Interim Decision #2819

MATTER OF BOWE
In Deportation Proceedings
A-17261914
Decided by Board August 28, 1980; December 17, 1980
and April 23, 1981
(1) In Bowe v. INS, 597 F.2d 1158 (9 Cir. 1979), and Nicholas v. INS, 590 F.2d 802 (9 Cir.

1979), the Ninth Circuit held that relief under section 212(c) of the Immigration and
Nationality Act, 8 U.S.C. 1182(c), was unavailable to aliens who are deportable under
section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11).
(2) Board wag bound by these Ninth Circuit decisions; regarding unavailability of section
212(e) waivers to aliens facing deportation under section 241(a)(11) in the Ninth
Circuit.
(3) Where the Ninth Circuit in Tapia-Acuna v. INS, 640 F.2d 223 (9 Cir. 1981), reverses
Sts prior decisions in Bowe v. INS, supra, and Nicholas, supra, and where the Immigration and Naturalization Service withdraws request for certification of case to Attorney General, Board remands record to enable, respondent to present section 212(c)
application to immigration judge, as such relief is again available in that Circuit
CHARGE:

Order. Act of 1952—See. 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of violation of
law relating to narcotic drugs or marijuana
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Paul W. Schmidt
Deputy General Counsel

Donald L. Ungar, Esquire
517 Washington Street
San Francisco, California 94111

Jim. Tom Haynes
Appellate Trial Attorney

BEFORE THE BOARD
August 28, 1980
BY:

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

The respondent has filed a motion to reopen his deportation proceedings so that he may file an application for a waiver under section 212(e)

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Interim Decision #2819
of the Immigration and Nationality Act, 8 U.S.C. 1182(c), in conjunction with an adjustment of status application under section 245 of the
Act, 8 U.S.C. 1255. The Immigration and Naturalization Service does
not oppose the motion. Nevertheless, the motion will be denied.

Previously, on February 14, 1978, this Board denied the respondent's
212(c) application as a matter of discretion. The United States Court of
Appeals for the Ninth Circuit, on April 23, 1979, affirmed the Board on
the ground that 212(c) relief is unavailable to an alien who is deportable for a drug offense under section 241(a)(11) of the Act, 8 U.S.C.
1251(a)(11). Bowe v. INS, 597 F.2d 1158 (9 Cir. 1979). The respondent
argues that he can obtain the relief now sought, despite the ruling of
the Ninth Circuit, because the 212(c) application previously before the
Board and the Court was not made in conjunction with an adjustment
application.' The Service, in its memorandum supporting the motion,
urges the Board to disregard the Ninth Circuit precedent decisions
cited in Bowe and to adhere to the Board's decision in Matter of Silva,
16 I&N Dee. 26 (BIA 197E). We stated there, following Francis v. INS,
532 F.2d 268 (2 Cir. 197E), that an alien convicted of a crime which
renders him excludable is eligible to apply in deportation proceedings
for the benefits of section 212(c) if he has the requisite lawful unrelinquished domicile, even if he is not an applicant for readmission from

outside the United States, and has not been such an applicant since the
act which rendered him excludable.
We do not accept the Service's suggestion that Matter of Mangabat,
14 I&N Dec. 75 (BIA 1972), Ord, 477 F.2d 108 (9 Cir. 1973), cert. denied,
414 U.S. 841 (1973), allows us to reject Ninth Circuit precedents regarding section 212(e) in the case now before us. In Matter of Mangabat, the
Board declined to apply a Ninth Circuit precedent in a case arising in
that circuit. It was emphasized, however, that the position taken by the
Ninth Circuit on the issue involved there (the availability of section
241(f) relief) had been expressly disapproved by the Attorney General,

and the Solicitor General had challenged the Court's position in a
petition for certiorari filed in the Supreme Court. In the present case,
no representation has been made that the Attorney General agrees
with the Service's position that the Ninth Circuit has erred in its
interpretation of section 212(c), and that he is willing to support a
petition for certiorari to the Supreme Court in an appropriate case.
The fact that the respondent's 212(c) application is now made in
conjunction with a 245 application does not change the fact that in
' The respondent married a United States citizen on December 9, 1977. A visa petition
was filed by the respondent's wife on October 11, 1979, together with the respondent's I485 adjustment application. Also, the respondent recently completed his period of
probation (evidence of rehabilitation relevant to applications for discretionary relief).
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Interim Decision #2819
Bowe, the Court flatly stated that 212(c) relief is unavailable to aliens
facing deportation under section 241(a)(11) for drug offenses. Further-

more, we disagree that we are free to decline to follow the Ninth
Circuit's decision in Bowe, supra, in Bowe's own case. We believe that
the Court's decision in Bowe is, res judicator and binding on this Board.
Although the Court cites in Bowe, id., a series of Ninth Circuit
decisions as if they consistently provided the same legal interpretation, analysis reveals variations which leave us confused. This line of
cases began with Arias-Uribe v. INS, 466 F2d 1198 (9 Cir. 1972). AriasUribe involved an alien who was deportable under section 241(a)(11)
for a narcotics violation, and who sought relief from deportation under
section 212(c). The Court discussed certain Board decisions regarding
the availability of 212(c) relief in deportation proceedings, but distinguished them from the case before it because the aliens in the Board
cases had been excludable at the time they last entered the United
States.' Of these cases, the Court wrote,
The Board held that discretionary relief was available and might be granted to effect a
retroactive waiver of the ground of excludability existing at the time of the subject's
entry and that if such relief was granted, then the basis for his deportation was
entirely eliminated. Petitioner, however, is in a different situation. His deportation is
sought, not because he was excludable at the time he last entered the United States, but
because he was convicted of a narcotics offense of entering the United States. The

Attorney General Is not given

discretion by the Immigration laws to waive or suspend

deportation for narcotics of fenders, nor is he authorized, once proceedings under
f 241(a) are begun, to allow such persons to leave the country voluntarily in lieu of
deportation. See 8 U.S.C. f 1254(a), (e).$ Id. at 1199. (Emphasis added.)

The actual holding in this case is somewhat unclear, especially given
the last sentence in the quoted passage, but we read the decision to
mean that the respondent could not obtain a 212(c) waiver because he
had not departed from the United States since the commission of the
act which rendered him excludable. A tune pro tune waiver of excludability could thus not be used, as it had been in the Board cases
cited. The headnote in Arias-Uribe, id., appear to say that ineligibility
for 212(c) relief arises from the drug related nature of the ground of
deportability, but that is not our understanding of what the decision
The cases distinguished by the Court were Matter of Eng,12I&N Dec. 855 (Mk 1968),
Matter of G—A—, 7 I&N Dec. 274 (BIA 1956), and Matter of S—, 6 I&N Dec. 392 (BIA
1954, A.G. 1955). Matter of Smith, 11 I&N Dec. 325 (BIA 1965) was also mentioned, but
distinguished on other grounds in a footnote. Smith. will be discussed at further length,
infra.
'We note that, contrary to the Court's statement, section 244(a)(2) of the Act, 8 U.S.C.
1254(a)(2) does allow narcotics offenders to obtain suspension of deportation, albeit

under somewhat more limited circumstances than other deportable aliens.
section 244(e) makes voluntary departure more difficult for drug offenders to obtain, but
not impossible. Neither section 244(a) nor (e) mentions waivers of deportability at all.

