language now found in section 204(c)(2) of the Act.
See Matter of Isber, 20 I&N Dec. 676, 677–78 (BIA 1993) (discussing the legislative
history of section 204(c) of the Act).

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§ 1101(a)(15)(K)(i) (2018), as one “who seeks to enter the United States
solely to conclude a valid marriage with the petitioner within ninety days
after admission,” may be issued a nonimmigrant visa pursuant to section
214(d)(1) of the Act, 8 U.S.C. § 1184(d)(1) (2018). Section 214(d)(1)
provides that a petition for such a visa must be supported by evidence to
establish that the parties “have previously met in person within 2 years before
the date of filing the petition, have a bona fide intention to marry, and are
legally able and actually willing to conclude a valid marriage in the United
States within a period of ninety days after the alien’s arrival.”
A central element for establishing K-1 visa eligibility is that the parties
have a bona fide intention to marry. The only purpose of a K-1 visa is to
allow the fiancé(e)s of United States citizens to enter the United States to be
married, since they cannot qualify as bona fide nonimmigrants and, until
married, may not have an immigrant visa available to them. See Matter of
Sesay, 25 I&N Dec. 431, 435–38 (BIA 2011) (discussing the history of the
K-1 visas). Under section 245(d) of the Act, 8 U.S.C. § 1255(d) (2018), the
beneficiary of a K-1 visa can only adjust status based on the marriage to
the fiancé(e) petitioner. Id. at 442 (“Unlike other categories of adjustment
applicants, who can adjust through another family relationship or an
employer, there is no other option for the fiancé(e).”); see also Matter of
Valenzuela, 25 I&N Dec. 867, 870–71 (BIA 2012) (explaining that Congress
imposed this restriction on K visa holders as part of its efforts to combat
marriage fraud).
Unlike most other nonimmigrant visas, K-1 visas provide the visa holder
with a direct path to permanent status in the United States. As a result,
K-1 visa holders have always been treated as the functional equivalents
of immediate relatives for purposes of immigrant visa eligibility and
availability. Matter of Sesay, 25 I&N Dec. at 438–39. There is no
requirement for a Form I-130 immigrant visa petition to be filed for a K-1
visa holder because the adjustment of status application is predicated on the
nonimmigrant Form I-129F visa petition itself. Id. at 439.
C. Petitioner’s Appeal
The beneficiary’s conduct in support of the K-1 visa petition filed on his
behalf supports the Director’s determination that he conspired to enter into a
marriage for the purpose of evading the immigration laws.
Under settled rules of statutory construction, we look first to the plain
meaning of the language, and we are required to give effect to Congress’
unambiguously expressed intent. Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984); Matter of E-S-I-, 26 I&N Dec.
136, 139 (BIA 2013). The intent of Congress is presumed to be expressed
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by the ordinary meaning of the words used. INS v. Cardoza Fonseca, 480
U.S. 421, 431 (1987); Matter of Munroe, 26 I&N Dec. 428, 431 (BIA 2014).
For purposes of section 204(c)(2) of the Act, a conspiracy requires an
agreement to enter into a marriage for the purpose of evading the immigration
laws and an overt act in furtherance of that agreement. Section 204(c)(2) of
the Act does not require a criminal conviction. 8 C.F.R § 204.2(a)(1)(ii)
(stating that “it is not necessary that the alien have been convicted of, or even
prosecuted for, the attempt or conspiracy”). Rather, the bar is triggered when
“the Attorney General has determined” that a beneficiary has conspired to
enter into a marriage for the purpose of evading the immigration laws.
Section 204(c)(2) of the Act. For the Attorney General to make such a
“determination,” there must be an overt act. The filing of a visa petition is
an overt act in furtherance of the conspiracy. It is not enough, however, if
two parties merely “agree” to enter into a marriage for the purpose of evading
the immigration laws but never engage in any other action or conduct that
furthers that agreement. 2
The petitioner has not meaningfully challenged the Director’s
determination that the beneficiary entered into a sham engagement with his
former fiancée for the purpose of evading the immigration laws. She has
made no claim that their relationship was legitimate or anything other than a
sham. 3
In her supplemental brief, the petitioner asserts, without further
explanation, that “there is no evidence showing [the beneficiary] had an
intent to enter into a fraudulent marriage while in the Dominican Republic.”
This contention is irrelevant because the focus of our inquiry is whether the
beneficiary intended to enter into a fraudulent marriage with his former
fiancée in the United States, which would ultimately allow him to adjust his
status and thereby evade the immigration laws. The petitioner does not claim
2
In a different context, we concluded that the term conspiracy, as used in section
101(a)(43)(U) of the Act, is not limited to conspiracies that require the commission of an
overt act in furtherance of the conspiracy by one of the conspirators. Matter of Richardson,
25 I&N Dec. 226, 228 (BIA 2010). This conclusion was based largely on the common law
meaning of the term “conspiracy” and an analysis of various State and Federal statutes
defining the elements of the crime of conspiracy. Id. at 227–30. But see Quinteros v. Att’y
Gen. of U.S., 945 F.3d 772, 783–85 (3d Cir. 2019) (holding that an overt act is an element
of the generic definition of conspiracy); United States v. Garcia-Santana, 774 F.3d 528,
543 (9th Cir. 2014) (same). Because the statutory language in section 204(c)(2) of the Act
is different from the language in section 101(a)(43)(U), we see no tension between the two
different approaches.
3
In her appeal brief, the petitioner appears to concede that the beneficiary is inadmissible
under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018), as an alien
who sought to procure a visa by fraud or willful misrepresentation of a material fact, as a
result of his efforts to obtain a K-1 nonimmigrant visa based on a sham relationship.

