Interim Decision #2192

MATTER OF DUNAR

In Deportation Proceedings
A-14616295

Decided by Board April 17, 1973
(1) The provisions of Article 32 of the United Nations Convention of July 28, 1951,
which became binding on the United States when it adhered to the 1967
Protocol Relating to the Status of Refugees, do not preclude the deportation of
an alien refugee who entered the United States lawfully as a nonimmigrant
and has remained in this country unlawfully.
(2) The provisions of Article 33 of the United National Convention of 1951, supra,
have effected no sufistantial changes in the application of section 243(h) of the
Immigration and Nationality Act, either by way of burden of proof, coverage,
or manner of arriving at decisions.
CHARGE:
Order: Act of 1952—Section 241(aX2) [8 U.S.C. 1251(a)(2)l—Nonimmigrantremained longer.
ON BEHALF OF RESPONDENT:
Donald L. Ungar, Esquire
517 Washington Street
San Francisco, California 94111
(Brief filed)

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

This is an appeal from an order of an immigration judge , finding
the respondent deportable, denying his request for termination of
the proceedings, denying his application for withholding of deportation under section 243(h) of the Immigration and Nationality
Act, and directing his deportation to Hungary. For the reasons
stated below, we rema0 for further proceedings.
Respondent is a 32 year old male alien, a native and citizen of
Hungary, who was admitted to the United States on January 18,
1966 as a nonimmigrant visitor and remained longer than'permitted. At a hearing before the immigration judge, at which he was
represented by present counsel, respondent admitted the truth of
-

-

1 While this case was pending before us on appeal, the titles of special inquiry
officers were changed administatively to immigration judges, 8 Cleft 1.1(1), 38
FR 8590 (April 4, 1973).

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the factual allegations of the order to show cause, conceded
deportability, designated England as the country of deportation,
and requested withholding of deportation to Hungary; the alternate country of deportation if England should refuse him, under
section 243(h) of the Immigration and Nationality Act. At a
continued hearing, counsel withdrew the concession of deportability and asked that the proceedings be terminated. He contended
that, as a refugee who had lawfully entered the United States as a
nonimmigrant, respondent was immunized from deportation under Article 32 of the 1951 United Nations Convention Relating to
the Status of Refugees, which became binding on the United
States when it adhered to the 1967 Protocol Relating to the Status
of Refugees, TIAS 6577, 19 U.S. Treaties (Part 5, 1968) 6223, which
entered into force with respect to the United States on November
1, 1968.
So far as we are aware, the question is novel. While the
Convention and Protocol have been mentioned by the courts in a
few immigration cases, nothing has been stated in the ()Pinions
which is helpful to us here. See, e.g., INS v. Stanisic, 395 U.S. 62,
79-80 fn. 22; Muskardin v. INS, 415 F.2d 865, 867 (C.A. 2, 1969).
The first question confronting us is whether respondent has
achieved a nondeportable status, as claimed. If he is not deportaMc in the first place, VIP need not reach the other issues raised
with respect to his application for temporary withholding of
deportation. A brief analysis of the pertinent statutory and other
provisions involved will furnish a meaningful backdrop to the
question.
Preliminarily, the statute sets up a distinction between aliens
who are admitted for permanent residence as immigrants and
those who, like the respondent, come here for a temporary stay as
nonimmigrants. Aliens seeking admission for permanent residence

must, unless exempted, meet specific numerical limitations and
labor certification requirements not normally prescribed for nonimmigrants. The latter (consisting of temporary visitors for business or pleasure, students, crewmen, aliens in transit through the
United States, and the like) are expected to remain here only
temporarily. They are not generally subject to the numerical and
other limitations so carefully prescribed by Congress for intending
immigrants who, once admitted for permanent residence, are free
to remain indefinitely and to compete with American labor for
available jobs.
Section 241(a) of the Act defines the classes of aliens in the
United States who are subject to deportation. Sections 241(a)(1), (2)
and (10) decree deportation based on the alien's inadmissibility at
the time of entry or because of the manner of entry. Section
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Interim Decision #2192
241(aX2) also calls for the deportation of an alien who "is in the
United States in violation of this Act;" this has been held to
encompass aliens who, like respondent, entered lawfully as nonimmigrants and remained here after their period of temporary stay
had expired. Section 241(a)(9) provides for the deportation of aliens
who entered lawfully as nonimmigrants and thereafter failed to
maintain their nonimmigrant status or to comply with the conditions of admission. All the other numerous grounds for deportation

in section 241(a) are based on the alien's post-entry conduct and
apply with full force to aliens who had originally been lawfully
admitted for permanent residence.
The Act does not, in terms, define "refugees" or provide for their
"asylum" in the United States. Deportable aliens who, like respondent, claim they would be subject to persecution if sent to a
given country, are covered by section 243(h) of the Act, as
amended:
The Attorney General is authorized to withhold deportation of any alien

within the United States to any country in which in his opinion the alien
would be subject to persecution on account of race, religion, or political opinion
and for such period of time as he deems to be necessary for such reason.

Article 1 of the United Nations 1951 Convention Relating to the
Status of Refugees, to which the United States did not originally
adhere, in partinent part defined a refugee as a person who, as a
result of events occurring before January 1, 1951,
... owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is
outside the country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not having
a nationality and being outside the country of his former habitual residence as
a result of such events, is unable or, owing to such fear, is unwilling to return
to its

Article 32 of the Convention, relating to "Expulsion," provides as
follows:8
1. The Contracting States shall not expel a refugee lawfully in their

territory save on grounds of national security or public.order.
2. The expulsion of such a refugee shall be only in pursuance of a decision
reached in accordance with due process of law. Except where compelling
reasons of national security otherwise require, the refugee shall be allowed to
submit evidence to clear himself, and to appeal to and be represented for the
purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period
within which to seek legal admission into another country. The Contracting
States reserve the right to apply during that period such internal measures as
they may deem necessary.
2 S. Exec. K, 90th Cong., 2d Sess., at 1, 6, 6.
s S. Exec. K, 90th Cong., 2d Sess., at 15.

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Article 33 of the Convention is as follows: 4
Prohibition of Expulsion or Return ("Refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership
of a particular Social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a

refugee whom there are reasonable grounds for regarding as a danger to the
security of the country in which he is, or who, having been convicted by a final
judgment of a particularly serious crime, constitutes a danger to the community of that country.

The major objective of the Protocol was to Make the Convention
applicable to all refugees covered by its definition irrespective of
the January 1, 1951 deadline, and this was accomplished in Article
I of the Protocol. In acceding to the Protocol, the United States
undertook to apply Articles 2 to 34, inclusive, of the Convention to
refugees as defined in the Protoco1. 6
Since it supplements and incorporates the substantive provisions of the Convention, the Protocol must be regarded as a
treaty,6 which -is part of the supreme law of the land, United
States Constitution, Article VI, Cl. 2. Such a treaty, being self-

executing, has the force and effect of an ad of Congress, Valentine
v. United States, 299 U.S. 5, 10 (1936). Neither the Convention nor
the Protocol in terms refers to section 241(s), 2430-0 or any other

pertinent provision of our immigration laws. The precise question
confronting us is whether those provisions have been affected by
the later treaty provisions and if so, in what way.
Certain well-settled principles apply in determining whether a
treaty has repealed or modified a previously enacted statute. A
self-executing treaty supersedes a prior Congressional enactment
if the act is inconsistent with the terms of the treaty, Cook v.
United States, 288 U.S. 102, 118 (1933). The purpose of a treaty to
supersede an act of Congress, in whole or in part, may not be
lightly assumed, however. Such a purpose must appear clearly and
distinctly from the words used in the treaty, United States v. Lee
Yen Tai, 185 U.S. 213, 221 (1902). When a statute and a treaty
relate to the same subject, an attempt must be made to give effect
to both, if that can be done without violating the language of
either. If the two are inconsistent, the one of later date will control
the other, provided that the stipulation of the treaty on the
subject is self-executing, Whitney v. Robertson, 124 U.S. 190, 194
• S. Exec. K, 90th Cong., 2d Sess., at 15.
5 S. Exec. K, 90th Cong., 2d Sess., at 1.
▪ S. Exec. Kept. No. 14, 90th Cong., 2d Sess., at 8-9.