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Interim Decision #2819
•
itself says. We believe the case is more properly read to stand for the
proposition that 212(c) relief was unavailable because the respondent
had not departed from the United States since the time of his
conviction.
Our interpretation of Arias-Uribe, id., is supported by the next
Ninth Circuit case to address section 212(e), Dunn v. INS, 499 F.2d 856
(9 Cir. 1974), cert. denied, 419 U.S. 1106 (1975). This case, like AriasUribe, involved an alien who was deportable under section 241(a)(11) of
the Act. Dunn did not discuss 212(c) at any length; rather, it quickly
disposed of the respondent's 212(c) claim by stating,
Petitioner urges that he should be eligible for discretionary relief from deportation
under 212(c) of the Act, S U.S.C. § 1182(c), even though he is not technically "returning
to the United States after a voluntary departure." In effect Petitioner is requesting
advance permission to return to an unrelinquished domicile, despite the fact that
otherwise he would be ineligible for admittance under 212(a)(23), 8 U.S.C.
§ 1182(a)(23), as an "alien who has been convicted of a violation of ... any law or
regulation relating to the illicit possession of or traffic in narcotic drugs or
marihuana." As petitioner recognizes in his brief, this precise contention was rejected by this
court in Arias- Uribe v. Immigration and Naturalization Service, 466 F.2d 1198 (9 Cir.
1972). We remain persuaded that this case properly interprets the statute. Id. at 857858.

Despite another somewhat misleading headnote, we believe that the
to the result in Dunn, like that in Arias-Uribe, supra, is the
absence of a departure after the alien's excludable act. That the
excludable act in both cases happened to be a drug offense appears to
be incidental, not determinative.
The next two eases of interest are Nicholas v. INS, 590 F.2d 802 (9
Cir. 1979), and Bowe, supra. In Nicholas, the Court addressed several
issues, but with respect to 212(c) it had only this to say: "Relief under
212(c) has been held to be unavailable to an alien facing deportation
for conviction of a drug-related crime, pursuant to 8 U.S.C.
1251(a)(11)." The authority it cites for this rule: Arias-Uribe, supra,
and Dunn, supra. Bowe, supra, cited this exact language in finding this
respondent ineligible for 212(c) relief. It simply added Nicholas, supra,
key

to its list of authority. No further discussion of the issue was offered.

Another Ninth Circuit case to mention section 212(c), Castillo Felix
v. INS, 601 F.2d 459 (9 Cir. 1979), did not involve alien drug offender,
and did not directly address the problems at issue here. In an interesting footnote, however, the Court mentioned "an apparent conflict
between this circuit and the Second Circuit," noting that the Second
Circuit in Francis v. INS, supra, held that the denial of section 212(c)
relief to aliens who had not fortuitously departed from the United
States after committing an excludable offense, while granting it to
those who had, was a violation of equal protection. The Second Circuit
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Interim Decision #2819
itself says. We believe the case is more properly read to stand for the
proposition that 212(c) relief was unavailable because the respondent
had not departed from the United States since the time of his
conviction_
Our interpretation of Arias-Uribe, id., is supported by the next
Ninth Circuit case to address section 212(c), Dunn v. INS, 499 F.2d 856
(9 Cir. 1974), cert. denied, 419 U.S. 1106 (1975). This case, like AriasUribe, involved an alien who was deportable under section 241(a)(11) of
the Act. Dann did not discuss 212(c) at any length; rather, it quickly
disposed of the respondent's 212(c) claim by stating,
Petitioner urges that he should be eligible for discretionary relief from deportation
under 212(e) of the Act, 8 U.S.C- § 1182(c), even though he is not technically "returning
to the United States after a voluntary departure." In effect Petitioner is requesting
advance permission to return to an unrelinquished domicile, despite the fact that
otherwise he would be ineligible for admittance under 212(a)(23), 8 U.S.C.
§ 1182(a)(23), as an "alien who has been convicted of a violation of ... any law or
regulation relating to the illicit possession of or traffic in narcotic drugs or
marihuana_"
As petitioner recognizes in his brief, this precise contention was rejected by this
court in Arias-Uribe v. Immigration and Naturalization Service, 466 F.2d 1198 (9 Cir.
1972). We remain persuaded that this case properly interprets the statute. Id. at 857858.

Despite another somewhat misleading headnote, we believe that the
key to the result in Dunn, like that in Arias-Uribe, supra, is the
absence of a departure after the alien's excludable act. That the
excludable act in both cases happened to be a drug offense appears to
be incidental, not determinative.
The next two cases of interest are Nicholas v. INS, 590 F.2d 802 (9
Cir. 1979), and Bowe, supra. In Nicholas, the Court addressed several
issues, but with respect to 212(c) it had only this to say: "Relief under
212(c) has been held to be unavailable to an alien facing deportation
for conviction of a drug-related crime, pursuant to 8 U.S.C.
1251(a)(11)." The authority it cites for this rule: Arias-Uribe, supra,
and Dunn, supra. Bowe, supra, cited this exact language in finding this
respondent ineligible for 212(c) relief. It simply added Nicholas, supra,
to its list

of authority. No further discussion of the issue was offered.

Another Ninth Circuit case to mention section 212(c), Castillo Felix
v. INS, 601 F.2d 459 (9 Cir. 1979), did not involve alien drug offender,
and did not directly address the problems at issue here. In an interesting footnote, however, the Court mentioned "an apparent conflict
between this circuit and the Second Circuit," noting that the Second
Circuit in Francis v. INS, supra, held that the denial of section 212(c)
relief to aliens who had not fortuitously departed from the United.
States after committing an excludable offense, while granting it to
those who had, was a violation of equal protection. The Second Circuit
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Interim Decision #2819
therefore held 212(c) to be available whether or not the "actual departure" requirement of that section had been met. The Ninth Circuit,
after describing Frauds, and adding that the INS [sic] had "acquiesced" in the Francis holding (in Matter of Silva, supra) (in fact it was
this Board, not the Service, which determined to apply Francis, supra,
nationwide), stated, "This circuit, however, continues to recognize the
actual departure requirement." Castillo-Felix at 462, n.6. It cited for
this comment its prior decisions in Arias-Uribe, supra, and Dunn,
supra. Castillo-Felix thus lends support to our analysis of the line of
Ninth Circuit 212(c) cases, and to our belief that Nicholas and Bowe,
supra, misinterpreted Arias-Uribe and Dunn, supra, inasmuch as the
latter two cases appear to us to turn on the lack of a departure, not on
the drug-related nature of the offense.
The most recent published decision of the Ninth Circuit addressing
F.2d , No. 78-3051(9 Cir.
section 212(c), Mondragon v . llchert,
January 25, 1980), added further confusion to this area. In a broad
holding it flatly stated that,
Although several circuits and the Board of Immigration Appeals have extended the
applicability of section 1182(c) to deportation proceedings such as this under f 1454
this circuit has declined to do so.