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that the beneficiary had no intent to marry his former fiancée in the United
States. Nor has she presented or identified any evidence that would establish
such a claim.
By initially approving the K-1 visa filed on behalf of the beneficiary, the
USCIS necessarily determined that he intended to marry his former fiancée
in the United States, and that determination was reasonable in light of the
parties’ representations. As discussed, the purpose of a K-1 visa is to allow
a beneficiary to enter the United States solely to conclude a valid marriage
with the fiancé(e) petitioner, and the parties’ bona fide intention to marry is
a central element to establishing K-1 visa eligibility. By seeking a K-1 visa
and appearing for interviews in support of the visa petition, the beneficiary
and his fiancée represented that they had a bona fide intention to marry and
were actually willing to conclude a valid marriage within 90 days after the
beneficiary’s arrival in the United States. This conduct supported the
Director’s decision to approve the K-1 visa petition, because it evidenced
their agreement to enter into a legal marriage and their actual intent to do so.
Both the filing of the visa petition and their conduct during the interviews
constitute overt acts in furtherance of this agreement.
The petitioner has not identified what the beneficiary intended to do after
obtaining a K-1 visa if it was not to marry his former fiancée. An alien
admitted to the United States on a K-1 visa cannot adjust his or her status
based on an immigrant visa petition filed by another relative or an employer.
Moreover, a K-1 visa holder cannot remain in the United States if he or she
does not marry the petitioner within 90 days after admission. In the absence
of any evidence to rebut the substantial and probative evidence the Director
relied on in making her determination to revoke the approval of the visa
petition, we agree that the beneficiary conspired to enter into a marriage for
the purpose of evading the immigration laws.
The petitioner argues that the visa petition she filed on behalf of the
beneficiary should not have been revoked because section 204(c) of the Act
does not apply to actions undertaken to obtain a nonimmigrant visa. We
disagree. Section 204(c)(1) of the Act, by its text, is limited to aliens who
have been accorded, or sought to be accorded, an immigrant visa. In contrast,
section 204(c)(2) is triggered if “the Attorney General has determined that
the alien has attempted or conspired to enter into a marriage for the purpose
of evading the immigration laws.” Nothing in the language of Act supports
the petitioner’s claim that section 204(c)(2) applies only in cases where the
beneficiary previously obtained, or sought to obtain, an immigrant visa.
Under the plain language of the statute, an alien who has conspired to enter
into a marriage for the purpose of evading the immigration laws by seeking
to secure a K-1 fiancé(e) nonimmigrant visa is subject to the bar under
section 204(c)(2) of the Act.
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This case is factually distinguishable from Matter of Christo’s, Inc.,
26 I&N Dec. 537 (AAO 2015), in which the Administrative Appeals Office
determined that an alien who was previously the beneficiary of a Form I-130
based on a nonexistent, fictitious marriage to a United States citizen was not
subject to the section 204(c) bar. The Administrative Appeals Office held
that an alien who submitted false documents representing a nonexistent or
fictitious marriage, but who never either entered into or attempted or
conspired to enter into a marriage, may intend to evade the immigration laws
but is not, by such act alone, considered to have “entered into” or “attempted
or conspired to enter into” a marriage for purposes of section 204(c) of the
Act.
In that case, the beneficiary never met or married the petitioner and first
realized that he was the subject of a marriage-based immigrant visa petition
when he appeared for an interview and was asked about the purported
marriage. Id. at 541 n.4. Matter of Christo’s, Inc., is a narrow decision that
only applies to situations where the beneficiary “never met or married” the
petitioner. Id. In contrast, the beneficiary in this case attended two separate
interviews in support of the visa petition filed on his behalf, during which he
maintained that he was in a bona fide relationship with his fiancée. 4
The record contains substantial and probative evidence that the
beneficiary previously conspired to enter into a marriage for the purpose of
evading the immigration laws. We therefore conclude that the Director had
good and sufficient cause to revoke the approval of the visa petition because
its approval is barred by operation of section 204(c) of Act. Accordingly, the
petitioner’s appeal will be dismissed.
ORDER: The appeal is dismissed.

4

Because we conclude that this case is factually distinguishable from Matter of Christo’s,
Inc., we need not address the extent to which decisions of the Administrative Appeals
Office are authoritative for purposes of our own adjudications.

15


Interim Decision #2154

MATTER OF YOUNG
In Visa Petition Proceedings
A-18505403

Decided by Board June 15, 1972
The holdings in Matter of Ng, Interim Decision No. 2147, and Matter of Poon,
Interim Decision No. 2153, are extended to recognize as valid for immigration
purposes the adoption in mainland China in 1926 or 1927 of a male child, even
though not related by blood, not of the same clan, and not of the same
surname. [Matter of Chin, 12 I. & N. Dec. 240, reaffirmed.]
ON BEHALF OF SERVICE:
R. A. Vielhaber
Appellate Trial Attorney
(Brief filed)

ON BEHALF OF PETITIONER:
Gerald L. McVey
30 Hotaling Place
San Francisco, California 94111
(Brief filed)

