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Matter of Willy de Jesus ROSA, Respondent
Decided March 14, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In deciding whether a State offense is punishable as a felony under the Federal
Controlled Substances Act and is therefore an aggravated felony drug trafficking crime
under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(43)(B) (2012), adjudicators need not look solely to the provision of the
Controlled Substances Act that is most similar to the State statute of conviction.
(2) The respondent’s conviction under section 2C:35-7 of the New Jersey Statutes for
possession with intent to distribute cocaine within 1,000 feet of school property is for
an aggravated felony drug trafficking crime because his State offense satisfies all of the
elements of 21 U.S.C. § 841(a)(1) (2012) and would be punishable as a felony under
that provision.
FOR RESPONDENT: Raymond P. D’Uva, Esquire, Newark, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Assistant Chief Counsel

Tanya K. Bronsteen,

BEFORE: Board Panel: PAULEY and WENDTLAND, Board Members. Concurring
Opinion: O’CONNOR, Board Member.
WENDTLAND, Board Member:

In a decision dated March 8, 2017, an Immigration Judge found that
the respondent was not removable under section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as
an alien convicted of an aggravated felony drug trafficking crime under
section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2012), and
granted his application for cancellation of removal under section 240A(a) of
the Act, 8 U.S.C. § 1229b(a) (2012). 1 The Department of Homeland Security
(“DHS”) has appealed from that decision. The appeal will be sustained, and
the respondent will be ordered removed from the United States.

1
The Immigration Judge also determined that the respondent is removable under section
237(a)(2)(B)(i) of the Act because he has been convicted of an offense relating to a
controlled substance. The respondent has not challenged that finding on appeal.

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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of the Dominican Republic who is
a lawful permanent resident of the United States. It is undisputed that
on February 20, 2004, he was convicted of possession of cocaine with the
intent to distribute within 1,000 feet of school property in violation of section
2C:35-7 of the New Jersey Statutes. 2 On appeal, the DHS argues that the
Immigration Judge erroneously granted the respondent’s application for
cancellation of removal because his violation of section 2C:35-7 is an
aggravated felony under section 101(a)(43)(B) of the Act. Whether a State
drug offense is an aggravated felony is a question of law that we review de
novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2017).

II. ANALYSIS
The term “aggravated felony” in section 101(a)(43)(B) of the Act
encompasses “illicit trafficking in a controlled substance (as defined in
section 102 of the Controlled Substances Act), including a drug trafficking
crime (as defined in section 924(c) of title 18, United States Code).” For
purposes of this provision, “the term ‘drug trafficking crime’ means any
felony punishable under the Controlled Substances Act (21 U.S.C. 801
et seq.)” and other statutes not relevant here. 18 U.S.C. § 924(c)(2) (2012).
“Thus, a state drug conviction constitutes an aggravated felony [drug
trafficking crime] if . . . it would be punishable as a felony under the federal
Controlled Substances Act . . . .” Evanson v. Att’y Gen. of U.S., 550 F.3d
284, 288 (3d Cir. 2008). 3 “[A] state [drug] offense constitutes a ‘felony
punishable under the Controlled Substances Act’ only if it proscribes conduct
punishable” by more than 1 year of imprisonment “under that federal law.”
Lopez v. Gonzales, 549 U.S. 47, 60 (2006); see also 18 U.S.C. § 3559(a)(5)
(2012); Evanson, 550 F.3d at 289.
To determine whether the respondent’s State drug offense is punishable
as a felony under the Controlled Substances Act, we employ the categorical
approach, focusing on whether the elements of the respondent’s State
offense categorically define a felony under that Federal law. See Moncrieffe
v. Holder, 569 U.S. 184, 190 (2013). “Under this categorical approach, if
‘the elements of the state crime are the same as or narrower than the
2

At that time, the respondent was also convicted of sale of cocaine within 1,000 feet of
school property in violation of the same New Jersey statute.
3
“[A] felony under state law” may also be an aggravated felony under section
101(a)(43)(B) if it “includes an illicit trafficking element.” Evanson, 550 F.3d at 288.
However, based on our disposition in this case, we need not decide whether a violation of
section 2C:35-7 involves such an element.

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elements of the federal offense, then the state crime is a categorical match
and every conviction under that statute qualifies as an aggravated felony.’”
Matter of Delgado, 27 I&N Dec. 100, 101 (BIA 2017) (citation omitted). If
the State crime is not a categorical match but the statute is divisible—that is,
comprised of “multiple alternative elements”—we may look to the relevant
conviction records under a “modified categorical approach” to determine
“what crime, with what elements, [the respondent] was convicted of.”
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (citation omitted).
At the time of his offense, the respondent’s State statute of conviction
provided as follows:
Any person who violates subsection a. of N.J.S.2C:35-5 by distributing,
dispensing or possessing with intent to distribute a controlled dangerous substance
or controlled substance analog while on any school property used for school
purposes which is owned by or leased to any elementary or secondary school or
school board, or within 1,000 feet of such school property or a school bus, or while
on any school bus, is guilty of a crime of the third degree . . . .

N.J. Stat. Ann. § 2C:35-7 (West 2004). 4
The Immigration Judge concluded that the respondent’s State offense was
not an aggravated felony drug trafficking crime because it would not be
punishable as a felony under 21 U.S.C. § 860 (2012). 5 In part, the
Immigration Judge concluded that the respondent’s offense could not
categorically be punished as a felony under § 860 because that provision does
not specifically criminalize “dispensing” a controlled substance, while
section 2C:35-7 proscribes “distributing” or “dispensing” such a substance.
4

Section 2C:35-5 of the New Jersey Statutes provides, in pertinent part, as follows:
a. Except as authorized by P.L.1970, c. 226 (C.24:21-1 et seq.), it shall be unlawful
for any person knowingly or purposely:
(1) To manufacture, distribute or dispense, or to possess or have under his control
with intent to manufacture, distribute or dispense, a controlled dangerous substance
or controlled substance analog. . . .

5

In pertinent part, 21 U.S.C. § 860(a) provides as follows:
Any person who violates section 841(a)(1) of this title or section 856 of this title
by distributing, possessing with intent to distribute, or manufacturing a controlled
substance in or on, or within one thousand feet of, the real property comprising a
public or private elementary, vocational, or secondary school or a public or private
college, junior college, or university, or a playground, or housing facility owned by
a public housing authority, or within 100 feet of a public or private youth center,
public swimming pool, or video arcade facility, is [subject to certain
punishments] . . . .

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In reaching this conclusion, the Immigration Judge relied on an unpublished
decision from the United States Court of Appeals for the Third Circuit, in
whose jurisdiction this case arises. Chang-Cruz v. Att’y Gen. of U.S., 659
F. App’x 114, 116–19 (3d Cir. 2016). In that case, the court held that section
2C:35-7 does not categorically define an aggravated felony because it is
indivisible and overbroad relative to § 860 since it is unclear whether
“distributing” and “dispensing” are alternative elements of section 2C:35-7
or simply alternative means of violating that statute. See Matter of Chairez,
26 I&N Dec. 819, 822 (BIA 2016) (clarifying that a statute is not “divisible
unless each statutory alternative defines an independent ‘element’ of the
offense, as opposed to a mere ‘brute fact’ describing various means” of
violating the statute (quoting Mathis, 136 S. Ct. at 2248)).
The DHS argues that the Immigration Judge improperly relied on
Chang-Cruz because the Third Circuit limited its analysis in that case to
deciding whether the crime defined in section 2C:35-7 would be punished as
a felony under § 860, even though an offense can qualify as an aggravated
felony if it can be punished as a felony under any provision of the Controlled
Substances Act. It contends that the offense defined in section 2C:35-7 is
punishable as a felony under 21 U.S.C. § 841(a)(1) (2012), which is also an
appropriate Federal analogue to the State statute. 6
The Immigration Judge regarded § 860 as the only appropriate Federal
analogue in this case because the Third Circuit, in deciding this question in
another case, looked to the provision of the Controlled Substances Act that
proscribed conduct identical to that in the relevant State statute of conviction.
See Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003) (“The analogous
federal criminal provision is 21 U.S.C. § 841(a)(1), which proscribes the
identical conduct.”). However, Wilson is distinguishable. The parties in that
case did not argue that there were other appropriate Federal analogues to the
State statute of conviction, as the DHS does here.
For similar reasons, Chang-Cruz is also distinguishable because in that
case, the Third Circuit relied on the Government’s assertions that 21 U.S.C.
§ 860 was the appropriate Federal analogue to section 2C:35-7. The court
did not reach the issue we are confronted with here, namely, whether it is
permissible to look to multiple provisions of the Controlled Substances

6

In pertinent part, 21 U.S.C. § 841(a) provides as follows:
Except as authorized by this subchapter, it shall be unlawful for any person
knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance . . . .

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Act as an analogue if these provisions prohibit conduct identical to that
proscribed by the State statute.
We agree with the DHS that such an approach is permissible and that
21 U.S.C. § 841(a)(1) is an appropriate Federal analogue to section 2C:35-7.
As noted, Congress defined the term “drug trafficking crime” broadly to
encompass “any felony punishable under the Controlled Substances Act.”
18 U.S.C. § 924(c)(2) (emphasis added). Moreover, section 101(a)(43)(B)
of the Act refers to 21 U.S.C. § 802 (2012), which contains definitions
employed throughout the Controlled Substances Act, including “controlled
substance,” “dispense,” distribute,” and “manufacture.” Finally, nothing in
Lopez v. Gonzales requires us to look solely at the provision of the Controlled
Substances Act that is most similar to the State statute of conviction.
Accordingly, the Immigration Judge’s treatment of § 860 as the only
appropriate Federal analogue to section 2C:35-7 was unreasonably limited.
This is particularly true given that “§ 841(a)(1) is a lesser-included
offense of § 860(a).” United States v. Petersen, 622 F.3d 196, 204 (3d Cir.
2010); see also United States v. Jackson, 443 F.3d 293, 301 (3d Cir. 2006)
(“Because a conviction under § 860(a) only requires a finding of one
additional element, the 1,000-foot proximity to a school, . . . the possession
of cocaine base with the intent to distribute under 21 U.S.C. § 841(a)(1) is a
lesser-included offense of possession with intent to distribute within 1,000
feet of a school under 21 U.S.C. § 860(a).”). “In fact one of the statutory
elements of § 860 requires that § 841(a)(1) have been violated.” Petersen,
622 F.3d at 204 (citation omitted). We therefore conclude that § 841(a)(1)
is also an appropriate Federal analogue that we may consider in determining
whether the respondent’s State offense is an aggravated felony drug
trafficking crime.
As noted, it is undisputed that the respondent’s violation of section
2C:35-7 of the New Jersey Statutes necessarily involved possession with
intent to distribute cocaine. 7 Such an offense is clearly punishable as a
felony under § 841. See, e.g., Rodriguez v. Att’y Gen. of U.S., 517 F. App’x
82, 84–85 (3d Cir. 2013). The fact that the elements of section 2C:35-7 also
require that such a crime take place within a certain proximity to school
7

We agree with the DHS that the identity of the controlled substance underlying a
violation of section 2C:35-7 is an element of the statute, which renders it divisible relative
to the definition of an aggravated felony under section 101(a)(43)(B). The respondent does
not meaningfully challenge the DHS’s argument in this regard, and under a modified
categorical approach, it is clear that the respondent’s offense involved cocaine. We note,
however, that pursuant to an exception not applicable here, the result in this case may have
been different had the substance underlying the respondent’s offense been marijuana. See
Wilson, 350 F.3d at 381 (noting that “a person who violates Section 841(a) ‘by distributing
a small amount of marihuana for no remuneration’ shall be punished under the
misdemeanor provisions of 21 U.S.C. § 844”).

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property “does not expand the reach of the statute beyond the range of
conduct encompassed by the definition of [an] aggravated felony . . . .
Instead, it narrows it.” Matter of Delgado, 27 I&N Dec. at 101–02.
The only difference between section 2C:35-7 and § 841 is that the State
statute “criminalizes a narrower subset of” controlled substance offenses
“within the broader universe of those encompassed by” § 841. Id. at 102. In
other words, the only difference between a person who violates § 841 and a
violator of section 2C:35-7—or § 860—is that the latter “has committed a
§ 841 offense and has done so in a particularly sensitive place.” United
States v. Kakatin, 214 F.3d 1049, 1051 (9th Cir. 2000); see also Petersen,
622 F.3d at 204; State v. Ivory, 592 A.2d 205, 210 (N.J. 1991) (“After
the elements of [section 2C:35-5 of the New Jersey Statutes] have been
established, one need only take out the tape measure to see if [section]
2C:35-7 has been violated.”). Thus, the fact that the respondent possessed
cocaine with the intent to distribute it within proximity to school property
does not diminish the fact that he committed an aggravated felony drug
trafficking crime in that location. See Torres v. Lynch, 136 S. Ct. 1619, 1631
(2016) (stating that “[w]hen the ‘differences among elements’ of the state
and federal crimes ‘reflect jurisdictional, or other technical, considerations’
alone, then the state law” still corresponds to the Federal statute (citation
omitted)).
Finally, holding that § 860 is the only appropriate Federal analogue to
section 2C:35-7 would lead to absurd or bizarre results. See, e.g., Demarest
v. Manspeaker, 498 U.S. 184, 191 (1991) (stating that courts should avoid
interpreting statutes in a manner that would lead to a result “so bizarre that
Congress ‘could not have intended’ it” (citation omitted)). Clearly, it would
be absurd to hold that possession of cocaine with the intent to dispense it is
an aggravated felony under section 101(a)(43)(B) of the Act but that the same
crime committed within proximity to a school is not.
We therefore conclude that the respondent’s violation of section 2C:35-7
of the New Jersey Statutes for possession with intent to distribute cocaine
within 1,000 feet of school property is an aggravated felony drug trafficking
crime because it satisfies all of the elements of 21 U.S.C. § 841(a)(1) and
would be punishable as a felony under that provision. See Evanson, 550 F.3d
at 288. 8 Thus, the respondent’s offense is an aggravated felony under

8

In light of this disposition, we need not decide whether any additional elements of
section 2C:35-7—other than the one relating to the identity of the controlled substance—
are divisible relative to the definition of an aggravated felony. Nor must we address
whether section 2C:35-7 is overbroad relative to § 860 because it includes conduct
occurring on or within 1,000 feet of a school bus—conduct the latter does not expressly
proscribe.

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section 101(a)(43)(B) of the Act, which renders him removable under section
237(a)(2)(A)(iii).
Because the respondent has been convicted of an aggravated felony, he is
statutorily ineligible for cancellation of removal under section 240A(a)(3) of
the Act. He has not filed any other application for relief from removal.
Accordingly, we will sustain the DHS’s appeal and order the respondent
removed from the United States.
ORDER: The appeal of the Department of Homeland Security is
sustained, and the Immigration Judge’s grant of cancellation of removal is
vacated.
FURTHER ORDER: The respondent is ordered removed from the
United States to the Dominican Republic.

CONCURRING OPINION: Blair T. O’Connor, Board Member
I agree with the majority’s conclusion that the respondent is ineligible for
cancellation of removal because he is removable as an alien convicted of an
aggravated felony drug trafficking crime under section 101(a)(43)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012).
However, I would hold that all conduct punishable under section 2C:35-7 of
the New Jersey Statutes is punishable as a felony under the Controlled
Substances Act under either 21 U.S.C. § 841(a)(1) (2012) or 21 U.S.C. § 860
(2012). I also write separately to note the absurdity of the legal
manipulations we must go through to reach this common sense conclusion,
which seems to be a recurring sentiment expressed by adjudicators
everywhere. See, e.g., United States v. Valdivia-Flores, 876 F.3d 1201, 1210
(9th Cir. 2017) (O’Scannlain, J., specially concurring) (expressing “concern
about the ‘arbitrary and inequitable results produced by applying’ the
categorical approach” (quoting Mathis v. United States, 136 S. Ct. 2243,
2258 (2016) (Kennedy, J., concurring))).
As the majority decision observes, the conviction records in this case
clearly establish that the respondent possessed cocaine with intent to
distribute it within 1,000 feet of a school. 1 The parties do not dispute this.
1

The Department of Homeland Security (“DHS”) argues that the identity of the
controlled substance underlying a violation of section 2C:35-7 is an element of that statute,
and it notes that the conviction documents in this case reflect that the substance underlying
the respondent’s offense was cocaine. The DHS’s argument is based in part on a decision
of the United States Court of Appeals for the Third Circuit, in whose jurisdiction this case
arises, which found that the identity of the controlled substance was an element of an
analogous Pennsylvania trafficking statute. With respect, we are dealing with a New Jersey