The cases it cited for this proposition were not Castillo-Felix, AriasUrthe, or Dunn, supra, but rather Rowe and Nicholas, supra, the eases

holding section 212(c) to be unavailable to drug offenders. Mondragon,
we also note, did not involve an alien who was deportable on drugrelated charges; it involved an alien deportable under section 241(a)(2)
for entry without inspection. Also, unlike the other Ninth Circuit cases
discussed, Mondragon involved an alien who had departed from the
United States since the Act rendering him excludable. He had then
reentered, and the Court found 312(c) to be unavailable simply because
he was in deportation proceedings.
None of the Ninth Circuit cases discussed above has explained why
section 212(e) should be unavailable to drug offenders, particularly in

deportation proceedings. That section in fact includes drug offenders
within its stated terms. To be sure, it specifies that the waiver is
available to aliens who are excludable as drug offenders under section
212(a)(23), and does not mention aliens who are deportable as persons
convicted of drug related crimes under section 241(a)(11). So far the
Court has not explained how the apparently anomalous results the line
of cases discussed above may produce would be reconcilable with the
legislative intent that excludability of some narcotic offenders may be
waived.
We are not persuaded by the respondent's argument that reopening

is warranted because his case is now presented in a wholly different
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Interim Decision #2819
posture in that his 212(c) application is now made in conjunction with
a section 245 appliCation. He claims that the actual departure requirement of Arias-Uribe, Dunn, and Castillo-Felix, supra, is met because
he, as an applicant for adjustment, is now in the position of one seeking
to make a new entry. He relies for this theory on Matter of Smith, 11
I&N Dec. 325 (BIA 1965). In Smith, which predated the Francis and
Silva holdings, supra, this Board held that a 212(c) application could be
considered in conjunction with an adjustment of status application in
deportation proceedings. The rationale was that,
An applicant for adjustment of status under section 245 stands in the same position as
an applicant who seeks to enter the United States with an immigration visa for
permanent residence.... Since this respondent, as an applicant for relief under section 245, is subject to all of the exclusion provisions of section 212(a), we find no valid
reason for denying him the benefits of section 212(c) on the technical ground that he is
not returning to the United States after a voluntary departure. Matter ofSmith, supra,
at 326-327.

Matter of Smith, id., may still be relevant law in the Ninth Circuit
(outside of that Circuit, where Francis and Silva, supra, control, the
need for Smith has been obviated), but, even if accepted as the law in
that Circuit, it would solve only the actual departure problem; it could
not negate the Ninth Circuit's decisions holding 212(c) relief unavailable to drug offenders. The respondent argues that the decisions in
Nicholas and Bowe, supra, were wrong in finding 212(c) unavailable to
drug offenders, and that those decisions were not supported by the
cases on which they relied, Arias-Uribe and Dunn, supra. We are,
however, bound by the Ninth Circuit's decision in Bowe's own case,
holding 212(c) strictly unavailable to him because he is deportable
under section 241(a)(11). The section 245 application does not change
this essential fact. Moreover, we believe that other aliens in Bowe's
position, who are deportable under section 241(a)(11), are ineligible for
212(c) relief in the Ninth Circuit and that Nicholas, supra, and Bowe,
supra, require this Board to find them so.

As we hold that the Court's rulings are binding upon us, we have no
alternative but to deny this motion.
ORDERS The motion is denied.

Mary P. Maguire, Board Member
While I concur in the result, I would deny the motion to reopen and

CONCURRING OPINION:

' The Ninth Circuit in Arias- Uribe, supra, specifically reserved the question of whether
Matter of Smith, supra, correctly interpreted the law. Arias - Uribe at 1199, n.& It thus
remains an open questiun whether a non departing, non-dreg offender alien may obtain
a 212(c) waiver in conjunction• with adjustment of status in the Ninth Circuit. The recent
broad holding in Mondragon, supra, may, however, indicate that the Ninth Circuit would
not accept the Smith decision.

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Interim Decision #2819
hold that an applicant for adjustment of status under section 245 of the
Act is not eligible for section 212(c) relief_
Thiscase illustrates the problems which result from strained interpretations of the Immigration and Nationality Act. The language of
section 212(c) of the Immigration and Nationality Act is clear: an alien

is eligible for a waiver of certain grounds of inadmissibility, including
a narcotics conviction, if he is a lawful permanent resident who
temporarily and voluntarily departed the United States and who is
returning to a lawful unrelinquished domicile in the United States for
seven consecutive years prior to reentry.
This Board began diluting such requirements in a line of cases which
prompted the Second. Circuit to hold in Francis v. INS, 532 F.2d 268 (2
Cir. 1976), that a lawful permanent resident who became deportable
after entry was eligible for section 212(c) relief even though he had
never made a temporary departure and reentry. The Francis decision
was adopted by this Board and applied on a nation wide basis in Matter
of Silva, 16 I&N Dec. 26 (BIA 1976).
The majority states that the cases cited by the Ninth Circuit in Bowe
v. INS, 597 le.2d 1158 (9 CU. 1979), affirming the Board's denial in
discretion of the respondent's application for section 212(c) relief, are
confusing. Such confusion results from a reading of the headnotes, not
from a reading of the Court's decisions. What is clear from the various

Ninth Circuit decisions analyzed in the majority opinion is that the
Ninth Circuit has continued to apply section 212(c) as it was intended
to be applied, i.e., as a waiver for a ground of excludability for a

returning lawful permanent resident alien.
In my. opinion, the majority erroneously reads the Ninth Circuit
decisions as holding that section 212(c) relief is unavailable to drug
offenders. Such a reading does not go far enough. I read Ninth Circuit
decisions to hold that section 212(c) relief is available to a drug
offender only if he voluntarily departs the United States and is inadmissible under section 212(a)(22) as a convicted drug offender upon his
return_ Since this respondent never departed the United States after
his drug conviction, he is not entitled to section 212(c) relief. Bowe v.
INS, supra.
Because the majority misreads the Ninth Circuit's decisions relating
to the availability of section 212(c) relief, the majority finds that
Matter of Smith,11 I&N Dec. 325 (BIA 1965), may still be relevant law
in the Ninth Circuit. In Smith, this Board held that a section 212(c)

application could be considered in conjunction with a section 245
adjustment of status application in deportation proceedings. The
majority indicates that Smith would solve the actual departure problem but would not negate the Ninth Circuit's decisions holding 212(c)

relief unavailable to drug offenders.
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Interim Decision #2819
Such a conclusion is based on an erroneous premise which indicates
a lack of understanding of the Ninth Circuit position with respect to
the actual departure requirement and a failure to recognize the nature
of adjustment of status under section 245 of the Act. The majority,
therefore, does not address fully the impact of Smith on this case. If
one were to apply the holding in Smith to this respondent, he would be
prima facie eligible to apply for section 245 adjustment of status since
he is the beneficiary of an approved visa petition, has an immigrant

visa immediately available to him, was inspected on his last admission,
and has submitted a section 212(c) application. But Smith creates a
fictional remedy for the non-departing alien who has become deportable after entry. It oversimplifies completely, in my opinion, the nature
of adjustment of status. In Smith, the Board reasoned that an applicant for adjustment of status under section 245 stands in the same
position as an applicant who is seeking entry into the United States
with an immigrant visa for permanent residence. With that premise I
have no quarrel. The Board then went on to state that an applicant for
section 245 adjustment of status is subject to all of the exclusion
provisions of section 212(a). Again, I have no quarrel with that
statement.
However, I cannot make the leap from those two premises to the
Board's conclusion in Smith that since the section 245 applicant is
subject to all of the 212(a) exclusion provisions there is no valid reason

to deny him the benefits of section 212(c) on the "technical ground"

that he is not returning to the United States after a voluntary departure. The logical extension of such reasoning is to find all applicants for
admission entitled to apply for the benefits of section 212(c) relief.
Section 245 applicants are presumably not lawful permanent residents
—they would have no need to apply for adjustment of status if they
were permanent residents. Since they are not permanent residents,
they cannot be found to be assimilated to the status of a returning
resident alien who seeks relief under section 212(c) for the purpose of
returning to his lawful unrelinquished 7-years continuous domicile in

the United States I would, therefore, overrule Matter of Smith, supra,
and deny the motion to reopen on the ground that an applicant for

adjustment of status under section 245 is not eligible for the benefits of
section 212(c).
DISSENTING OPINION:

Irving A.