The United States citizen petitioner applied for preference
status for the beneficiary as his married adopted son under section
203(a)(4) of the Immigration and Nationality Act. The District
Director denied the petition in an order dated April 7, 1971. The
District Director based his denial upon this Board's precedent
decision in Matter of Yiu, 13 L & N. Dec. 624 (BIA, 1970). The
petitioner appeals from the denial. The matter will be remanded
for further proceedings.
The beneficiary is a married male, who was born in mainland
China in 1924. He was purportedly adopted in either 1926 or 1927
by petitioner's spouse, with petitioner's consent.
The law governing the validity of an adoption in mainland China
in 1926 or 1927 was the Ching Code, along with Chinese customary
law. The provisions of the Ching Code remained in effect following
the establishment of the Nationalist Republic of China in 1911.
The portions of the Ching Code dealing with adoption continued in

force until May 5, 1931, when they were replaced by an adoption
law enacted by the Nationalist Government.
At the time he made his decision in this case, the District
Director was not incorrect in making reference to our decision in
the Yiu case. Although the Yiu case dealt with an adoption in
Hong Kong, the same principles are present, inasmuch as the
Ching Code and Chinese customary law also govern the validity of
Chinese adoptions in Hong Kong.
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Interim Decision #2154
In Matter of Yiu, supra, which was concerned with the validity
of the adoption of a female, we noted that (1) "Chinese customary
law permits adoption only for purposes of succession to the family
[cult] and is limited to males," (2) "the adoption of strangers is
prohibited and allowed only when a person has exhausted all his
kindred," and (3) "the adopted child must be of the same surname."
The District Director denied the petitioner's application because
the petitioner had not established that the purported adoption met
the criteria set forth in the Yiu case.
As we stated in Matter of Chin, 12 I. & N. Dec. 240 (B IA, 1967),

the Ching Code provided for two kinds of adoption: (1) adoption of a
male child for the purpose of instituting him as an heir for
perpetuation of the ancestral cult, and (2) adoption of a child,
whether male or female, without intending to institute it as an
heir. In the Chin case we noted that the Ching Code provided a
number of restrictions with respect to the first type of adoption,
namely that the child must be male and come from the same
kindred, but that these restrictions did not apply to adoptions of
the second type.
Subsequent to the District Director's decision in the present

case, we had occasion to reconsider the principles enunciated in
the Yiu decision. As a result, in Matter of Ng, Interim Decision No.
2147 (BIA, April 28, 1972), we receded from our holding in the Yiu
case and recognized the adoption of a female in Hong Kong. In
Matter of Poon, Interim Decision No. 2153 (BIA, June 12, 1972), we ,
extended our holding in Ng to recognize the validity in Hong Kong
of an adoption of a male child, even though not related by blood,
not of the same clan, and not of the same surname.
The issue in the present case is whether we should apply the
same reasoning used in Matter of Poon, supra, to a similar
adoption occurring in mainland China prior to May 5, 1931. We
believe that we should extend our ruling in -the Ng and Poon cases
to cover the present case. Our holdings in those two cases are
accordingly extended. We also reaffirm our earlier decision in the
Chin case, supra, in which we recognized the validity of the simple
adoption of a male of a different family under the Ching Code.
In the present case the District Director never reached the
factual issue of the validity of the adoption. In the absence of any
findings in that regard we have no choice but to remand the
matter for further proceedings. The following order will, therefore,
be entered.
ORDER: The matter is remanded for further proceedings not
inconsistent with the foregoing.
159


Interim Decision #1316

Mali

OF TomCES-TE.TEDA

In DEPORTATION Proceedings
A-12336079
Decided by Board January 3,1964

Respondent, a native and national of the Dominican Republic, has not established
that because be was a former chief of a military intelligence unit (Serviclo
de Inteligencia Minter) during the Trailllo regime he would be =Meet to
physical persecution within the meaning of section 243(h), Immigration and
Nationality Act, if deported to the Dominican Republic.
CHARGE
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251 (a) (2) i—Nonimmigrant—remained longer.

Respondent, a former chief of a military intelligence unit in the
Domnican Republic during the Trujillo regime, appeals from the portion of the special inquiry officer's order which denies his application
,

for withholding of deportation to his homeland. He maintains that

he would face physical persecution in the Dominican Republic because
of his former position under Trujillo . 1 On the basis of currently available information, we affirm the special inquiry officer's action.
The hearings in respondent's case were held during July and August,
1962. We heard oral argument on October 29, 1962. In the interim,
for various reasons, it has not been feasible to render our decision.
Over most of the intervening time we have been waiting for information which has only recently become available in final form.
Respondent is a native and national of the Dominican Republic and
married. He last entered the 'United States at New York on December 16, 1961 as a nonimmigrant foreign government official in transit
to Canada. He had gone first from the Dominican Republic to Spain
where he obtained his transit visa. Respondent testified that the

Belaguer government assigned him to the position of 2nd secretary at
the Dominican Embassy in Ottawa. He said he did not continue his
journey to Canada because he knew most similar assignments bad been
4

Section 243 (h), Immigration and Nationality Act, 8 U.S.C. 1253 (h).

