MA rraR

or DI—

In DEPORTATION Proceedings
A-11875663
Decided by Board August 2,1961
Expatriation—Section 349(a)(3), 1952 act—Volunntary service in Rebel Army
of Cuba after January 1, 1959.
(1) Native-born United States citizen who served in We Reno. Army ut Cuba
subsequent to January 1, 1959, is held to have expatriated under the provisions of section 349(a) (3) of the Act upon evidence establishing that he
voluntarily joined the rebel forces in Cuba in January 1958, that he went
back to the United States in December 1958, and that he voluntarily returned to Cuba in January 1959 and resumed his military rank (Captain)
and duties without protest.
(2) Service In the Rebel Army of Cuba after January 1, 1959, the date on
which Castro came to power, constitutes service in the arn .,,c1 forces of a.
foreign state as defined in section 349(a) (3) of the Act.
—

CHARGES :
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—No immigrant visa.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Convicted of
crime involving moral turpitude, to wit, carnal knowledge and
abuse.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the orderof the special inquiry officer dated May 31, 1961, finding the respondent to be an alien and directing his deportation on the charges
contained in the order to show cause.
The respondent was born in Milwaukee, Wisconsin, on August 1,
1921, last entered the United States at the port of El Paso, Texas,
on or about July 22, 1960, and was admitted upon his claim that
he was a citizen of the United States_ The rpsponclent was, of
course, a citizen of the United States at birth.' The primary question to be resolved is whether the respondent, as result of conduct
subsequent to his birth, expatriated himself under the provisions of
section 349(a) (3) of the Immigration and Nationality Act (8 U.S.C.
1 U.S. Constitution, Fourteenth Amendment, and section 1992, U.S. Revised
Statutes.

452

1481 (a)(3)), which provides for loss of nationality by

a native or

naturalized citizen after the effective date of the Act by:
entering, or serving in, the armed forces of a foreign state unless, prior to
such entry or service, such entry or service is specifically authorized in writing by the Secretary of State and the Secretary of Defense * • *.

It has been established that the respondent was a citizen of the
United States at birth. The Government, therefore, has the burden
of proving that the respondent subsequently becalm:, expatriated.
The burden is a heavy one; the proof to establish loss of citizenship must be clear, unequivocal and convincing? Likewise, the
burden is upon the Government to establish that the expatriatory
act was performed voluntarily.' The contentions raised by brief
and oral argument on the issue of alienage raise the following
quections:

(1) Did the respondent serve voluntarily in the Rebel Army
of Cuba after January 2, 1959?
(2) Did service in the Rebel Army of Cuba constitute service
in the armed forces of a foreign State within the meaning
of section 319(a) (3) ?
The record establishes that respondent went to Cuba in January
1958 to join the revolutionary forces of Castro against the existing
Batista regime. The motivation which prompted the respondent to
join the Castro regime does not appear to us to be material. Starting as a private he rose to rank of Captain in July 1958. He testified that he returned to the United States in November or December 1958 for medical treatment. However, after Batista had been
deposed, and the respondent knew the actual fighting had ceased,
the respondent returned to Havana about January 5, 1959, allegedly
for a reunion with comrades, in arms with whom he had fought
during the revolution. There is some inconsistency in the testimony
of the respondent regarding his own thoughts as to his status upon
his return to Cuba, but it is established by the record that respondent returned to one of the leaders of the revolutionary forces in
whose home he slept in La Cabana, a military fortress in Havana,
and who, on the next day, took him to general quarters and assigned
him to take over the corps of guards and the security of the Rebel
Army at La Cabana, with the rank of Captain, supervising the
guards at the tribunalc of the revolutionary forces in executing
the orders of the tribunals. He remained at La Cabana until May
1959, when the executions of persons condemned to death by the
revolutionary tribunals ceased, and acknowledged that during that
2 Nishikawa v. Dulles, 356 U.S. 129; Gonzales v. Landon, 350 U.S. 920;
Baumgartner v. United States, 322 U.S. 665; Schiteiderman v. United States,
320 U.S. 118.
3 Nishikawa v. Dulles, supra; Perez v. Brownett, 306 U.S. 44; Matter of C8-317.

453

period he was a member of the Rebel Army and the men under his
command were likewise members. About June 1959 he was transferred to various installations, men under him performing chiefly
guard duty, although for one month during July 1959 gave instructions in the use of weapons at a military police school and
again at Principe Prison, Havana, from March 1960 until he left
Cuba in May 1960.
It has been established that during the period of his service the
respondent retained his military rank of Captain, wore the insignia,
issued commands to men under his jurisdiction and was himself
subject to official orders of his commanding officer or chief of staff,
and was paid by the Chief of Staff of the Rebel Army. He was
holder of an identity card issued by the Director of Personnel of
the itebel Army on August 17, 1959, identifying him as a Captain
of the Rebel Army. Several witnesses testified to the effect that the
respondent wore a uniform, olive-green in color, and that the men

under his command in the firing squad wore the same uniform without the insignia of Captain (three chevrons) which the respondent
wore. He vouched for the truth and correctness of a magazine
article covering his military activities subsequent to January 1959.
Although the respondent has claimed that his service in the
Cuban army after January 1959 was involuntary, it is to be remembered that the respondent's original act of joining the Cuban revolutionary forces was voluntary and that he was in the United States
at the time the Batista regime was overthrown and the actual fighting had ceased. There is no showing that his return to Cuba in
January 1959 was other than voluntary, for it is manifest that he
could have remained in the United States without fear of punishment or retribution from the Rebel Army of Cuba. There is some
indication that the respondent's return to Cuba in January 1959
was motivated by 1 - -pect of sharing in the land distribution
of the agrarian re—tai program promised by Castro. However,
when he returned, it does not appear that he was impressed into
service or compelled to return to service. The respondent, it is to
be remembered, was a volunteer foreigner and his case differs from
those persons who were conscripted into service. 4 On the other
hand, he sought out his commander, was cordially received, and was
continued in the rank of Captain with complete willingness and
without any protest either to the commanding officer or to the
American Consul. After voluntarily returning to Cuba and continuing in his military rank and duties since January 1959 without
protest, his present claim of duress does not appear credible.
Having established his return to military service in the Rebel Army
4

Nishikawa v. Dulles, 356 U.S. 129 (1958); Podea v. Acheson, 170 F.2d 306

(C.A. 2, 1950).

454

in January 1959 was voluntary and of respondent's own free will,
a discussion as to respondent's difficulty in thereafter obtaining his
release from milit a ry service would appear to be academic. It is
believed that the evidence establishes conclusively the voluntari ess
of the respondent's service in the Cuban•revolutionary armed forces
after January 6, 1959.
The next question to be resolved is whether the Rebel Army after
the fall of the Batista regime subsequent to January 1, 1959, when
Castro took over the reins of the Cuban Government, constituted
the armed forces of a foreign state within the meaning of section
349(a) (3) of the Immigration and Nationality Act. Prior to the
fall of Batista and the then duly constituted Government of Cuba,
it is not doubted that the Rebel Army was merely a revolutionary
force and had no official or legal status. However, after January 1,
1959, Castro, by decree published in the Official Gazette of Cuba on
January 2, 1959, wee appointed the Commanding Chief of the Air,
Sea and Land Forces of Cuba. Law #13 promulgated on January 13, 1959, temporarily suspended the Organic Law relating to
the organization of what had previously constituted the regular
Cuban Army, pending a reorganization of the armed forces. The
fundamental law of Cuba setting up the organization and the new
government became effective on February 7, 1959. Article 126 assigned to the President of the Republic, assisted by the Council of
Ministers, the function of directing the Armed Forcer of the Republic as their supreme head. Law #100 enacted February 23, 1959,
created certain nonmilitary departments in the Rebel Army and
assigned them to the Ministry of Defense. Law #600 of October 16,
1959, created a new Minister of Revolutionary Armed Forces (in
lieu of the former Ministry of Defense) and placed all the armed
forces of the country under its jurisdiction. This law dissolved the
previously existing regular Cuban Army, Navy, National Police and
Joint Chiefs of Staff and provided for the preparation of a new
Organic Law within 60 days. However, the Rebel Army never disappeared but its continued existence as the armed forces of Cuba
after Castro had taken over was explicitly recognized in Article 6
of Law #600 which stated that "members of the Rebel An and
other persons at present rendering real and effective service in any
of the Armed Forces of the Nation, shall retain their mil:dal
sta tus."
The Service produced a witness, Dr. J—A--M—, a former practicing attorney and public defender in Cuba, as an expert on Cuban
law to testify as to the effect of these various provisions of law set
out above. His qualifications were not disputed. This witness testified that although Law #13 temporarily suspended the Organic
Law relating to the army, it did not dissolve the army itself nor
455