Appleman, Board Member

I respectfully dissent.
I cannot accept the majority conclusions (a) that the Ninth Circuit
precedents bar any possibility of a section 212(c) waiver in conjunction
with an adjustment of status under section 245 since the respondent is
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Interim Decision #2819
a narcotic offender and (b) that the prior holding in Bowe v. INS, 597
F.2d 1158 (S Cir. 1979), has created an estoppel by judgment to granting the present motion.
In Matter of Arias-Uribe,13 I&N Dec. 696 (BIA 1971), this Board held
that an alien convicted of a narcotics offense after entry and therefore
deportable under section 241(a)(11), was statutorily ineligible for a
section 212(c) waiver, inasmuch as he was not an alien returning to the
United States to resume a lawful domicile of 7 years after a temporary
and voluntary absence subsequent to his conviction. We distinguished
such a case from other cases in which the relief had been granted (1)
nuns pro tmee to cure a ground of deportability originating in inadmissibility at the time of a previous entry, when the alien was eligible for
the relief, Natter of G— A—, 7 l&N Dec. 274 (BIA 1956), or, (2) to an
applicant for adjustment of status under section 245(a), 8 U.S.C.
1255(a), who, in order to meet the requirement of section 245(a)(2) that
he is "eligible to receive an immigrant visa and is admissible ...," had
coupled his adjustment application with a request for a waiver under
section 2124(c), of a ground of inadmissibility which would otherwise
have barred the adjustment. Matter of Smith, 11 I&N Dec. 825 (DIA
1965).
In both (1) and (2), notwithstanding the application was made
during a deportation proceeding, relief under section 212(c) derived
authority from the words "may be admitted" in that section, and the
waivers were of specific grounds of excludability specified in that
section. See Concurring Opinion, Matter of Silva, 16 I&N Dec. 26, 30
OA 1976)- It is the second type of request which is before us today,
namely, for a waiver under section 212(c) in conjunction with an
application for adjustment of status.
In noting our authority to rule on such an application, in Matter of
Smith, supra, we assimilated an applicant for section 245 adjustment

of status (the Immigration and Nationality Act replacement for the
cumbersome and expensive "preexamination" procedure which had
evolved under prior legislation) to an applicant seeking to enter the
United States with an immigration visa.
The Ninth Circuit has repeatedly held that an alien seeking adjustment under section 245 is assimilated to an alien seeking to enter the
United States for permanent residence. Thus, in Amarante v.
Rosenberg, 326 F.2d 58 (9 Cir. 1964), the Court held that the Attorney
General's action in adjusting an alien's status to that of a permanent
resident "is equivalent to the issuance of a visa by a United States
Consul outside the United States." Id. at 61. Final. authority "rests
with the consular office (or Attorney General under section 245) who
grants the alien's application and actually accords the nonquota
status." Id at 62 (emphasis supplied). See also Campos v. INS, 402 F.2(1
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Interim Decision #2819
758 (9 Cir. 1968); Honig, v. INS, 538 F.2d 1389, 1390 (9 Cir. 1976). Cf.
Khadjenouri v. INS, 460 F.2d 461 (9 Cir. 1972).
It is against this background that Arias-Uribe v. INS, 466 F.2d 1198
(9 Cir. 1972), and succeeding cases of the Ninth Circuit, should be read.
Rather than reflecting inconsistency, the Ninth Circuit decisions have
uniformly required compliance with the express terms of section
212(c). The relief cannot be considered unless it involves a waiver of a
specified ground of excludability which would prevent an otherwise
lawful permanent resident from resuming a lawful domicile here. In
Arias-gibe v. INS, the Court pointed out that the alien's deportation
was not sought because he was excludable at the time he last entered
the United States, but because he was convicted of a narcotics offense
after entering the United States, and hence he did not come within the
language of 212(e).
Significantly, in a footnote, the Court said as to the Board's holding
in Matter of Smith, supra, respecting the availability of section 212(c)
in conjunction with an adjustment of status, "We need not decide
whether this interpretation is correct since adjustment of status is
unavailable to natives of any country in the Western Hemisphere."'
Arias-Uribe v. INS, at 1199, n.3.
So far as known, to date the Ninth Circuit has not passed on the
availability of section 212(c) relief in conjunction with an application
for adjustment of status. The respondent has moved to reopen his
deportation proceedings. He has alleged that he married a United
States citizen subsequent to his hearing and that she has filed a visa
petition for him. He has completed his period of probation. He has filed
an application under section 245 and claims to be eligible for that relief
(see Matter of Garcia, 16 I&N Dec. 653 (BIA 1978)). He now requests
consideration of a waiver under section 212(c), of inadmissibility under
section 212(a)(23) because of his narcotics conviction, in conjunction
with his application for adjustment. His application and these facts
were not before the Court when it decided Baum v. INS, supra; neither
was the issue of availability of section 212(c) relief in conjunction with
section 245. I know of no holding of that circuit which dictates an
adverse ruling on the point. Since there was no adjudication in Bowe v.
INS, of the question now raised before us, and the issue was not
previously litigated, I do not regard the decision of the court as an
estoppel by judgment on this point of law. In re Yarn Processing
Patent Validity Litigation, 498 F.2d 271, 278 (5 Cir. 1974), cert. denied,
419 U.S. 1057 (1974).
I am equally unable to go along with the majority's additional basis
' This provision has since been deleted. Section 245(c) as amended by section 6, Act of
October 20, 1976, Pub. L. 94-571, 90 Stat. 2706