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(1888). Repeals by implication are never favored, and a later treaty
will not be regarded as repealing an earlier enactment by implication unless the two are absolutely incompatible and the later one
cannot be enforced without antagonizing the earlier, Johnson v.
Browne, 205 U.S. 309, 321 (1907).
Our examination of the legislative materials satisfies us that the
United States Senate, in giving its advice and consent to accession
to the Protocol, did not contemplate that radical changes in
existing immigration laws would be effected. Quite the contrary,
the general representations made to induce affirmative Senate
action indicated that our immigration laws already embodied the
humane provisions for refugees fostered by the Convention and
Protocol. Accession by the United States, it was asserted, would
lend the weight of our moral support to the measure and would
influence other nations with less liberal refugee legislation to
adhere to it.
Thus, in submitting the Protocol to the President, the Secretary
of State informed him that, "United States accession to the
Protocol would not impinge adversely upon the laws of this
country."7 The Secretary further stated: 9
Accession to the Protocol would promote our foreign policy interests
through reaffirming, in readily understandable terms, our traditional humanitarian concerns and leadership in this field. It would also convey to the world
our sympathy and firm support in behalf of those fleeing persecution. Actually, most refugees in the United States already enjoy legal and political
rights which are equivalent to those which states acceding to the Convention
or the Protocol are committed to extend to refugees within their territories ...

In his message to the Senate, transmitting the Protocol and
accompanying State Department report, the President stated: 9
It is decidedly in the interest of the United States to promote this United
Nations effort to broaden the extension of asylum and status for those fleeing

persecution. Given the American heritage of concern for the homeless and
persecuted, and our traditional role of leadership in promoting assistance for
refugees, accession by the United States to the Protocol would lend conspicuous support to the effort of the United Nations toward attaining the Protocol's
objectives everywhere. This impetus would be enhanced by the fact that most
refugees in this country already enjoy the protection and rights which the
Protocol seeks to secure for refugees in all countries. Thus, United States
accession should help advance acceptance of the Protocol and observance of its
humane standards by States in which, presently, guarantees and practices
relating to protection and other rights for refugees are less liberal than in our
own country.

Similar views were expressed by State Department officials in
statements and testimony before the Senate Committee on ForS. Exec. K, 90th Cong., 2d Sess. at VII.
S. Exec. K, 90th Culig., 2d Sese. at VIII.
9 S. Exec. K, 90th Cong., 2d Sess. at
7

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eign Relations. See, e.g., the statement of Laurence A. Dawson,
Acting Deputy Director, Office of Refugee and Migration Affairs: 10
... [The President] has pointed out that since refugees in this country
already enjoy the protection and rights which the Protocol seeks to secure
everywhere, United States accession should help to advance the Protocol and
acceptance of its humane standards in other states whose treatment of
refugees is less liberal _ _ Even though the United States already meets the

standards of the Protocol, formal accession would greatly facilitate our
continuing diplomatic effort to promote higher standards of treatment for
refugees and more generous practices on the part of countries whose approach
to refugees is less liberal than our own,

Mr. Dawson further testified:"
Now, it is more important, in this growing spectrum of unrest, the emergence of new nations and proliferation of refugee problems, to project our
image and use our image and use our influence. We believe that our accession
would help to support this United Nations efforts to extend throughout the
world the concept of protection for refugees and the furnishing of rights to
them such as we have always done within . our national tradition in this
country.

Our immigration laws already contain certain provisions
whereby aliens unlawfully in the United States, whether refugees
or not, may achieve lawful permanent resident status by administrative action. See, e.g., sections 244(a), 245 and 249 of the Immigration and Nationality Act. Section 203(a)(7) of the Act sets up
preferences for certain refugees in obtaining conditional entry

from abroad and in achieving permanent resident status. If we
accepted respondent's view, all these, as well as the deportation
provisions of section 241(a), would be rendered nugatory in the
case of an alien refugee who entered lawfully as a nonimmigrant
and remained unlawfully. If such an alien achieves nondeportability under Article 32 of the Convention, he becomes in effect a
permanent resident. There is nothing in the legislative history of
this provision to indicate that the Senate had any notion that this
result would follow accession. Indeed, there is every indication
that those who framed Article 32 on behalf of the United Nations
never intended to saddle a host country with any such limitation.

Thus, in an early report, 12 the Ad Hoc Committee stated:
The expression "lawfully within their territory"• throughout this draft

Convention would exclude a refugee who while lawfully admitted has overstayed the period for which he was admitted or was authorized to stay or who
has violated any other condition attached to his admission or stay.
1 ° S. Exec. Rept. No. 14, 90th Cong., 2d Sess. at 7.
" S. Exec. Rept. No. 14, 90th Cong., 2d Sess. at 10.

12 United Nations Economic and Social Council, Report of the Ad Hoc Committee

on Statelessness and Related Problems, March 2, 1950, at 4? (Ef1618/Corr.1;

EfAC.32/5/Corr.1).

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In its report on the revised draft Convention, 13 the Ad Hoc
Committee stated:
The Committee decided that it was not always necessary to insert in the
text definitions of expressions used. However, since some question was raised
as to the phrase "lawfully in the territory", the Committee expressed the view
that, in any event, a Contracting State may consider that a refugee is no
longer lawfully in its territory if he is in contravention of terms imposed as a
condition of his admission or sojourn.

With commendable candor, counsel for respondent has supplied
us with a letter dated May 26, 1971, from the Deputy Representative of the United Nations High Commissioner for Refugees,
quoting directly from advice received from its Geneva headquarters in response to counsel's question concerning the interpretation of Article 32. In pertinent part, it states:
In determining whether a refugee is "lawfully in the territory" of a
Contracting State, regard must be had to all the circumstances of his presence
there, and in this respect the manner in which he originally entered the
territory, i.e. lawfully or unlawfully, is not the only decisive factor.
Art. 31 of the 1951 Convention recognizes the possibility that the status of a
refugee who has entered illegally the territory of a Contracting State may
subsequently be regularized. Conversely, the stay of a refugee who has
entered in a regular manner, may subsequently becuule unlawful. This would
for example be the case if the authorities of the country are not prepared to
grant him residence beyond the limited period for which he was admitted or if
they withdraw his residence permission on the ground that he has not
complied with the conditions under which he was :Admitted, e.g. to pursue his
studies. As long as his stay is "lawful," even though admitted temporarily, he
can only be expelled on grounds of "national security and public order." If,
however, his stay ceases to be "lawful" in the circumstances described above,
he is no longer "lawfully in the territory of the Contracting State" and may
therefore not invoke the special protection of Art. 32 of the 1951 Convention.
(Emphasis in original).

There is nothing in the representations made to the Senate in
support of accession which could lead it to conclude that Article 32
would radically alter the provisions of our deportation laws in the
manner contended for by counsel. Quite the contrary, the Senate
was led to believe that the laws relating to the immigration and
deportation of alien refugees would remain substantially unaffected, that no amendatory legislation would be required to implement the Protocol, and that any minor changes could be handled
administratively.
In his letter of submittal to the President, the Secretary of State
commented with respect to Article 32: 14
,3 United Nations Economic and Social Council, Report of the Ad Hoc Committee on Statelessness and Related Problems, Second Session, August 25, 1950, at

11, paragraph 20 (b/1850; E1AC.32/8).
14 S. Exec. K, 90th Gong., 2d Sess. at VIII.

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... Article 32(1) of the Convention provides that, "The Contracting States shall
not expel a refugee lawfully in their territory save on grounds of national
security or public order." Many if not most of the grounds for deportation set
forth in section 241 of the Immigration and Nationality Act, 8 U.S.C. 1251, are
grounds of "national security or public order," including particularly the
several provisions relating to subversive activities and criminal conduct. As
refugees by definition are without a homeland, deportation of a refugee is a
particularly serious measure, and it would not be humanitarian to deport a
refugee for reasons of health or economic dependence.

In his statement to the Senate Committee on Foreign Relations,
the State Department's representative, Laurence A. Dawson,
asserted: 16
[W]hile the concept of guaranteeing safe and humane asylum is the most
important element of the Protocol, accession does not in any sense commit the

contracting state to enlarge its immigration measures for refugees. Rather,
the asylum concept is set forth in the prohibition against the return of a
refugee in any manner whatsoever to a country where his life or freedom
would be threatened; and the prohibition under Article 32 against the
deportation of a refugee lawfully in the territory of a Contracting State to any
country except in cases involving national security or' public order. The
deportation provisions of the Immigration and Nationality Act, with limited
exceptions, are consistent with this concept. The Attorney General will be able
to administer such provisions in conformity with the Protocol without amendment of the Act.