was Article 3 of Law #600 necessary to give the Rebel Army legal
sanction; that law merely provided for the administrative organization of the Rebel Army and did not relate to the creation or existence
of the Rebel Army as a military force of Cuba; and even without
such a law, the Minister of the Revolutionary Armed Forces was
empowered to issue decrees providing for the organiz'ation of the
Rebel Army.
The Immigration and Nationality Act does not define the term
"armed forces" as used in section 349(a) (3). The legislative history
relating to loss of citizenship by serving in foreign military forces 5
comments that before enactment of the Nationality Act, entry into
or service in the armed forces of a foreign state would not, of itself,
cause loss of citizenship but that under the Nationality Act loss of
citizenship occurred under certain circumstances, such as the possession or acquisition of the nationality of the state for which he was
serving. The report referred to the modification of the general
rule of expatriation by entering foreign service by certain Executive Agreements which permitted foreign service without expatriation. It also made reference to the holding that service in the
reserve forces in a foreign state would expatriate if the obligations
thereby incurred were the same rs those in active service if nationality of the foreign state was acquired. The Subcommittee commented that the provisions covering loss of nationality through service in the armed forces of a foreign country should be uniform and

should not be dependent upon foreign law, and was therefore recommending changes in the subsection relating to expatriation by service in foreign military forces. In the report to accompany S. 5550,
which became the Immigration and Nationality Act,° in connection
with the provision of the Nationality Act of 1940 which caused loss
of nationality by entering or serving in the armed forces of a foreign

state unless expressly authorized to do so by the laws of the United
States, the report pointed out that the new bill requires, in lieu of
general authorization, that a specific authorization in writing must
be made by the Secretary of State and the Secretary of Defense
before a national of the United States may enter or serve in the
armed forces of a foreign state without losing his status as a national
of the United States. The legislative history, therefore, discloses an
intent on the part of Congress to broaden the expatriatory consequences of service in the armed forces of a foreign state.
There is no doubt in the testimony of witnesses and from reference

to the various Cuban laws, previously referred to, that after Castro
came into power in January 1959 the Rebel Army constituted the
only effective military establishment in Cuba, that it was, de facto,
6

enate Report No. 1515 (81st Cong., 2d Sess., p. 749).
Senate Report No. 1137 (82d Cong., 2d Sess., p. 4G t.

456

the exclusive armed force prior to the passage of laws which directhe absorption of the remnants of the former Cuban army in a
subordinate or subservient role until the final dissolution of the
former regular army in October 1959, 'We agree with the conclusion of the special inquiry officer that the assignment of certain
nonmilitary duties to the Rebel Army did not negate its status as a
military force. Cases cited by counsel limiting the term "aimed
forces" under prior law are distinguishable since they involve reserve or training units rather than active military components, and
there is no dispute that respondent was actually serving in the active
part of the Cuban military armed force. The unreported Matter
of F—A--F—, A-11884065, cited by counsel, in which proceedings
were terminated by the special inquiry officer on May 14, 1961, is
not a binding precedent and the issue, there appeared to be whether
that respondent was an officer of the Rebel Army after January 1959.
In this case, the testimony of the respondent and of witnesses clearly
demonstrates that, respondent served voluntarily in active service in
the armed forces of a foreign state. Voluntary foreign military
service having been proved, the element of intent as a factor in
expatriation is not critical.? Expatriation of the respondent pursuant to section 349(a) (3) of the Immigration and Nationality Act
has been established by clear, convincing and unequivocal evidence.
Alienage having been established, consideration of the deportability of this respondent on the charges set forth in the order to show
cause is in order. At the time of his last entry the respondent intended to remain in the United States indefinitely although not in
possession of an immigrant visa or any document in lieu thereof. It
is the performance of expatriatory acts which results in loss of nationality, not the time of the adjudication thereof. 8 The respondent
has admitted that he was put on notice as to the effect of his conduct
by the service of a certificate of loss of nationality upon him by the
consular officer at Havana. True, such certificate is not conclusive
on the issue of loss of nationality, but the respondent cannot now
plead ignorance or surprise and should have resorted to established
procedures for seeking a final determination on the issue of loss of
nationality. Although the respondent testified that he was in contact with the American Consul in Havana, there is no indication that
he sought to avail himself of the procedure act forth in sections
360(a) and (c) of the Immigration and Nationality Act for a determination of his citizenship status. The case appears to be distinguishable from the capes of naturalized citizens who subsequently
were denaturalized and to whom the relation back doctrine as to
ted

7 MacKenzie v. Rare, 239 U.S. 299; Savorganit v. Umited Suites, 338 U.S.
491: Perez a, Brownell, $99 U.S. 44.
- Section 355 of the Immigration and Nationality Act.

457

documentary requirements has been held inapplicable. 9 The first
charge in the order to show cause is sustained.
The record establishes that the respondent was convicted_ on November 14, 1951, on his plea of guilt in the Municipal Court, City
of Milwaukee, Wisconsin, of the offense of carnal knowledge and
abuse of a female, 16 years of age, contrary to section 5 0.17 of the
statutes and was sentenced on January 11, 1952, to an indeterminate
sentence of one to four years. Section 340.47, Wisconsin Statutes,
provides: "Any person over eighteen years of age who shall unlawfully and carnally know and abuse any female under the age of
eighteen years shall be punished by imprisonment in the State Prison
for not more than 35 years nor less than one year ; or by a fine not
exceeding $200 * * *." This crime has been likened to statutory rape
and involves moral turpitude.°
Counsel does not dispute that respondent has been convicted of a
crime involving moral turpitude. However, counsel coniends that
respondent was not a member of an excludable class at the time of
his last entry by virtue of such conviction because section 212(a) (9)
of the Immigration and Nationality Act (8 U.S.C. 1182(a) (9))
applies to "aliens" who have been convicted of such a crime and the
respondent's conviction occurred :n 1952 when he was a citizen of
the United States and prior to the occurrence of any of the allegedly
expatriating acts. The same contention was raised in Matter of S ,
5-678, and was rejected, it being held that the respondent's conviction of crime involving moral turpitude was precedent to his
excludability and the adjudication of his status as an alien was a
necessary further condition to the requirements of the Immigration
and Nationality Act. 1'
Counsel has raised constitutional objections to the provisions of
section 349(a) (3) upon the record, but recognizes that such constitutional objections cannot be entertained at the administrative level.
We have read the record and believe that respondent was accorded
a fair hearing and due process and that the• special inquiry officer
permitted counsel for the respondent wide leeway in raising objections and expressing himself upon the record. We see no evidence
of prejudgment upon the part of the special inquiry officer. We
—

Matter of 147—, 5--759. The holding in the case of Podea v. ichevon, 179
F.2d 306, cited by counsel, was that the plaintiff's ninitary service wan undo],
duress and did not result in expatrialion.
1O Pin0 V. biieolls, 215 F.2d 237, rev. on other grounds, 349 U.S. 901; Bendel
v. Nagle, 17 F2d 719; Matter of R—, 3-562.
Reliance was placed upon United States ex rod. Eichenlaub v. Shaughnessy,
338 U.S. 521, and the decision in Mangaoang v. Boyd, 205 F.2d 533, cert. den.
346 U.S. 876, was held to be not controlling for the reasons set forth on page
555 of that decision ; see also Matter of B—, 5-405, footnote 4.

458

are not prepared to disturb the finding of the special inquiry officer
who had an opportunity to observe the demeanor and deportment
Of the respondent and the witnesses on the issue of credibility. After
a careful consideration of the record, we concur with the finding of
the special inquiry officer as to alienage and deportability.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

459


Interim Decision #1507

Mnma. or Kt7filtS
In Visa Petition Proceedings
A-18801917
Decided by Board October 4, 1965
Where, following withdrawal - by petitioner of an approved visa petition to
accord alien spouse nonquota status, a new visa petition on behalf of the
beneficiary was filed under compulsion of a court order by- the citizen petitioner who stated that a bone fide marital relationship did not exist and
she did not intend to live with her husband, such petition was properly
denied because it was not submitted in good faith and the appeal from the
denial order dismissed since the beneficiary's attorney has no standing to
appeal.