497

Interim Decision #2819
for denial, that relief is barred merely because Bowe is deportable
under section 241(a)(11). In Arias-Uribe v. INS, supra, the Court accepted the reasoning of the Board, that the relief was unavailable
because deportability arose from circumstances occurring after the
alien'sr entry, whereas section 212(c), by its literal language, pertains

only to inadmissibility at the time an entry either occurred, or will
occur. The Court's further comments in Arias-Uribe respecting deportability arising from a narcotics offense, are dicta, which only emphasize the distinction between an exclusion ground and a deportation
ground, in the exercise of this particular relief. The reference to drug
offenders in succeeding decisions which rely on Arias-Uribe would
seem to be largely a fortuitous circumstance, stemming from the
nature of the deportation charge in each of those cases. See Dunn v.
INS, 499 F.2d 856 (9 Cir. 1974), cert. denied., 419 U.S. 1106 (1975);
Nicholas v. INS, 590 F.2d :802 (9 Cir. 1979); Bowe v. INS, supra. There is

no legal basis for distinguishing drug offenders from other deportable
aliens in these circumstances.
That the result would have been the same for any deportation charge
not tied to an entry, gains some support from Castillo Felix v. INS, 601
F.2d 459 (9 Cir. 1979), a recent Ninth Circuit decision where the
deportation charge was not drug related, but in which the Court
rejected the relief. In Castillo-Felix also, the Court, in noting its
apparent conflict with the Second Circuit decision in Francis v. INS,
532 F.2d 268 (2 Cir. 1976), stated, "This circuit, however, continues to
recognize the actual departure requirement," citing Arias-Uribe, supra
—language which one may interpret as meaning the relief is available
only in connection with reentry after a departure (real or assimilated),
and then only for waiver of a ground of excludability specified in
F.2d No. 78section 212(e). See also Mondragan v. 17,chert,
3051 (9 Cir. January 25, 1980). I therefore differ with so much of the
majority decision as would find the respondent automatically barred
from the relief merely because he is a drug offender_ There is a

substantial difference between a waiver of a ground of deportation
under section 241(a)(11), which was rejected in Bowe v. INS, supra,
and a waiver of an exclusion ground under section 212(a)(23), which he
now seek and which is included in the specified grounds of section
212(c).
Clearly the Ninth Circuit is unwilling to accept section 212(c) as an
alternate deportation relief standing by itself. Its rejection of Francis,
supra, makes this clear once again. It has consistently held to this
position. Mondragan v. Ilchert, supra, cited by the majority, is but
another example of this. Mandl-ago-A was charged under section

241(a)(2) of the Act, 8 U.S.C. 1251(a)(2), with having entered without
inspection. There is no provision in section 212(c), as a matter of law,
498

Interim Decision #2819
for a waiver of such a charge. It is not a specified ground of exclusion,
nor is there even an exclusion ground comparable to the deportation
ground. Matter of Granados, 16 I&N Dec. 726 (BIA 1979). However, it
does not follow that section 212(c) relief, when it concerns a waiver of a
ground of excludability that is within the express language of the
section, and is coupled with the safeguards written into the adjustment procedure by the statute and implementing regulations, would
not he acceptable to that Court. In any event, I am unwilling to reach
that conclusion in the present state of the law and am unwilling to
accept what I regard as an oversimplistic analysis of Bowe v. INS,
supra, and related cases.
I would grant the motion and direct reopening of the proceedings.
BEFORE THE BOARD
December 17, 1980
BY:

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

The Immigration and Naturalization Service has filed a motion for
reconsideration of our decision, dated August 22, 1980, in the abovenamed case. In our prior decision, we denied the respondent's unopposed motion to reopen his deportation proceedings to enable him to
apply for a waiver under section 212(c) of the. Immigration and Nationality Act, 8 U.S.C. 1182(c), in conjunction with an adjustment of status
application under section 245 of the Act, 8 U.S.C. 1255. Matter of owe,
Interim Decision 2819 (BIA 1980). The motion to reconsider will be
denied.
In our decision of August 28, 1980, we found that, under Ninth
Circuit precedent as set forth in Bowe v. INS, 597 F.2d 1158 (9 Cir.
1979) and Nicholas v. INS, 590 F.2d 802 (9 Cir. 1979), we were precluded
from finding the respondent eligible for 212(c) relief because he is
deportable under section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11).
Both counsel for the respondent, and for the Service, had argued that
the Court's decisions in Bowe v. INS, supra, and Nicholas, supra, were
not supported by prior Ninth Circuit case law, were not consistent with
Service and Board positions regarding 212(c) relief,' and that those
' The Board in Matter of Silva,16 I&N Dec. 26 (BIA 1976), decided to follow the Second
Circuit's decision in Francis v. INS, 532 F.2d 268 (2 Cir. 1976), in which it was held that
212(c) relief is available to a permanent resident alien who has the requisite lawful
unrelinquished domicile, including one convicted of a narcotics offense and deportable
under section 241(a)(11), regardless of whether or not that alien had departed from the
United States since his excludable act.

499

Interim Decision #2819
precedents need not and should not be followed. The majority of this
Board disagreed. It was determined that the Ninth Circuit precedents
had to be followed in cases arising in that circuit, and that the adjustment of status application filed with the 212(c) application did not
enable us to ignore the Ninth Circuit holdings that "Relief under
section 212(c) has been held to be unavailable to an alien facing
deportation for conviction of a drug-related crime, pursuant to 8 U.S.C.
1251(a)(11)." Bowe v. INS, supra, at 1158; Nicholas, supra, at 808.
In its present motion to reconsider, the Service argues that this
Board is not bound by Ninth Circuit precedents in the section 212(c)
area. It now bolsters this argument by pointing out that, subsequent to
our decision in Matter of Bowe, supra, the Solicitor General on October
2, 1980, filed a brief with the Supreme Court in support of its petition

for a writ of certiorari in the case of Tapia-Acuna v. INS, No. 80-74,
U.S.L.W. 3165. The petition for writ of certiorari was filed with the
Supreme Court on July 17, 1980, but neither the petition, nor the
reason for it, was made known to this Board prior to our decision in
Matter of Bowe, supra. The brief urged the Court to remand the case to
the Ninth Circuit for reconsideration of that Court's prior decision

denying the alien 212(c) relief. The Government requested that the
Ninth Circuit be given the opportunity to reconsider its decision in
light of the present government position that 212(c) should be available to drug-offenders in deportation proceedings even in the Ninth
Circuit, and that the Ninth Circuit decisions holding the relief to be
unavailable to such aliens are incorrect.
Although the Solicitor General in his brief before the Supreme
Court specifically stated that it was the Government's position that
Bowe v. INS, supra and Nicholas, supra, "are erroneous and should be
overruled," and although there exists a clear conflict among the circuits regarding the availability of 212(c) relief, thus paving the way for

the Supreme Court to make a ruling on the merits of this issue, the

Solicitor General did not seek a decision on the merits of the issue.
Rather, he specifically sought a remand of the case to enable the Ninth
Circuit to reconsider in view of the present government position. As
the Ninth Circuit has for 4 years been aware of the Francis decision,
supra, and of this Board's decision to apply Francis everywhere except
in the Ninth Circuit, but has in dictum expressed its disapproval of
those decisions,' it is interesting that the Solicitor General sought the
opportunity to ask the Court of Appeals to change its prior decisions,
instead of seeking to litigate the basic question before the Supreme
Court, and obtain a definitive decision there. In any event, the Supreme
=See Mondragan v. Ikhert,
F.2d
, No. 78-3051 (9 Cir. January 25, 1980);
Castillo-Felix v. INS, 601 F.2d 459, n.6 at 462 (9 Cir. 1979).