435

Interim Decision #1316
canceled. Respondent's authorized stay in this country expired on

January 13, 1962.
The special inquiry officer directed deportation first to Spain, in
accordance with respondent's designation, and alternatively to the
Dominican Republic. Respondent neither contests deportability nor
applies for voluntary departure.
S.I.M. (Servicio de Inteligencia Minter), the organization which
respondent headed for about seven or eight months prior to February
or March of 1961, was an infamous, quasi-military security unit of
Trujillo's regime. The record establishes S.I.M. was popularly identified with carrying out many of the dictatorship's excesses. Respondent testified S.I.M was created for Trujillo's personal security and to
investigate and punish those who would oppose the dictatorship. He

said so-called "repressive investigations" involved physical torture
applied by a special corps of officers.
Respondent admits that during this tenure as chief of S.I.M. some
50 or 60 political prisoners were executed. He denies any direct responsibility for such acts, contending that he merely transmitted
orders from Trujillo himself or from one of Trujillo's trusted lieutenants, Johnny Abbes Garcia. Although respondent had the title of
chief of S.I.M., he diselnime any independent individual authority in
connection with the principal activities of that agency. He said if he
had refused to pass on orders to the persons who would carry them
out he himself would have been killed. He also said that he could not
refuse to accept the position of chief of S.I.M. when offered to him. In
any event, we are not concerned with respondent's guilt or innocence as
such. We are concerned only with determining whether, if returned
to the Dominican Republic, respondent would be subject to physical
abuse which would constitute physical persecution within the statutory
concept.
In May the 'United States District Court for the Southern District of New York recommended Clodoveo Ortiz-Gonzalez' extradition
to the Dominican Republic. 2 Ortiz, a former S.I.M. agent, appeared
as a witness for respondent in these proceedings. The court ruled
against Ortiz on his contention that the offenses with which he was
charged were political offenses, hence not extraditable. The court
avoided other political implications in the situation, noting that application to the Secretary of State would furnish full protection against
delivery of the accused to any government which would not live up to

its treaty obligations, and would use the treaty as a subterfuge to
secure the accused from a country of political asylum. Subsequently
2

In re. Gonzales, 217 r. Supp. 717 (S.D. N.Y. 1963) •

436

Interim Decision #1316
the Secretary of State directed Ortiz-Gonzalez's extradition, which has
been effected. 3
Respondent does not clearly set forth the theory underlying his

contention that he will be physically persecuted in the Dominican Republic if returned to that country. He anticipates that because of his
former position he will be killed.

Respondent believes primarily that upon arrival in his homeland
mobs, acting beyond control of the authorities, will violently attack
him Respondent's own testimony reveals that he anticipates possible
prosecution in the Dominican Republic because of his association with
Trujillo but not unavailability of a fair trial, if prosecuted. Most of
the witnesses in respondent's behalf testified that charges are pending,
or likely to be brought, against him in the Dominican Republic. They

apparently believe he would not receive a fair trial. Moreover, they
agree it is highly probable mobs would kill him before the police could
take him into custody. At oral argument respondent's counsel said
that if by a miracle respondent survived attacks by mobs upon his
arrival at the Dominican airport, he would be jailed. Counsel implied
that respondent would not receive a fair trial.
Counsel for the Service says respondent fears criminal proceedings
and possible conviction in the Dominican Republic. He further states
respondent fears more strongly that, before the authorities have a
chance to try him, he will be seized by a mob and killed. Neither of
these eventualities, according to the Service representative, is comprehended by the statutory language.
We exclude from the term "physical persecution" any governmental

action taken in an orderly, judicial manner to determine respondent's
responsibility for the former activities of S.I.M., and to prescribe
punishment only for acts so performed that, regardless of possible
political motivation, they would constitute ordinary crimes under any
civilized juridical system. To this extent, at least, we agree with
counsel for the Service.
We have no doubt that the populace in the Dominican Republic
associates respondent with the excesses attributed to S.I.M. and, rightly
or wrongly, holds him responsible for many of them. A. newspaper
clipping (Ex. 3) refers to testimony at the trial of former S.I.M.
agents, accused in the death of the Mirabal sisters, an event well-known
in the Dominican Republic. That event excited the public's imagination and aroused its resentment. Respondent admits that he was in
charge of S.I.M. when the Mirabal sisters met their deaths. Two of
his witnesses corroborated his official position at that time. Yet, whatever the situation at the time of the hearing and oral argument, the
8

18 U.S.C. 3184.

437

Interim Decision. 40316
subsequent march of events, during which order has been restored in
the Dominican Republic, eliminates any need of now considering
whether respondent, if deported to the Dominican Republic, would
face unrestrained mob violence and whether such violence is equivalent
to physical persecution for -which deportation may be withheld.
Looking at respondent's evidence in the light most favorable to him,
the issue here resolves into two questions. Is respondent likely to he
charged in the Dominican Republic with any offense? If so, would
any proceedings under that charge reflect fair and ade,quate judicial
processes
Respondent's counsel stated at oral argument that respondent should
not be tried at all because he has not committed a voluntary act which
involves the Dominican penal law. Presumably counsel would contend
that for this reason any imprisonment would result from a trial so
unfair that conviction would be a foregone conclusion. Carrying this
argument one step further, counsel would contend that such imprisonment constitutes physical persecution within the purview of section
243(h), Immigration and Nationality Act.
The Court in Gon2a2ez considered a somewhat similar contention.
Ortis- Gonzales maintained that he acted as a military subordinate
obeying the orders of a superior and in the exercise of public authority.
The court found that under Dominican law, as under our own, public
officials may be criminally liable for acts which fall well outside duly
constituted public authority. The court also found that the Dominican
Republic had Made out a prima-facie case that the extraordinary
homicidal acts ascribed to Ortiz fall into this category.
We do not have in this record evidence of respondent's active participation in any killings attributed to S.I.M. such as was before the court
in Gonzalez. This difference is one of degree, however, since respondent admittedly was involved in 'the activities of S.I.M. The basic
question still goes to the availability of a fair trial under the circumstances here. If respondent has no criminal responsibility 'under
Dominican law for offenses committed by agents of S.LM. while he
was their chief, fair and adequate judicial procedures woilld afford
him sufficient opportunity to establish his innocence.
Ortiz-Gonzalez also alleged that the offenses with which he was
charged were political, rather than criminal. The court, as we have
noted, rejected this contention as a matter of law, leaving to the
Secretary of State any extralegal considerations which might
Support it.

