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Matter of A.J. VALDEZ, Respondent
Matter of Z. VALDEZ, Respondent
Decided December 20, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien makes a willful misrepresentation under section 212(a)(6)(C)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when he or she
knows of or authorizes false statements in an application filed on the alien’s behalf.
(2) An alien’s signature on an immigration application establishes a strong presumption
that he or she knows of and has assented to the contents of the application, but the alien
can rebut the presumption by establishing fraud, deceit, or other wrongful acts by
another person.
FOR RESPONDENT: Matthew B. Weber, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kyung Auh, Assistant Chief
Counsel
BEFORE: Board Panel: MALPHRUS and LIEBOWITZ, Board Members; MORRIS,
Temporary Board Member
MALPHRUS, Board Member:

In a decision dated July 3, 2017, an Immigration Judge found the
respondents removable under section 237(a)(1)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2012), as aliens who were
inadmissible at the time of adjustment of status under section 212(a)(6)(C)(i)
of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), because of their fraud or
willful misrepresentation of a material fact. 1 The respondents have appealed
from that decision. The appeal will be dismissed.
1

The respondents were also charged with removability under section 237(a)(1)(A) of
the Act based on their inadmissibility under section 212(a)(7)(A)(i)(I), as aliens who
did not possess valid immigrant visas, and under section 237(a)(1)(B), as nonimmigrants
who remained in the United States longer than permitted. The Immigration Judge did not
sustain the charge based on section 212(a)(7)(A)(i)(I) and the Government has not appealed
that issue, so it is deemed waived. Matter of N-A-I-, 27 I&N Dec. 72, 73 n.1 (BIA 2017).
Given our disposition of this case, we need not address the respondents’ challenge to the
Immigration Judge’s finding that they are removable under section 237(a)(1)(B).

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I. FACTUAL AND PROCEDURAL HISTORY
The respondents, a husband and wife, are natives and citizens of
Venezuela who were admitted to the United States on March 3, 1993, as
nonimmigrant visitors with authorization to remain until September 2, 1993. 2
On December 17, 1997, a visa petition was filed in the name of St. Mark
Catholic Church seeking to classify the respondent as a special immigrant
religious worker, along with supporting documents claiming that he worked
as a minister at the church. Although the respondent was never employed by
the church, he filed an application for adjustment of status on September 30,
1998, accompanied by a Form G-325A (Biographic Information) stating that
he had worked at St. Mark as a minister for several years. The respondent
and his wife, who was a derivative beneficiary of his special immigrant visa
petition, were granted adjustment of status on January 13, 2000, based on his
status as a religious worker.
On April 25, 2011, the respondents arrived at the Miami airport and
applied for admission as returning residents. The respondent was referred to
deferred inspection where he signed a sworn statement admitting that he
never worked as a minister in the United States, yet he became a permanent
resident as a religious worker. The Department of Homeland Security
(“DHS”) initiated removal proceedings, alleging that the respondents had
obtained permanent resident status by fraud or willful misrepresentation of a
material fact.
In proceedings before the Immigration Judge, the respondent claimed
that until he was in deferred inspection at the airport, he did not know his
adjustment of status application falsely claimed that he worked as a
minister. He testified that he entered the United States as a nonimmigrant
and was referred to a person who he understood could represent him in
his effort to obtain permanent immigration status. He further stated that
the representative, who he believed was an attorney and pastor, told the
respondent that for $15,000 he could help him become a permanent resident
“through the church.”
The respondent explained that his application for adjustment of status and
the supporting documents were prepared by the representative and his staff.
He conceded that he signed the adjustment application, but he claimed that
he did not know its contents because he did not speak or read English. His
wife also admitted that she signed an adjustment application, which was
dependent on the respondent’s status as a religious worker, but said she did
not know it contained false information.
2
Unless otherwise specified, we will refer to the husband, who is the lead respondent, as
“the respondent.”

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The Immigration Judge concluded that the respondents were not credible
and held that they procured adjustment of status by willful misrepresentation
of a material fact. He therefore found them to be removable as aliens who
are inadmissible under section 212(a)(6)(C)(i) of the Act. 3

II. ANALYSIS
According to section 212(a)(6)(C)(i) of the Act, “Any alien who, by fraud
or willfully misrepresenting a material fact, seeks to procure (or has sought
to procure or has procured) a visa, other documentation, or admission into
the United States or other benefit provided under this Act is inadmissible.”
Misrepresentations are willful if they are “deliberately made with knowledge
of their falsity.” Matter of S- and B-C-, 9 I&N Dec. 436, 445 (BIA 1960;
A.G. 1961); see also Suite v. INS, 594 F.2d 972, 973 (3d Cir. 1979) (per
curiam) (stating that “knowledge of the falsity of a representation is sufficient
to satisfy the scienter element” of willfulness, which “entail[s] voluntary
and deliberate activity”); Matter of Kai Hing Hui, 15 I&N Dec. 288, 289–90
(BIA 1975) (noting that, unlike fraud, a finding of willfulness does not
require an “intent to deceive”). A misrepresentation is material when it has
a “natural tendency to influence, or [be] capable of influencing, the decision
of the decision-making body to which it was addressed.” United States
v. Boffil-Rivera, 607 F.3d 736, 741 (11th Cir. 2010) (alteration in original)
(citation omitted).
To establish the respondents’ removability, the DHS offered a number
of documents into evidence, including the visa petition to classify the
respondent as a special immigrant religious worker. Supporting documents
filed with the visa petition purported to certify that the respondent was an
ordained minister who was a salaried employee at St. Mark Catholic Church.
The respondent’s application for adjustment of status also stated that his
occupation was a minister, and his biographic information form indicated
that he worked at St. Mark from May 1995 to September 30, 1998, the date
the documents were signed. The DHS also submitted a transcript of the
respondent’s 2011 airport interview, in which he admitted to immigration
officials that he had signed papers to apply for immigration benefits as a
religious worker and had been granted permanent resident status on that
basis, but he had never worked at the church.
In holding that the respondents made willful misrepresentations, the
Immigration Judge found that they knew of or authorized the false
statements their representative made on their behalf in their applications
3

The Immigration Judge also denied the respondents’ request for a waiver of their
removability under section 237(a)(1)(H) of the Act. However, they have not raised that
issue on appeal, so it is deemed waived. Matter of N-A-I-, 27 I&N Dec. at 73 n.1.