The case comes forward from the order of the District Director,
Hartford, Connecticut dated April 6, 1965 denying the visa petition
for the reason that the petition is not being submitted in good faith;
the petitioner's statement under oath indicates that she does not have
a bong fide marital relationship, that she does not intend to live with
her husband and that her petition is being filed under compulsion.
The visa petition was filed. on February 24, 1965 by the petitioner,
a native of Poland and a naturalized citizen of the United States, 27
years old, female, on behalf of her husband, a native and citizen of
Poland, 25 years old, male. The parties were married on October 17,
1961 at New Britain, Connecticut.
The visa petition indicates that a prior petition was filed on October 23, 1964 and withdrawn on December 7, 1961. The brief of coml.sal contains a memorandum of decision in the case of Sasimiers
Kurys v. Mio1za2ina Rittaler Mow, No. 141412 of the Superior
Court, Hartford County, Connecticut dated February 18, 1965 grant. ing a motion for an order that a temporary injunction issue "requiring the defendant to immediately reinstate her petition made to the
United. States Department of Justice, Immigration and Naturalization Service, to grant the plaintiff nonquota immigrant status."
A sworn statement taken from the petitioner on February 24, 1965
by, a' Service officer indicates that the petitioner filed a new petition
315

Interim Decision 4t1507
beca.use.she had been ordered to by the court and would not have submitted the petition if the court had not so ordered; further, that the
petitioner had no intention of living with her husband as man and
wife and that it is the petitioner's present desire to secure a. divorce.
At oral argument it developed that the counsel in the case is the
counsel for the alien-beneficiary Who appeared for the beneficiary in
obtaining the injunction previously referred to above.
Section 206 of the Immigration and Nationality Act provides that
the Attorney General may, at any time, for what he deems to be good
and sufficient cause, revoke the approval of any petition approved by
him under section 205 of the Act. 8 CF11. 2,86.1(b) (1) provides that
the approval of a visa petitiOn is revoked as of the date of approval
in any of the following circumstances: Upon formal notice of withdrawal filed by petitioner with the officer who approved the petition.
In the case of Sealoo v. Hurneyz the petitioner was ordered by the
Court of Common Pleas of Philadelphia County to reinstate a visa
petition which had previously been withdrawn. The court held that
section 206 authorizes the Attorney General for good and sufficient
cause to revoke the visa petition and that there is no vested status
in the alien. The case of Pacheco Pereira v. Immigration and
Naturalisation Sondes 2 held that an alien in the beneficiary's position has no personal right to become a nonquota immigrant; the
right lies in the citizen spouse who wishes to keep the family together, citing 8 CFR 206.1(b) (1). In Matter of CY—, 9 L & N. Dec.
517, we held that the right to appeal from revocation of a previously
approved visa petition lies solely with the petitioner; that the attorney who once represented the petitioner and cannot now locate her
and continues to represent the beneficiary has no standing under 8
CFR 206.3 to assert an appeal.
In the instant case the visa petition was filed by the petitioner
under compulsion of a court order. Under the regulations an. appeal
from the denial of the visa petition may be filed only by the petitioner. Under the circumstances, and in view of the court decisions
and the prior administrative holding of this Board, the appeal must
be dismissed. If the petitioner files an appeal in good faith, the case
may then be reconsidered upon the merits.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
2

225 F.

Sum.

560, affirmed per curiae& 338 F.2d 339, certiorari applied for.

° 342 F2d 422 (1st Cir., March 18, 1965).

316


Interim Decision #2795

MATTER OF GORDON
In Section 212(c) Proceedings
A.-31446671
Decided by Board June 6, 1980
(1) In its elementary form, an application for a section 212(c) waiver concerns a present
application for readmission to the United States following a temporary absence or an
advance waiver in contemplation of a future absence.
(2) Although it was an accepted principle that an alien might obtain a section 212(c)
waiver in the course of deportation proceedings with retroactive effect to cure a past
illegal reentry, the benefit is now held to be available in a deportation proceeding to
nullify deportability due to a criminal conviction in the case of an alien who had the
requisite period of lawful permanent domicile even if there has not been a reentry.
Matter of Grouulos, 16 I&N Dec. 726 (BIA 1979), reaffirmed.
(3) Where the Service invited an application for a section 212(c) waiver, not as part of a
deportation or an exclusion proceeding, and not in contemplation of the alien's
departure from the United States and return (ie., la a vacuum"), the procedure is
held to be unfair and unreasonable inasmuch as the letter of invitation threatened
deportation proceedings within 30 days, and the applicant was not made aware of her
burden of proof.
(4) Where an unfair procedure induced the filing of a section 212(c) application "in a
vacuum," the resulting adverse discretionary determination by the District Director

is set aside, and proceedings terminated.

On BEHALF OF SERVICE

ON BEHALF OF APPLICANT:

Joseph M. Tapper, Esquire
410 Asylum Street, Room 424

Jim Tom Haynes
Appellate Trial Attorney

Hartford, Connecticut 06103
BY:

Milhollan, Chairman; Maniatis, Maguire, and Farb, Board Members. Concurring
Opinion, Appleman, Board Member

The applicant has appealed from a decision of the District Director,
dated August 16, 1979, denying her application for advance permission
to return to an unrelinquished domicile pursuant to section 212(c) of
the Immigration and Nationality Act, 8 U.S.C. 1182(c). She contends
that a letter of instruction from the District Director, received just
after her conviction, improperly induced her to file the application
prematurely, to her detriment. The order of the District Director will

389

Interim Decision #2795
be set aside, and the proceedings will be terminated.
The applicant is a 22-year-old native and citizen of the United
Kingdom who was admitted to the United States as a lawful
permanent resident on June 27, 1971. The record indicates that she has
not departed from the United States since that entry.
On August 25, 1978, the applicant was convicted of obtaining
property by false pretenses and sentenced to jail for a period of 1 year.
After 4 months of that sentence had been served, it was suspended and
she was placed on probation for a period of 2 years. On October 18,
1978, she was convicted of conspiracy, criminal impersonation, forgery,
and larceny:This time she was sentenced to GO days in jail for each

offense, the sentences to be served concurrently.
As a result of these convictions, the District Director decided that
the applicant might be deportable under section 241 of the Act, 8 U.S.C.
1251. instead of starting deportation proceedings against her, however, he sent the following letter to her.
It has been determined you may be deportable under section 241 of the Immigration
violations of law_
Recent court decisions and subsequent changes in Service policy now allow you to
apply for advance permission to return to an unrelinquished domicile in the United
States. An application is enclosed for that purpose, the fee for which is $50.00.
and Nationality Aat because you were convicted of a violation or

Please read and follow carefully the instructions on the reverse of the form. Your

application can be adjudicated even though you haven't actually departed from the
United States. Your application will be reviewed and if you are found eligible for the
waiver, no further action will be taken in your case.
The application must be filed within thirty days of receipt of this letter.

In response to the District Director's letter, the applicant, not then
represented, filed the subject application for a waiver of excludability
under section 212(c) of the Act on April 11, 1979.
The District Director denied the application, however, because of the
applicant's criminal record and the absence of any showing of
rehabilitation. The District Director also noted that the applicant had
not submitted supporting documentation to persuade him to exercise
his discretionary authority favorably.
On appeal, the applicant contends that the District Director should
not have invited an application for a waiver under section 212(e) in

advance of deportation or exclusion proceedings in the circumstances
of this case. She argues, therefore, that the District Director's adverse
decision should be set aside. We agree.
Section 212(c) provides that aliens lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily and not
under an order of deportation, and who are returning to a lawful
unrelinquished domicile of 7 consecutive years, may be admitted in the
discretion of the Attorney General without regard to certain specified
grounds for exclusion of section 212.
390

Interim Decision #2795

In its elementary form, an application for a section 212(c) waiver
concerns a present application for readmission to the United States
following a temporary absence. An alien may also seek an advance
waiver, in contemplation of a future absence. The first type is essentially forced, since the alternative if the application is not granted will
be exclusion; the second is essentially voluntary.
Recently, a new dimension to the section 212(c) waiver was added.
Although it had been an accepted principle that an alien might obtain
the waiver in the course of deportation proceedings with retroactive
effect to cure a past illegal reentry, the benefit was now held to be
available in a deportation proceeding to nullify deportability due to a

criminal conviction in the case of an alien who had the requisite period
of lawful permanent domicile even if there had not been a reentry_
Francis v. INS, 532 F.2d 268 (2 Cir. 1976); Matter of Granaclos,16 I&N