The following colloquy before the Senate Committee with respect to the effect of Article 32 is illuminating: 16
SENATOR SPARKMAN. Is there anything in here that conflicts with our
existing immigration laws?
MR. DAWSON. I would answer that briefly and then ask Mrs. McDowell [of
the Treaty Section, Office of the Legal Adviser, Department of State] to give a
' more authoritative answer. I would say that Article 32 which prohibits the
expulsion of a refugee who is lawfully in this country to any country except on
grounds of national security or public order would pose certain questions in
connection with section 241 of our Immigration and Nationality Act, which

states the deportation provisions. But I do not believe it would be in conflict.
We believe most of those grounds in 241 are grounds which can be properly
construed as having the basis of national security or public order, and we also
are assured that those relatively limited cases which perhaps could not be so
construed could be dealt with by the Attorney General without the enactment
of any further legislation ...
MRS. McDOWELL. I think Mr. Dawson has covered it very well. We are
assured by the Justice Department that this is their view. That the existing
regulations which have to do with deportation would permit the Attorney
General sufficient flexibility to enforce the provisions of this convention which
are not presently contained in the Immigration and Nationality Act.
For example, section 241 of that Act allows the Attorney General to del:6ft an
alien for certain stated reasons. Most of these are criminal conduct of various
kinds or subversive activities.
" S. Exec. Rapt. No. 14, 90th Cong., Zd Sess. at 6.
16

S. Exec. Rapt. No.

14, 90th Cong., 2d Sess. at 8.
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There are two categories, only two, that we think are not covered, and these
are the deportation of an alien for reasons of mental illness or deficiency,
where he has become institutionalized for that reason, or deportation on
grounds that he has become a public charge. These two areas would not be
enforced against refugees if the protocol were in force.

We cannot find in these materials any evidence that the Senate
construed Article 32 as having the broad purpose contended for by
respondent. That construction would radically alter the carefully
articulated statutory provisions, devised by Congress through the
years, for the selection, admission, adjustment of status, and
deportation of aliens. We may not conclude, in the absence of more
compelling proof, that the Senate intended that result when it
acceded to the Protocol.
We need not now • decide the full sweep of Article 32. The Senate
was told and presumably concluded that the only refugees who by
reason of Article 32 would no longer be deportable under section
241(a) of the Act would be those aliens lawfully in the United
States who had been institutionalized because of mental illness or
who had become public charges, under section 241(a)(3) or (8). We
reject the notion that the Senate intended to preclude deportation
(and thereby in effect to confer permanent residence) in the ease of

an alien refugee who entered lawfully as a nonimmigrant and
remained unlawfully. Such an alien, even if not deportable to his
country of origin because he would be persecuted there, could still
conceivably , be accepted by some other country. We sustain the
immigration judge's conclusion that respondent, even if deemed to
be a refugee, is deportable under section 241(a)(2) of the Act.
We must, therefore, confront the questions raised by counsel as
to the effect of the Protocol and Convention on section 243(h) of the
Act These questions stern primarily from the definition of "refugee" in Article 1 of the Convention and from the provisions of
Article 33. It is the position of counsel that these provisions affect
not only the burden of proof under section 243(h) and the breadth
of its coverage, but also the nature of the determination the
Attorney General is permitted to make thereunder. We shall
discuss each in turn. We note, in passing, that the legislative
materials concerning Article 33 are as meager and inconclusive as
those relating to Article 32, which we have already discussed.
On the burden of proof issue, 8 CFR 242.17(c) provides in
pertinent part that, "The respondent has the burden of satisfying
the [immigration judge] that he would be subject to persecution on
account of race, religion, or political opinion as claimed." That
statement is consonant with the conclusion of this Board, which
the emir' 3 have sustained in many cases, that under section 243(h)
the alien has the burden of presenting evidence showing a "clear
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Interim Decision #2192
probability of persecution," Cheng ;ad Fit v. INS, 386 F.2d 750
(C.A. 2, 1967), cert. den. 390 U.S. 1003; Rosa v. INS, 440 F.2d 100 (1
Cir., 1971); Lena v. INS, 379 F.2d 536 (C.A. 7, 1967); Hamad v. INS,
420 F.2d 645 (D.C. Cir., 1969). It is counsel's contention that under
Articles 1 and 33, all an alien now need show is that he has a "wellfounded fear of being persecuted" for any of the stated reasons.
This change in terminology, asserts counsel, relieves the alien of
the burden of showing a clear probability of persecution. "It is his
own state of mind that is the primary test." (Respondent's brief on
appeal, p. 3).
Clearly, the requirement that the fear be "well-founded" rules
out an apprehension which is purely subjective. A fear which is
illusory, neurotic or paranoid, however sincere, does not meet this
requirement. An early report of the Ad Hoc Committee which
framed the provision stated: 17
The expression "well-founded fear of being the victim of persecution for
reasons of race, religion, nationality or political opinion" means that a person
has either been actually a victim of persecution or can show good reason why
he fears persecution.

Some sort of a showing must be made and this can ordinarily be
done only by objective evidence. The claimant's own testimony as

to the facts will sometimes be all that is available; but the crucial
question is whether the testimony, if accepted as true, makes out a
realistic likelihood that he will he persecuted. The burden of

coming forward with the requisite evidence is obviouSly the claimant's. And if all he can show is that there is a merely conjectural
possibility of persecution, his fear can hardly be characterized as
"well-founded."
Certainly, there is nothing in the Senate proceedings to indicate
that accession to the Protocol would radically affect section 243(h).
Quite the contrary, as pointed out above, the general tenor of the

representations was that the existing immigration laws already
made provision for the refugee reforms sought by the Convention
and Protocol. The Secretary of State's letter to the President
makes one brief reference to section 243(h): 18
As stated earlier, foremost among the rights which the Protocol would
guarantee to refugees is the prohibition (under Article 33 of the Convention)
against their expulsion or return to any country in which their life or freedom
would be threatened. This article is comparable to Section 243(h) of the
Immigration and Nationality Act, S U.S.C. Section 1254 [sic), and it can be
implemented within the administrative discretion provided by existing regulations ...
United Nations Economic and Social Council, Report of the Ad Hoc Committee on Statelessness and Related Problems, February 1'1, 1950, at 39 (E/1618; El
"

AC.32i5).
is S. Exec. K, 90th Cong., 2d Sees. at VIII. ,

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In his testimony before the Senate Committee on Foreign
Relations, the State Department's witness, Mr. Dawson, stated
that one former obstacle to our accession was the requirement of
section 243(h) that persecution be "physical," and that with removal of this requirement in October 1965, the problem no longer
exists.19 The clear implication is that section 243(h) was thereby
brought into harmony with Article 33. It is noteworthy that, in
responding to Senator Sparkman's question, "Is there anything in
here that conflicts with our existing immigration laws?", Mr.
Dawson made no mention of section 243(h) in relation to Article 33.
It is clear that when it accepted the Protocol, the Senate had no
notion that this would work a drastic alteration of section 243(h)
and the gloss which it had acquired through the years before this
Board and in the courts.
Section 243(h) in terms applies to persecution on account of
"race, religion, or political opinion." It does not define what is
meant by "persecution." Articles 1 and 33 of the Protocol encompass the three quoted classes and add two more, "nationality" and
"membership of a particular social group." Article 1 defines a
refugee in terms of persecution on any of the five grounds, without
further defining the term. Article 33 makes no mention of persecution but forbids expulsion of a refugee to a place where his "life or
freedom" would be threatened because of any of the five grounds.
These seeming differences are clearly reconcilable.
The two new classes mentioned in Articles 1 and 33 are generically similar to the three which were the concern of Congress in
section 243(h). In that provision Congress sought generally to
shield aliens from the actions of their own home governments in
singling them out for punitive treatment, not because of their
individual misconduct or demerits, but solely because they are
members of dissident or unpopular minority groups. The inclusion
of the two new classes within the ambit of section 243(h), far from
creating a conflict, is clearly compatible with the beneficent
purposes underlying that provision.
Article 33 speaks in terms of threat to life or freedom on account
of any of the five enumerated reasons. Such threats would also
constitute subjection to persecution within the purview of section
243(h). The latter has also been construed to encompass economic
sanctions sufficiently harsh to constitute a threat to life or freedom, Dunat v. Hurney, 297 F.2d 744 (3 Cir., 1962); cf. iiovae v. INS,
407 F.2d 102 (9 Cir., 1969). In our estimation, there is no substantial difference in the coverage of section 243(h) and Article 33. We
19

S. Exec. Relit. No. 14, 90th Cong., 2d Seas. at 9.

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are satisfied that distinctions in terminology can be reconciled on
a case-by-ease consideration as they arise.
This leaves only the question whether Article 33 compels a
change in the nature of the determination which the Attorney
General may now make under section 243(h). Article 33 speaks in
mandatory terms: "No Contracting State shall expel or return a
refugee in any manner whatsoever to the frontiers of territories

where his life or freedom would be threatened. ..." While the
second paragraph of Article 33 carves out exceptions where the
alien refugee constitutes a security threat to the host country or
has been convicted of a particularly serious crime, in cases outside
the exceptions the provision seems to leave no room for the
exercise of discretion. Section 243(h), on the other hand, has been
construed as giving the Attorney General a degree of discretion in
reaching his decision. Close analysis reveals, however, that there
is no real conflict between the two provisions.
As the immigration judge has pointed out at pages 11-14 of his
excellent opinion, the ancestor of section 243(h) had many seeming
similarities to Article 33 which section 243(h) was designed to
eliminate. Section 20(a) of the Immigration Act of 1917, as
amended by section 23 of the Internal Security Act of 1950, 64