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for permanent resident status. The respondents claim that because the
documents were in English, they could not read them and were unaware of
their contents. Citing Ortiz-Bouchet v. U.S. Attorney General, 714 F.3d 1353
(11th Cir. 2013) (per curiam), the respondents argue that the Immigration
Judge erred because the evidence in the record is not sufficient to support the
conclusion that they made a willful misrepresentation. We disagree.
Courts have held “in various contexts, including immigration cases, [that]
one’s signature on a form or contract establishes a strong presumption” that
the signer knows its contents and has assented to them, absent evidence of
fraud or other wrongful acts by another person. Thompson v. Lynch, 788
F.3d 638, 647 (6th Cir. 2015); see also, e.g., United States v. Baptist, 759
F.3d 690, 696 (7th Cir. 2014) (holding that an alien’s failure to read a waiver
form containing clear warnings of its consequences was insufficient to prove
that the waiver was invalid, absent evidence that he was tricked or pressured
into signing it); cf. Bingham v. Holder, 637 F.3d 1040, 1045 (9th Cir. 2011)
(stating that in the absence of fraud or other wrongful act on the part of
another, a person who signs a contract is presumed to know its contents and
to assent to them).
The regulations also support this legal principle. For example, the asylum
regulations provide that an “applicant’s signature [on an asylum application]
establishes a presumption that the applicant is aware of the contents of the
application.” 8 C.F.R. §§ 208.3(c)(2), 1208.3(c)(2) (2018); see also Matter
of Y-L-, 24 I&N Dec. 151, 161 (BIA 2007) (rejecting the respondent’s
assertion that his attorney was to blame for including incorrect information
in his asylum application). Thus, an alien’s signature on an immigration
application establishes a strong presumption that he or she knows the
contents of the application and has assented to them. See Hanna v. Gonzales,
128 F. App’x 478, 480 (6th Cir. 2005) (stating that “the law . . . charges [an
applicant] with knowledge of the application’s contents”).
When an alien challenges the accuracy of the contents of a signed
application, the Immigration Judge must evaluate the alien’s explanations
and consider the facts of the particular case to determine whether he or she
has rebutted the presumption of knowledge of the document’s contents.
See Zhi Wei Pang v. BCIS, 448 F.3d 102, 107–08 (2d Cir. 2006). However,
an alien may not deliberately avoid reading the application or having it
explained or translated in an attempt to circumvent the presumption. See
Bautista v. Star Cruises, 396 F.3d 1289, 1301 (11th Cir. 2005) (noting “the
general principle that ‘[o]ne who has executed a written contract and is
ignorant of its contents cannot set up that ignorance to avoid the obligation
absent fraud and misrepresentation’” (citation omitted)); cf. United States
v. Puente, 982 F.2d 156, 159 (5th Cir. 1993) (holding that “a defendant who