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Such an offense is punishable as a felony under the Controlled Substances
Act and is therefore an aggravated felony drug trafficking crime. Congress
clearly intended for aliens such as the respondent to be removed from the
United States and to be ineligible for many forms of relief, including
cancellation of removal. So it would seem that this is a straightforward case.
Far from it. Once again, the categorical approach sends us “down the rabbit
hole . . . to a realm where we must close our eyes as judges to what we know
as men and women.” United States v. Davis, 875 F.3d 592, 595 (11th Cir.
2017).
Whether adjudicators may rely on any “appropriate Federal analogue,” a
combination of such analogues, or the Federal statute that most closely
resembles the State statute in question in deciding whether a State offense is
punishable as a felony under the Controlled Substances Act is an unresolved
issue. While I find the majority’s reasoning persuasive that adjudicators may
consider more than one provision of the Controlled Substances Act in
deciding whether a State offense would be punished as a felony under that
Federal law—and such a rule makes eminent sense under the facts of this
case—I have concerns over the potential difficulties that this rule may create
for immigration adjudicators who are toiling under a methodology for
making criminal law determinations that is already exceedingly complex. I
especially disagree with the suggestion of the Department of Homeland
Security (“DHS”) that an Immigration Judge may only consider a single
“pertinent federal equivalent” in deciding whether a State offense is an
aggravated felony drug trafficking crime.
I propose a simpler path. The Supreme Court has made clear that a State
drug offense is an aggravated felony drug trafficking crime if it is
“punishable as a felony” under the Controlled Substances Act. Lopez
v. Gonzales, 549 U.S. 47, 60 (2006). I recognize that some violations of
section 2C:35-7 would not be felonies under 21 U.S.C. § 841 because the
State statute, unlike § 841, reaches distribution of a small amount of
marijuana for no remuneration. See Moncrieffe v. Holder, 569 U.S. 184,
194–95 (2013). I also recognize that not all violations of section 2C:35-7
statute in this case, and the two New Jersey cases cited in the DHS’s brief dealing with
section 2C:35-7 do not definitively resolve whether the identity of the controlled substance
is an element of, or a mere means of violating, that statute. Although, as the majority notes,
the respondent has not meaningfully challenged the DHS’s argument in this regard, I would
not base the result of this case on application of the modified categorical approach without
a substantive analysis regarding the divisibility of section 2C:35-7 with respect to the
identity of the underlying controlled substance, which has not been done, either below or
on appeal. All of this is not to say that I agree that it is proper to restrict immigration
adjudicators from resorting to the modified categorical approach in any case involving an
overbroad State statute, but that battle has been repeatedly fought and lost, as the Supreme
Court has frequently reminded us. See Mathis, 136 S. Ct. at 2251–52.

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would be felonies under 21 U.S.C. § 860 because, unlike that provision, the
State statute encompasses dispensing offenses. But by comparing section
2C:35-7 to only § 841 or § 860, we are missing the forest for the trees. The
proper inquiry is whether all violations of section 2C:35-7 are punishable as
felonies under the Controlled Substances Act as a whole.
Even if distribution of a small amount of marijuana for no remuneration
in a school zone under section 2C:35-7 would not be punished as a felony
under § 841, it clearly would be punished as a felony under § 860. Further,
although § 860 does not proscribe dispensing a controlled substance like
section 2C:35-7 does, § 841 would punish it as a felony. Thus, by looking at
the Controlled Substance Act as a whole, rather than comparing it to a single
Federal analogue, we see that all violations of section 2C:35-7 would be
punished as felonies under that Federal law. This is all that Lopez requires.
If there is a lesson to be learned from all of the legal maneuvering here,
it is that making criminal law determinations in immigration cases has
become excruciatingly complicated, and in an increasing number of cases, it
is leading to absurd results. Indeed, both the DHS and the majority note that
relying solely on § 860 in this case would mean that dispensing a controlled
substance outside of a school zone in some States would be an aggravated
felony, while the same conduct would not be an aggravated felony if done
within a school zone.
This result, which the United States Court of Appeals for the Third Circuit
reached in Chang-Cruz v. Attorney General of U.S., 659 F. App’x 114 (3d
Cir. 2016), a decision we previously followed in some unpublished decisions,
is indeed absurd. However, this is not the first time that application of the
categorical approach has led to absurd results. If anything, the categorical
approach and its rules on divisibility are “increasingly le[ading] to results
that Congress could not have intended.” Mathis, 136 S. Ct. at 2268 (Alito,
J., dissenting); see also id. at 2268 n.2 (citing Moncrieffe as an example
where “the Court came to the conclusion that convictions in about half the
states for even very large scale marijuana trafficking do not count as ‘illicit
trafficking in a controlled substance’ under . . . the immigration laws”);
Almanza-Arenas v. Lynch, 815 F.3d 469, 483 (9th Cir. 2015) (en banc)
(Owens, J., concurring) (“The only consistency in [immigration] cases
[involving application of the categorical approach] is their arbitrariness. . . .
A better mousetrap is long overdue.”); Valdivia-Flores, 876 F.3d at 1211
(O’Scannlain, J., specially concurring) (“[I]f the challenger [of a prior
removal order] is clever enough to find some space in the state statutory
scheme that lies outside the federal analogue, he can effectively void that
prior removal . . . —even though the challenger admits that the actual conduct
underlying his state conviction falls at the heart of the federal analogue.”);

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Matter of Chairez, 27 I&N Dec. 21, 25–26 (BIA 2017) (Malphrus,
concurring).
So while I do not disagree with the point made by the majority and the
DHS about avoiding absurd results, I unfortunately do not find it to be
persuasive. This statement alone is a sad commentary on the state of affairs
when it comes to making criminal law determinations in immigration
proceedings and is an earnest call for a congressional fix to the mess we
currently find ourselves in. See United States v. Fish, 758 F.3d 1, 17–18 (1st
Cir. 2014) (collecting cases that call on Congress to “rescue the federal courts
from the mire into which . . . [the] ‘categorical approach’ [has] pushed
[them]” (quoting Chambers v. United States, 555 U.S. 122, 131–32 (2009)
(Alito, J., concurring))); Mathis, 136 S. Ct. at 2258 (Kennedy, J., concurring)
(noting the “continued congressional inaction in the face of a system that
each year proves more unworkable”).
Finally, it bears noting that the Third Circuit has already found § 860
to be the proper Federal analogue to section 2C:35-7, albeit in an
unpublished decision. See Chang-Cruz, 659 F. App’x 114. In that decision,
the Government conceded that this was the case, and having lost the
divisibility battle there, the DHS now seeks to use § 841 to argue that section
2C:35-7 is categorically an aggravated felony drug trafficking crime.
Although I do not disagree with the majority that such an approach is
permissible, I do so with reservations over how much more complicated
categorical determinations may become for adjudicators who must now
decide what is an “appropriate Federal analogue” and consider that analogue,
or any permissible combination of such analogues, in discerning whether a
State offense is a felony under the Controlled Substances Act. These
determinations are difficult enough for an immigration system that is already
overburdened. In the words of Justice Alito, “I wish them good luck.”
Mathis, 136 S. Ct. at 2268 (Alito, J., dissenting).

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Interim Decision #2794

MATTER OF OSEGUERA
In Visa Petition Proceedings
A-11807537
Decided by Board May 15, 1980
(1) Before approval of a visa petition can be denied pursuant to section 204(c) of the
Immigration and Nationality Act, 8 U.S.C. 1154(c), it must be established that a
fraudulent marriage was entered into and that the beneficiary was previously issued a
visa as a nonquota or preference immigrant on the basis of that marriage.
(2) The bar in section 204(c) is inapplicable where the beneficiary of a visa petition
previously entered into a fraudulent marriage for the purpose of obtaining immigration benefits but was accorded nonquota status as a native of a Western Hemisphere
country rather than as the spouse of a lawful permanent resident.
ON BEHALF OF Perrnmem Timothy S. Barker. Esquire
Legal Aid Society of San Diego, Inc.
429 Third Avenue
Chula. Vista, California 92010
By Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The United States citizen petitioner filed a visa petition on behalf of

the beneficiary to accord her immediate relative status as his mother
under section 201(b) of the Immigration and Nationality Act, 8 U.S.C.
1151(b). In a decision dated September 11, 1978, the District Director
denied the petition. The petitioner has appealed from that decision.
The appeal will be sustained and the record will be remanded to the
District Director.
The petitioner is a 24 -year - old native of Mexico and naturalized
citizen of the United States. The beneficiary is a 47-year-old native and
citizen of Mexico.
The record reflects that the beneficiary entered the United States as
an immigrant on January 7, 1960, with a visa indicating that she was
classified as an 0-1 nonquota immigrant.' Subsequent to her entry, the
' According to the regulations in effect at the time the beneficiary's visa was issued, an
0-1 classification represented that an alien was a nonquota immigrant by virtue of
qualification as a native of certain Western Hemisphere countries, including Mexico,
under section 101(a)(27)(C) of the Act, 8 U.S.C. 1101(a)(27)(C). See 22 C.F_R. 42.3 (1958).