Stat. 987, 8 U.S.C. 156(a) (1946 ed., Supp. IV), provided that, "No
alien shall be deported under any provisions of this Act to any
country in which the Attorney General shall find that such alien

would be subjected to physical persecution." The cases held that
under this provision where an alien raised a persecution claim, the
Attorney General had to find as fact that he would not be subject
to physical persecution in the particular country before he could
be sent there, U.S. ex rel. Harisiades v. Shaughnessy, 187 F.2d 137,
142 (CA. 2, 1951), affirmed 342 U.S. 580 (1952); Sang Ryup Park v.
Barber, 107 F.Supp. 603 and 107 F.Supp. 605 (N.D. Cal., 1952); U.S.
ex rel. Chen Ping Zee v. Shaughnessy, 107 F.Supp. 607 (S.D. N.Y.,
1952); U.S. ex rel. Watts v. Shaughnessy, 107 F. Supp. 613 (S.D. N.Y.,
1952). It was indicated that the statute contemplated a fact finding

by the Attorney General based on competent evidence and that
discretionary power was not conferred.
Section 243(h), on the other hand, is cast in far different terms.
Instead of directing that no alien "shall be deported," section
243(h) merely "authorizes" the Attorney General to withhold
deportation. Instead of referring to a "finding" by the Attorney
General, section 243(h) makes reference only to his "opinion."
Under the circumstances, it is not surprising that the cases have
construed section 243(h) as giving the Attorney General a "broad
discretion" to withhold deportation, Muskardin v. INS, 415 F.2d
865 (2 Cir., 1969); Kasravi v. INS, 400 F.2d 675 (C.A. 9, 1968);
321

Interim Decision #2192
Nwmkung v. Boyd, 226 F.2d 395 (CA. 2, 1955); U.S. ex rel. Dolenz v.
Shaughnessy, 206 F.2d 392 (C.A. 2, 1953).
It seems clear that the humanitarian values sought to be
covered by section 243(h) distinguish it from the Act's other
.provisions for discretionary, relief from deportation in which the
Attorney General is given power, in his discretion, to grant relief
to aliens who meet the prescribed eligibility requirements. Those
provisions involve a two-stage proceeding; (1) the establishment of
statutory eligibility; (2) the exercise of administrative discretion,
favorably or unfavorably to the alien, by the Attorney General or
his delegate. The cases are legion that even where statutory
eligibility is made out, relief may still be denied in the exercise of
discretion. See Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957)
(suspension of deportation); Thomaidis v. INS, 431 F.2d 711 (C.A. 9,
1970), cert. den. 401 U.S. 954 (section 245 adjustment); Lum Wan v.
Esperdy, 321 F.2d 123 (C.A. 2, 1963) (section 249 registry); Hamad v.
INS, 420 F.2d 645 (D.C. Cir., 1969) (voluntary departure).
While the section 243(h) cases also speak in terms of the
Attorney General's discretion, we know of none in which a finding
has been made that the alien has established the clear probability
that he will be persecuted and in which section 243(h) withholding

has nevertheless been denied in the exercise of administrative
discretion. We are fortified in this view by the statement of the
Service's Appellate Trial Attorney in his brief before us (at page
14).20 It is highly probable that in referring to the Attorney
General's "broad discretion" under section 243(h), the cases contemplate the manner in which the Attorney General arrives at his
opinion and the limited scope of judicial review, rather than the
eligibility-discretion dichotomy. Thus, in an early and much-cited
case arising under that section, U.S. ex rel. Dolenz v. Shaughnessy,
206 F.2d 392, 395 (C.A. 2, 1958) the court stated:
... That section modified the language of the former statute in a manner
which shows clearly, we think, that the withholding of deportation in cases
where the alien fears persecution rests wholly in the administrative judgment
and "opinion" of the Attorney General or his delegate. The courts may not
substitute their judgment for his. Doubtless a court might intervene to stay
deportation, if the Attorney General or his delegate should deny the alien any
opportunity to present evidence on the subject of persecution or should refuse
to consider the evidence presented by the alien. But we see nothing in the
statute to suggest that the courts may insist that the Attorney General's
20 "In actual practice there has been no case under section 243(h) in which it
has been held that the Attorney General's discretion dictated the deportation of
an alien to a country where there was a well-founded reason to believe that he
would be persecuted. If such a contingency were to arise, it is inconceivable that
it could arise in any thing other than the context permitted under paragraph 2 of
Article 33, namely, national security or danger to the community."

322

Interim Decision #2192
opinion be based solely on evidence which is disclosed to the alien. In his
official capacity the Attorney General has access to confidential information
derived from the State Department or other intelligence services of the
Government which may be of great assistance to him in making his decision as
to the likelihood of physical persecution of the alien in the country to which he
is to be deported. We believe Congress intended the Attorney General to use
whatever information he has. To preclude his use of confidential information
unless he is willing to disclose it to the alien would defeat this purpose.

Moreover, the very nature of the decision he must make concerning what the
foreign country is likely to do is a political issue into which the courts should
not intrude ...

While some of the cases have referred to the separate eligibilitydiscretion elements in a section 243(h) context, this seems to have
been done largely in relation to the scope of judicial review. 21 In
none was a denial of relief sustained as a valid exercise of
discretion, in the face of a finding that the alien would probably be
persecuted 22 One commentator has recently appraised the situation thus:m
... Some authorities have suggested that there is a distinction between
determining whether -persecution is probable and in determining whether to
exercise discretion to withhold deportation, if the probability of persecution is
established. However, this attempted severance seems untenable since it is
inconceivable that the Attorney General would direct or that a court would
uphold deportation to a place where persecution can be anticipated. The
sounder approach is to regard the entire determination as a discretionary
assessment of the likelihood of persecution, subject to the normal criteria of
judicial review.

In any event, Article 33 can produce no meaningful change in
the way section 243(h) has been applied. Thus far, relief thereunder has never been denied to an alien who has established that he
will probably be persecuted. If a ease should arise in which the
alien refugee is found to be a security risk or a danger to the
community because convicted of a particularly serious crime, the
second paragraph of Article 33 specifically permits deportation.
In summary, we conclude that Article 33 has effected no substantial changes in the application of section 243(h), either by way
of burden of proof, coverage, or manner of arriving at decisions.
21 Khalil v. District Director, 457 F.2d 1276, fn. 4 (9.A. 9, 1972); Shinthani v.
INS, 435 F.2d 1378 (CA. 8, 1971), cert. den., 403 U.S. 920; Hamad v. INS, 420 F.2d

645 (D.C. Cir., 1969); Hosseinmardi v. INS, 405 P. 2d 25 (C.A. 9,1969); Kasravi v.
INS, 400 F.2d 675 (CA. 9,1968); cf. U :S. ex rel. Hardie v.Esperdy, 386 F.2d 232 (CA.
2, 1967), cert. den., 392 U.S. 935.
" We regard as dictum our intimation in Matter of Liao, 11 I. & N. Dec. 113, 119
(BIA, 1965) that section 243(h) withholding could be denied in the exercise of
discretion on the basis of factors other than those related to the persecution
claim. After reviewing the record, we rejected the persecution claim as not
established by the evidence.
23
1 Gordon & Rosenfield, Immigration Law and Procedure 5-124 (1972 Supp.).
-

323

Interim Decision #2192
Since it appears that England will no longer receive the respondent, the question whether he will be persecuted in Hungary must
be faced. We turn, then, to appraise the immigration judge's
decision on the record in this case.
The evidence has been set forth in detail in the immigration
judge's painstaking opinion and need not be repeated at length.
The respondent left Hungary at the age of 15 during the 1956
uprising. His parents, considered members of the capitalist class,
had had their lands and their home in Budapest confiscated in the
post -World War II Communist take - over. His father had to work at
repairing street cars and his mother, who had never worked
before, had to work as a locker lady in a bathhouse. Respondent
was barred from entering college for the ostensible reason that his
high school record was inadequate, but he suspects the real reason
is that his parents were considered capitalists. After some time in
refugee camps in Austria and Germany, respondent had settled in
England, where he lived continuously until his arrival here in 1966
as a visitor. After respondent had left Hungary, his father had
disappeared for five or six months, but he is now living and
working in Hungary. Regpondent's persecution claim is based on
his assertion, supported by some evidence, that he will face
criminal prosecution in Hungary for having departed illegally. He
also feared that his long sojourn in Western Europe and the
United States would lead the Communists to consider him a threat
as one who might spread Western propaganda. The immigration
judge concluded that there was no reason to believe that the
penalty imposed for illegal departure would be so severe as to be
considered persecution. The other fears respondent had expressed
were dismissed as conjectural. The State Department, in response
to a -Service report, stated that it had no information concerning
respondent other than that supplied by the Service and concluded
that it was "unable to express the opinion" that respondent
"would be subject to persecution should he return to Hungary."
On this record, the immigration judge found that respondent
had failed to establish the likelihood that he would be persecuted
in Hungary because of his race, religion or political opinion. We
agree with that conclusion. Even if we apply the nomenclature of
Articles 1 and 33, we are satisfied that respondent has failed to
show a well-founded fear that his life or freedom will be threatened in Hungary on account of his race, religion, nationality,
membership of a particular social group or political opinion.
The conclusion we have reached would ordinarily lead us to
diSmiss the appeal. However, during the pendency of this appeal
the State Department's Office of Refugee and Migration Affairs
has expressed an interest and has submitted additional materials.
324

Interim Decision #2I92
Since these were not available to either counsel for respondent or
the Service, we have not considered them in arriving at our
decision. We shall, however, remand the case to the immigration
judge in order that they may be made part of the record and to
permit such further proceedings as may be appropriate in the light
of the new material.
ORDER: The record is remanded to the immigration judge for
further proceedings not inconsistent with this opinion.