500

Interim Decision #2819
Court on November 3, 1980, granted the writ of certiorari, and granted
the Government's request that the ease be remanded to the Ninth
Circuit "for further consideration in light of the position presently
asserted by the Solicitor General in his brief filed October 3, 1980."
Tapia-Acuna v. INS, 101 S. Ct. 344 (1980).
Thus, the very issue presently before us in this case, the availability
of 212(c) relief in the Ninth Circuit to aliens deportable under section
241(a)(11), is presently pending before the Ninth Circuit Court of

Appeals, by order of the United States Supreme Court. Under these
circumstances, it would be presumptuous for this Board to now reconsider this issue, as it has been specifically reserved to the Ninth Circuit
to reconsider it. The only appropriate course is to deny this motion and
await the outcome of the Tapia Acuna v. INS remand, supra, or of
another Ninth Circuit decision, in this area, one which we hope would
address all of the problems raised in our prior decision in this case.
In view of our determination that the Supreme Court's disposition of
the Tapia-Acuna v. INS case, supra, makes it inappropriate for us to
grant the Service's motion to reconsider, we need not address the other
arguments made by the Service in its motion.
ORDER: The motion to reconsider is denied.
-

BEFORE THE BOARD
April 23, 1981
BY:

Milbollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

In our decision of August 28, 1980, we denied the respondent's
his deportation proceedings to enable him
to apply for a waiver under section 212(c) of the Immigration and
unopposed motion to reopen

Nationality Act, 8 U.S.C. 1182(c), in conjunction with an adjustment of
status application under section 245 of the Act, 8 U.S.C. 1255. Subsequently, the Immigration and Naturalization Service filed a motion for

reconsideration of that decision. In our decision dated December 17,
1980, we concluded that the United States Supreme Court's decision in
Tapia-Acuna v. INS,101 S. Ct. 344 (1980), made it inappropriate for us
to grant the Service's motion. Accordingly, the motion to reconsider
was denied.
On February 20, 1981, in accordance with the request of the Acting
Commissioner of the Service, our decision of December 17, 1980 was
certified to the Attorney General fur review pursuant to 8 C.F.R.
3.1(h)(1)(iii). The request for certification was withdrawn by the Service in a memorandum dated March 25, 1981, and the record of proceed-

501

Interim Decision #2819
ings was returned to us for appropriate action.
In light of the above chronology of events and the decision of the
United States Court of Appeals for the Ninth Circuit in Tapia-Acuna v.
INS, 640 F.2d 223 (9 Cir. 1981), we shall reopen these proceedings on
our own motion and remand the record to enable the respondent tc

fully present his application for relief under section 212(c) of the Act,
predicated upon the present facts, before an immigration judge.
ORDERS The proceedings are reopened and the record is remanded to the immigration judge for further proceedings consistent
with the foregoing opinion.

502


Interim Decision #1946

MATTER OF MARTIN-ARENCIBIA

In Adjustment of Status Proceedings
A-12804725
Decided by Regional Commissioner January 29, 1969
Applicant's conviction for murder dote not prciludo hint from establishing
statutory eligibility for adjustment of status under section 1 of the Act of
November 2, 1966 because ineligible to citizenship, since such conviction
does not bring him within the excluding provisions of section 212(a) (22)
of the Immigration and Nationality Act relating to aliens "ineligible to
citizenship" as that term is defined in section 101(a) (19) of the Act.
This matter comes forward by certification from the District
Director who denied the application on the ground that the applicant, by reason of his conviction for murder, is ineligible for
United States citizenship and excludable from the United States
under section 212 (a) (22) of the Immigration and Nationality
Act, as amended.
The record relates to a 51-year-old married male native and citizen of Cuba whose wife is a lawful permanent resident alien. He
last arrived in the United States on May 29, 1963 at Key West,
Florida, and was paroled into the United States for an indefinite
period of time as a refugee from the political regime in Cuba. In
a statement made June 28, 1963, the applicant admitted to having
been found guilty and convicted of murder in Havana, Cuba, in
June, 1958. The applicant also stated that in 1962 he received
treatment by a psychiatrist.
The applicant has applied for adjustment of status pursuant to
the provisions of section 1 of the Act of November 2, 1966 which
states "That, notwithstanding the provisions of section 245 (c) of
the Immigration and Nationality Act, the status. of any alien who
is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1,
1959 and has been physically present in the United States for at
least two years, may be adjusted by the Attorney General, in his

166

Interim Decision 4t1946
discretion and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent residence."
The District Director, in arriving at his decision that the applicant is ineligible for United States citizenship and excludable
under section 212(a) (22) of the Act, premises his conclusion on
the grounds that under section 101 (f) (8) of the Act the applicant
cannot be found to be a person of good moral character during
the period in which good moral character is required to be established because he is "one who at any time has been convicted of
murder". Moreover, pursuant to section 316 (a) (3) of the Act,
which states in pertinent part, "No person except as otherwise
provided in this title shall be naturalized unless such petitioner .
during all the periods referred to in this subsection has been

and still is a person of good moral character", the applicant may
not be naturalized and is, so reasons the District Director, ineligible to citizenship.
We cannot agree with the District Director's reasoning which
would, by administrative fiat, add to the classes of aliens declared
by the Congress in section 212 of the Act to be ineligible to receive visas. It is true that the applicant, as a convicted murderer,
is by Congressional mandate, pursuant to the sections of the Act
cited by the District Director, barred from United States citizenship. However, that fact does not bring him within the classes of
aliens "ineligible to citizenship" as used in section 212(a) (22)
and defined in section 101 (a) (19) of the Act. The definition is unambiguous, but if clarification were needed the legislative history
of the Act contains the following unequivocal statement: "The
term 'ineligible to citizenship' as defined in section 101 (a) (19) is
confined in its reference to such aliens as draft evaders, avoiders,
or deserters." (1952 U.S. Code, Cong. and Admin. News, p. 1653,
1684.) Also see Matter of D—E—, 6 I. & N. Dec. 698. Accordingly, the District Director's finding of statutory ineligibility
under section 212 (a) (22) will not be upheld.
The applicant, by his own admission, has been convicted of a
crime involving moral turpitude, i.e., murder, and is, therefore,
excludable under section 212 (a) (9) of the Act. The spouse of the
applicant is a lawful permanent resident of the United States.
Therefore, the requisite relationship exists on which to base an
application for waiver of excludability to be considered by the
District Director in the exercise of his discretion.

Conceding the possibility of a waiver of the ground of excludability under 212 (a) (9) being granted, there still remains the
question of admissibility on medical grounds in view of the appli167

Interim Decision #1946
cant's prior psychiatric treatment. The application will be remanded for further inquiry into the facts and, thereafter, reconsideration by the District Director.
ORDER: It is ordered the decision of the District Director be
overruled and the ease remanded for action not inconsistent with
the foregoing.