We are not limited here by the provisions of a treaty and the extradition statute. We need only reach an opinion whether respondent
would be physically persecuted in the Dominican Republic. Yet proceedings under section 248 (h) of the Immigration and Nationality Act
438

Interim Decision #1316

and extradition proceedings have much in common .° Consequently,
our function here resembles to some extent the functions of both
judicial officers and the Secretary of State in extradition proceedings.

In determining whether respondent should be returned to the Dominican Republic we may look broadly at the situation which he would
face them

If respondent is charged in the Dominican Republic with having
committed any offenses in behalf of the Trujillo regime, we believe he
would receive a fair trial. Although the Trujillo regime considered
that prisoners of executed during respondent's tenure as chief
of that organization were political prisoners, the circumstances
suggest violations of penal provisions of Dominican law. We believe
Dominican law, in determining the nature of any offenses with which

respondent might be charged and his responsibility in their perpetration, would adequately protect respondent's interests. We rule adversely to respondent on any contention that offenses with which he
might be charged were not criminal but political .° In particular, we
do not perceive that any such offenses were manifestly so political that
their punishment might constitute physical persecution.
Our conclusion that respondent's case does not warrant withholding
of his deportation to the Dominican Republic rests in part upon official notice of current conditions in the Dominican Republic, in part
upon the outcome of Gonzalez, and in part upon certain other nonrecord information, privileged under the regulations.° None of the
available current information indicates that, if returned to the Dominican Republic, respondent is likely to be physically persecuted.
Respondent's counsel contends that the special inquiry officer improperly declined to subpoena certain witnesses. Those witnesses
were all former officials of, or otherwise associated with, the Trujillo
regime. They left the Dominican Republic about the time of that
regime's fall. Their testimony could supply only background information and possibly greater detail about some of the matters of record.
' Matter of Perez-Jiminez, Int. Dec. No. 1292.
Compare /are Gonzalez, supra: and authorities cited therein.

5

Respondent suggests primarily that be might be prosecuted for "association
with evildoers." Ile relies upon the testimony of witnesses, particularly that of
a former lawyer in the Dominican Republic associated with him in S.I.M., to
establish the existence of this provision of Dominican law and its effect.
"The determination under section 243(h) of the Act may be based upon information not of record if, in the opinion of the special inquiry officer or the
Board, the disclosure of such information would be prejudicial to the interests
of the United States" 8 CFR 242.17(e). In our opinion the nonrecord information relied on here comes within this provision.
The Attorney General's use of undiselnusti information in exorcising Lis discretion has the approbation of the Supreme Court. Jay v. Boyd, 351 U.S. 345
(1950) ; Mdliutin v. Bouchard, 370 U.S. 292 (1962).
439

Interim Decision #1816
We do not perceive that their testimony, no matter how favorable to
respondent, could overcome the reliable information on which we base
our conclusion. We need not consider, therefore, whether the special
inquiry officer's refusal to grant respondent's request for subpoenas
was error.
We do not discuss other contentions of respondent except to note
that he fears a change in government in his native country interrupting
the present democratic trend. We answered a similar contention in
Matter of Dias? We take official notice that the executive leaders of
the Dominican Republic's Government have changed during the pendency of respondent's case on appeal. This change, so far as we can
ascertain at this time, has, if anything, lessened any chances that
respondent would be physically persecuted in the Dominican Republic.
We shall dismiss the appeal.
ORDER: It is ordered that the appeal be and hereby is dismissed.
Int. Dec. No 1270.

440


Interim Decision #1609

NIATama or YEN
In Visa Petition Proceedings
A-12572684
Deckled by District Director February . 02, 1086'

Since a geneticist is a member of the professions within the meaning of section
101(a) (32), immigration and Nationality Act, as amended by P.L. 89-230, a
visa petition is approved to accord beneficiary, a qualified geneticist, preference classification under section 203(a) (3) of the Act.