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beneficiary admitted to immigration officials that, on the advice of a
notary public, she had entered into a sham marriage with a person
whom she believed to be Francisco Calderon-Ramirez, a lawful
permanent resident of the United States, in order to facilitate her
acquisition of permanent resident status.'
The District Director denied the petition on the ground that the
beneficiary was precluded from receiving approval of the visa petition
by section 204(c) of the Act, 8 U.S.C. 1154(c), because she was previously accorded a nonquota status by reason of a marriage entered into for
the purpose of evading the immigration laws. On appeal, the petitioner
argues that the beneficiary obtained a nonquota visa as a native of
Mexico rather than as the spouse of a lawful permanent resident of the
United States, and that section 204(c) is, therefore, inapplicable in this
case.
Section 204(c) provides in pertinent part:
[Mc) petition shall be approved if the alien has previously been accorded a nonquota 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.

The Board has previously determined that the language of section
204(c) is unrestricted, barring approval not only of new "spouse"
petitions but of all subsequent visa petitions, and that its mandatory
provisions do not permit the exercise of any discretion. See Matter of
La Grotta,14 I&N Dec. 110 (BIA 1972); Matter of Cabeliza, ll UN Dec.
812 (BIA 1966). However, before approval of a visa petition can be
denied pursuant to section 204(c), it must be established that a
fraudulent marriage was entered into and that the beneficiary was

issued a visa as a nonquota or preference immigrant on the basis of
that marriage. See Amarante v. Rosenberg, 326 F.2d 58 (9 Cir. 1964);
Matter of Rubino, 15 I&N Dec. 194 (BIA 1975); Matter of Piseiotta, 10
I&N Dec. 685 (BIA 1964); Matter of F—, 9 I&N Dec. 684 (BIA 1962).
In the instant case, the record clearly indicates that the beneficiary
fraudulently entered into a marriage for the purpose of obtaining
immigration benefits' However, it is equally apparent from the 0-1
The beneficiary, in fact, unwittingly married someone posing as Francisco CalderonRamirez, whose immigration documents had been borrowed by the notary publiefor use,
without his knowledge, in obtaining a visa for the beneficiary. The scheme was discovered by the Service when Mr.Calderon-Ramirez reported that he had received visas in
the mail for the beneficiary and the petitioner, whom he did not know. Having admitted
the fraudulent marriage, the beneficiary was apparently permitted to leave the country
voluntarily. We note that the record contains documents relative to her subsequent
immigration history which need not be discussed since they are not relevant to the issue
on appeal.
' Although the beneficiary was entitled to nonquota status as a native of Mexico under

387

Interim. Decision # 2794
classification on her visa that she was accorded nonquota status as a
native of Mexico, not as the spouse of a lawful permanent resident of
the United States.' Therefore, we conclude that approval of the visa
petition filed by her son on her behalf is not precluded by section 204(c).
Cf. Matter of Villagomez,15 I&N Dec. 528 (BIA 1975). Accordingly, the
appeal will be sustained.
Although we have determined that section 204(c) does not mandate
denial of the visa petition, we make no finding as to whether the
petitioner has met his burden of proving his claimed relation ship to
the beneficiary. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966).
We shall remand the record to the District Director for such a
determination.'
ORDER. The appeal is sustained, and the record is remanded to
the District Director for further proceedings consistent with the
foregoing opinion and the entry of a new decision.

the immigration laws then in effect, her status as the spouse of a lawful permanent
resident exempted her from the passport requirements and facilitated processing of her
visa application. See 8 C.F.R. 211.2(a) (1959); 22 C.F.R. 42.6(a)(1) (1958); 22 C.F.R. 4220(a)
(1958); 22 C.F.R. 42.36(6)(6) (1958).
• The law has never provided that an immigrant is exempt from numerical limitations
solely by virtue of his marriage to a lawful permanent resident. At the time the
beneficiary entered, therefore, she would only have been accorded nonquota status on the
basis of her marriage if her spouse had been a United States citizen. Compare section
101(a)(Z't)(A) with section 203(a)(3) of the Act, in effect prior to its amendment on
October 3, 1965. Moreover, even if the beneficiary had been married to a United States
citizen, the preferred practice in the ease of an alien who qualified for nonquota status
both as a Western Hemisphere native and as the spouse of a United States citizen was to
base classification on the alien's nativity in order to dispense with the necessity of filing
a visa petition. See Gordon and Rosenfield, Immigration MAO and Procedure, section 2.18
(1959). Thus, the status which the beneficiary derived from her birth in Mexico would
have taken precedence, in according nonquota classification, over any status obtained by
marriage.
he event that the record is returned to the Board as a result of an adverse decision of
the District Director, an English translation should accompany any foreign documents
included in the record. See 8 C.F.R. 103.2(b)(1).

388


MarrER

OF

G

In SECTION 245 Proceedings
A-10383879
Decided by Regional Commissioner April 28, 1960
Approved by Assistant Comntiekioner

Adjustment of status—Consistent and deliberate immigration violations preclude finding of bona fide nonimmigrant admission and result in denial of
xpplirafion an matter of digeretinn.

Adjustment of status under section 245 of the Immigration and Nationality
Act will not be approved where applicant's record of consistent and deliber•
ate violations of nonimmigrant crewman status requires finding that he was
not a bona fide nonimmigrant at time of last entry. Absent this finding,
grant of relief would still not be justified, since applicant's record does not
show him to be worthy of a discretionary dispensation.
BEFORE THE REGIONAL COMMISSIONER

Discussion: This case comes forward on motion for reconsideration of our order of December 11, 1959, dismissing the applicant's
appeal from the decision of the District Director in Chicago, Illinois, denying application for adjustment of status under section 245
of the Immigration and Nationality Act. The district director's
decision was based on a finding that the applicant has not established
that he was a bona fide nonimmigrant at the time of his last admission to the United States March 10, 1959, and that he was not eligible to apply for adjustment of status when his application was filed
August 6, 1959, since an order had been entered in his case January
19, 1959, establishing deportability subsequent to August 21, 1958.
The applicant entered the United States as a crewman in Decem-

1955, remained and worked without permission until May 1956.
He also entered as a crewman in July 1956 and remained without

ber

permission until January 1950. On January 19, 1959, he was found

deportable but was allowed to depart voluntarily without expense
to the Government no later than January 29, 1959. He departed
January 25, 1959, and entered again March 10, 1959. He was issued

a D-2 permit which required his departure on or before April 8,
1959. Apparently the fact that he had been found deportable was
unknown to the admitting officer. He did not depart.
636

CFR 245.1 excludes aliens whose deportability was established
subsequent to August 21, 1958, from the benefits of section 245 of
the Immigration and Nationality Act. For that reason we held on
December 11, 1959, that the applicant is not eligible for adjustment
under section 245 and dismissed his appeal for that reason. We
did not reach a decision on the question of whether he was a bona
fide nonimmigrant at the time of his last entry.
The applicant's counsel contends that the finding of deportability
as set forth in 8 CFR 245.1 refers to a finding of deportability based
on the last entry of the applicant. Upon reconsideration it is concluded that counsel's contention is correct. Accordingly, our order
of December 11, 1959, will be withdrawn and consideration will be
given to the other question raised by this appeal, i.e., whether the
-

applicant was a bana fide nonimmigrnnt at the time of his last admission to the United States March 10, 1959.