325


Interim Decision #2673

MATTER OP RIME

In Deportation Proceedings
A-22332670

Decided by Board October 16, 1978
(1) The respondent, an ordained Minister of Music in the Korean Mission Church, has not
established that she qualifies for "special immigrant" status as a minister under section
101(a)(27)(C) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27J(C), since her
training, experience and duties lie primarily in the field of music rather than theology.
Ordination by a recognized religious organization is not conclusive as to iv-ho qualifies as
a minister for purposes of the Act.
(2) Although the respondent claims to have authority to officiate at weddings and funerals
and to perform other ministerial functions, she has not in fact been called upon to
perform those duties and, hence, has not established that she has satisfied and additional requirement for classification as a minister under section 101(a)(27)(C), specifically, that the religious denomination has a need for her services as a minister.
(3) The immigration judge and the Board have authority to consider an alien's qualifications for classification as a minister under section 101(a)(21)(C). Matter of Wiesinger,
Interim Decision 2642 (BIA 1978), distinguished.
CHARGE:
Order. Act of 1952--Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Nonimthisrant visitor—
remained longer than permitted
ON BEHALF OF RESPONDENT:
Eddie Yoon, Esquire
6225 North 35th
Tacoma, Washington 98407

ON BEHALF OF SEMI/Tent

Kendall B. Warren'
Trial Attorney

BY: Milhollan, Chairman; Maniatis, Maguire, and Farb, Board Members

In a decision dated March 24, 1978, an immigration judge found the
respondent deportable as charged, denied her application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, and granted her the privilege of voluntary
departure in lieu of deportation. The respondent has appeaLed from that
decision. The appeal will be dismissed.
The record relates to a 42-year-old widowed female alien, a native and
citizen of Korea, who was admitted to the United State% on July 18,
1977, as a nonimmigrant visitor. She has remained beyond the au-

607

Interim Decision #2673
founded. First, we find that the respondent has not established that she
is a minister. Although she was ordained, her ordination was based on
her music training and not on any theological training or education (Tr.
pp. 22, 25, 30). See Matter of Bisulca, 10 I. Ra N. Dec. 712 (R.C. 1963).
Although she claims to have authority to officiate at weddings and
funerals and can assume preaching and visitation functions at the church

(Tr. pp. 11, 27), duties which she has not been called upon to perform, it
appears that her primary duties with the congregation relate to music.
Her regular duties, in fact, appear to be similar to those of a cantor, and
as noted above, a cantor is specifically excluded by 22 C.F.R. 42.25(b)
from qualifying as a "minister".
The respondent argues that the fact that she is recognized as an
ordained minister by a recognized religious organization should be the
end of the inquiry and cannot be challenged. We do not agree that the
issuance of a piece of paper entitled "certification of ordination" by a
religious organization should be conclusive as to who qualifies as a
minister for immigration purposes. Otherwise, Congressional policy in
the field of immigration could be readily circumvented by accommodating religious organizations. Inasmuch as Congress did not define the
term "minister", we shall look to the ordinary usage of the term.
Webster's New International Dictionary, 2nd Edition, G & C Merriam
Co., Publishers, 1961, defines a minister as "One, usually a priest, who
officiates, as at an altar, or administers, as sacraments." The functions

of a Minister of Music in the Korean Mission Church are not primarily
those of a minister, as that term is used in the everyday sense. Rather,
the duties relate primarily to directing the music program of the church.
"While such persons may be denoted "ministers" by some religious
groups, the Act, we find, employs the term in reference to ministers of
theology.
second, the respondent has not established that she is needed as a
minister. While her services as a music director appear to be needed,
she has not been called upon to perform the duties usually carried out by
a regularly ordained pastor or clergyman because the size of the congregation is such that those needs can be served by the other two ministers

at the church.
, Third, the respondent does not have the required two continuous
Years of experience, immediately preceding the filing of her application,
carrying on the vocation of minister. Even if we were to assume that
her experience with the Korean Mission Church could be counted, that
xi:le.rience is insufficient, for she has been associated with the church
only since August 1977. The respondent contends that the time she
spent as a choir director in Seoul, Korea, from April 1975 to February
1 976 or 1977 should be tacked on her months of experience with the
Korean Mission Church to satisfy the two-year period. She maintains

610

Interim Decision #2673
that since her duties in Korea were comparable to those of a Minister of
Music, she was in fact performing ministerial duties in Korea even
though she had not yet been ordained. In view of our finding that the
respondent's duties in the United States following her ordination do not
qualify as ministerial duties, we are unable to conclude that her duties in
Korea as a choir director so qualify.
The respondent also claims that the hearing was unfair because of the
nature of the questioning by the immigration judge. She complains that
he lacked impartiality and took on a prosecutorial function- From our
review of the record we find the immigration judge's questioning to have
been within proper judicial bounds.
The respondent prays that if we dismiss her appeal, we afford her the
opportunity to apply for third preference status. The respondent does
not require our leave to apply for third preference status or for any
other relief for which she may be eligible.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

611


Interim Decision #1782

MATTER

or

SAIIELLAIIIDE8

In Visa Petition Proceedings
A-12284847
Decided by District Director May 8, 1967
Wbere beneficiary was awarded a diploma in aircraft maintenance engineering
technology but evidence of record reveals that snob a diploma does not qualify

the recipient thereof for recognition as a professional engineer and that the
credits earned are not acceptable for postgraduate work in engineering, be is
not a member of the professions within the meaning of section 101(a) (32) of
the Immigration and Nationality Act, as amended, and, therefore, ineligible
for preference classification under section 203(a) (3) of the Act as an aircraft
maintenance engineer.

Discussion: The petition seeks to classify the beneficiary as a
preference immigrant under section 203 (a.) (3) of the Immigration
and Nationality Act, as amended, based upon his qualifications as an
aircraft maintenance engineer.
The beneficiary is a 41-year-old native and citizen of Greece, presently residing in Cardena, California. He was graduated on March 27,
1861 from the Northrop Institute of Technology, Inglewood, California with a diploma in aircraft maintenance engineering technology.

Since February 5, 1965 he has been employed by Magnetics. Inc.,
Venice, California in its production and manufacturing control de-

partment. His present duties include the control and issuance of
material to its manufacturing department.
Section 203(a) (3) of the Immigration and Nationality Act, as
amended, provides for the availability of visas to qualified immigrants who are members of the profession, or who because of their
exceptional ability in the sciences or the arts will substantially benefit
prospectively the national economy, cultural interests, or welfare of
the United States.
Section 101(a) (32) of the Immigration and Nationality Act, as
amended, defines the term "profession" as including but not being
limited to architects, engineers, lawyers, physicians, surgeons, and
teachers in elementary or secondary schools, colleges, academies, or
seminaries.
416

Interim Decision #1782
Although the above definition is intended to serve only as a guide,
examination of the occupations listed indicates a characteristic common to all. Recognition of professional status in these fields normally
requires the attainment of at least a baccalaureate degree or the equivalent in specialized experience. The attainment of such a degree, however, does not in all instances accord such recognition. First, the
knowledge acquired must be a realistic prerequisite for entry into that
field and secondly, the degree obtained must not be so avocational in
nature that it does not provide the recipient with a background which
can be accepted as a realistic qualification for that field.*
According to Mr. K. L. Strite, Dean of Engineering, Northrup
Institute of Technology, the Institute offers both the diploma course
in aircraft maintenance engineering technology and a bachelor of science degree in aircraft maintenance engineering. He clarified, however, that neither of these courses qualify the recipient for recognition
as a professional engineer and that the credits earned in these courses
would not be acceptable for post graduate work in engineering. Dean
Strite stated that the diploma course is about two thirds of the bachelor of science degree course.
-

Inquiry at the University of California, Los Angeles, has confirmed

that the recipient of such degree would' not be admitted to postgraduate study at that institution, and inquiry to the Board of Registration
for Civil and Professional Engineers of the State of California elicited
the following response: "The Board does not register engineers in
the branch of aircraft maintenance engineering. The holder of a bachelor of science degree in aircraft maintenance engineering could presumably qualify for registration as a mechanical engineer when he
meets the other requirements for registration. These requirements
would include passing the engineering fundamentals examination, two
years of acceptable mechanical engineering experience after the fundamentals exam, and then passing the professional examination."
It is concluded, then, that the attainment of a degree in aircraft
maintenance engineering does not provide the recipient with a background which can be accepted as a realistic qualification for a professional engineer and, accordingly, the beneficiary is not found
eligible for preference classification as a member of the professions.
ORDER: It is ordered that the petition to classify the status of
Nicholas Paraskevas Sakellarides as a preference quota immigrant
under section. 203(a) (3) of the Immigration and Nationality Act, as
amended, be and is hereby denied.
*Matter of Asuncion, Int. Dec. No. 1600.