Dec. 726 (BIA 1979). As in exclusion, the application in these circumstances is essentially forced.
As an outgrowth of the Francis-type section 212(c) application, the
Service appears to have engaged in a program to encourage resident
aliens with criminal records which render them technically deportable, while not under deportation proceedings, to file applications for
section 212(c) waivers by means of the formal procedure referred to
above as an application for "advance" waiver. Such an application is
essentially voluntary on its face.
In the present case, the letter that the District Director sent to the
applicant declares that she may be deportable because of her criminal
record, that nonetheless she may be able to obtain relief from deportation, and that she must apply for the relief within 30 days. This last
statement strongly implies that deportation proceedings will follow if

the suggested form of relief is not sought and that the applicant will
only have one chance to apply for it. Moreover, since the Service official

who examined her immigration file solicited a 212(c) application instead of instituting deportation proceedings, it is likely that the applicant did not realize that she would have to satisfy him that she
deserved the waiver. Indeed, she did not submit any supporting documentation with her application. Consequently, the 212(c) waiver application was decided on the basis of an undeveloped record, and the
applicant was left with a formal determination in her file that she had
applied for such relief and had been unable to establish that she
deserved it.
We find that this procedure is unfair and unreasonable. In Matter of
Marin, 16 I&N Dec. 581 (BIA 1978), we noted, at 588:
Confined aliens and those who have recently committed criminal acts will have a more
difficult task in showing that discretionary relief should be exercised in their behalf
than aliens who have committed the same offenses in the more distant past.
391

Interim Decision #2795
Common sense and prudence suggest that a recently convicted alien
should prefer to let a considerable time elapse before offering to
demonstrate rehabilitation.
The application herein was filed improvidently. Its filing was induced unfairly. The applicant desires not to have added to her future
burdens the record of this discretionary determination that she is
undeserving. Her request is reasonable. We will set aside the denial
order.
ORDER' The decision of the District Director is set aside, and the
proceedings are terminated.
CONCURRING OPINION: Irving A. Appleman,

Board Member

I concur in the decision of the majority, but believe the majority
statement that the Service "procedure is unfair and unreasonable"

needs elaboration.
This case involves an "in a vacuum" application under section 212(c)
of the Immigration and Nationality Act, 8 U.S.C. 1182(c). The application was made neither as part of a deportation or exclusion proceeding,
nor in advance of a departure from the United States in order to
facilitate a return as a matter of convenience. Matter of WW, 12 I&N
Dec. 736 (BIA 19(i5). It was made by a lawful permanent resident, of the
United States. The logical question presents itself—why was it made

at all? So far as the record before us is concerned, the applicant has no
need for "relief" at this time. If, as, and when an Order to Show Cause
in deportation proceedings issues, and she becomes the subject of a
proper adjudication, in the manner prescribed by law, that she is
deportable and hence here illegally, she may then make an application
for section 212(c) relief pursuant to Francis v. INS, 532 F.2d 268 (2 Cir.
1976); Matter of Silva, Interim Decision 2532 (BIA 1976).
At the same time, it must be recognized that a District Director has
every right, in fact, a duty, to exercise his prosecutive judgment
whether or not to institute a deportation proceeding against an alien
who appears to be illegally in the United States. If, in screening the file
of, and possibly after consultation with, such an alien, it appears to

him that a deportation proceeding would surely result in a grant of
section 212(c) relief under Francis, supra, it would be pointless to
institute an expensive, vexatious, and needless deportation proceeding.
In such a case, I see nothing improper in his noting the record to this
effect, and in declining to issue an Order to Show Cause. This is not a
"grant" of section 212(c) relief. It differs, for example, from suspension
of deportation, which by statute, requires the institution of deporta-

proceedings and results in the creation of a new record of lawful
admission. GORDON already has a record of lawful admission. In
tion

392

Interim Decision #2795
other cases where the District Director grants relief to a deportable
alien prior to a hearing, such as voluntary departure (section 244, 8
U.S.C. 1254), adjustment of status• (section 245, 8 U.S.C. 1255), registry
(section 249, R U.S.C. 1259), etc., his action is authorized by statute or

regulation. No such regulation exists here, nor is there need for one.
On the other hand, if the District Director, after appropriate screening, decides the alien may not warrant section 212(c) relief, then it is
his prerogative to issue an Order to Show Cause in deportation
proceedings. There the alien may contest, with all the safeguards of
the due process hearing accorded her by statute, the unproved assumption that she is deportable. Once found deportable, she may seek any
relief for which she is eligible.
In contrast, in this case, the District Director entertained an application based on an implied finding of deportability, without proper
hearing and possibly without awareness on the part of the alien of the
right guaranteed her by statute to contest such a finding. Her "application" was then formally denied in a nonadversary proceeding, with a
recitation of adverse factors. These findings are a part of her file and
can easily result in prejudice in any further proceedings. Her appeal to
this Board was based on an inadequate record and is duplicative, since
the entire process will be repeated in the subsequent deportation

proceeding. If there is to be no subsequent deportation proceeding, this
entire exercise is pointless, and she should have been left alone to enjoy
her lawful permanent status in the first place.
It perhaps exceeds the range of this decision to set forth what should
have occurred. Nevertheless, as a minimum, any notice sent to an alien
as a preliminary to the possible issuance of an Order to Show Cause
and as a result of initial screening for eligibility for section 212(c)
relief should advise that while she "may" be deportable, it may not be
necessary to institute proceedings in view of her 7 years or more of
lawful permanent residence; that to assist in a determination whether

or not to institute a proceeding an interview would be desirable; that
she could have counsel or a representative present if she wished; that
her appearance is entirely voluntary; that this would be merely a
preliminary interview and that she would be given full opportunity
before any final decision was rendered, to contest her deportability at a
hearing, and to make formal application for any relief for which she
might qualify (including section 212(c)). The notice could advise of
appropriate evidence which would assist the District Director in his
determination whether or not to institute proceedings. The notice
could be sent only if it appeared the likelihood of getting the relief was
high, or if it was impossible to make any judgment from the existing
record. A recent and serious crime, with an obvious failure of
rehabilitation and an absence of countervailing equities, such as close
393

Interim Decision #2795
family ties, might dictate a negative posture and the immediate issuance of an Order to Show Cause.
Such a procedure would serve the objectives of both the Service and
the alien—the former in that it would result in a determination to
leave the alien in her present lawful status and to close the file, and the
latter in that she would either have her case put to rest, or could fully
and properly, in the manner provided by law, contest the issues before
an immigration judge. And as a felicitous result, a double review would
be eliminated in the event of an appeal.
Since the procedure in this case was totally defective, I agree it
should be declared a nullity, and have concurred in the majority
decision. The proceedings, in my opinion, are subject to renewal only in
de novo proceedings which conform substantially to the foregoing.

394


Interim Decision #1319

Maa-rna ar HWAN-G

In DEPORTATION Proceedings
A-8902909
Decided by Board February 4,1964
Respondent, A. 32 -year-old unmarried native of China, who has been in the United
States since his entry in 1055 as a student and who has no one here who would
be adversely affected by his departure, has not established that his deportation
to Pormous would, within the meaning of section 244(a) (1), Immigration and
Nationality Act, us amended, result in "extreme hardship" on the basis of
possible unavailability of suitable employment because of his nonuse of the
Chinese language and his lack of a college degree or of a trade skill.
Oureaas:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)3—Nonimmigrant—Remained longer.

The respondent, a native of China, appeals from an order entered
by the special inquiry officer on October 7, 1963, granting him the
privilege of voluntary departure in lieu of deporation as an alien who
after entry as a nonimmigrant student remained longer than permitted. Exceptions have been taken to the denial of the respondent's
application for suspension of deportation under section 944(a) (1) of
the Immigration and Nationality Act as amended by the Act of
October 24, 1962 (Public Law 87-885 (8 U.S.C. 1254(a) (1) )).
The respondent, male, 32 years of age, unmarried, last entered the
United States at San Pedro, California, on or about September 22,
1955. He was admitted as a nonimmigrant student and was authorized
to remain in the United States until January 29, 1962. He has remained in the United States beyond the time for which he was admitted
and he concedes deportability on the charge set forth in the order to
show cause.
The appeal before us is directed to the denial of the respondent's
application for suspension of deportation, filed on January 21, 1963,
pursuant to the provisions of section 244(a) (1) of the Immigration.
and Nationality Act as amended by the Act of October 24, 1902
418

Interim Decision #1319
(Public Law 87-885). The special inquiry officer after due consideration of the respondent's application finds that he meets the following
statutory requirements of the amended statute. The respondent has
been physically present in the United States for a continuous period
of not less than seven years. The respondent has been a person of
good moral character for the statutory period of seven years. The
respondent is not deportable on a charge contemplated within section
244(a) (2) of the Immigration and Nationality Act as amended.
The special inquiry officer concludes, however, that the respondent's
deportation would not result in "extreme hardship," a. term used for
the first time in the amended version of section 244(a) (1) (8apra).
Prior to the amendment the degree of hardship was described in all

five paragraphs of section 244(a) as "exceptional and extremely unusual." This degree of hardship was retained in paragraph (2) of
the amended version of section 244(a) which relates to suspending
the deportation of aliens deportable as undesirables, subversives and
criminals.
The principal issue presented on appeal is whether the special inquiry officer erred in concluding that the respondent is ineligible for
the relief provided by section 244(a) (1) because his deportation does
not meet the test of "extreme hardship" as that term is used in the
amended statute. Among the reasons assigned by the special inquiry
officer in support of his conclusion are the following. The respondent
is not married and there are no members of his immediate family
residing in the United States. There is no one in the United States
dependent upon him for support.