Section 245 of the Immigration and Nationality Act provides in
part that "the status of an alien who was admitted to the United
States as a bona fide nonimmigrant may be adjusted by the Attorney
General, in his discretion and under such regulations as he may
prescribe * * *."
The facts concerning the applicant's various entries into the United
States are set out briefly in paragraph 2 of this discussion. He is a
native and citizen of Greece. As previously stated, he first entered
as a crewman in December 1955. He violated his status by remaining and working without permission. He departed in May 1956
but returned a few weeks later as a crewman and remained without
permission until January 1959. On January 19, 1959, he was found
deportable, but this Service again permitted him to depart voluntarily in lieu of deportation. He departed January 25, 1959, but
returned again March 10, 1959. He was authorized to remain only
until April 8, 1959, but went to Chicago April 6 or 7, 1959, and
accepted employment without authorization by this Service. On
June 13, 1959, he married a United States citizen.
The applicant must be classified as an immigrant within the meaning of section 101(a) (15) unless he can establish that he was "an
alien crewman serving in good faith as such in any capacity required
for normal operation and service on board a vessel (other than a

fishing vessel having its home port or an operating base in the
United States) or aircraft, who intends to land temporarily and
solely in pursuit of his calling as a crewman and to depart from

the United States with the vessel or aircraft on which he arrived
or some other vessel or aircraft" (section 101(a) (15) (D), Immigration and Nationality Act).
The applicant's history shows clearly that he used every opportunity to remain in the United States by any means, legal or illegal,
637

and that on March 10, 1959, he had no intention of departing with

the vessel on which he arrived or any other vessel but fully intended
to remain permanently in the United States. Accordingly, it can
be concluded that he was not a bow fide nonimmigrant at that time.
However, even if it were assumed that the applicant was a bona fide
nonimmigrant at the time of entry, the grant of the relief sought
is not justified. In seeking adjustment of status the applicant is
asking for the exercise of the Attorney General's discretion. Applicant's record of consistent and deliberate violation of the immigration laws does not show him worthy of such a discretionary dispensation.
Order: It is ordered that our previous order of December 11, 1950,
be withdrawn.
it 2.8 further ordered that the appeal be dismissed for the reason
that the facts in this case do not warrant favorable exercise of the
Attorney General's discretion.

638


Interim Decision #1791

MAI•

UNNISA

In Section 248 Proceedings
A-17759089
Decided by Regional Commissioner September 21,1967
Application under section 248, Immigration and Nationality Act, for a change of
nonimmigrant status from that of temporary visitor to that of an exchange
visitor is denied where the applicant's proposed activity—"operating room
procedures"—as described in Form DSP 66 issued by the program sponsor is
found, after consultation with the Office of Facilitative Services of the Department of State which administers the excnange visitor program, not to be
within the purview of the sponsor's exchange program approved for professionally approved medical internships, residencies, and courses in medical and
x-ray technology since applicant has not yet passed the ECFMG examination,
a prerequisite for engaging in the exchange program for interns and residents,
and her proposed activity does not constitute a coarse in medical or x-ray
technology.

The case is on appeal from the District Director's denial of the
application to change nonimmigrant status from that of a visitor to
that of a. participant in an exchange-visitor progam.

The applicant is a citizen. of India, unmarried, female, born in that
country on August 10, 1942. She was admitted to the -United States as
a visitor on January 8, 1967, until July 7, 1967. She filed the instant
application on June 26, 1967.
The application, which was accompanied by a Form DSP-66 issued
by Little Company of Mary Hospital, Evergreen Park, Illinois, shows
her occupation to be medical doctor and her desire to have her nonimmigrant status changed in order to undergo "training in operating
room procedure".
The Form DSP-66 states that the applicant has been selected to
participate in the hospital's Exchange-Visitor Program P—U-1191,
which is officially described as follows:
A program to provide at the Hospital (1) professionally approved medical internships, for foreign medical graduates, (2) professionally approved medical
residencies in the specialties offered, for foreign medical graduates, (3) a professionally approved course in medical technology, for qualified foreign students,
and (4) a professionally approved coarse in sc-ray technology, for qualified for-

446

interim Decision #1791
eign students, to enable such foreign nationals to pursue training in their respective fields in the United States and to promote the general international
exchange.
The Form DSP-66 then states that the applicant will engage in the

following activities under the program : "operating room procedures."
The District Director consulted the Bureau of Educational and Cultural Affairs of the Department of State, which administers the exchange-visitor program of the United States. The response of the
Chief of the Facilitative Services Staff of that Bureau states that
the Department does not recommend the change of status to that of
exchange visitor. The letter points out that the Form DSP-66 vaguely
describing the applicant's activities as "operating room procedures"
shows a lack of a specific, expeditious training objective. The letter
also points out that, if the applicant is attempting to initiate as clinical

training program without the requisite certification by the Educational Council for Foreign Medical Graduates, she is not eligible for
exchange - visitor status, and the hospital would be in violation of its
exchange-visitor program. The Bureau sent a copy of this letter to
the Educational Council for Foreign Medical Graduates.
A copy of the ensuing letter from the Associate Executive Director

of the Educational Council for Foreign Medical Graduates to the Chief
of the Facilitative Services Staff of the Bureau of Educational and
Cultural Affairs was sent to our District Director. The letter states
that the applicant failed two ECFMG examinations and was scheduled
to take the examination again on September 13, 1967. It also states
that, without certification by the Council, she is not eligible for any
appointment as an intern or resident in an approved hospital in the
United States.
The District Director denied the application on the ground that the

description of the activity in which the applicant would engage, as
shown on the Form DSP-66, is vague and shows a lack of a specific,
expeditious training objective, and the Bureau of Educational and
Cultural Affairs does not recommend the proposed change of status.
On appeal, the applicant describes the "operating room procedures"
mentioned on the Form DSP-66 as consisting of "assisting as first
or second assistant to all the general and gynecology surgery cases
and learning the steps of operating procedure." She claims that "according to hospital authority" this comes under item (3) of the program description set forth above. The applicant also states that she
will appear for an ECFMG examination on September 13, that the
results will be announced by the end of November 1967, and that, after
successfully completing the examination, she will be moved up to
item (1) in the hospital's exchange-visitor program description.
447

Interim Decision #1791
It appears to us that the operating room activities described would
not constitute a course in medical technology, but medical or surgical
training, for the time being, at least, without an approved medical
internship. Therefore, we find it has not been established that the activities in which she would engage at this time are within the scope of
the hospital's officinlly-described exchange-visitor program. Accordingly, we conclude that she is not eligible for exchange visitor status
on her present application. The appeal will be dismissed.
It is ordered that the appeal be and is hereby dismissed.
-

448


Interim Decision #2702

MATTER OF WEAVER
In Visa Petition Proceedings
A-21043291
Decided by Board May 16, 1979
(1) The validity of a divorce entered into while neither party to it is domiciled in the place
where it was granted, but where both parties appeared for the divorce, should first be
judged by the law of the jurisdiction where the parties to the divorce were domiciled at
the time of the divorce. Since the place where the parties to the divorce were domiciled
at the time of the divorce was the only place then having an interest in the proceedings,
the parties should be able to rely on the law of that jurisdiction, even if they move to
another jurisdiction.
(2) Matter of Biebl, Interim Decision 2672 (BIA 1978), holding that a Dominican Republic
divorce entered into by New York domiciliaries (including the petitioner) was invalid
for immigration purposes because the divorce would not have been recognized in
Connecticut, where the petitioner and the beneficiary had married, and were liv ing, is
overruled. The validity of the divorce should first have been judged by New York law.
(3) The Connecticut Supreme Court's holding that at least one of the parties to a foreign
divorce must have a bona fide domicile in the country granting the divorce in order for
the divorce to be recognized (Gitraitis v. Litraitis, 162 Conn. 540 (1972)) will not be
disturbed by the present decision, since in Litvaitis, the parties to the divorce were
domiciled in Connecticut at the time of the divorce, so Connecticut had an interest in the
divorce at the time it was rendered.
(4) In a ease involving an immediate relative visa petition, the record Will be ten-landed to
the District Director to enable the petitioner to show that the Bahamas, where the
beneficiary and her first husband were domiciled at the time of their divorce, -would
recognize the Dominican Republic divorce. There should then be a determination of

whether

Connecticut would consider the divorce valid if the Bahamas would.