417


Interim Decision #1862

' MATTER OF Ka
In Visa Petition Proceedings
. A 12920131
-

Decided by District Director September 19, 1966
Since. beneficiary, who has a master of science degree in mathematics, is a
quannea mathematician and as such Is a member of *ha professions within
the meaning of section 101(a) (32) of the Immigration and Nationality Act,
as amended by Public Law 89-236, be is eligible for preference classification
as a mathematician under section 203(a) (3) of the Act, as amended.

Discussion:. The petition was filed to accord the beneficiary third
preference classification as a member of the professions based upon
his qualifications as a mathematician.
The petitioner is a thirty-two-year-old married male, a native and
citizen of China. On September 2, 1966, he filed a petition to
classify himself as a member of the professions, entitled to preference under section 203(a) (3) of the Immigration and Nationality
Act, as amended, which provides for immigrant visas to be made
available "to qualified immigrants who are members of the professions, or who, because of their exceptional ability in the mimeos
or the arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the United States." The beneficiary was awarded a bachelor of science degree in mathematics
by Taiwan Normal University, Taipei, Taiwan, in July 1960 and
a master of science degree in mathematics by Tulane University,
New Orleans, Louisiana, in May 1961. He was employed as a research•assistant in mathematics from July 19, 1960 to September 1,
1962 by the Institute of Mathematics, Taipei, Taiwan. He has been
engaged. as a teaching assistant in mathematics by Wane University since September 1962. The beneficiary is presently a candidate
for a doctor of philosophy degree in mathematics at Tulane University and intends to engage in his profession in the United States
ns

a mathematician.

876 -

Interim Decision 40662
The occupation of mathematician falls within the category of vocations for which the Department of Labor has issued a blanket
certification pursuant to 29 OFR Part 60.2.. The blanket certification is to the effect that persons whose 'education or experience ie
equivalent to the baccalaureate degree conferred by accreditell.
United States colleges and universities in certain listed specialties,.
one of which is mathematics, are considered to be engaged in an
occupation for which there are not sufficient qualified persons avail- _
able in the United Stites and that the employment of such qualified
persons will not adversely affect the wages and working conditions
of workers in the United States similarly employed.

Section 101(0'(32) of the Act, as amended, provides that: "The
term 'profession' shall include but not be limited to architects, en- .
gineers, lawyers, physicians, and teachers in elementary or secondary schools, colleges, academies, or seminaries."
The beneficiary's vocation, that of mathematician, is not specifically named in section 10I(a) (82) of the Act as a profession. However, the Dictionary of Occupational Titles. 1966, Tolunle If, Third
Edition, published by the United States Department of Labor,
places mathematicians, Co!,-le 020.088, within the mathematics, phy4cal sciences, and related. research group of occupations and indicates,
at page 468, that "a bachelor's degree in the appropriate subject
matter, such as mathematics, astronomy, and geography, is the minimum educational requirement for entrance into this type of work.
For the more responsible research positions an advanced degree is
necessary. A Ph.D. is usually essential for entrance into astronomy.
Workers in pure mathematics seldom require training in a particular
field, but those in applied mathematics must acquire knowledge of
the field in which mathematics.% used."

The high degree of education required for entry into the field of
mathematics is compaiable to the degree of education required for
the specific professions named. in section 101(a)(82), aupra. Accordingly, it is. concluded that the applicant as as mathematician IS a
qualified member of the professions.

ORDER: It is ordered that the petition be approved 'ma the
beneficiary accorded third preference under section 203(a) (8) of
the Immigration and Nationality Act, as amended.

. 8'17


Interim Decision #1250

MATTER OP ESPINOSA

In DEPORTATION Proceedings
A-11078954

Decided by Board August 16, 1962
Respondent, who was Indicted for abetting a nonimmigrant visitor "to make
a false and fraudulent statement" in an application for an extension of stay,
and who was convicted of an offense defined by the third part of 18 U.S.C. 1001.
which relates to the making or use of a false writing knowing it to contain any
false, fictitious or fraudulent statement, has not been convicted of a crime
that involves moral turpitude.
OaAaGE:

Order : Act of 1952—Seetion 241 (a) (4) [8 U.S.C. 1251 (a) (4)3—Convicted of
crime involving moral turpitude committed within fire years after
entry and sentenced for a year or more ; 18 U.S.C. 2 and 1001.

This is an appeal by the Service from the order of the special inquiry
officer terminating proceedings. The respondent, a 34-year-old male,
a native and citizen of Cuba, last entered the United States in January 1960 after a temporary visit abroad. He had been admitted for
permanent residence on December 20, 1957. On April 21, 1961, he
was convicted on a riles, of guilty under 18 U.S.C. sections 2 and 1001
and given a suspended sentence of a. year. Deportation proceedings
were brought on the theory that respondent had been convicted of a,
crime involving moral turpitude committed within five years after
his entry for which he had been sentenced to confinement for a year.
The special inquiry officer terminated proceedings on the ground that
the record did not establish that respondent's conviction was for a
crime involving moral turpitude.
Respondent was indicted for abetting a nonimmigrant visitor "to
make a false and fraudulent statement" in an application for an extension of stay. Respondent was convicted "as charged."
We need not concern ourselves with the effect of section 2 of Title 18
of United States Code which defines "principal". The issues are (1)

under what clause of section 1001 was respondent convicted, and (2)
whether the portion under which conviction occurred involves moral
98

Interim Decision #1250
turpitude. Section 1001 of 18 U.S.C. consists of three parts. In
substance, a crime is created in. the first part by the misrepresentation
of a. material fact by scheme, in. the second part by the making of "any
false, fictitious or fraudulent statements", and in the third part by the
use of a false writing knowing it to contain "any false, fictitious or
fraudulent statement".

The special inquiry officer held that respondent had been convicted
under the third part. He terminated proceedings following a precedent which held that a conviction under the third part does not involve
moral turpitude because of the conflict in the various circuits as to
8 I. & N. Dee. 315).
whether materiality is required (Matter of
The Service contends that the conviction was under the second clause
and that since the indictment to which the respondent pled guilty
charged him with the making of a false and fraudulent statement,
respondent must be deemed to have been convicted for making a
fraudulent statement. The Service urges that since fraud is involved,
the crime must be held one which involves moral turpitude. The special inquiry officer was of the belief that even if the conviction had
been under the second part of section 1001, moral turpitude would not
be involved because the same words being used to spell out the crime
in the second and third clauses there still would remain a doubt as to
whether materiality is involved. Counsel's defense is based on the
belief that respondent committed the crime without any desire to
violate the law. He expresses his belief that the violation of law
occurred when the respondent, in an act of charity, suggested to a
friend that she give a Philadelphia address on an application for an
extension of stay, rather than a. New York address, so that she could
obtain a three-month extension instead of one-month extension, thus
avoiding the necessity of making repeated applications. The examining officer takes issue with this view of the motivation behind respondent's conduct (p. 11) .
Whether or not respondent was convicted on the basis of the facts
alleged by counsel, the possibility of his conviction under such circumstances is apparent ; it raises considerable question as to whether violation of such a law should be held to involve moral turpitude. However, we need not decide the issue on this basis. We agree with the
special inquiry officer that the conviction was under the third clause
which concerns the making or use of a document containing a misrepresentation and that such a conviction cannot at the present serve
as the basis for deportation. Even if we are wrong in this thesis, and
the crime consists of a violation of the second clause of section 1001
which concerns the making of false statements without reference to
writings, it seems to us that a question as to materiality would still

exist. Besides, the simple answer lies in the fact that the record does
99

Interim Decision #1250
not establish that there was a conviction for fraud rather than for false
misrepresentation. The second clause of 18 U.S.O. 1001 lists the commission of several note which can constitute the crime. These acts
are set forth in the disjunctive. Thus, it is a crime to make a false
writing knowing it to contain a "false, fictitious or fraudulent statement" (emphasis supplied). In an indictment the elements of the
crime can be set forth in the conjunctive; however, a defendant can be
found guilty upon proof of the commission of any one of the acts
charged (United States v. Wells, 180 F. Supp. 707 (Del. 1959) ).
Under such circumstances, there is a question as to whether the conviction was based upon the existence of one element rather than another.
We cannot assume that the respondent pleaded guilty to fraudulent
conduct rather than false conduct. Since the burden is upon. the Service, we must take the case in the light most favorable to the respondent

and assume that the plea of guilty concerned a false rather than a
fraudulent statement (Matter of B-111—, 61. & W. Dec. 806; Matter of
B—, 4 I. & N. Dec- 444, 448-451; Matter of B—, 4 I. & N. Dec. 493, 496) .
The appeal of the examining officer will be dismissed.
The Service also points out that the Board has held that an impairing of Government functions can constitute fraud. The conviction in
the instant case was not for the impairing of Governmental functions,
but for violation of a law which this Board has held, cannot be said to
involve moral turpitude.
ORDER: It is ordered that the appeal of the examining officer be
and the same is hereby dismissed.