168


MATTER of

—Y—L--

In DEPORTATION Proceedings
A-10672544

Decided by Board May .03, 1961
Evidence—Blood tests—Incompatibility of blood overcomes effect of prior admission as United States citizen.
Blood grouping tests which establish the incompatibility of blood between a
claimant to citizenship and his allegea pareuln cuustitute clear, unequivocal,
and convincing evidence that warrants disregard of prior decisions admitting claimant as a United States citizen.
CHARM:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable
at time of entry—Immigrant, not in possession of a valid immigration visa under section 13(a) of the Immigration Act of May
28, 1924_
Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Entered
without inspection.
BEFORE THE BOARD

DISCUSSION: Respondent, 23 years of age, single, male, a native
of China, was admitted to the United States on December 14, 1947,
as a United States citizen. He was accompanied by L

G—S,

the

alleged father, and by L.--S H—C, the alleged mother. The special inquiry officer 'found, as the result of blood tests conducted in
Seattle and in Chicago, that respondent is not the son of the alleged
parents and is not, therefore, a United States citizen. He ordered
respondent deported on the charges set forth above. Respondent
appeals to this Board.
Following his application fur a certificate of citizenship under
section 341 of the Immigration and Nationality Act, and at the
request of the Immigration and Naturalization Service, respondent
and his alleged parents cooperated in the performance of bloodgrouping tests. On December 17, 1956, respondent's alleged parents
went to the King County Central Blood Bank,. Inc., Seattle, Washington, where they gave blood in accordance with standard bloodtesting procedures. On February 18, 1957, respondent gave blood
for the same purpose in Chicago, Illinois, for tests supervised by
Dr. Benjamin Neiman, pathologist.

286

The respondent and his alleged parents again cooperated in the
performance of blood tests in 1960, under the supervision of the
same pathologists and at the same laboratories. The certifications
as to the test results from Seattle are signed by Dr. Frederick
Kratz. This same pathologist testified as an expert in blood testing and classification in our unreported decision in Matter of WK—S—, A-8895043, sustained in Wong Ewok Sui v. Boyd, 285 F.2d
572 (C.A. 9, 1960).

The results of the tests performed at both laboratories on the
second occasion are identical with the results of the first tests.
Both sets of tests showed that the alleged father falls in blood
group 0, and the alleged mother falls in blood group A, whereas
the respondent is in blood group B. The expert testimony is uniform that an 0 and A mating cannot produce a B child. The B
factor has to be inherited from one of the parents; it is passed in

the genes from a parent, and it does not occur as an accident.
The blood tests showed further that the alleged father is type M,
the alleged mother is type M, and the respondent is MN. Medical
evidence is consistent and uniform that an M and M mating cannot
produce an MN child. The N factor must have come from one
parent.
During the course of these proceedings a number of statements
were taken from the alleged parents, from respondent, and from
his alleged godmother in Chicago. The parties were informed that
tho blood - grouping tests show that there is no possibility of the
claimed relationship between respondent and the alleged parents.
The parties have continued to assert the claimed relationship.
The special inquiry officer set forth in detail the results of the
blood tests, the laboratory techniques employed, and the expert testimony on which he based his finding that respondent is not the
son of the alleged parents. Dr. Neiman's qualifications as an expert
in this field were conceded. He testified that the tests were made

in his laboratory by two technicians working independently with
different sera. Since two sets of tests were conducted each time,
each test really was performed four times, with identical results
each time.
Counsel pleads that there could still have been mistakes in the
laboratory procedure by which the blood samples were taken, identified, preserved and tested. We have examined the entire record
with care and have concluded that the tests were performed according to standard, accepted laboratory techniques. In Matter of DTV 0 wad , 5---251 (United States ORT rel. Dong Wing
Ott and Dong Wing Han v. Skaughnessy, 220 F.2d 537; 245 F.2d
875; reaffirmed 247 F.2d 769 (C.A. 2, 1955-1957) ; cert. den. 350
U S 847), we pointed out that the reason for duplicate tests is to
-

—

287

insure against, the possibility of error having been made in the first
laboratory test or clerical error in submitting reports. We stated
in that case, "In some cases even three series of tests have been
performed in order to insure the accuracy of the results. It is
recognized by the Government agencies that it is enormously important to applicants in such cases as these that the tests be accurately performed and reported" (p. 353).
Counsel claims that Dr. Neiman was informed at the time of the
second tests that these were duplicate tests and that the first tests,
performed three years previously, had shown that respondent was
not the son of the alleged parents. The record shows that Dr. Neiman testified (Oct. 3, 1960) that when he tested respondent on
August 12, 1960, he did not know that it was the same case. He
stated that the technicians were different, and he was not aware
that this was a recheck until he received a communication from the
Immigration Service informing him that this was a repetition. Ho

testified that the findings on August 12, 1960, were identical with
the findings on February 18, 1957.
Counsel's brief refers to Matter of L—, 8-259 (B.I.A., Feb. 19,
1959), wherein the expert witness testified that the child was
excluded by the Rh tests, but that the "A–B-0 and M–N tests
. provide no information as to the question of parentage." Counsel implies that there is an inconsistency between this testimony
and the testimony of Dr. Neiman in the instant, case. Dr. Neiman
states that he found an exclusion on the A–B-0 and M–N tests but
says, "I am not referring to the Rh because that is not significant."
The quote from Matter of L—, supra, is from Dr. Alexander
Weiner's certification and is one sentence lifted out of context from
an eleven-page decision involving a blood-testing situation much
more complex than the case now before us. In prior decisions we
have discussed the medical literature on this subject. Each of the
blood systems (and new ones are becoming known) is independent
of the other. An example that might be used is that the blood systems are similar to independent solar systems, coexisting simultaneously and each independent of the others.' All pathologists who
1 "Medicolegal Application for Blood Grouping Tests," Report of the Committee of the Am. Med. Assn., 1952 (exh. 6, herein), says, "To date, more
than eight independent blood group systems have been identified." In Criminal Law Review, Autumn 1956, Vol. 3, No. 1, "Application of Blood Tests in
Criminal Cases," Dr. Alexander Weiner reters to tne use of aii imown practical tests, including the "f" and "p" systems and gives an example of a
person with 0, MN, Rh 1Rh1 , f, p. He states that the chalice of another person having this identical blood would be about 1 in 300, whereas if only the
A - B - O lest was used, the chance of cuineltlenee lu the popubstliuu could be as
high as 40%. He says that in tests on fresh human blood more than 50,000
types of blood can be distinguished.

288

hive testified in the cases that have come to the Board agree, - and
all medical evidence we have been able to discover establishes, that
an exclusion of paternity may be shown by the tests in routine
medicolegal use relating to any one of the three blood systems. Incompatibility of blood may be demonstrated by any one of the tests,
or by all of the tests. It is conceivable that the blood of a child
could be so carefully matched to that of the alleged parents that
the hick of parentage., and thus the fraud, might not be discoverable by any of these methods. Obviously, such blood matching
would be difficult. There is no inconsistency between the certification of Dr. Weiner in 111(ttter of
8-259, and the testimony of
Dr. Neiman here. The cases are different.
Our decision is bound by the blood-test results. In the past six
years we have held in decisions concerning approximately fifty-five
separate persons that blood - test evidence is conclusive when it is
satisfactorily established that the tests have been conducted by
competent and experienced persons, and where the tests establish
the impossibility of the claimed relationship. Matter of L—F—F—,
5-149 (1953) ; Matter of W—K—S— and W—P—S—,
5-232
(1953) ; Matter of D—W-0— and D—W—H—, 5 351, 356 (1953,
1954) ; Matter of L—C—S—, 6-212 (1954). In Matter -of L—,
8--259, we cited a number Of court decisions sustaining the findings of
the Board in these cases and accepting the conclusiveness of properly
conducted blood tests.. In addition to the decisions set forth in Matte,.
of L—, supra (which we will not repeat here), there are three new decisions, as follows: Lew Moon Cheung v. Rogers. 272 F. 2d 354 (C.A.
9, 1959) ; Wong Kwok Sui v. Boyd, 285 F.2d 572 (C.A. 9, 1960)
(cited above), sustaining our unreported decision in Matter of WK—S—, A-8895043 (May 18, 1959) ; Wong Yoke Sing v. Dulles.
151 F. Supp. 459 (D.C. N.Y., 1957). These cases hold that bloodgrouping tests, when they establish that a claithant to citizenship
is not the child of the alleged parents, constitute clear, unequivocal
and convincing evidence that warrants disregard of prior decisions
admitting him as a United States citizen.
• In Lew Moon Cheung v. Rogers, supra, the court admitted the
reports of blood tests made at United States Public Health Service clinics under 28 U.S.C. 1732 as records made in the regular
course of business at the time of or shortly after the occurrence of
the event. The court stated that. it was part of the regular course
of business, and was within the inherent nature of the business of
the San Pedro Clinic, to make blood tests for other Government
agencies who recitiest such tests. Wong If wok 'Sui v. Boyd, frup,,,a,
held that the original admission of the appellant into the United
States as a citizen did not, constitute' an estoppel against the Government, and that the blood-test evidence "would pass as a preponq54377