The respondent's widowed mother and one brother reside on Formosa. His brother is employed by the Chinese Nationalist Government. His mother receives a pension from the Nationalist Government
based upon her husband's service in the Control Yuan. The respondent
testified that he occasionally sends his widowed mother a few dollars.
He also testified that when he entered the United States as a student
he intended to return. to Formosa upon the completion of his education
(1). 13 )-

The respondent last attended the University of Southern Illinois
in December 1961. During the more than eight years the respondent
has been in the United States he has earned "around a hundred thirtyfive" credit hours (p. 8) and has attended three different colleges.
He testified that he was dropped by the University of Illinois in 1956
or 1957 because of poor grades (p. 8). His record at the University
of Southern Illinois also reflects poor grades (Ex. 4). The respondent
attributes his mediocre scholastic record to his "poor English" (p. 8).
The respondent testified that he is not attending school "because
I haven't got funds to continue my study . . ." (p. 13). During his
449
(768-456-65-30

Interim Decision 4t1319
residence in the United States he has had summer employment at
two hotels, a store, and since January of 1962 he has been employed
by the Allied Radio Corporation of Chicago, Illinois, as a stockman.
earning $75 per week (Ex. 2).
Counsel for the respondent maintains that Congress intended to
lessen the degree of hardship required to qualify for suspension of
deportation under paragraph (1) of section 244(a) as amended when
they substituted the word "extreme" for the term "exceptional. and
extremely unusual" in referring to the specified type of hardship
envisaged by the Act of October 24, 1962 (Public Law 87— 5).
Counsel argues that the respondent has met the burden of establishing
his eligibility for the discretionary relief he seeks. Counsel has referred to the following factors in support of the respondent's claim
that his deportation would result in. extreme hardship within the
meaning of section 244(a) (1) as amended:
(it) Deportation of the respondent would prevent him from completing bin
undergraduate college training and his post-graduate work in higher
mathematics. Respondent has already earned 135 hours of college credit.
(b) Respondent has resided in the United States more than seven years;
has become fluent in the English language, and has made a good record
in his studies and in his employment.
(e) If deported, it would be extremely difficult to obtain a visa to return
to the United States bemuse of the limited quota.
(d) Respondent has limited funds and it would be an extreme hardship to
have to return to China to apply and wait for a visa, and then make the
return trip to the United States.
(e) The mamimem use of respondent's college training and anticipated postgraduate work would be found here in the United States where there is
great need for specially trained mathematicians.
(f) Respondent's father died in September 1962 and respondent now contributes to the support of his mother. If respondent were deported, the
availability of suitable employment on Formosa would be doubtful
because of respondent's nonuse of the Chinese language and his lack of
a college degree or of a trade skill. Said factors would probably confine
his employability to that of an unskilled laborer

As originally written Public Law 87885 1 provided relief from
deportation by advancing the cut-off date from June 28, 1940, to December 24, 1952, for all aliens eligible for registry under section 249
of the Immigration and Nationality Act. However, when the legislation was considered in conference it was rewritten to achieve the same
result by suspending deportation. rather than creating a, record of lawful entry. The conferees on the report of the House of Representatives commented that the amendment of section 244 "is designed to
Section 4, Senate Bill 3361, 87th Cong., 2d Bess., 1962.

450

Interim Decision #1319
achieve the purpose envisaged by the Senate in a modified manner" 2
and in addition would permit Congressional review of the relief
granted aliens by the Attorney General. According to the conferees
from the House of Representatives the proposed language of the
amendment of section 244(a) also envisaged "the showing of (a)
specified type and degree of personal hardship which might occur in

the absence of such relief."'
The personal privation contemplated in a situation characterized
by "extreme hardship" within the meaning of the statute is not a definable term of fixed and inflexible content or meaning. It necessarily
depends upon the facts and circumstances peculiar to each case. We
are concerned with an. alien who was permitted to enter the United
States as a student in 1955 for the purpose of acquiring an education.
His admission for this purpose contemplates his departure from the
United States upon his failure to maintain the status of a. student.
The respondent maintains that his return to the country whence he

came would result in extreme hardship to him despite the fact that he
concedes that he intended to return to Formosa at the time he entered
in 1955. He seeks permanent resident status in order that he may
complete his undergraduate courses and then do post-graduate work
in higher mathematics. His desire in this regard does not appear to
be consistent with his testimony that he does not have sufficient funds
to complete his education. His past record as a student is not in accord
with such an ambitious graduate program. Furthermore, the allegation that he would find here in the United States rather than in Formosa the maximum use of his present training and anticipated postgraduate work in the field of mathematics is not in accord with his
current employment as a stockman.
The evidence in our judgment does not support the respondent's claim
that his return to Formosa would result in extreme hardship to him
financially because suitable employment in Formosa would be doubtful
due to the respondent's nonuse of the Chinese language and his lack
of a college degree or of a. trade skill. The respondent with some 135
semester credit hours should be in a. better competitive position for
employment in Formosa than when he entered the United States in
1955. The claim that nonuse of the Chinese language during his residence in the United States is a, factor which would cause him extreme
hardship upon his return to Formosa is not consistent with the evidence of record that he was a member of Chinese student organizations
at the University of Southern Illinois and the University of Illinois
(Ex. 2) . It is inconceivable that the Chinese language was not spoken
2 The Conferees were referring to the liberalising of section 240 by advancing
the cut-off date.
See p.4029, U.S. Code Cong. & Adm. News, 87th Cong., 2d Sees.

451

Interim Decision #1319
at the meetings of Chinese student organizations during the five or
more years the respondent attended these institutions.
We do not dispute counsel's argument that Congress intended to
lessen the degree of hardship required to qualify for suspension of
deportation when they amended paragraph (1) of section 244(a) by
Public Law 87-885. The term "extreme hardship," however, admits
of varying degrees of severity. The limits of personal deprivation and
economic detriment contemplated in the term "extreme hardship" cannot be 'stated in a hard and fast rule. It is conceivable that the
return of an alien who was admitted as a. foreign student to the country whence he came may result in "extreme hardship" within the meaning of section 244(a) (1), as amended.
Section 244(a) (1) contemplates that within certain limits the Attorney General may exercise his discretion to suspend the deportation
of aliens whose removal from the United States would result in "extreme hardship" to them. We are of the opinion, however, that the
facts and circumstances of respondent's case do not affirmatively establish "extreme hardship" if he returns to Formosa. The-re are no substantial equities in his case except those arising from the fact that
he was admitted as a student and permitted to remain in the United
States for more than the statutory period of seven years required for
eligibility under section 244 (a) (1), as amended. He has no relatives
in the United States who would be adversely affected by his departure.
He, in our judgment, should be in a better position to obtain employment in Formosa than when he entered the -United States. These
factors do not support a finding of "extreme hardship" within the
meaning of section 244(a) (1). The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed. •

452


MATTER OF

B—

In DEPORTATION Proceedings
A-5504324

Decided by Board February 15, 1961
Deportability—Section 241(a)(4), 1952 act—"Single 'scheme."
Where respondent, who was convicted in 1958 on two counts of having carried on the business of a retail liquor dealer without having paid the fed.
eral occupational tax of $25 per year, contended that he was not deportable within section 241(a) (4) of the 1952 Act as his offenses unaer the leeeral law arose out of a single scheme of criminal misconduct (having failed
to pay the tax in two successive years of continuous operation of the same
business), it was found that "single scheme" not present where the record
showed that on October 14, 1951, the date of the commission of the first
offense in the federal indictment, respondent was convicted and sentenced
by local authorities for violation of the local liquor laws whereupon he
ceased the illegal sale of liquor in his restaurant on a trial basis and did
not resume this activity until after having rut -ululated a new plan to violate the liquor laws.
CIIARAFA:
Order: Act of 1952 — Section 241(a) (1) [8 U.S.C. 1251(a) (1)1 Excludable
— No visa.
Act of 1952—Section 241(a) (5) [8 U.S.C. 1251(a) (5)1—Failure to
to furnish address reports.
Act of 1052 Section 241(a) (4) ( U.S.C. 1251(a) (4)1—Conviction
for two crimes involving moral turpitude after entry.
—