100


Cite as 26 I&N Dec. 686 (A.G. 2015)

Interim Decision #3852

Matter of Martin CHAIREZ-Castrejon, Respondent
Matter of Vera SAMA, Respondent
Decided by Attorney General October 30, 2015
U.S. Department of Justice
Office of the Attorney General
The Attorney General referred the decisions of the Board of Immigration Appeals to
herself for review of an issue relating to the application of Descamps v. United States,
133 S. Ct. 2276 (2013), ordering that those cases be stayed and not be regarded as
precedential or binding as to the issue under review during the pendency of her review.

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(l)(i) (2015), I direct the Board of
Immigration Appeals (“Board”) to refer to me the above-captioned cases
for review of its decisions. The Board’s decisions in these matters are
automatically stayed pending my review. See Matter of Haddam, A.G.
Order No. 2380-2001 (Jan. 19, 2001). During the pendency of my review,
the Board’s decisions, or portions thereof, that address the question set out
below shall not be regarded as precedential or binding by Immigration
Judges or the Board. To assist me in my review, I invite the parties to these
proceedings and interested amici to submit briefs addressing the following
issue:
What is the proper approach for determining “divisibility” within the meaning of
Descamps v. United States, 133 S. Ct. 2276 (2013)? In particular, does Descamps
require that a criminal statute be treated as “divisible” for purposes of the modified
categorical approach only if, under applicable law, jurors must be unanimous as to
the version of the offense committed?

The parties’ briefs shall not exceed 15,000 words and shall be filed on
or before December 7, 2015. The parties may submit reply briefs not
exceeding 6,000 words on or before January 8, 2016. Interested amici may
submit briefs not exceeding 9,000 words on or before December 14, 2015.
No amicus may file more than one brief in connection with the two cases
I have directed the Board to refer to me today. All filings shall be
accompanied by proof of service and shall be submitted electronically to
AGCertification@usdoj.gov, and in triplicate to:

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United States Department of Justice
950 Pennsylvania Avenue, NW
Office of the Attorney General, Room 5114
Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or
before the pertinent deadlines. Requests for extensions are disfavored.

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Interim Decision #3862

Matter of Eva Isabel GONZALEZ ROMO, Respondent
Decided May 19, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a
returning lawful permanent resident who has a felony conviction for solicitation to
possess marijuana for sale is inadmissible under section 212(a)(2)(A)(i)(I) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), even though that
section refers only to attempt and conspiracy to commit a crime involving moral
turpitude, and is therefore properly considered to be an arriving alien under section
101(a)(13)(C)(v) of the Act, 8 U.S.C. § 1101(a)(13)(C)(v) (2012). Matter of Vo, 25 I&N
Dec. 426 (BIA 2011), clarified.
FOR RESPONDENT: Benjamin H. Harville, Esquire, Florence, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Ryan J. Goldstein, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY and GUENDELSBERGER, Board Members;
GELLER, Temporary Board Member.
PAULEY, Board Member:

In a decision dated September 29, 2015, an Immigration Judge
determined that the respondent is inadmissible and ineligible for relief from
removal and ordered her removed from the United States. The respondent
has appealed from that decision. The appeal will be dismissed. The
respondent’s fee waiver request is granted pursuant to 8 C.F.R.
§ 1003.8(a)(3) (2016).
The respondent is a native and citizen of Mexico who became a lawful
permanent resident of the United States on November 18, 1999. She was
convicted on March 12, 2010, of solicitation to possess marijuana for sale,
which is a class 4 felony under sections 13-1002 and 13-3405(A)(2) of the
Arizona Revised Statutes. The respondent was detained and paroled into
the United States when she attempted to reenter as a lawful permanent
resident on May 3, 2014.
The Department of Homeland Security (“DHS”) initiated removal
proceedings against the respondent, charging that she is an arriving alien
who is inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), as an alien
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Interim Decision #3862

convicted of a crime involving moral turpitude, and under section
212(a)(2)(C)(i) of the Act, as an alien who the Attorney General knows or
has reason to believe is an illicit trafficker in a controlled substance. The
Immigration Judge found that the respondent’s conviction was for a crime
involving moral turpitude and that the conviction provided a reason to
believe that she was a controlled substance trafficker. Accordingly, the
Immigration Judge determined that the respondent is inadmissible as
charged. She further denied the respondent’s requests for relief from
removal.
On appeal, the respondent argues that she was not properly placed in
removal proceedings as an “arriving alien.” She contends that because she
is a returning lawful permanent resident, to charge her with inadmissibility
as an arriving alien under section 212(a) of the Act, the DHS must establish
that she is seeking admission. See Matter of Rivens, 25 I&N Dec. 623,
624−27 (BIA 2011). The respondent can only be regarded as seeking
admission if she falls within one of the exceptions in section 101(a)(13)(C)
of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). 1 See Matter of Pena, 26 I&N
Dec. 613, 615 (BIA 2015).
According to the respondent, the only possible exception that may be
applicable is section 101(a)(13)(C)(v), namely, that she “has committed an
offense identified in section 212(a)(2).” Although the DHS has charged
that the respondent is inadmissible under section 212(a)(2)(A)(i)(I) of the
Act because she was convicted of a crime involving moral turpitude, she
asserts that the offense of solicitation to possess marijuana for sale is not
such a crime under the law of the United States Court of Appeals for the
1

Section 101(a)(13)(C) of the Act provides:
An alien lawfully admitted for permanent residence in the United States shall not
be regarded as seeking an admission into the United States for purposes of the
immigration laws unless the alien—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of
180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking
removal of the alien from the United States, including removal proceedings under
the Act and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2), unless since such
offense the alien has been granted relief under section 212(h) or 240A(a), or
(vi) is attempting to enter at a time or place other than as designated by
immigration officers or has not been admitted to the United States after
inspection and authorization by an immigration officer.

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Ninth Circuit, in whose jurisdiction this case arises. 2 The principal issue
before us, therefore, is whether a felony conviction for solicitation to
possess marijuana for sale is a conviction for a crime involving moral
turpitude under section 212(a)(2)(A)(i)(I) of the Act. We review this
question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016).
In support of her conclusion that the respondent is inadmissible under
section 212(a)(2)(A)(i)(I) of the Act as an alien convicted of a crime
involving moral turpitude, the Immigration Judge relied on the Ninth
Circuit’s decision in Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir.
2007). In that case, the court held that the petitioner’s felony conviction for
solicitation to possess at least 4 pounds of marijuana for sale in violation of
sections 13-1002(A) and 13-3405(A)(2) of the Arizona Revised Statutes
was a conviction for a crime involving moral turpitude for purposes of
deportability under section 237(a)(2)(A)(i) of the Act, 8 U.S.C.
§ 1227(a)(2)(A)(i) (2006). Id. at 904.
In Barragan-Lopez, the Ninth Circuit first rejected the petitioner’s
assertion that his solicitation offense should be viewed as separate from the
underlying drug possession crime, stating that he was not convicted of
solicitation of unspecified criminal conduct but, instead, of soliciting the
possession of a significant amount of marijuana. The court noted that it has
previously looked to the underlying offense in determining whether
inchoate crimes, such as solicitation, constitute crimes involving moral
turpitude. Id. at 903 (citing Goldeshtein v. INS, 8 F.3d 645, 647 n.6 (9th
Cir. 1993), and McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980)).
Stating that “[d]rug trafficking offenses, including possession of unlawful
substances for sale, generally involve moral turpitude,” the court
emphasized that by pleading guilty to solicitation to possess marijuana for
sale, the petitioner had admitted his specific intent to promote or facilitate
the commission of a crime involving moral turpitude under Arizona law.
Id. at 903−04 (citing Atl. Richfield Co. v. Guerami, 820 F.2d 280, 282 (9th
Cir. 1987), and United States ex rel. DeLuca v. O’Rourke, 213 F.2d 759,
762 (8th Cir. 1954) (stating that “there can be nothing more depraved or
2

The respondent also argues that she cannot be considered to have “committed an
offense identified in section 212(a)(2)” of the Act on the basis of the section
212(a)(2)(C)(i) charge. Relying on a statement of the Supreme Court in Vartelas
v. Holder, 132 S. Ct. 1479, 1492 n.11 (2012), she asserts that a conviction or an
admission to an offense is required in order to be an arriving alien under section
101(a)(13)(C)(v). Although we acknowledge that no conviction is required to sustain a
charge under section 212(a)(2)(C)(i), in light of our disposition in this case, we need not
determine whether the Supreme Court’s Vartelas requirement is met where such a charge
is, in fact, supported by a conviction.