ON BEHALF OF PETITIONER:

Ryszard S. Mrotek, Esquire
360 Main Street
Hartford, Connecticut 06106

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This is an appeal from a decision of the District Director, d ated
October 17, 1978, denying a visa petition filed on behalf of the ;beneficiary as the petitioner's wife under section 201(b) of the Immigration
atnd Nationality Act, 8 MS 1151(b)_ The record will be remanded.
The petitioner is a 28-year-old native and citizen of the United States .
He married the beneficiary, a 30-year-old native and citizen of Jamaica,
730

Interim Decision #2702
on July 29, 1977, and filed the instant visa petition on her behalf on May
24, 1978. The marriage was the first for the petitioner and the second
for the beneficiary. The beneficiary's first marriage was dissolved by a
Dominican Republic divorce decree dated February 3, 1977. The record
contains a copy of this decree, which relates that both parties to
the marriage appeared, in the Dominican Republic in order to effect the
divorce, but that neither party resided in or was domiciled in the
Dominican Republic. Rather, both the beneficiary and her first husband
lived in the Bahamas at the time of their divorce.
The District Director in denying the petition found that the beneficiary's divorce from her first husband was ineffective under Connecticut law, and that, consequently, her marriage to the petitioner was
invalid. He relied for these findings on Litvaitis v. Litvaitis, 162 Conn.
540 (1972) and Spaulding v. Spaulding, 171 Conn. 220 (1976). In Litvaitis, the Connecticut Supreme Court held that at least one of the
parties to a foreign divorce must establish a domicile in the jurisdiction
in which the divorce is sought in order to give the court jurisdiction to
grant the divorce. This principle was said to apply even if domicile was
not required by the laws of the foreign jurisdiction granting the divorce.
Spaulding set forth the rule that, for purposes of establishing jurisdiction of a court to grant a divorce, "domicile" is that place where a person
has voluntarily fixed his habitation, not for mere temporary or special
purpose, but rather with a present intention of malting it his home,
unless or until something which is uncertain or unexpected happens to

induce him to adopt some other permanent home.
On appeal, the petitioner argues that the validity of the Dominican
divorce must be determined under the law of the Bahamas, rather than
under Connecticut law. He contends that, because the parties to the
divorce had no connection with Connecticut at the time the divorce was
granted, Connecticut's interest in that proceeding "is too slight to
justify resort to Connecticut law to judge the validity of the divorce."
We agree, and in so holding we overrule our prior decision in Matter of
Biebl, Interim Decision 2672 (BIA 1978). In Biebl, we held that Litvaitis, supra, and Spanlding, supra, applied to invalidate a Dominican
Republic divorce obtained by the petitioner and his first wife who were
domiciled in New York at the time of their divorce. The petitioner's
second marriage in Connecticut was therefore held to be invalid, and
could not support a visa petition. The only difference between the facts
in Biebl and those in the present case is that the parties to divorce in
Biebl were New York domiciliaries when their marriage was dissolved,
rather than domiciliaries of the Bahamas. Hence, a reversal of Biebl is
the necessary consequence of our decision in this case.
The Connecticut cases relied upon in Bleb!, supra, did not dictate

the result reached in that case. In Litvaitis, supra, the parties to the
731

Interim Decision #2702
Mexican divorce were both domiciled in Connecticut at the time of the
divorce, so Connecticut had a clear interest in the divorce at the time it
was rendered. Spaulding, supra, merely set forth a definition of
"domicile" for divorce purposes. In Biebl, supra, as well as in the instant
case, the situation involved a marriage in one place, a bilateral (where
neither party has established domicile, but both parties appear or are

represented at the divorce proceedings), foreign (Dominican Republic)
divorce, then remarriage by one of the parties to the divorce in another
jurisdiction. This factual situation means that our decision here will in
no way interfere with or be contrary to the holdings of the Connecticut
Supreme Court.
Several commentators have addressed the choice of law issue I involved in Biebl, supra, and in the present case, and all have indicated
that a divorce valid in the jurisdiction in which the parties to it lived at
the time of the divorce should be given full effect in a second state. See
Comment, "New York Approved Mexican Divorces: Are They Valid in
Other States?" 114 U. PA. L. REV. 771 (1966); Foster, "Recognition of
Migratory Divorces: Rosenstiel v. Section 250," 43 N.Y. U. L. REV. 429
C1968); Currie, "Full Faith and Credit, Chiefly to Judgments: A Role for
Congress," 1964 SUP. CT. REV. 89. The rationale of these articles is
bottomed on considerations of fundamental fairness and reasonable expectations: Since the place where the parties to the divorce were
domiciled at the time of the divorce was the only place with an interest
in the proceedings at that time, the parties should be able to rely on the
law of that state, even if they move to another jurisdiction. As was
written in the University of Pennsylvania article, at 777 and 778,
People anticipating divorce are most familiar with the law of their domiciles; it is that
law, if any, upon which they act in reliance. If, after having secured a divorce in a
manner sanctioned in their home state, they establish residence elsewhere, it is unjust
to defeat the reasonable expectations upon which they originally acted. State X, then,
having had no relationship with the party or the divorce proceeding at the time it toot
place, should refrain from applying its law .
The interest of the sister state did not exist at the time of the divorce—the transaction
on which the rights of the parties depend. The rights of the divorced parties became
settled and would be drastically unsettled by the application of another state's law. Such
application would be an unfair interference with reasonable expectations.
This article also notes that although there have been few cases dealing
With recognition of foreign divorces in a jurisdiction in which neither
Party resided at the time of the divorce, "those few cases are unanimous
iia holding that the law of the jurisdiction in which the parties were
I The issue is one of choice of law, rather than of full faith and credit, since in the usual
tease there is no judicial decree specifically declaring a divorce to be valid. Where there is
3 uch a judgment from a state, it must of course he given full faith and credit in a sister
state. U.S. CONST. art. IV, § I_
732

Interim Decision retuz
domiciled at the time of the divorce should be applied in determining the
validity of the divorce." Id. at 777. 2
We believe that the rationale expressed in the commentaries is sound,
and should be followed. If parties obtain a divorce in a manner which is
considered valid in the place in which they reside at the time of divorce,
it is reasonable for those persons to rely on the validity of their divorce,
wherever they may be. To hold otherwise would create constant problems in our increasingly mobile society. Hence, if Bahamian law recognizes the beneficiary's Dominican Republic divorce from her first
husband, then we believe that divorce should be considered valid for
immigration purposes. Accordingly, the record will be remanded to the
District Director in order to give the petitioner, an opportunity to prove
the law of the Bahamas on this issue. 3 See Matter of Anna.ng , 14 L & N.
Dec. 502 (BIA 1973). After considering any evidence presented, the
District Director should render a new decision in accordance with Matter of To, 14 I. & N. Dec. 679 (BIA 1974).
ORDER: The record is remanded to the District Director for further
proceedings consistent with this opinion.

2

We note that very few states recognize foreign divorces such as those involved in

Biebl, supra, and in the present case. Thus, in the typical situation, the problem herein
addressed will not arise.
We recognize, however, that uithnatoly wp will have to decide whether or not Connecticut would recognize the divorce in question, if the Bahamas would.

733


f•ArrrEa of

K—

In VISA PETITION Proceedings
A-11909774
Decided by Board September 16, 1960
Preference quota status—Adopted child—Not entitled to benefits from natural
parent.
Child adopted in accordance with requirements m section 101(0) (1) (E) is
not entitled to benefits from petition tiled by natural parent to confer preference quota status.
BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the District Director, Chicago District, dated June 23, 1960, denying the visa petition for the reason that it appears that the beneficiary was given in adoption on November 22, 1934, at Copenhagen,
Denmark, by the petitioner and can, therefore, no longer he considered the legal daughter of the petitioner.
The petitioner, a native and citizen of Sweden, 52 years old, female, is a lawful permanent resident alien. She seeks preference
quota status for the beneficiary under section 203(a) (3) of the Immigration and Nationality Act as her unmarried daughter. The
beneficiary is a native and citizen of Denmark, 28 years old, female.
Evidence has been submitted that the beneficiary has been twice
divorced and is presently qualified as "unmarried" (8 U.S.C. 1101
(a) (39)).
The record also contains a copy of a royal decree establishing that
the beneficiary was adopted at Copenhagen, Denmark, on Nuvtaiiber 22, 1934, by K—T—R and his wife and was given the surname
of the adoptive parents. It is to be noted that the beneficiary was
two years of age when adopted.

Section 205(b) of the Immigration and Nationality Act, as
amended by the Act of September 22, 1959, provides that no petition
for a preference in behalf of a son or daughter under paragraph
(3) of section 203(a) of the Immigration and Nationality Act shall
be approved unless the petitioner establishes that he is a parent as
defined in section 101(b) (2) of the Immigration and Nationality
116

Act, of the alien in respect to whom the petition is made. Section
101(b) (2) provides that the term "parent" means a parent only
where the relationship exists by reason of any of the circumstances
set forth in paragraph (1) of that section. The five categories set
forth in paragraph (1) include a legitimate child, a stepchild, a
legitimated child, an illegitimate child in relation to its natural
mother, and finally, in subparagraph (E), a child adopted while
under tho age of 14 years if the child has thereafter been in the
legal custody of and has resided with the adopting parent or parents
for at least two years: Provided, that no natural parent of any
such adopted child shall thereafter by virtue of such parentage be
accorded any right, privilege or status under the Act.
In the instant case it appears that the beneficiary was given in
adoption at the age of two years. The adoption therefore complies
with the requirements of section 101(b) (1) (E), and the proviso contained in that subparagraph—that no natural parent of any such

adopted child shall thereafter, by virtue of such natural parentage,
be occorde,d any right, privilege or status under the Act--would
apply (Matter of B—, A 8115379, 9 16). The natural parent by
-

virtue of the provisions of section 101(b) (1) (E) is precluded from
asserting any right, privilege or status with respect to the natural
child under the Act, in view of the intervening adoption. The appeal
will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

117


Interim Decision #1804

MATTER OF BOZDOGAN

In Visa Petition Proceedings
A-14134968
Decided by .Regional Commissioner October 19,1967
Since state requirements that a license or permit be obtained in order to practice
or work in a given trade or occupation does not affect eligibility for preference
classification wider section 203(a) (6) of the Immigration and Nationality
Act, as amended, a visa petition is granted to accord sixth preference status,
as a hair stylist, to beneficiary wbu, by his skill, training wad experienee, is
otherwise qualified to perform the duties of the position offered and for which
a labor certification has been issued.