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deliberately avoids reading the form he is signing cannot avoid criminal
sanctions for any false statements contained therein”).
It is undisputed that the respondents signed adjustment applications that
were based on the assertion that the respondent was employed as a religious
worker at St. Mark Catholic Church. A strong presumption that they knew
the contents of their documents arose from the fact that they signed the
documents. To rebut the presumption, they primarily argue that they were
unaware of the false statements in their applications because they did not
know English and the documents were never translated for them. Given the
nature and significance of immigration documents, however, it is reasonable
to expect that aliens will take steps to ascertain the accuracy of documents
they sign and obtain a translation, if necessary.
In assessing whether the respondents knew of or authorized the false
statements in their applications, the Immigration Judge found that they
lacked credibility. He determined that their testimony was inconsistent
in various significant respects and that their recitation of events was
unpersuasive because it was vague and elusive. The Immigration Judge
also found that, under the questionable circumstances of this case, it was
implausible that the respondents were unaware of the inaccuracies in the
documents they signed.
The respondent admitted he never worked at St. Mark. He gave
conflicting testimony regarding his involvement with the church, including
whether he ever even attended services there. Although he initially stated
that he first became a member and helped with catechism classes there
sometime between 1995 and 1997, he later testified that he never attended
St. Mark but, instead, went to a different Catholic church from 1996 to 1999.
Moreover, the respondent’s testimony about the date he began going to
St. Mark was not in agreement with that of his wife, who stated that her
family only went to that church after 1998. In addition, after testifying that
he told his representative he attended St. Mark, the respondent later retracted
his statement and said that they never discussed whether he went to church.
The respondent also admitted in his airport interview that he obtained
permanent resident status as a religious worker, even though he was not a
minister and was never paid a salary by a religious organization. He testified
that the $15,000 he paid the representative was a lot of money and
acknowledged that the promise to obtain permanent residence for him
“through the church” seemed “too good to be true.” He never inquired how
he could do this, despite the fact that he and his wife had several meetings
with the representative and his staff.
After carefully considering their testimony and the documentary
evidence of record, the Immigration Judge found that the respondents
were not credible and that their claim that they did not know about the
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misrepresentations in their applications was implausible. The Immigration
Judge was entitled to make “reasonable inferences from direct and
circumstantial evidence of the record as a whole” and was not required to
interpret the evidence in the manner advocated by the respondents. Matter
of D-R-, 25 I&N Dec. 445, 454–55 (BIA 2011), remanded on other grounds,
Radojkovic v. Holder, 599 F. App’x 646, 648 (9th Cir. 2015). Consequently,
there is no clear error in the Immigration Judge’s adverse credibility finding
or in his determination that the respondents were aware of or authorized
the false statements the representative made on their behalf. See section
240(c)(4)(C) of the Act, 8 U.S.C. § 1229a(c)(4)(C) (2012); Carrizo v. U.S.
Att’y Gen., 652 F.3d 1326, 1332 (11th Cir. 2011) (per curiam).
Even if the respondents were credible, they signed documents that
contained false statements without asking that they be translated or
explained. The respondent’s signature was directly below a statement
certifying, under penalty of perjury, that his application and the evidence
submitted with it were all true and correct. The respondent conceded that he
knew that the adjustment application he signed was to obtain immigration
status as a religious worker and that he had never been employed at St. Mark
Catholic Church. The respondent’s wife, his derivative beneficiary, admitted
that the representative told her the adjustment application was for her to
become a permanent resident before she signed the same statement
attesting to the truth of her application and all the supporting documents.
Significantly, neither of the respondents claimed to have been misled or
deceived by the representative or his staff.
At a minimum, the facts and circumstances indicate that the respondents
made a conscious choice to avoid knowing about the misrepresentations their
applications contained. Such deliberate avoidance does not excuse their false
statements. See Hanna, 128 F. App’x at 480 (rejecting an alien’s claim that
he did not willfully misrepresent facts in an adjustment application that he
had declined to read and finding that his “failure to apprise himself of the
contents of this important document constituted deliberate avoidance—an
act the law generally does not recognize as a defense to misrepresentation”
(emphasis added)); see also Bautista, 396 F.3d at 1301; Puente, 982 F.2d
at 159. Under the circumstances, we conclude that the Immigration Judge
properly applied the presumption of knowledge and determined that the
respondents knew of or authorized the falsehoods in their documents.
See Thompson, 788 F.3d at 647; Diaz v. U.S. Att’y Gen., 730 F. App’x 890,
891–92 (11th Cir. 2018) (mem.) (per curiam). See generally Matter of
Gomez-Beltran, 26 I&N Dec. 765, 768 (BIA 2016) (“Truthful testimony and
disclosures are critical to the effective operation of the immigration court
system.”).

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The respondents’ reliance on Ortiz-Bouchet is misplaced. Unlike the
respondents, the alien in that case claimed that he had never seen the
documents and that his signature on them had been forged. In addition, the
Immigration Judge in that case expressly determined that the alien “did
not personally willfully misrepresent a material fact.” Ortiz-Bouchet, 714
F.3d at 1356. The court therefore found no substantial evidence that the alien
“made, knew of, or authorized” the representative’s misrepresentation on his
behalf. Id. at 1357.
Here, the respondents have admitted that they signed their adjustment
applications. Their signatures established a strong presumption that they
knew the contents and assented to them. See Thompson, 788 F.3d at 647;
Hanna, 128 F. App’x at 480. After reviewing all the facts of the respondents’
case, the Immigration Judge found that they were not credible because
their testimony was inconsistent and evasive and their claim of ignorance
about the contents of their applications was implausible. See Alhuay v. U.S.
Att’y Gen., 661 F.3d 534, 546–47 (11th Cir. 2011) (per curiam). He
concluded that the respondents did not rebut the presumption of knowledge,
and he made a permissible inference that they knew of or authorized the false
statements the representative made on their behalf. See United States
v. Gaines, 690 F.2d 849, 853 (11th Cir. 1982) (A “permissible inference . . .
is a common evidentiary tool that allows, without requiring, the trier of fact
to infer the existence of an elemental fact upon proof of a basic evidentiary
fact”).
We conclude that there is no clear error in the Immigration Judge’s
adverse credibility finding or his determination that the respondents procured
their adjustment of status by willful misrepresentation of a material fact. See
section 240(c)(4)(C) of the Act; Anderson v. Bessemer City, 470 U.S. 564,
574 (1985) (stating that a finding that is plausible in light of the record
viewed in its entirety is not clearly erroneous). Consequently, the DHS met
its burden of proof to establish that they are removable under section
237(a)(1)(A) of the Act, as aliens who were inadmissible at the time of
adjustment of status under section 212(a)(6)(C)(i). See section 240(c)(3)(A)
of the Act; Matter of D-R-, 27 I&N Dec. 105, 113 (BIA 2017); Matter of
Bosuego, 17 I&N Dec. 125, 131 (BIA 1979, 1980); 8 C.F.R. § 1240.8(a)
(2018). Accordingly, the respondents’ appeal will be dismissed.
ORDER: The appeal is dismissed.

502


MATTER OF

F—

In VISA PETITION Proceedings
A-15717621

Decided by Board June 1, 1962
Visa petition—Section 295(c), 1952 act, as amended—Purpose of evading immigration laws must be established.
Approval of a visa petition based upon a civil marriage later annulled for
fraud does not preclude beneficiary from subseauently obtaining nonquota
status where record fails to establish that purpose of marriage was to
evade Immigration laws.