The beneficiary is a 28-year-old citizen of China who is presently
in the United States. The petitioner seeks to classify the beneficiary as a preference immigrant under section 203(a) (3) of the
Immigration and Nationality Act, as amended by the Act of October 3, 1965 (Public Law 89-236). That section provides that preference classification thereunder may be given "to qualified immigrants who are members of the professions, or who because of their
exceptional ability in the sciences or the arts will substantially benefit prospectively the national economy, cultural interests, or welfare
of the United States." '
Section 101(a) (32) of the Act, as amended, provides that: "The

term `profession' shall include but not be limited to arehitects engi'
neers, lawyers, physicians, and teachers in elementary or secondary
schools, colleges, academies, or seminaries."
Section 204(a) of the Act, as amended, provides that ". . . any
alien desiring to be classified as a preference immigrant under section 203(a) (3) (or any person on behalf of such an alien) . . . may
file a petition with the Attbrney General for such classification." It
should be noted that, while the beneficiary is presently employed by
the petitioner, an employer-employee relationship is not required
between the petitioner and the beneficiary. Under the provisions of
section 204(a), supra, the beneficiary could have elected to file the
visa petition in his own !behalf.
Under the provisions of sections 204.1(c) and 204.2(f), Title 8,
Code of Federal Regulations, there must be submitted with the

694

Interim Decision. #1609
petition Form ES-575A, Application for Alien Employment Certifi-

cation, executed in accordance with the, instructions for-the completion of that form and. accompanied. by evidence of the beneficiary's
qualifications as specified in those instructions. The petitioner has
complied with that -requirement. The Form ZS-57 i and accompanying evidence, 'showing that -the beneficiary bad completed all
the requirements for a doctor of philosophy degree. in biochemical
genetics in November 1965 and will receive that degree from the
University of North Carolina in dime 1966, and..that. he had been
employed as a • geneticist by ;the petitioner since-December 1965,
were forwarded by the office to the Bureau of Employment Security,
Department of Labor. That Department has returned the evidence
and the Form ES-575A endorsed to show that the certification required by section 212(a) (14) of the Immigration and Nationality
Act, as amended by Public Law 89-236, has been issued. The
certification is to the effect that there is a shortage of persons in
the United States available to perform the services for which the
beneficiary is qualified,and that the beneficiary's employment in his
vocation will not adversely affect the wages and working conditions
of persons similarly employed in this country.
The beneficiary's vocation, that of a geneticist, is not specifically
named. in. section 101(a) (32) of the Act as a professiOn. In determining 'whether that vocation may be considered as a profession,
has been made to the Dictionary of Ocoupationcil Titles
1965, Volume I, Definition of Titles, Third Edition, published. by
the United States Departinent of Labor. The vocation "geneticist"
is defined therein at page 331 as follows: "Studies inheritance and
variation of characteristics in all forms of life: Pirforms experiments to determine laws, mechanisms, and environmental factors in
origin, transmission and development of inherited traits! Analyses
determinants responsible for specific inherited traits, such as color
differences, disease resistance, and size to improve strength, rate of.
maturity, fertility, and other desirable traits. Devises methods for
altering or producing new traits, making use. of chemicals, heat,
light, and other means."
Volume II of the above publication lists the vocation of "geneticist" as an occupation within the biological sciences engaged in
scientific research and indicates, at page 466, that "A bachelor's
degree with a major hi the specialty area is the minimum requirement for entrance into the field, with graduate degrees needed for
more responsible research work and teachi g. A master's degree
usually qualifies an individual for a position in applied research and
for a laboratory teaching position in a -college, university, or in695

Interim Decision #1609
dustrial research setting. A Ph. D. is generally required for a
•
position in basic. research and more advanced entry positions."
The high degree of education required for entry into this scientific
field, as comparable to the degree of education required for the

specific, professions named in section 101(a) (32), supra. Accordingly,it is concluded that the applicant is a qualified member of the

• professions. He is, and intends to continue, in the field of genetics:
The certification of the Secretary of Labor required by section 212
(a) (14) of the Act, as amended, has been issued. .
it is ordered that the petition be and is hereby approved.

696


Interim Decision #2242

MATTER OF PALMA
. In Deportation Proceedings
A-7140179

Decided by Board November 9, 1973
An alien's departure from the United States in 1973 while under a final order of
deportation served to execute the outstanding deportation order, thereby
mooting the deportation proceedings. Accordingly, a motion to reopen the
deportation proceedings to apply for suspension of deportation cannot be
granted, notwithstanding the alien's departure was followed by reentry the
same day (Fleuti v. Rosenberg, 374 U.S. 449 (1963), inapplicable).

CHARGE:
Order: Act of 1952—Section 241(aX2) (8 U.S.C. 1361(0)(2)]—Entered without
inspection

ON BEHALF OF RESPONDENT:

Robert L. Milland, Esquire

El Paso Legal Assistance Society
109 North Oregon Street, Suite 919
El Paso, Texas 79901

On April 26, 1962, an immigration judge found the respondent
deportable as charged in the Order to Show Cause and ordered his
deportation. Appeal from that decision was waived and the deportation order became finaL On May 2, 1973, an immigration judge
granted a motion to reopen the deportation proceedings so that
the respondent could apply for suspension of deportation. Unknown to the immigration judge, the respondent had departed
from the United States on April 8, 1973, returning the same day.
The Immigration and Naturalization Service moved to vacate the
order to reopen. In an order dated May 23, 1973, the immigration
judge granted the Service's...motion to vacate on the ground that
the respondent's departure from the United States had executed
the outstanding deportation order, thereby mooting the deportation proceedings. The respondent has appealed from that order.
The appeal will be dismissed.
Section 101(g) of the Immigration and Nationality Act states:
For the purpose of this Act any alien ordered deported ... who has left the
United States, shall be considered to have been deported in pursuance of law,

486

Interim Decision #2242
irrespective of the source from which the expenses of his transportation were
defrayed or of the place to which he departed.