The District Director denied the petition and certified his decision
to the Regional Commissioner pursuant to 8 CFR 103.4. Petitioner has
submitted no written material or rebuttal to the District Director's
decision.
Petitioner is the owner and operator of beauty salons located in
Houston and Nassau Bay, Team. He has been engaged in this type of
business for the past three years and Service investigation reveals
that the business establishments are doing well. Petitioner employs
four operators in his Houston salon and while the Nassau Bay salon is
equipped for eight operators, he has only three working there now.
Petitioner seeks beneficiary's service as a ladies' hairdresser at his
Nassau Bay salon.
Beneficiary is a 27-year-old single male, native and citizen of Turkey, and presently residing and working in England as a ladies' hair
stylist.
Petitioner in his effort to fill his need for hairdressers, made application to the Bureau of Employment Security for alien employment
certifications for eight high-fashion stylists. That agency issued a
group certification pursuant to section 212 (a) (14) of the Immigration
and Nationality Act for the requested number and entitled the positions
as hair stylist, occupation code 332.271. The individual certification
issued under the blanket order in the instant case is currently valid.
In applying for his certifications, petitioner furnished the follow492

Interim Decision 44804
ing information relative to the positions to be filled and on the basis
of -which the Bureau of Employment Security issued the requested
certifications: (1) job to be performed—hair coloring, special razor
cutting, high-fashion styling, permanent waving; (2) education and
training required for proficiency in job—a completed course and training as beauty operator; (3) minimum experience requirements of job—
minimum three years experience in exclusive salon; (4) skill, knowledge, and ability required for proficiency in job—special razor cutting, coloring, perming, styling; (5) other special requirements such
as languages, licenses, physical requirements—able to get Texas
Beauty Operator License, and good health.
In his statement of qualifications and supporting documents, the
beneficiary has established that he possesses the specified training,
experience, and skill to fill the position offered by the petitioner. It
was with the last special requirement specified by the petitioner that
the District Director was concerned. As heretofore stated, this requirement is the beneficiary's ability to get a Texas Beauty Operator's License and have good health. Since the beneficiary is and has

been employed in beauty salons for some time, it was conceded that
for the purpose of this decision that he is in good health.

The laws of the State where petitioner intends to employ the beneficiary require a worker in the position petitioner seeks to fill to have
a State permit or license to perform such work. Since the beneficiary
had no State required permit or license and it was not satisfactorily
established that he was able to obtain the required permit or license,
the District Director denied the petition. In discussing the reason for
his denial, the District Director pointed out that section 203(a) (6) of
the Act provides visas for qualified immigrants who are capable of
per specified skilled labor and that absent the required permit
or license, or evidence that he could obtain such, the beneficiary was
neither qualified for nor capable of performing the duties of the posi-

tion petitioner seeks to fill.
The beneficiary herein is qualified by training, experience and skill
to perform the duties of the position offered by the petitioner. The
Bureau of Employment Security has issued the required certification.
The petitioner has established that he intends and desires to employ
the beneficiary in a position that will utilize his training, experience,
and skill and that he, the petitioner, has the facility to provide such
employment.
The question to be resolved is the effect, if any, of the requirement
of the various states and municipalities that a license or permit be
obtained in order for a person to practice or work in a given trade,
or occupation.

493

Interim Decision #1804
This matter has received careful consideration and it has been conchided that, both from a practical and legal standpoint, to undertake
policing the complex and varied licensing requirements of multiple
jurisdictions throughout the United States is generally neither feasible
nor necessary in connection with a petition by a prospective employer
to accord an alien section 203 (a) (6) preference classification. It is
reasonable to presume that the petitioning employer will assist the
beneficiary to obtain a license if a license is required. In most cases
it would place both the petitioner and the beneficiary in a most difficult, if not impossible, position to demand that a license, or advance
assurances thereof, be obtained before the petition will be considered.
Under the circumstances existing herein, it is concluded that the
beneficiary is prima facie eligible to undertake the employment offered.

The petition will be approved.
It is ordered that the petition be and the same is herewith approved.

494


Interim Decision #2099

MATTER OF PENDON

In Exclusion Proceedings
A-17230529

Decided by Board October 21, 1971
Applicant's motion to reopen the exclusion proceedings to permit her to
apply for the benefits of section 241(f) of the Immigration and Nationality Act, as amended, based on the birth of a United States citizen child, is
denied since the birth of a citizen child confers no benefits under section
241 (f) of the Act upon an alien in exclusion proceedings.
EXCLUDABLE: ACT of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]—
Immigrant without visa.
ON BEHALF OF APPLICANT: Lloyd A. Tasoff, Esquire
408 South Spring Street
Los Angeles, California 90013

On December 5, 1969 we dismissed a joint appeal filed by the
applicant, her husband, her sister, and her infant child, all aliens,
from an order of a special inquiry officer excluding them from
admission to the United States. The unopposed motion before us,
filed by the above-named applicant alone, requests reopening in
order that she may present evidence that on December 20, 1969,
she gave birth to a child who is a United States citizen. She asserts that as the mother of a citizen child, she is within the purview of section 241 (f) of the Immigration and Nationality Act
and is saved from exclusion and deportation thereby. She also alleges that she is the beneficiary of a visa petition filed April 1,
1968, which should now be considered under the third preference,
under which visas are now available to aliens who filed on or before November 16, 1968.
The motion is unsupported, contrary to the requirements of 8
CFR 3.2 and 3.8, and could be denied for that reason alone. However, even assuming the truth of the allegations now set forth, no
case for reopening is made out. The motion will be denied.
Section 241 (f) in terms renders inapplicable to qualified aliens
the "provisions of this section," i.e., section 241 of the Act. That

769

tterim Decision #2099
?ction prescribes the grounds on which aliens "in the United
tates" may be ordered deported. The procedure for determining
le deportability of aliens within the United States is set forth in
action 242 of the Act. The applicant in this case is not an alien
i the United States who is the subject of deportation proceedlgs under sections 241 and 242. She is a paroled alien applicant
or admission whose exclusion has been ordered under entirely
iifferent provisions of the Act. The distinction between the exludable and deportable classes of aliens has been clearly stated
n Leng May Ma v. Barber, 357 U.S. 185 (1958), and need not be
>elabored here. The birth of a citizen child confers no benefits
ender section 241 (f) upon an alien in exclusion proceedings.
Insofar as concerns the claimed availability of an immigrant
Jisa, even if that were the fact it would not warrant reopening
;he exclusion proceedings. As we pointed out in our order dated
December 5, 1969, neither this Board nor a special inquiry officer
has power to adjudicate in exclusion proceedings a paroled alien's
application for adjustment under section 245 of the Act.
One further item should be noted. The Service has informed us
that on August 16, 1971, after the pending motion was filed, the
applicant filed a petition in the United States Court of Appeals
for the Ninth Circuit for review of our December 5, 1969 order.
While the Service does not oppose the motion now pending before
us, we see no point to granting the motion, for the reasons
above-stated. Were we to grant the motion, we would of course
condition our order on the approval of the court in which the petition for review is pending. Since denial of the motion cannot in
any way affect the court's jurisdiction, no such conditional order
is called for.
ORDER: The motion is denied.