BEFORE THE BOARD

DISCUSSION: The case is before us pursuant to certification by
the District Director, New York District, of his order dated January
18, 1962, denying the visa petition for the reasons eet forth more
fully in an attached order bearing the same date.
Form 1-130, petition to classify the status of alien for issuance of
immigrant visa, filed by the native-born citizen wife, 30 years old, on
behalf of the beneficiary, a native and citizen of Greece, 33 years old,
sets forth that the parties were married at Bergenfield, New Jersey,
on October 13, 1960. The petition shows that the petitioner was not
previously married and the beneficiary was previously married once.
The file contains a prior visa petition, No. VP 3-1-126005, which
was filed on February 14, 1958, by the beneficiary's first wife, K—
F—, naturalized on December 3, 1957, whom the beneficiary married
on December 14, 1957, at Ozone Park, Long Island, New York.
Sworn statements were taken from the beneficiary and his first wife
by a Service officer on January 17 and January 24, 1958, respectively. The beneficiary stated that , he had anticipated being married
about Christmas 1957 but when he was apprehended by the Immigration Service on December 10, 1957, they decided to have the marriage as soon as possible, and such marriage took place four days
after his apprehension. Both the beneficiary and his first wife testified that they did not marry solely to enable the beneficiary to remain in the United States or to gain any benefits under the immigration laws or to avoid deportation from the United States or upon
684

advice from a lawyer or any other person. The beneficiary testified
that he was residing in a two-bedroom apartment with his wife's
parents and that he and his wife shared one bedroom and her parents the other. The wife testified to the same effect. The visa petition was approved for nonquota status on behalf of the beneficiary
on March 19, 1958. However, the petitioner made a subsequent sworn
statement before an immigration officer at the New York office on
September 10, 1958, in which she repudiated her previous statement

and stated that she had never lived together with the beneficiary in
a man-and-wife relationship; that although they were married in a
civil ceremony she never considered herself as being married to the
beneficiary until such time as they decided to be married in the
Greek Church; that the marriage had never been consummated; that
the beneficiary lived in her father's home in a separate room and
They did.not share a bedroom; that she no W had no intention of marrying the beneficiary in the Greek Church; that she had changed
her mind and had started annulment proceedings to have the civil
marriage RIM/11W. She stated, however, that at the time she married the beneficiary in the civil ceremony she did not just marry
him to aid him with immigration difficulties but actually intended
to marry him in June of 1958 in the Greek Church and to actually
consummate their marriage.
The order of the District Director reflects that the approval of the
visa petition filed by the first wife on behalf of the beneficiary was
ordered revoked on September 17, 1958, on the basis of the petitioner's testimony on September 10, 1958, which indicated the absence of

a bona fide husband-and-wife relationship. The first wife filed an
action for annulment in the Supreme Court of the State of New
York, County of Queens, in which an interlocutory judgment of
annulment was entered on OctOber 17, 1958, on the ground of the
fraud of the defendant. The fraud of the defendant is spelled out
in the findings of fact made by the Court on October 17, 1958, to
the effect that the defendant fraudulently and falsely represented
to the plaintiff that he would marry her according to the Greek
Orthodox religious ceremony; that the defendant at the time of making the. said representations and statements knew them to be false,
fraudulent and untrue, made for the intent to defraud and deceive
the .plaintiff and for the purpose of inducing her to enter into the
ma Triage.
The present petition was filed February 27, 1961. On April 18,
1961, a sworn statement was taken from the beneficiary by a Service .
officer. He stated that he has been a seaman from 1954 until April
1960 and was always given shore leave; that he had been under
immigration proceedings previously; that he left his ship in December 1955 and stayed ashore until October 1958, when he left the
685

United States voluntarily on the SS. "Olympia." He stated that
he last entered the United States at Philadelphia about April 5,
1960, as a seaman on the SS. "Aries," intending to stay ashore indefinitely and obtain a job. He married the petitioner on October
13, 1960, after four months of keeping company, knowing that his
marriage to petitioner would help him stay in the Uhited States
but claimed that he would have married her even if she was not a
United States citizen; that he was and is in love with her. He
stated that his previous marriage was annulled in New York some
time in October 1958 but that he did not know why his first wife
had their marriage annulled; that he was no longer in the United
States when this happened.
The order of the District Director, New York District, reflects
that the denial of the present petition is predicated upon section
205(c) of the Immigration and Nationality Act, as amended by section 10 of the Act of September 26, 1961, 8 U.S.C. 1155(c), note,
C.A.P.P. 1961 (P.L. 87 -301), which amends section 205(c) of the
Immigration and Nationality Act by adding at the end thereof the
following sentence:
Notwithstanding the provisions of this subsection, no petition shall be approved if the alien previously has bet a accorded, by reason of marriage determined by the Attorney General to have been entered into for the purpose
of evading the immigration laws—
(1) a nonquota status under section 101(a) (27)(A) as the spouse of a
citizen of the United States, or
(2) a preference quota status under section 203(a) (3) as the sponse of
an alien lawfully admitted for permanent residence.

The amendment added by section 10 of the Act of September 26,.
before a petition may be disapproved thereunder :
1961, has two essential requirements

(I) The alien beneficiary must previously have been accorded a nonquota
status under section 101(a) (27) (A) as the spouse of a United States citizen or a preference quota status under section 203(a) (3) as the spouse of
an alien lawfully admitted for permanent residence;
(H) It must be determined by the Attorney General that such nonquota or
preference quota status was accorded by reason of a marriage entered into
for the purpose of evading the immigration laws.