8 CFR 243.5 states, in part:
... Any alien who has departed from the United States while an order of
deportation is outstanding shall be considered to have been deported in pursuance of law.
• •

The respondent has conceded that he departed the United
States on April 8, 1973, while he was under an order of deportation. It is well established that an alien's departure while under an
order of deportation executes that order pursuant to section 101(g)
of the Act. Mrvica v. Esperdv, 376 U.S. 560, 563-64 (1964); Matter of
Solis-Davila, 13 I. & N. Dec. 694 (INA 1971), affd Solis Davila v.
INS, 456 F.2d 424 (C.A. 5, 1972). Consequently, the respondent was
deported pursuant to the law.
Since the respondent's departure executed the deportation order, there are no longer any deportation proceedings pending
which could be reopened. Therefore, the immigration judge was
correct in his determination that the order to reopen should be
vacated. CE Beryhoefer v. Johnson, 285 F.2d 762 (C.A. 5, 1961); 8
CFR 3.2.
The respondent argues that the deportation order was not
executed because he did not make a meaningful departure for
immigration purposes under the doctrine of Rosenberg v. Fleuti,
374 U.S. 443 (1063). The respondent's reliance on Fleuti is inappropriate.

Unlike Fleuti who left the country free of any sanctions imposed
by the immigration laws, the respondent departed while under an
outstanding order of deportation. In Aleman-Fiero v. INS, 481
F.2d 601 (C.A. 5, 1973), it was held that such an individual was not
entitled to the benefits of Fleuti. Furthermore, the court in
Aleman Fiero pointed out that the issue in Fleuti was not what
constituted a departure but whether Fleuti was within the exemption from the term "entry" under section 101(aX13). That section
expressly provides that "no person whose departure from the
United States was occasioned by deportation proceedings ... shall
be held to be entitled to such exemption." We conclude that the immigration judge's decision was correct.
The appeal will be dismissed.
ORDER: The appeal is dismissed.
-

487


Interim Decision #2072

MATTER OF AGUIRRE
In Deportation Proceedings
A-13680541
Decided by Board February 3, 1971
A special inquiry officer must make an independent exercise of discretion on
all the facts present; the fact that section 245 adjustment of status has
been granted to aliens with spouses and children in prior cases is not controlling.
CHARGE:
Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ) ]—Remained longer—student
ON BEHALF OF RESPONDENTS:
M. Ronald Gould, Esquire
501 Madison Avenue
New York, New York 10022

ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney
Stephen M. Suffin
Trial Attorney
(Brief filed)

The Immigration and Naturalization Service appeals from the
decision and order of the special inquiry officer dated January 7,
1970 granting the respondent's application for status as a permanent resident alien pursuant to section 245 of the Immigration
and Nationality Act. Exceptions have been taken to the grant of
relief,
The respondent, a native and citizen of the Republic of the
Philippines, was admitted to the United States at the port of
Honolulu, Hawaii, on or about July 4, 1962 as a nonimmigrant visitor. His status was thereafter changed to that of a nonimmigrant student and he was authorized to remain in the United States
until June 27, 1968. He concedes that he is deportable as charged
in the order to show cause.
The special inquiry officer in a decision and order entered on
October 14, 1969, found the respondent deportable as charged in
the order to show cause, denied his application for suspension of
deportation and ordered his deportation to the Republic of the

661

Interim Decision #2072
Philippines. Thereafter, the respondent was accorded a second
preference classification on the basis of a visa petition submitted
by his second and present wife. The proceedings were reopened to
afford him an opportunity to apply for status as a permanent resident under the provisions of section 245 of the Immigration and
Nationality Act.
The respondent submitted an application for adjustment of status during the hearing accorded him in January 7, 1970. The
record establishes that the respondent married one Elisa Reyes
in the Philippines on June 17, 1962 (Ex. 8). He was issued a nonimmigrant B-2 visa by the United States Consul at Manila, Philippine Islands on July 3; 1962. He stated in his application for the
nonimmigrant visa that he was single and that the length and
purpose of his visit to the United States was "one month—business/pleasure trip" (Ex. 4). His wife in the Philippines bore him
a child on November 15, 1962.
The respondent married Sonia Pilar Tanoja, a lawful permanent resident alien, at San Francisco, California on April 18,
1967. He did not obtain a divorce from his wife in the Philippines
prior to his marriage to Sonia Pilar Tanoja. A visa petition filed
)37 his resident alien wife for second preference classification was
approved on January 16, 1968. The respondent filed an applica;ion for status as a permanent resident alien. He did not reveal
its prior marriage and when examined by an immigrant inspecor on April 25, 1968, he stated that he had been married only
'nee.
An investigation by the United States Embassy in Manila,
'hilippine Islands revealed the respondent's prior marriage. The
pproval of the visa petition filed by the respondent's resident
lien wife was revoked on April 14, 1969. The respondent di()reed his first wife in Reno, Nevada on July 15, 1969, and retarried his resident alien wife the same month. A child was born
) the union on February 22, 1968. His present wife filed a new
sa petition and the respondent was again accorded status under
action 203 (a) (2) of the Act on December 4, 1969.
The special inquiry • officer states in his opinion that the re)ondent is a "perjurer, bigamist and adulterer, and that he dented his first wife and never contributed to her support." He
asons, however, that the principle of "equal justice under the
w" requires him to grant relief since the Board of Immigration
ppeals "repeatedly overlooks unfavorable factors in a case such
this where a United States born child is involved and/or the