1


Interim Decision *1812

MAITRE OF CASTELLO-GODOY

In. Deportation Proceedings
A-14611583
Decided by Board November 17 , 1967
Notwithstanding requisite family relationvhip, reeponderat,

wile. entered the

United States on the basis of a fraudulent marriage to a United States citizen
and was thus exempt from the presentation of a labor certification.is statutorily
ineligible for the benefits of section 241 (f) of the Immigration and Nationality
Act, as amended, because he was inadmissible at entry under section 212( a ) (14)

of the Act, as amended, and, therefore, was not "otherwise admissible" at
entry except for grounds arising from visa fraud or misrepresentation.
CT:Luton:
Order: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)1—Excisable at
entry: (1) Visa procured by fraud or willful misrepresentation (sec. 212(a) (19) ) ; (2) Immigrant, no visa
(sec. 212(a) (20)) ; (3) Entering for labor, no certification (sec. 212(a) (14) ).
ON BEHALF OF RESPONDENT
Bedell° Victoria, Esquire

ON BEHALF or Srsvicn:
Reece R. Robertson

Newman and Newman
354 South Spring Street
Los Angeles, California 90013

Trial Attorney

Respondent, a 32-year-old married male, a native and citizen of
Mexico, was admitted on February 5, 1966 upon surrender of a visa
issued to him as an alien born in an independent country of the
Western Hemisphere. Although coming to perform unskilled labor
he was exempted from the labor certification requirement because he
was married to Luna, a citizen of the United States. The marriage.
was not a bona fide one: respondent married solely to obtain entry
under the immigration laws.
On May 29, 1967, the special inquiry officer found respondent deportable upon the grounds stated in the caption and ineligible for section 241(f) relief. Timely appeal was filed. In September the case was
transcribed and submitted to the Board which on October 5, 1967
520

Interim Decision #1812
ruled that respondent was not within section 211 (f ) because the relationship on which he based. his eligibility was to his illegitimate child.
On October 18, 1967 respondent filed a motion to reopen the hearing

to establish that respondent had obtained a. final divorce from Luna
on August 8, 1967, that he had married the mother of his child on
August 26, 1967, that she is a United States citizen, that the marriage
legitimated the child and that respondent is now a "parent" of a United
States citizen for the purpose of section 241 (f ).
Opposing the motion, the Service contends that even if respondent
is a "parent" he is not eligible for relief under section 241(f). The
Service points out the benefits of the section are available only to an
alien who is admissible at the time of entry except for the fact that he
scoured a visa or other documentation by fraud or misrepresentation.
The respondent, the Service contends, was inadmissible on a ground in
addition to those arising out of the procurement of a visa by fraud—
he did not have the labor certification required by section 212(a) (14).
of the Act.
If the allegations of the motion are true, the respondent is the
"parent" of a United States citizen child and would come within the
terms of section 241(f) if he were admissible except for the fraud.
However, we find that respondent was not so admissible : at the time
of entry, he needed a labor certification, but he did not have one. Thereis no reason to believe that Congress intended section 241(f) to apply
to an alien who had entered without the proper labor certification.
Since we find that respondent was otherwise inadmissible than by
reason of his fraud, we do not believe that reopening would serve any
purpose. The motion will therefore be denied.
ORDER: It is ordered that the motion to reopen be and the same is
hereby denied.

521

.


Interim Decision #1238

Mama or OADLB
In DEPORTATION Proceedings
A-12867491 .
Decided by Board August X, 1962
Since British Honduras is not an "adjacent island" within the purview of section 101(b) (5) of the Immigration and Nationality Act, a native of British
Honduras is not statutorily Ineligible for adjustment of status under section
215 (e) of that Act, as amended.
CHARGE :
Order : Act of 1252—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Nonimmigrant
• remained longer than permitted.

This case is before us on appeal from a decision of a special inquiry
officer denying relief under section 245 of the Immigration. and Nationality Act, as amended [8 U.S.C. 1255], granting voluntary departure and directing that the respondent be deported if he fails to
depart voluntarily.

We have carefully reviewed the entire record. The respondent is
a 38-year-old married male, native and citizen of British Honduras,
who last entered the United States on June 5, 1960 at which time he
was admitted as a nonimmigrant visitor for pleasure for a period expiring on ,July 2, 1960. He remained in the United States thereafter
without authority. The record does not show whether he had been
in the United States prior to 1960. In his application under 8 U.S.C.
1255, the respondent stated that his wife was born in the United States.
Counsel conceded that the respondent is deportable on the charge stated
in the order to show cause. The sole issue to be determined is whether
his birth in British Honduras renders him statutorily ineligible to
secure the status of a permanent resident under 8 U.S.C. 1255.
Subsection (a) of 8 U.S.C. 1255 was amended on August 21, 1958
(Public Law 85400; 72 Stat. 699) and on July 14, 1960 (Public Law
86-648; 74 Stet. 505). The Service does not claim that the respondent
is statutorily ineligible under that subsection but only under subsection (c). 8 U.S.C. 1255 (c) was added by the Act of August 21, 1958,
40

Interim Decision #1238
supra, and provides : "The provisions of this section shall not be applicable to any alien who is a native of any country contiguous to
the United States, or of any adjacent island named in section 1101
(b) (5) of this title." 8 U.S.C. 1101(b) (5) provides as follows:
(5) The term "adjacent islands" includes Saint Pierre, Miquelon, Cuba, the
Dominican Republic, Haiti, Bermuda, the Bahamas, Barbados, Jamaica, the
Windward and Leeward Islands, Trinidad, Martinique, and other British, French,
and Netherlands territory or possessions in or bordering on the Caribbean Sea.

The special inquiry officer held that British Honduras is a British
territory or possession bordering on the Caribbean Sea and that it is
within the defined term "adjacent islands" although actually it is not
an island. The Service urges that we accept this ruling. Counsel
submitted a brief, but neither party has referred us to anything in
the legislative history of these statutory provisions which would be
helpful in determining -whether it was or was not the Congressional
intent to include British Honduras in the term "adjacent islands". We
have also found nothing of value in our own examination of the legislative history.
A more important consideration is that British Honduras is. in
truth and in fact, not an island. The word "island" is defined as a
tract of land surrounded by water. British Honduras, however, is

not surrounded by water; on the contrary, it is surrounded by land
with the exception of the northeastern and eastern boundaries which
are on the Bay of Honduras or Gulf of Honduras.
Another matter which is of significance is that 13 countries and
places are specifically named in 8 U.S.C. 1101(b) (5) and that every
one of these is, in fact, an island or situated on an island. If Congress
intended that the term "adjacent islands" should include British Honduras which is not an island, it seems unlikely that it -would have
failed to add this to the list of countries and places named, particularly since Britiab. Honduras appears to be the only British, French
or Netherlands territory concerning which there would be any
ambiguity.
It was suggested that Congress could have avoided the ambiguity
which has arisen by using the language "other British, French, and
Netherlands islands", that is, substituting the word "islands" for "territory or possessions" as it appears in the statute. This would, of

course, be somewhat repetitious. In addition, it seems probable that
Congress, in precluding adjustment of status for natives of contiguous
territory and adjacent islands, believed that the travel expense for
such aliens would not be great. and that they should return to their
native countries to procure immigrant visas. We believe, therefore,
that Congress was not attempting to classify British Honduras as an
41

Interim Decision #1238
island when in actuality it is not an island, but that Congress was
merely distinguishing between those islands which were to be considered adjacent to the United States and those islands which were
not to be considered adjacent. In addition, "territory or possessions"
appears to be a more comprehensive term. because in the Caribbean.
Sea there are various tracts of land entirely surrounded by water which
do not bear the appellation of "Island" but are instead named "Cay",
"Bank", or "Reef".
During the oral argument, counsel and the Service representative
referred to a regulation which was supposed to have included British,
French and Dutch Guiana, in the term "adjacent islands", and counsel
further stated that he believed this Board had corrected the interpretation so that a person from the Guineas could apply for adjustment
of status under 8 U.S.C. 1255. However, counsel did. not cite the
supposed regulation nor any decision of the Board concerning the
matter_ Since British, French said Dutch Guiana are on the mainland
of South America and do not border on the Caribbean Sea but are
on the Atlantic Ocean, they clearly would not be within the purview of 8 U.S.C. 1101(b) (5). We do not believe that any decision
which may have been made with respect to British, French or Dutch
Guiana would be helpful in this respondent's case.
For the reasons indicated above, we hold that British Honduras is
not an adjacent island under 8 U.S.C. 1101(b) (5) and that the respondent is not precluded from adjustment of status by virtue of the
provisions of 8 U.S.C. 1255 (e). Since the special inquiry officer had
denied the respondent's application on the ground of statutory ineligibility without reaching the merits of the application or receiving
evidence in support of the application, we will reopen the hearing
and remand the case to him for further action.
ORDER: It is ordered that the hearing be reopened and that the
case be remanded to the special inquiry officer for further action
consistent with this opinion.

42