BEFORE THE BOARD

DISCUSSION: On May 23, 1960, this Board dismissed the respondent's appeal from the order of the special inquiry officer requiring his deportation on the charges stated above. The respondent
sought judicial review of the Board's order. On November 3, 1960,
the United States District Court, District of Connecticut, entered
an order remanding the case to the Board to accord the respondent
"the privilege of being represented by counsel of his choosing
throughout proceedings on appeal before that Board" (Barrese v.
Ryan, 189 F. Supp. 449). The court did not go into the merits of
the charges.
On November 29, 1060, the Board notified counsel for the re
spondent that the case had been calendared for oral argument. 211

Counsel did not appear for oral argument but submitted a. written
brief in support of the respondent's appeal. In this brief, issue is
taken with each charge. The Service did not appear at oral argument and makes no representations.
The charge based on section 241(a) (4) of the Immigration and
Nationality Act (8 U.S.C. 1251(a) (4)) provides for the deportation of an alien "convicted of two crimes involving moral turpitude,
not arising out of a single scheme of criminal misconduct." The
convictions may come from a single trial, and confinement is not
necessary. Counsel argues that the crimes arose out of a single
scheme and cannot be the basis for deportation.
The respondent last entered the United States in October 1955.
On October 8, 1958, the respondent was convicted in the United
States District Court at New Haven, Connecticut, on a plea of
guilty, on two counts for violation of 26 U.S.C. 3253 (now 26 U.S.C.
5691, 7301(a)) for having carried on the business of a retail liquor
dealer without having paid the necessary tax with intent to defraud
the United States. Both violations arose out of the sale of liquor
in the respondent's place of business in Bridgeport, Connecticut.
The first count concerned a violation which occurred on or about
the 14th day of October 1951, and the second count, one which
occurred on or about the 6th day of April 1952. (A third count
concerning a violation on or about April 11, 1952, was dismissed.) 1
Sentcoahuwsimpronetf15hsad
fine of $500; the sentences to imprisonment were to run consecutively and the fines were cumulative. Counsel contends that the two
convictions arose out of a single scheme because the respondent was
convicted for failing to pay a $25 federal occupational per annum
tax in two successive years of continuous operation of the same business. In finding that the crimes had not arisen out of a single
scheme of criminal misconduct, the Board cited Matter cf Z — ,
8 170, which was overruled in Zito v. M000/. 174 F. Supp.
531 (N.D. Ill., 1950). However, we see no reason to change
our conclusion that a. single scheme. does not exist here. The crimes
before us were not the result of an overall plan but of two separate plans, and to find a single scheme the acts must be 4‘orninitted
pursuant to an overall plan (Ch ,I1142.16 Din Ii7wn v. Barer, 147 F.

Stipp. 771 (N.D. Calif., 1957), aff'd 253 F.2d 547 (C.A. 9, 1958),
cert. den. 357 U.S. 920; Wood v. "toy, 266 F.2d 825 (C.A. 9, 1959)).
In the instant case, the violations of law are not shown to have
occurred under one overall plan; in fact, the record affirmatively
establishes the contrary. The record contains the respondent's tes1 The same unlawful sale of liquor had been the :subject of puuiluueut by

local police authorities. The convictions on October 15, 1951, and April 6,
1952, had resulted in fines.
212

timony that after hie conviction on October 14, 1951, by lneal au
thorities for violating the liquor laws, he had stopped selling liquor

in the hope that he could make a living without engaging in such
activity. It was only after a trial period during which he found
that he could not get restaurant business without making liquor
available to customers that he started again. It is clear then that
the second violation of law occurred not under the first plan of
illegal conduct, for that had terminated after the first arrest and
conviction; the second violation occurred under a new plan to violate the law—a plan formulated after society had brought it home
to him by an arrest, conviction, and fine, that his conduct was improper and would not be tolerated. A single scheme did not exist
here (Ch,anan. Din Khan v. Barber, supra).
The crimes in question involve an intent to defraud; this establishes that moral turpitude is involved (United States ex rd. Carrollo v. Bode, 204 F.2d 220 (C.A. 8, 1953), cert. den. 346 U.S. 857;
Jordan v. DeGeorge, 341 U.S. 223).
We shall now deal with the documentary charge. The respondent last entered the United States on about October 6, 1955. We

sustained the documentary charge. We held that the respondent
needed a visa to enter and that he did not have one. Counsel contends that the respondent did not need a visa to enter the United
States; that as a "returning resident" he needed only a bordercrossing card; that he had such a card in his possession; and that
the Government has nut sustained its burden of establishing that
the respondent had entered illegally.
A "returning resident" is entitled to enter the United States without a visa under certain circumstances (section 211(b), Immigration
and Nationality Act, 8 U.S.C. 1181(b) ; 8 CFR 211.2(c) (1), 8 CFR
211.2(c) (2), 8 CFR 211.2(c) (6) (regulations in effect at time of
last entry)). The respondent would have been entitled to reenter
the United States as a "returning resident" (1) if he had been
originally lawfully admitted for permanent residence, (2) if he had
that status when he departed, (3) if he departed from the United
States with the intention of returning, (4) if he had not abandoned
this intention, and (5) if he returned from a temporary visit abroad
(United States ex rel. Alther v. Al c C cradles , 46 F.2d 288 (C.A. 3,
1931; Sereerehi v. Ward, 27 F. Supp. 437 (D.C. Mass., 1939)).
This record fails to satisfy the first requirement (that the alien
have been lawfully admitted for permanent residence) ; however,
since this aspect of the case was not made an issue and was not completely developed at the hearing, we cannot rest our decision on this
fact. We shall assume for the purpose of this discussion that the
respondent had been lawfully admitted at some time and would
have been entitled to reenter the United States to resume his resi213

-dente if at the time of last application he was, in fact, a "returning
resident." (The respondent made several visits to Canada and
whether or not he reentered legally on these occasions we need not
explore.) We shall concern ourselves with whether the respondent
was returning from a temporary visit abroad. The test employed
will be that put to use in Alter, supra.
- "Without

attempting a complete definition of 'a temporary visit,' we may
say that we think the intention of the departing immigrant must be to return
within a period relatively short, fixed by some earlier event." It will be
noted that under this rule the animus revertendi must exist as a positive element. A mere absence of intention to remain abroad permanently will not
preserve the alien's nonquota status. The burden of proof is still with the
government and must be met by the production of substantial evidence, but
If it appear that he left with no definite intention, either of staying permanently or of teLuruIng, merely planning to let ruture events determine his
course, his stay would not be a temporary visit and the statute would automatically place him in the quota class. (pp. 290-291)

Using this test, we find that the record establishes that if ths
respondent left the United States with a definite intention of returning, it was abandoned.
We come now to the pertinent facts on this issue. The respondent
has given conflicting testimony about his trip to Canada : part of
the testimony is found in this deportation hearing, the rest in a
Canadian deportation proceeding. In this proceeding, the respondent testified he had lived in the United States from about 1916;
that following his last arrest for a liquor violation in Bridgeport,
Connecticut (1952), he closed his place and after looking for a
livelihood a few months moved to New York where he remained
for a few months (or a year and one-half) looking for a business,
but could find nothing; that he then went to Canada to visit a sister
who had come from Italy; that he stayed no longer than 30 days
in Canada, returning each time to stay with friends or at a hotel in
Nevada; that in Canada he engaged in no work but helped his
brother-in-law who ran a gambling club in Canada; that he received
no regular salary and had no interest in the club, being supported
by money his sister in Canada was keeping for him; that after
entering Canada, he made several trips back to the United States
presenting social security card and other papers to gain entry into
the United States; that on one occasion (about September 1954 or
1955), he was told to get a border-crossing pass of a temporary
nature good for three or six months; and that he used this to make
two "furies. The respondent testified he last entered the United

States at Blaine, Washington, on about October 6, 1955, returning
to resume his permanent residence. He testified that he did not
have an immigrant visa when he entered but that he had a border-

crossing card. (Counsel in his brief alleges that the card has been
214

located and is now in his possession) Much of this testimony is

in sharp conflict with other statements made by the respondent.
In the immigration proceeding in Canada on April 7, 1955
(Exh. 4), the respondent testified that he had come to the United
States in 1914 or 1915 en route to Canada to which he had been
admitted and where he had remained until about 1925, when he entered the United States with the intention of seeing what it was
like.