662

Interim Decision #2072
spouse is a citizen or lawful resident." He cites several unreported cases in support of his action' and states that, "The Board
sets policy in cases of this sort" (p. 2, special inquiry officer's
opinion).
The Service maintains that this Board cannot dictate "policy"
to the special inquiry officer where the exercise of discretion is involved, since the special inquiry officer must base his conclusions,
where a matter of discretion is concerned, on an evaluation of all
the facts and circumstances of the particular case before him and
not on the basis of whether his interpretation of prior decisions
of this Board circumscribes his individual judgment. The Service
cites the Board's decision in Matter of Vega, 11 I. & N. Dec. 337
(BIA, 1965), in support of its argument.
The special inquiry officer cites this Board's decision in Matter
of M—, 4 I. & N. Dec. 626 (BIA, 1952), in support of his statement that "policy" set by this Board requires him to grant relief
in the respondent's case. We broadly stated in Matter of M—,
supra, the considerations which normally would lead to an order
of voluntary departure, as a matter of discretion, in the case of
aliens who had been in the United States for a relatively short period of time and who do not have here the family ties mentioned
in section 19(c) (2) of the 1917 Act, as amended. We also set
forth factors which usually militate against the grant of relief in
such cases. We did say in Matter of M—, supra, as quoted by the
special inquiry officer, that ". . . when considering discretionary
action, it is of the greatest importance in striving for justice and
impartiality that all aliens whose cases are substantially similar
receive like treatment." The special inquiry officer, however,
failed to quote the Board's introductory statement with regard to
using guidelines in the exercise of discretion. We said, at page
627:
. . . We wish to caution that what we say here is not to be taken as an invariable rule, but that in each case the decision ultimately must be predicated upon the merits or demerits of that case. . . . On this basis, we set
forth a general guide as an aid toward this end. (Emphasis supplied.)

Guide lines as an aid in the exercise of discretion do not
amount to the setting of "policy" in cases where the exercise of
discretion is required. Discretionary action by its very nature
permits wide latitude to the authority charged with its exercise.
I Matter of Fong, A-13727051 (BIA, 1968, unreported); Matter of Hubert,
A-17290994 (BIA, 1968, unreported) ; Matter of Emnace, A-13597926 (BIA,
1968, unreported); Matter of Gubatan, A-13711191 and A-18507756 (BIA,
1969, unreported).

663

Interim Decision #2072
When such authority is bound by hard and fast rules or criteria,
then its action cannot be said to be truly discretionary. As stated
in Matter of M—, supra, we recognized that a close factual question is often presented with regard to the grant of relief to seamen who use that route to gain entry into the United States. We
made it clear, however, that in each case the special inquiry
officer's decision "ultimately must be predicated upon the merits
or demerits" of the case before him. Furthermore, in Matter of M
—, supra, we were concerned with the grant or denial of voluntary departure to deserting seamen, a type of adjudication entirely different from the grant or denial of an adjustment of status under section 245 of the Immigration and Nationality Act.
The trial attorney maintains that the respondent's case does
not merit the favorable exercise of discretion since the grant of
relief rewards the fraud practiced by the respondent on the
United States Consul in Manila and on the Immigration Service.
The appellate trial attorney requests that, since the special inquiry officer did not exercise his discretion, the Board remand the
case to the special inquiry officer with a "firm" directive to perform this function.
The decision of the special inquiry officer (January 7, 1970)
and the brief of the trial attorney, dated January 29, 1970, were
prepared prior to our decision in Matter of Arai, Interim Decision No. 2027 (BIA, March 4, 1970). It appears that they were
not aware of Matter of Arai, supra, when considering the respondent's case. In Matter of Arai, supra, we clarified the criteria
set forth in Matter of Ortiz-Prieto, 11 I. & N. Dec. 317 (BIA,
1965), for the exercise of discretion under section 245 of the Act.
We recognized that it is difficult and probably inadvisable to set
ip restrictive guidelines for the exercise of discretion. We said:
.. Where adverse factors are present in a given application, it may be necssary for the applicant to offset these by a showing of unusual or even
utstanding equities. Generally, favorable factors such as family ties, hardhip, length of residence in the United States, etc., will be considered as
ountervailing factors meriting favorable exercise of administrative discreion. In the absence of adverse factors, adjustment will ordinarily be granted,
till as a matter of discretion.

During oral argument before the Board, counsel contended that
he respondent's failure to reveal his first marriage when he apdied for his nonimmigrant visa and when he originally applied
or adjustment of status was not designed to deceive the Governlent. Counsel asserted that the respondent concealed the fact of
is first marriage in his original application for adjustment of
tatus solely because he did not wish to reveal the true facts to

664

Interim Decision #2072
his second wife. The record of the respondent's testimony supports this assertion (pp. 5-8). Counsel further asserted that
when questioned by the consul on July 3, 1962 as to the truth of
the statements previously made in his preliminary application,
the respondent did not realize that he had been married in the interim. We find the respondent's testimony on this point (p.10)
rather ambiguous. The facts in this regard should be further developed on remand.
After carefully considering the record and the arguments on
appeal, we conclude that the case should be remanded to the special inquiry officer for further hearing as indicated and for the
exercise of his discretion in light of the criteria set forth in Matter of Arai, supra. An appropriate order will be entered.
ORDER: It is ordered that the case be remanded to the special inquiry officer for a reopened hearing and for reconsideration
in accordance with the foregoing opinion.

665