We shall first consider the second of these requirements, i.e.,
whether the marriage was entered into for the purpose of evading
the immigration laws. The District Director has found that the
testimony of the first wife was not credible, without, however, setting forth the basis of the finding, apparently basing his conclusion
on the circumstances and not upon the demeanor of the witnesses.
The finding in the annulment action, which was not contested nor
defended because the beneficiary had already left the country, is
686

not dispositive of the issue of fraud in the procurement of the visa.'
The first wife, although acknowledging her earlier statement about
cohabiting with the beneficiary was false, nevertheless reiterated
that the marriage was not entered into for the purpose of evading
the immigration laws, that she fully intended at that time to go
through a religious ceremony but that she had changed her mind.
There is no evidence that the beneficiary entered into the marriage
fur the purpose of evading the immigration laws. It appears that
what was present here was originally a bona fide marriage followed
by a change of mind on the part of the citizen wife. Where the
failure of the marriage is not the fault of the beneficiary, he is not
precluded by the amendment. On the record, we are unable to arrive at a determination that the marriage was entered into by the
beneficiary for the purpose of evading the immigration laws. 2
Since the second requirement of section 205(c) of 'the Act, as.
amended by section 10 of the Act of September 26, 1961, has not
been established, we deem it unnecessary to consider the first essential requisite of section ?05 (a), as amended, inasmuch as both elements must be present before the bar of the amendment becomes
effective. The appeal will be sustained.
ORDER: It is ordered that the appeal be sustained and that the
visa petition be approved for nonquota status on behalf of the
beneficiary.
I Cf. Sarayannis v. Brownell, 251 F.26 882, at
, 7-601.
2 Cf. Matter or M
—

687

page 884-885 (C.A. D.C., 1967).,

.


MATTER OF CANADIAN PACIFIC AIRLINE

In FINE Proceedings
500-2093-4
Decided by Board Docontbor 17, 1957
Fines—Section 273 of 1952 act—Signatory carrier (sec. 238 of 1952 act) exempt
from fine liability for transporting natives of contiguous territory or returning residents inadmissible on documentary grounds.
No fine lies under section 273 of the 1952 act against a carrier signatory to an
Overseas Agreement pursuant to section 238 of the act for transporting to
Canada, destined to the United States, alien passengers who are returning
residents or natives of contiguous territory inadmissible solely on documentary grounds. tut. 4 I. & D. Dec. ∎FiD; 1. & N. Dec. 3 2D.)
13Asts FOR FINES: A ct of 1952—Section 273 (8 U.S.C. 1323) .
DEFORE TIID BOARD

Discussion : These appeals in administrative fine proceedings are
directed to penalties of $1,000 each ordered imposed on this Canadian common carrier for bringing to Canada on July 27, and
August 6, 1956, respectively, from Europe, alien passengers G
P—C--- and A
who were ultimately destined to,
J
W
but limited asaunents valid fur admission into, the United Staten.
Both alien passengers were Canadian nationals (one native-born)
who had previously been lawfully admitted to the United States
for permanent residence. They were returning via Canada, after
visiting in Europe. Both lacked documents valid for admission to
this country (former 8 CFR 211.2). Both had Alien Registration
Receipt Cards, Form I-151, which at the date of applications for
admission were not valid reentry documents after a European trip.
The facts in relation to the fine for transporting A I W---are as follows: The passenger is a native of England, who was admitted to the United states for permanent residence on August 6,
1950. She purchased a round-trip air ticket in Santa. Barbara, California, for travel to Amsterdam, Holland, and return to California.
She was routed via United Air Lines from Los Angeles, California,
to Vancouver, B.C., and thence to Amsterdam, Holland, via Canadian
Pacific Air Lines. Return passage was a reverse of this. This

passenger was manifested for the United States by Canadian Pacific
Air Lines both on the United States manifest and on the general
manifest covering all passengers on the flight. In this case, the
record shows the passenger used Canada solely and exclusively as
a means fn travel flunk Holland to California.
The record reveals the following situation concerning the transportation of G P—C--- via Canadian Pacific Air Lines.
This passenger, a native of Canada, was permanently admitted to
the United States on March 12,1956. Transportation was purchased
in White Rock, B.C., for a trip from Vancouver to Norway and
Holland returning to Vancouver. The passenger's family lives in
White Rock, B.C. Upon return to Vancouver after the European
trip, it was her intention to visit in Canada for a few days before
returning to the United States. The passenger was on a Canadian
Pacific Air Lines manifest for United States passengers.
The issue is whether the Overseas Agreement, to which Canadian
Pacific Air Lines subscribes, requires the imposition of a penalty in
these cases. Stated broadly, the agreement imposes on transportation agencies bringing aliens destined to the United States via
Canada, the same responsibility as if the agency brought the passenger directly to a 'United Stuteq port.
Because Canadian transportation agencies by Canadian law are
required to transport to Canada any Canadian citizen requesting
such transportation, it has been held that where such transportation takes place even if the passenger is ultimately destined to the
United States, a penalty for violation of our immigration laws will
not be incurred (Matter of Tel Plane CF TFF 206, F-0109-19,
4 I. & N. Dec. 689). However, if Canada is used solely and exclusively as a means for reaching the United States, this exception
has no application for the reason that Canadian law is interested in
the transportation of Canadian eitizonn to Canada and Imo no interest in the transportation of Canadian citizens to the United States

(Matter of CPA Plane Flight 301, 500-2026, 7 I. & N. Dec. 329).
On these holdings, there would be a fine for the transportation of
A J—W , but no this in the case of G P C - Miss
C was clearly destined to Canada to visit relatives. Miss
W—'s interest in Canada was solely as a means of reaching the
United States.
The initial provision of law which was the basis for the first
Canadian Overseas Agreement was found in section 23 of the Immi102, 1940 ed.), and is as follows:
gration act of 1911' (6
Provided further, That in prescribing rules and making contracts for
the entry and inspection of aliens applying for admission from or through foreign contiguous territory, due care shall be exercised to avoid any discriminatory action in favor of foreign transportation companies transpbrting to such
territory aliens destined to the United States, and all such transportation

563713-61-

companies shall be required, as a condition precedent to the inspection or examination under such rules and contracts at the ports of such contiguous territory of aliens brought thereto by them, to submit to and comply with all the
reauirements of this Act which would study won, they bringing mrh nliano
directly to seaports of the United States, and, from and after the taking effect
of this Act, no alien applying for admission from foreign contiguous territory
shall be permitted to enter the United States unless upon proving that he was
brought to such territory by a transportation company which had submitted to
and complied with all the requirements of this Act or that he entered, or has
resided in, such territory more than two years prior to the date of his application for admission to the United States.