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morally indefensible than conscious participation in the illicit drug
traffic”)).
The court also rejected the petitioner’s reliance on Coronado-Durazo
v. INS, 123 F.3d 1322 (9th Cir. 1997), and Leyva-Licea v. INS, 187 F.3d
1147 (9th Cir. 1999), finding that those cases were distinguishable.
Barragan-Lopez, 508 F.3d at 904−05. In Coronado-Durazo, the Ninth
Circuit found that a conviction under Arizona’s solicitation statute was not
a deportable offense under former section 241(a)(2)(B)(i) of the Act,
8 U.S.C. § 1251(a)(2)(B)(i) (1994), as a conviction for a crime “relating to
a controlled substance” because the deportation statute included conspiracy
and attempt, but not solicitation. Similarly, in Leyva-Licea, 187 F.3d at
1150, the court concluded that solicitation to possess marijuana for sale
under Arizona law was not an aggravated felony under section
101(a)(43)(B) of the Act because the “Controlled Substances Act does . . .
cover attempt and conspiracy,” but “it does not list solicitation.” In
addition to noting that the statutes at issue were different in those cases, the
court stated, “In neither case were we asked to determine whether
solicitation to possess more than four pounds of marijuana for sale is a
crime involving moral turpitude under [section 237(a)(2)(A)(i) of the Act].”
Barragan-Lopez, 508 F.3d at 904−05.
We have long held that evil intent is inherent in the illegal distribution
of drugs and that “participation in illicit drug trafficking is a crime
involving moral turpitude.” Matter of Khourn, 21 I&N Dec. 1041,
1046−47 (BIA 1997). Furthermore, it is well established that for
immigration purposes, with respect to moral turpitude, there is no
meaningful distinction between an inchoate offense and the completed
crime. Matter of Vo, 25 I&N Dec. 426, 428 (BIA 2011); see also Rohit
v. Holder, 670 F.3d 1085, 1089−90 (9th Cir. 2012) (holding that solicitation
of prostitution is a crime involving moral turpitude). It is therefore
appropriate to look at the substantive crimes to determine whether inchoate
offenses, such as attempt, conspiracy, accessory before the fact,
facilitation, or solicitation, constitute crimes involving moral turpitude.
Barragan-Lopez, 508 F.3d at 903; Matter of Vo, 25 I&N Dec. at 428
(collecting cases); cf. Matter of Beltran, 20 I&N Dec. 521, 526 (BIA 1992)
(stating that inchoate or preparatory offenses have been found to be crimes
“relating to” a controlled substance “when the underlying substantive crime
involves a drug offense”).
We agree with the Ninth Circuit’s conclusion in Barragan-Lopez that
solicitation to possess marijuana for sale is a crime involving moral
turpitude. See also Morrison v. Holder, 580 F. App’x 622 (9th Cir. 2014)
(holding that a conviction for solicitation to possess marijuana for sale
under sections 13-1002 and 13-3405 of the Arizona Revised Statutes
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categorically constitutes a conviction for a crime involving moral
turpitude); Landero-Guzman v. Holder, 344 F. App’x 454, 456 (9th Cir.
2009) (“Because solicitation of an offense requires the intent that the
substantive offense be committed, solicitation of a drug trafficking offense
is also a [crime involving moral turpitude].”); cf. Sanchez-Resendez
v. Lynch, 608 F. App’x 537 (9th Cir. 2015) (holding that facilitation of the
unlawful transportation of marijuana for sale is a crime involving moral
turpitude).
However, the respondent argues that under Ninth Circuit law, she is not
inadmissible under section 212(a)(2)(A)(i)(I) of the Act because, unlike the
deportability ground at section 237(a)(2)(A)(i) that the court addressed in
Barragan-Lopez, the inadmissibility ground expressly references attempt
and conspiracy offenses. She therefore asserts that under the reasoning in
Coronado-Durazo and Leyva-Licea, solicitation offenses are necessarily
excluded from section 212(a)(2)(A)(i)(I).
We have previously concluded that a statute’s inclusion of some generic
offenses, such as attempt or conspiracy, does not indicate Congress’ intent
to exclude other generic crimes like solicitation from the statute’s reach.
See Matter of Vo, 25 I&N Dec. at 429−30 (stating that that we could not
“reasonably conclude that Congress’ express inclusion of attempt offenses
in other sections of the Act was actually an intentional exclusion of them
from section 237(a)(2)(A)”); Matter of Beltran, 20 I&N Dec. at 526 n.12
(noting that “efforts to draw an implication regarding the absence of a
specific crime in the statute from Congress’ inclusion of another have been
rejected”). In Matter of Zorilla-Vidal, 24 I&N Dec. 768 (BIA 2009), we
disagreed with the Ninth Circuit’s contrary position in Coronado-Durazo
and reaffirmed our decision in Matter of Beltran, which had been upheld by
the Second and Fifth Circuits. Mizrahi v. Gonzales, 492 F.3d 156, 174 (2d
Cir. 2007) (stating that “Beltran reasonably concluded that Congress’s
explicit reference to certain inchoate offenses as grounds for deportation
did not indicate its intent to exclude others not so referenced”); Peters
v. Ashcroft, 383 F.3d 302, 308 (5th Cir. 2004) (finding that the Board was
“eminently reasonable” in Beltran in holding that “the statutory references
to conspiracy and attempt are illustrative without being exclusive”).
We are not persuaded by the respondent’s arguments that we should
now follow the Ninth Circuit’s decisions in Coronado-Durazo and
Leyva-Licea. As the court stated in Barragan-Lopez, those cases are
distinguishable because they did not address the question whether
solicitation to possess marijuana for sale is a crime involving moral
turpitude. Barragan-Lopez, 508 F.3d at 904−05. Furthermore, the court
has never held that an inchoate offense other than attempt or conspiracy
cannot qualify as a crime involving moral turpitude under section
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212(a)(2)(A)(i)(I) of the Act. Moreover, the Ninth Circuit has made clear
in Barragan-Lopez and subsequent cases that where an underlying offense
is a crime involving moral turpitude, so too are the crimes of solicitation or
facilitation to commit that offense. See Sanchez-Resendez, 608 F. App’x
537; Morrison, 580 F. App’x 622; Landero-Guzman, 344 F. App’x 454.
In this regard, we note that we included a footnote in Matter of Vo,
25 I&N Dec. at 429 n.4, stating the following: “In effect, the Ninth Circuit
has indicated that section 237(a)(2)(A) is broader in its coverage of crimes
involving moral turpitude than section 212(a)(2)(A)(i)(I), because it would
include inchoate offenses, such as solicitation and facilitation, that are not
specifically enumerated in the inadmissibility statute, which lists only
attempts and conspiracies.” This statement was dicta reflecting our
expectation of a position the Ninth Circuit might take in the context of
section 212(a)(2)(A)(i)(I) of the Act. However, this statement does not
reflect our current understanding of the Ninth Circuit’s approach, and we
now withdraw from it.
Finally, we point out that if solicitation to commit a crime involving
moral turpitude is not covered by section 212(a)(2)(A)(i)(I), then many
other clearly turpitudinous offenses outside the controlled substances
context would not render aliens inadmissible. Such offenses, many of
which arguably involve even greater moral depravity than the respondent’s
crime, could include solicitation to commit murder, rape, or arson or to
engage in terrorist activity or human trafficking. We do not find it
reasonable that Congress would have intended such a result.
We therefore agree with the Immigration Judge that the respondent’s
Arizona conviction for solicitation to possess marijuana for sale is a
conviction for a crime involving moral turpitude that establishes her
inadmissibility under section 212(a)(2)(A)(i)(I) of the Act. Consequently,
because the respondent “has committed an offense identified in section
212(a)(2),” she is properly considered an arriving alien under section
101(a)(13)(C)(v).
In her notice of appeal, the respondent presented a general challenge to
the Immigration Judge’s denial of her requests for relief from removal.
However, she has not meaningfully identified, in any manner, what aspects
of the Immigration Judge’s decision are factually or legally erroneous. We
therefore affirm the Immigration Judge’s findings. Accordingly, the
respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

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