He testified that he did not know whether or not he had then

entered the United States on an immigrant visa and that he did not
know whether his entry had been a legal one; that he had remained
in the United States until 1952, coming to Canada for visits of a
week or two; that he had last entered Canada in November 1952 to
see his sister; that he came for a visit of about a week or month;
that when he entered Canada it wae with the intention of seeing
what it was like; that if he liked it he would stay, and if lbe did not
like it he would return; and that when asked if he intended to re-

turn to the United States, he stated he "wouldn't know." He said
that during his -visits to Canada he was urged to stay and go into
business there; that in December 1952 or January 1953, he bought
an interest in the Lumberman's Social Club, a gambling establishment at Vancouver, B.C.; that he had invested about $6,000; and
that he derived an income of about $40 a week from his work for
the club. The respondent admitted that he had served 10 months
of the prison term in Canada in 1923-1924. During the hearing,
the respondent produced a Canadian unemployment insurance card

issued at Vancouver on January 19, 1953. He testified that he had
remained in Canada since his entry in 1952.
Also pertinent to the question of whether the respondent abandoned whatever status he may have had in the United States is the
fact that a federal indictment had been handed down against him
on September 4, 1952 (the respondent denied having any knowledge
of this until after his return to the United States in 1935), the fact
that the respondent was joined by his "wife" in Canada several
months after he went there and she stayed with him except for the
time she went to visit her people, and the fact that the respondent
alleges that when he went to Canada he left some of his clothes in
the United States and took some with him He had no bank account in the United States.
The respondent is a person of poor credibility. He has given us
conflicting versions of the same incidents. Under the circumstances,
we do not find it improper to believe the version of his Canadian
experiences given to the Canadian officials—a version given at a
time contemporaneous with the events in question, one made under
oath and while he was represented by attorney, and one subject to
verification on the spot. The Canadian version reveals that he came
215

to Canada to see what it was like and with the intention of staying
if he liked it; that he did not leave Canada after he entered in 1952;
that he bought a business there and made his living in Canada, and
as late as April 7, 1955, did not know whether he intended to return
to the United States. (We note that he did not return to the United
States until after the last extension (seven had been obtained) from
the Canadian authorities had expired (Exit. 4, release on Lund

form).) This testimony is quite consistent with the facts that the
respondent had been unable to find a livelihood in the United States
after searching and that he was under indictment in the United
States. This testimony establishes that the respondent cannot meet
the test of "returning resident" found in United States ex rel. Alther
v. McCandless, supra. At the best, he merely planned "to let future
events determine his course." The respondent was not, therefore,
returning from a temporary visit, and he was required to be in possession of an immigrant visa to reenter the United States (sections
911(a) and 212(a) (20), Immigration and Nationality Act; 8 U.S.C.

1181(a) and 1182(a) (20)). (We have not utilized statements by
the respondent's sister (Exh. 5) (or others) which corroborate the
respondent's testimony in the Canadian deportation hearing, although we believe it proper to utilize these affidavits.)
Counsel, in his brief, states that the hearsay evidence (by which
we presume he means the statements obtained by Service investigators from the respondent's relatives and partners in Canada)
were not made available to him when a copy of the record was requested. We find no error in this regard. 8 CFR 292.4(b) authorizes a review of the record and the loan of a copy of the testimony.
There is no showing that copies of the exhibits were requested. If
a proper request had been made, arrangements to this end could no
doubt have been made. Moreover, the respondent was notified in
the Board's letter of November 29, 1960, that he could review the
record at its offices in Washington, D.C., and the letter of December 14, 1960, by the District Director informed counsel to the same
effect. Finally, we have not used these exhibits to find the respondent deportable.
We come now to the final charge. On reexamination of this
charge, we shall not sustain it. Section 241(a) (5) [8 U.S.C. 1251
(a) (5)] requires the deportation of an alien who has failed to furnish a current address (and certain other information) required
by the Attorney General of aliens. On and after January 1951. this
information must be furnished on the first day of January of each
year or within 30 days thereof, or if the alien is temporarily absent
from the United States during this period, within 10 days after his
return. An alien who has failed to comply with the requirement
is deportable unless he establishes to the satisfaction of the Attorney
216

General that the failure was "reasonably excusable or was n ot
willful."
The respondent returned to the United States in October 1955.
He was required to furnish the necessary information within ten
days after entry, and during January 1957, and January 1958, he
did not do so. The respondent was not questioned concerning the
period shortly after his arrival. Concerning the failure to register
annually, the respondent testified he did not think the reporting
requirement applied to him because he had been in the United States
since 1916. He stated that he knew he had to register as an alien
in 1940 but he did not file the address report card after 1940 (from
1940 to 1950 report was required when a change of permanent residence was made (54 Stat. 675; 8 U.S.C. 456)). The Service produced an address card dated January 10, 1951, which the respondent admitted he signed and which contains information concerning
him which he admitted was true. When asked if he had heard that
aliens were required to report their address in January 1957, he
stated he had nut paid attention.
We believe that the respondent has established that his failure
was not a willful one. The record establishes that he registered as
an alien in 1940, as an enemy alien subsequently, and that he furnished an address card in January 1951. There is no evidence that
he furnished such an address card in January 1952. In January
1952, there was no reason for him to conceal information as to his
address. He was apparently living and doing business in the same
places; he had not yet been arrested the second time (April 1952)
and was not yet under indictment. His failure to furnish an address card in January 1952, under these circumstances, adds conviction to his claim that in 1957 and 1958 he either was unaware of
the requirement or that it related to him.
Counsel alleges that the respondent is virtually illiterate in English. This allegation must be viewed in light of the fact that no
interpreter was used during the deportation proceedings; that his
answers were responsive and explanatory; that he was a businessman for many years; and that he was able to obtain the necessary
social security card, alien registration card, and Canadian unemployment registration when it was to his advantage to do so.
We have made no use of exhibit 11 concerning which counsel
complains. We see no error in its admission and note it is duplicated to a good extent by exhibits 12 and 13 which the respondent
admitted related to him.
The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed but that deportation pursuant to law be ordered only on
the first and third charges set forth in the order to show cause.
217


Interim Decision #2564

MATTER OF GONZALEZ
In Deportation Proceedings
A-20361805
Decided by Board March 11, 1977
(1) Respondent was convicted of a violation of 18 U.S.C. 912 and 2 for impersonating an
immigration officer and as such, demanding and obtaining money. This was a crime
involving moral turpitude. In deportation proceedings brought under section 241(a)(2)
of the Immigration and Nationality Act, the immigration judge denied voluntary departure on the ground that respondent failed to show the requisite good moral character
required by section 101(f)(3) of the Act notwithstanding that respondent had received a
judicial recommendation against deportation under section 241(b) of the Act.
(2) The decision of the U.S. Court of Appeals for the Third Circuit in Giarnbanco v. INS,
531 F.2d 141 (1976) holds that a conviction for which a judicial recommendation against
deportation under section 241(b) of the Act has been obtained may not be considered in
an appliention for discretionary relief. That decision is controlling in this case since it
arose in the Third Circuit (Newark). Therefore, the record will be remanded to the
immigration judge in order that he may make a new determination respecting the
application for voluntary departure without considering respondent's conviction.
(3) Matter of Mangabat, 14 I. & N. Dec. 75 (BIA 1972), affirmed Mangabat v. INS, 477
F.2d 108; cert. denied 414 U.S. 841 (1973), distinguished.
CHARGE:
Older; Act of 1952—Section 241(a)(2) 19 U.S.C. 1251(a)(2)]—Nonimmigrant visitor

—remainedlonger
ON BEHALF OF SERVICE:
George Indelicato
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:
James J. Orlow, Esquire
Wasserman, Orlow, Kaye, & Rubin
636 Public Ledger Building
6th & Chestnut Streets
Philadelphia, Pennsylvania'19 106
Allen E. Kaye, Esquire
233 Broadway
New York, New York 10007

Milhallan, Chairman; Wilson, Maniatis, and Appleman, Board Members

This is an appeal from the August 20, 1975, decision of an immigration
judge in which the respondent was found deportable under section
134