The Immigration Act of 1924 contained a provision in section
17 (8 U.S.C. 217, 1940 ed.) almost the same as the one in the 1917
act. In the 1924 act an exception to the two-year bar to readmission was made in favor of aliens lawfully admitted to the United
States returning from a temporary visit from contiguous territory.
The reasons for these provisions of law were to put transportation lines going into contiguous territory on a parity with those
coming directly to United States ports in regard to the transportation
of aliens destined to the United States, and to help prevent contiguous territory from being used as A. means of gaining entry into ,
the United States by aliens desiring to come to this country but
who could not obtain passage directly to a United States port because
not qualified for admission.
In current law, the provisions which are the basis of the existing
Overseas Agreement and which are substantially the same as in the
earlier laws are contained in section 238 (a), (b), and (c) of the
Immigration and Nationality Act (8 U.S.C. 1228, 1952 ed.). The
provision in the new law for the exclusion of aliens brought to contiguous territory by transportation agencies who have not entered
into a contract as provided in section 255 is found in section 012
(i) (24) of the Immigration and Nationality Act (8 U.S.C. 1182
(a) (24), 1952 ed.). This subsection carries forward the two-year
bar on the admission of aliens not brought to contiguous territory by
complying transportation agencies, but makes an exception of importance in considering the cases now before us. The present law
exempts from the two-year bar aliens who are natives of Western
Hemisphere countries (with a minor exception not material to the
consideration of these cases) and returning residents.
Although section 238 of the Immigration and Nationality Act is
broad enough to cover natives of Western Hemisphere countries and
returning residents, it is argued that as Congress has seen fit to
exempt these two classes from the two-year exclusion bar, Congress
was not concerned with their transportation to contiguous territory
and, hence, penalty should not be imposed for transporting such
aliens from overseas to Canada.

10

In the Service argument before the Board, it was stated that the
reasons which gave rise to this provision of law in 1917, today do
not exist. Because of changes in Canadian law, and other circumstances, no longer is it profitable for a European alien whose ultimate destination is the -United States to use Canada as a means of
obtaining that end. The Service specifically urged the Board to
adopt the position that under the Overseas Agreement carriers are
exempt from liability as to natives of contiguous territory and returning residents who are inadmissible solely because of documentary
requirements. In view of this background, we are asked to construe
!existing law liberally toward carriera. The change in the 1952 act

exempting from the two-year exclusion bar aliens described in section 101(a) (27) (C) (8 U.S.C. 1101, 1952 ed.), that is, aliens who
are natives of Wectern Hemisphere. countries, and aliens described
in section 101(a) (27) (B) (8 U.S.C. 1101), that is, aliens returning
to the United States after a temporary visit abroad, gives a basis for
concluding that as to them, Congress no longer felt the contractual
obligation assumed by carriers under section 238 of the Immigration
and Nationality Act should apply. No legislative comments concerned with this change in the Immigration and Nationality Act
have been found. in light of all the circumstances connected with

this problem, we feel this is a reasonable conclusion and we adopt it.
Order: It is ordered that the appeals be sustained and that the
fine he not imposed.

11


Interim Decision #2556

MATTER OF BALTAZAR
In Deportation Proceedings
A-19092787
Decided by Board February 18, 1977
(1) Respondent's application for relief under section 245 of the Immigration and Nationality Act filed in deportation proceedings brought under section 241(a)(2) of the Act
was denied as a matter of discretion by the immigration judge based on evidence that
the respondent had divorced his wife in order to obtain immigration benefits and had a
preconceived intent to remain at the time of his entry into the United States as a
nonimmigrant. This evidence was in the form of a written memorandum to the file by
the arresting officer, and his testimony at the hearing, based on answers to the officer's
questions given by respondent while being taken to the Service office. At the tune of
arrest, respondent was advised of his right to silence and unsuccessful attempts were
made to locate his attorney. On appeal counsel contends that the interrogation was
unlawful because it was conducted without the presence of counsel and without
Miranda warnings.
(2) Neither the statute nor the regulations provide that an alien in deportation proceedings is entitled to have counsel present during the initial interrogation or receive
Miranda warnings, nor are Miranda warnings required to he given in connection with

civil proceedings under the immigration laws, even to an alien in custody.
(3) The Supreme Court has held with respect to criminal proceedings that in a case in
'which the Miranda decision did not apply, a person who requested assistance of counsel
but nonetheless proceeds to answer questions, had not been deprived his right to
counsel. There is no indication in the record that respondent answered the questions
under duress or as a result of coercion.
(4) Respondent's preconceived intent to remain in the United States is an adverse factor
relating to his application for discretionary relief and has no bearing on deportability.

Evidence indicating that the respondent divorced his wife primarily to obtain immigration benefits is a significant adverse factor bearing upon the exercise of discretion.
Eowever, Matter of Blas, Interim Decision 2485, (A.G. 1976) is distinguishable.
from this ease because unlike the present case in Blas there was evidence that the

divorce was obtained for reasons other than to circumvent the immigration laws.
CHARGE:
Order. Act of 1952—Section 241(a)(Z) [8 U.S.C. 1251(a)(2)] —Nonimmigrant—remained

longer

ON BEHALF OF RESPONDENT: Richard Fraade, Esquire
5670 Wilshire Boulevard, Suite 1800
Los Angeles, California 90036
131i: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

The respondent was found deportable under section 241(a)(2) of the
108

Interim Decision #2556
Immigration and Nationality Act and granted voluntary departure in
lieu of deportation in proceedings instituted against him in 1972. He
moved to reopen the proceedings in order to apply for adjustment of
status under section 245 of the Act. In a decision dated April 15, 1976,
the immigration judge, after granting the motion, denied the application
and renewed the previous grant of voluntary departure. The respondent
has appealed from that decision. The appeal will be dismissed.
The immigration judge held that the respondent, a native and citizen
of the Philippines, was statutorily eligible for section 245 relief, but he
denied it as a matter of discretion. In so doing, he relied on evidence
that the respondent had divorced his wife in order to obtain immigration
benefits, and that, at the time of his entry to the United States as a
nonimmigrant, the respondent had a preconceived intent to remain in the
United States.
The evidence was in the form of a written memorandum to the file by
the arresting immigration officer and the officer's testimony at' the
hearing. In the memorandum and at the hearing the witness allegedly
related the substance of an interrogation made of the respondent after
his arrest. According Lu the officer's testimony, at the time of the arrest
the respondent asked that his attorney be notified. An unsuccessful
attempt was made to contact her. The officer also testified that he had
advised the respondent at that time of his right to remain silent (Tr. p.
23-24). Nevertheless, while being taken to the Service office, the respondent answered the officer's questions, admitting that he came to the
United States with the intention to remain here permanently and that
he had divorced his wife in order to obtain an immigrant visa. Shortly
after arriving at the Service office, the respondent's attorney was contacted.
Counsel objects to the admission into evidence of the memorandum
and of the arresting officer's testimony. He contends that the interrogation was unlawful because it was conducted (1) without the presence of
counsel and (2) without Miranda warnings.
It is not clear from this record that there was a failure to give
Miranda warnings. In any event, neither the statute nor the regulations provide that an alien in deportation proceedings is entitled to have
counsel present during an initial interrogation or to receive the warnings required in criminal proceedings by the Supreme Court's decision
in Miranda v. Arizona, 384 U.S. 436 (1966). Furthermore, it has been
held that Miranda warnings are not required to be given in connection
with civil proceedings under the immigration law, even to an alien in
custody. Chavez -Rays v. INS, 519 F.2d 397 (7 Cir. 1975). See Nai
C heng Chen v. INS, 537 F.2d 566 (1 Cir. 1976); Trias-Ilernandez v.
INS, 528 F.2d 366 (9 Cir. 1975); Matter of Chen, Interim Decision 2440
(BIA 1975), affirmed Chen v. INS, 537 F.2d 566 (1 Cir. 1976).
109

Interim Decision #2556
Counsel argues that the fact that the respondent was questioned
without counsel after having requested counsel amounted to a denial of
his Sixth Amendment right. We disagree. In Escobedo v, Illinois, 378
U.S. 478 (1964) the United States Supreme Court established the right
to have the assistance of counsel in a- criminal interrogation when the
person being interrogated so requested. However, the Supreme Court
has held with respect to criminal proceedings that, in a case in which the
Miranda decision did not apply, a person who made a request for the
presence of counsel but who nonetheless proceeded to answer questions

had not been deprived of his right to counsel. Frazier v. Cupp, 394 U.S.
731 (1969). See also Earp v. Cupp, 453 F.2d 378 (9 Cir. 1972); Connors
v. South Dakota, 422 F.2d 122 (8 Cir. 1970), cert. denied 389 U.Z. 954
(1970). As in Frazier, there is no indication in the record that the
respondent answered the questions under duress or as a result of
coercion. We note that the court stated in Frazier that the defendant's
request had been somewhat ambiguous. Nevertheless, even assuming
that in the present case the request for counsel was clearer than that in
Frazier, we find the distinction insignificant in view of the more stringent rules applicable to criminal proceedings_
The admissions made by the respondent regarding his preconceived
intent to remain here permanently have no bearing on deportability,
which has been conceded. They relate only to his application for discretionary relief and are an adverse factor. Soo Yuen v. INS, 456 F.2d 1107
(9 Cir. 1972); Ameeriar v. INS, 438 F.2d 1028 (3 Cir. 1971), cert.
dismissed, 404 U.S. 801 (1971); Chen v. Foley, 385 F.2d 929 (6 Cir.
1967), cert. denied, 393 U.S. 838 (1968); Cubillos Gonzalez v. INS, 352
F2d 782 (9 Cir. 1965); Castillo v. INS, 350 F.2d 1 (9 Cir. 1965).
Moreover, we also conclude that the evidence indicating that the respondent divorced his wife primarily to obtain immigration benefits is a
significant adverse factor which bears upon the exercise of discretion.
We note that the facts of this case distinguish it from those in Matter of
Bias, Interim Decision 2485 (BIA 1974; Attorney General 1976). In
Bias, although affirming the Board decision denying the application for
adjustment of status, the Attorney General held that it was improper to
deny the relief for the purpose of vindicating the alien's former mar-

riage. However, in

Bias,

unlike in the present case, there was evidence

that the divorce was obtained for reasons other than to circumvent the
immigration laws.
The equities present in behalf of the respondent are insufficient to
'w arrant a grant of adjustment of status. Accordingly, we conclude that
the immigration judge's denial of section 245 relief was proper, and we
shall dismiss the appeal.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is granted voluntary depax110

Interim Decision #2556
ture without expense to the Government on such date as may be granted
by the District Director. If the respondent fails to depart when and as
required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following Order shall thereupon become immediately effective: the respondent shall be deported
from the United States to the Philippines on the charge contained in the
Order to Show Cause.