Interim Decision #2564
241(a)(2), his application for voluntary departure was denied, and his
deportation to Colombia was ordered. The respondent has appealed
from that decision. The record will be remanded. .
The respondent, a native and citizen of Colombia, entered the United
States on or about June 13, 1972, as a nonimmigrant visitor. He remained beyond' the authorized period of his admission, and these proceedings were instituted against him. The respondent has conceded his
deportability. The only issue on appeal involves the respondent's application for voluntary departure.
In 1974 the respondent was convicted in the United States District
Court, District of New Jersey, on Count 1 of an indictment which states
that the respondent ". . did knowingly, wilfully and unlawfully combine, conspire, confederate . . . to falsely pretend and assume to represent to others that Jaime Jaramillo was an officer and employee of the
United States acting under the authority thereof, that is, an officer and
employee of the Immigration and Naturalization Service, and falsely act
as such, and in such pretended character demand and obtain money, in
violation of Title 18, United States Code, Sections 912 and 2." The crime
of which the respondent was convicted is a crime involving moral turpitude. See Mercer v. Lexce, 96 F.2d 122 (10 Cir. 1938), cert. denied 305
U.S. 611 (1938); Matter of B — , 6 I. & N. Dec. 702 (BIA 1955).
The respondent, however,

received a judicial recommendation

against deportation pursuant to section 241(b) of the Act. The immigration judge concluded, however, that evidence of this conviction statutorily precluded the respondent from establishing good moral character
under section 101(f)(3) and thereby acted as a bar to a grant of voluntary
departure under section 244 of the Act.
Subsequent to the immigration judge's decision, the United States
Court of Appeals for the Third Circuit rendered its decision in Gianzbanco v. INS, 531 F.2d 141 (3 Cir. 1976). The court held in Giambanco

that a conviction for which a judicial recommendation against deportation under section 41(1:1.) of the At has been obtained may not be
considered in an application for discretionary relief.'
In its brief on appeal the Service requests that we decline to apply the
Third Circuit's ruling in Giambanco to this case. In support of its
request, it relies on our decision in Matter of Mangabat, 14 1. & N. Dec.
75 (MA 1972), affirmed Illangabat v. INS, 477 F.2d 108; cert. denied,
414 U.S. 841 (1973).
In Matter of Mangabat, we declined to apply a decision of the United
States Court of Appeals for the Ninth Circuit to a case arising in the
' The application involved in Giambanco was made under section 245 of the Act; the
respondent in the present case has made an applic4Lion under section 244(e). However,
the court's opinion in Giambanco clearly covers all discretionary applications under the
Act.
135

Interim Decision #2564
circuit. However, the court in its decision had rejected the Board's long
standing construction of a statute, a construction which had been endorsed in courts outside the Ninth Circuit and which had been approved
by the Attorney General. The instant case does not contain the persua-

sive factors present in Matter of Mangabat. Despite the fact that the
Service apparently has not acquiesced in the court's ruling in Giambanco, it is our opinion that we are bound by the court's ruling in those
cases arising within the Third Circuit. See Matter of Amado and Mon13 I. & N. Dec. 179 (BIA 1969).
With due respect for the court, however, we state our disagreement
with its holding in Giarnbanco. Section 241(b) expressly prevents an
alien's deportation on the basis of a conviction for which a judicial
recommendation against deportation was made despite the provisions of
section 241(a)(4). The Act nowhere states that the criminal activity and
the conviction which resulted therefrom cannot be considered in connection with an application for discretionary relief. However, in recognition
of the policy expressed by Congress in section 241(b), we are of the
opinion that an alien who has a conviction for which a judicial recommendation against deportation has been made should not be precluded
by section 101(f)(3) from establishing good moral character. Since the
existence of the conviction does not bar further inquiry, all evidence of
record, including that conviction and the nature of the criminal activity,
could be considered in determining whether the respondent is a person
of good moral character and in exercising discretion under section 244(e)
of the Act. Contrary to the view expressed by the court, the interpretation suggested here is the same applied in those cases in which an
expungement of the conviction has been obtained. See In re Paoli, 49 F.
Supp. 128 (N.D. Cal. 1943); Matter of H , 6 I. & N. Dec. 619 (BIA
1E156).
The present case illustrates the inadvisability of establishing rigid
roles which deny to the immigration judges the flexibility necessary to
carry out their duty to analyze sensitively the competing factors in each
particular case. See Matter of Blas, Interim Decision 2485 (BIA 1974;
Attorney General 1976). The respondent's conviction of 1974 resulted
from his involvement in a particularly despicable criminal scheme: he
,

—

conspired to pose as an Immigration and Naturalization Service employee and to fraudulently obtain money from other aliens on the basis

of false promises to procure lawful permanent resident status for them.
Had no criminal action been instituted against the respondent, the fact
of his involvement in the criminal activity could have been brought out
and considered in connection with an application for discretionary relief.
I'Erie court's ruling in Giantbanco places him in a position superior to the
person who has not been convicted of his crime. Although the fact of his
emviction should not preclude him from establishing statutory eligibil126

Interim Decision #2564
ity for the relief, we are of the opinion that the respondent is neither a
person of good moral character nor a person who merits a favorable
exercise of discretion.
Nevertheless, pursuant to the court's decision in Giambanco , we shall
remand the record to the immigration judge in order that he may make a
new determination on the application for voluntary departure. The
immigration judge shall not consider the respondent's conviction in
reaching a new decision on the application.
ORDER: The record is remanded to the immigration judge for

further proceedings consistent with the above opinion.

137


Interim Decision #2444

MATTER OF ROJAS
In Deportation Proceedings
A-20974502

Decided by Board October 29, 1975
(1) Where respondent's testimony at the deportation hearing, at which she was represented by counsel, without more, clearly establishes her deportability, inquiry into the
facts surrounding respondent's initial interrogation and arrest and the allegation of
illegally obtained evidence of deportability is necessary.
(2) Where the presence in the United States of a lawful permanent resident sister is the
only significaAt favorable factor presented by respondent in support of her application
for voluntary departure, there are insufficient equities in respondent's behalf to outweigh the adverse factor that she gained entry into this country with the assistance of
professional smugglers. Accordingly, the immigration judge's denial of voluntary departure, in the exercise of discretion, was proper.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection.
ON BEHALF OF SERVICE:
George Indelicato
Appellate Trial Attorney

ON BEHALF UP RESPONDENT:
Richard Eiden, Esquire
2669 West Pico Boulevard
Los Angeles, California 90006

In a decision dated April 8, 1975, the immigration judge found the
respondent deportable as charged, denied her application for voluntary
departure, and ordered her deportation to Columbia. The respondent

has appealed from that decision. The appeal will be dismissed.
At the hearing, at which she was advised by counsel, the respondent
denied all of the facts alleged in the order to show cause and denied
deportability on the ground that the "evidence" of deportability had
been illegally obtained and should therefore be suppressed. However,
when then cuestioned by the trial attorney, the respondent admitted
that she was a native and citizen of Columbia and had last entered the
United States without inspection with the assistance of a professional
smuggler.
The respondent's testimony at the deportation hearing, without
more, clearly establishes her deportability. Thus, inquiry into the facts
surrounding the respondent's initial interrogation and arrest is unnecessary. See Guzman-Flores v. INS, 496 F.2d 1245 (C.A. 7, 1974); Klissas
v. INS, 361 F.2d 529 (D.C. Cir. 1966).
492

Interim Decision #2444
We note that courts have indicated that, although evidence actually
seized during an illegal arrest may be suppressed in a criminal proceeding, the mere fact of illegal arrest has no bearing on a subsequent
deportation proceeding. U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149
(1923); Guzman-Flores v. INS, supra; Huerta-Cabrera v. INS, 466 F.2d
759 (C.A. 7, 1972); La Franca v. INS, 413 F.2d 686 (C.A. 2, 1969);
Shing Hang Tsui v. INS, 389 F.2d 994 (C.A. 7, 1968). See also Matter of
Scavo, 14 I. & N. Dec. 326 (BIA 1973). The contention that the physical
presence of an alien is "evidence" that may be suppressed as the "fruit of
the poisoned tree" if the alien was illegally arrested was flatly rejected
by the court in Guzman-Flores v. INS, supra, and to our knowledge has
no judicial support. See also Matter of Burgos and Burgos-Gody, 15 I. &
N. Dec. 278 (BIA 1970).
Our review of the record satisfies us that the hearing was fair, and
that deportability has been established by clear, convincing and unequivocal evidence. The only remaining issue involves the respondent's
application for voluntary departure.
The immigration judge denied the respondent's application for voluntary departure in an exercise of discretion. He considered the respondent's use of a professional smuggler to gain entry into the United
States to be a significant adverse factor affecting her application. Counsel on appeal argues that the method by which the respondent gained
entry is not relevant to her application for voluntary departure. He
further argues that .the immigration judge's reliance on such evidence
prevented the immigration judge from fully exercising his discretion as
required by section 244(e) of the Immigration and Nationality Act.
We disagree with the contentions of counsel. The respondent willingly participated in a criminal scheme the sole purpose of which was
the circumvention of the immigration laws of the United States. In the
absence of outstanding equities in her behalf, evidence of such involvement in criminal activity will adversely affect her application for discretionary relief.
Although the record reveals that the respondent's sister, with whom
the respondent is living, is a lawful permanent resident, no other significant favorable factors have been presented. We conclude, as did the
immigration judge, that there are insufficient equities in the respondent's behalf to outweigh the evidence of the respondent's entry with
the assistance of professional smugglers. The respondent does not merit
a favorable exercise of discretion. See generally Matter of Arai, 13 I. &
N. Dec. 496 (BIA 1974.
The decision of the immigration judge is correct. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.
493