111


Interim Decision #2345

MATTER OF M/V "AGIOS NECTARIOS"
In Fine Proceedings
HMM-10/11.3

Decided by Board February 19, 1975
(1) Notwithstanding that the carrier was not served with Form 1-259, Notice to Detain
and Deport, al. provided in 8 CFR 252.2, the Service gave proper notice to the carrier as
the record contained an affidavit from the master that he was given notice to detain the
alien crewman, and his defense conceded such notice was given. The fact of notice
rather than the form is controlling, but the Service should make certain the appropriate

form is served and a copy, showing proper service, is retained in the file, as provided in
the regulation.
(2) Carrier was charged with liability to fine under section 254(a)(2) of the Immigration
and Nationality Act. However, the charge should have been preferred under section
254(a)(3) of the Act, because the involved crewman who had been granted a conditional
permit to land, had attempted to desert the vessel, was apprehended by the Service and
returned to the vessel, and his conditional landing permit was revoked pursuant to
section 252(b) of the Act. Notice of this charge under. section 254(a)(2), while improper
was not a fatal defect where the record clearly reflected that the carrier was well aware
of the nature of the violation, was adequately apprised of the factual basis for its
liability, and lad ample opportunity to intelligently protest.
(3) Where the carrier was well aware of the crewman's inclination to desert and did not
take adequate provisions to detain him on board as required, mitigation of the fine was
not warranted.
.
IN RE: MN ACtIOS NECTARIOS, which arrived at the port of Detroit, Michigan, from
foreign, on October 18, 1974. Alien crewman involved; ANDRES DE LEON.

BASIS FOR FINE:

Act of 1952—Section 254(a)(2) [8 U.S.C. 1284(a)(2)].

ON BEHALF OF CARRIER: Jeffrey W. Gettleman, Esquire
134 South LaSalle Street
Chicago, Illinois 60603

In a decision dated December 31, 1974, the Acting district director
imposed a .fili• of $1,000 upon the carrier for a violation of section
254(a)(2) of the Immigration and Nationality Act, and he denied the
carrier's request for mitigation of the fine. The carrier has appealed
from that decision. The appeal will be dismissed.
The record indicates that the alien crewman in question was granted a
conditional permit to land in the United States on October 19, 1974. On
October 23, 1974, the crewman attempted to desert the vessel. He was
180

Interim Decision #2345
apprehended by the Service, returned to the vessel, and his conditional
landing permit was revoked pursuant to section 252(b) of the Act. The
alien escaped on October 25, 1974 and has not been apprehended.
The record does not contain a Notice to Detain and Deport, Form
1-259, which pursuant to 8 CFR 252.2 should be served on the vessel's
agent and, if possible, upon the owner and the master of the vessel.
However, the record contains an affidavit from the master indicating
that he was given notice to detain the alien crewman, and the carrier's
defense concedes that such notice was given. Moreover, in another case
involving 8 OEM 252 we held that the fact of notice, rather than its form,
was controlling. Matter of MTV "Oceanic Amity," 13 L & N. Dec, 418
(BIA 1969).
The Notice of Intention to Fine, Form 1-79, states that the fine should
be imposed under section 254(a)(2) of the Act. We have held, however,
that where an arriving alien crewman -is granted a conditional landing
permit which is later revoked, and that crewman then escapes, a fine for
failure to deport the crewman should be brought under subsection (3) of
section 254(a) of the Act. Matter of M IV "Hellenic Leader," 10 I. & N.
Dec. 73'7 (BIA 1964); Matter of MIS "PanaghiaTheoskepasti," 10 I. &
N. Dec. 360 (BIA 1968). Nevertheless, in Matter of MJY "Oceanic
Amity," supra, at 421, we held that giving notice of a. section 254(a)(2)
charge where a section 254(a)(3) charge was proper was not a fatal
defect where "the record clearly reflects that the carrier was well aware
of the nature of the violation with which it was being charged; was
adequately apprised of the factual basis for its liability; and had ample
opportunity to intelligently protest, which it did." Our review of the
record satisfies us that the foregoing circumstances have been met in
the present case. Consequently, the acting district director's decision to
fine will be upheld.
Although we are upholding the acting district director's decision in
this case, because the record shows that the carrier was not prejudiced
in any way, we emphasize that the district director should take steps to
insure that the technical deficiencies present in this record do not recur.
Specifically, in cases of this type the district director should make
certain that (1) a Form 1-259 is served on the appropriate parties in
accordance with 8 CFR 252.2 and that a copy of that form showing
proper service is included in the record, and (2) that the Notice of
Intention to Fine states the proper charge under section 254(a)(3) of the
Act.
The carrier has challenged the acting district director's refusal to
grant mitigation of the fine. Counsel contends that mitigation should be
allowed because the master lifted the detainee's papers, posted a guard
from the crew, and promptly reported the detainee's escape to the
Service.
181

Interim Decision #2345
Mitigation depends on the reasonableness of the carrier's actions in
the circumstances Of each particular case. Matter of M1V "Clydefield,"
10 I. & N. Dec. 165 (BIA 1963); Matter of M/V "Tung An," 11 I. & N.
Dec. 700 (BIA-1966). Therefore, while general examples of factors to be
considered have been set •forth in our prior decisions, the determination
as to mitigation in any particular case depends upon the particular
factual context in which thOse factors occur.
In the present case, the carrier was well aware of the alien crewman's
inclination to desert, since he 'had already attempted to do so. The
record indicates that when the alien was returned to the vessel after his
first attempt to desert, the Service suggested that a professional guard

be employed. There were apparently several other detainees on board
who had attempted to escape at the same time as the subject alien. The
master of the vessel "responded that he was sure the detainees would
remain on board and that .he would post a watch at the gangway as an
extra precaution." The escaped crewman is evidently_still at large in the
United States.
The precautions taken to detain the alien crewmen on board were not
reasonable under the circumstances of this case. The minimal measures
taken by the master do not warrant mitigation. Consequently, we agree
with the acting district director's decision to deny -mitigation. The ap-

peal will be dismissed.
ORDER: The appeal is dismissed.

182