289

derance, as clear, cogent and convincing, or as beyond a reasonable
doubt." The court continued:
Sui's wain point goes to the adequacy of the evidence and involves the qualifications of one Dr. Vio in Hong Kong to take a sample of Fung's blood in
Hong Kong and to classify it. [At the hearing, the significance of the Hong
Kong tests were testified to by a Tlr. 1Zratz of the United .States Public
Health Service. It was he who found the incompatibility. Dr. Vio did not
testify as to the significance of the three blood types found in the alleged
father, mother and son.] We have examined the depositions and are satisfied his competence was adequately established. We rest our appraisal on
the reenrd, and not upon what is not there. However, when we have done
that, we feel better about our decision when we know that Sui did nothing
on his part to get proof that Fung's blood type was not as Dr. Vio found it
and did nothing to contradict expertly the Government's evidence as to he
significance of the types.
The fact that Sui's blood was compatible with Quong's, the alleged father's
(a citizen), does not raise a presumption that he was the son of Quong when
Sui claims he was the son of Quong and Fung, where an impossible compatibility of the three blood types exists. At this point in the sequence, we
hold the burden then shifted to Sui. At least as a minimum, Sui would have
the problem of finding another mother.
Sui asserts the evidence on the blood testing is conflicting. If so, we might
reverse, but we do not find it so. [Our decision is in accord with Lew Moon
Cheung v. Rogers, 9 Cir., 272 F.2d 354. And this court regards its results
herein as wholly consistent with Lee Kum Hop v. Murff, 355 U.S. 169.]
We have quoted at length irom the Circuit Court's decision in

Wang Kwok Sui v. Boyd, supra, because it does not, as yet, appear

to be reported, and it is entirely applicable to the set of facts now
before us.
It is no coincidence that respondent lived with the alleged parents in Seattle for only a few weeks or a month after his arrival
in the United States in 1947. Respondent and his alleged parents
testified that following their arrival in Seattle they lived in very
cramped quarters -and soon sent respondent, a boy of 10, to live
with his "godmother" in Chicago. The alleged father and mother
both testified that they did not blow this woman except as
"J—S—"; that she is unrelated to them; that they have never seen
her; and they have never seen respondent since he left them in the
early part of 1948. The alleged father testified (Apr. 2, 1957) that
his wife's mother made the arrangements for the boy to go to Chicago and that he has paid no support money to J—S— for his son.
The alleged mother also testified (Dec. 14, 1956, Seattle) that J—S
was a friend of her mother's; that it was through her mother's
recommendation that their first son went to Chicago to live; and
that the boy has never been back to Seattle.
The godmother, J

—

S

—

, testified (Aug. 12, 1957) that she met

the alleged mother in China when L S—H---C— was a girl of eight
or nine, that she had seen L—S—H—C—'s mother in China but had
290

mover tallecd with her and was not b. close friend_ The alleged god

mother testified further that negotiations as to respondent were
carried on between herself and the alleged mother by phone; that
she did not make the arrangements to take respondent through the
grandmother in China ; that she does not even know where the
grandmother lives.
Respondent could answer no questions regarding the family of
his alleged father and mother, their brothers and sisters. lie said

he answered these questions when he came into the United States
but since he had not seen his father and mother in 13 years he has
forgotten the answers by now.
It should be noted, also, that at the time respondent was born
on July 18, 1938, the alleged father would have been 16 years of age,
and the alleged mother was not yet 16. The alleged father's claimed
birth date is April 8, 1922; the alleged mother's claimed birth date is
October 27, 1922. They claim to have been married in February
1937. The alleged father testified (Seattle, Apr. 2, 1957) that they
were married in a church but he could not remember whether

there were other people in the church, whether there were one or
two, or fifty, or one hundred people in the church. He could not
remember the name or location of the church or whether• any of
his or his wife's relatives were present. The alleged mother testified that there were ten people present at her marriage, and no
relative of hers nor of her husband.
On December 14, 1956, L S H C
fied that respondent lived with them
—

the alleged mother, testi

-

in Seattle, following their
entry, for one year. At all other times the alleged parents and
the godmother testified that he lived in Seattle a few weeks or a
month or two.
Under the circumstances of this case, even without the blood
tests, it would he difficult to believe that respondent is the child
of the alleged parents. They have had three children since they
arrived in the United States, and all three children live with them
in Seattle. The special inquiry officer did not discuss the discrepancies in the record because of the prior holding of this Board that
blood tests demonstrating incompatibility of blood between a claimant and alleged parents constitute conclusive evidence of lack of
relationship. We have mentioned the discrepancies and other suspicious elements in the record merely for makeweight, as we have
clone, also, in other cases involving blood-test evidence.
The blood tests in this case were performed by oualified technicians; and they were rechecked according to accepted laboratory
procedures. The test results were interpreted by a pathologist whose
qualifications were not challenged. His conclusions are consistent
with all the medical evidence that has come to our attention. The

291

blood tests constitute dear and convincing evidence that respondent
is not the son of the alleged parents. We recognize the misfortune
of uprooting respondent, who has adapted well to life in the United
States, but he is not a United States citizen and, under the law,
was not entitled to admission as the son of a citizen.
The application for adjustment of status under section 245 of the.

Immigration and Nationality Act is not within the jurisdiction of
the Board. Respondent at least should be given the opportunity to
depart voluntarily which has been granted in other similar cases.
ORDER: It is ordered that the outstanding order of deportation
be withdrawn and the alien be permitted to depart from the United
States voluntarily without, expense to the Government, to any country of his choice, within such period of time and under such conditions as the officer in charge of the district deems appropriate.
It is further ordered that if the alien does not depart from the
United States in accordance with the foregoing, the oricier.of deportation be reinstated and executed.

292


Cite as 27 I&N Dec. 477 (BIA 2018)

Interim Decision #3942

Matter of M-A-C-O-, Respondent
Decided October 16, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An Immigration Judge has initial jurisdiction over an asylum application filed by a
respondent who was previously determined to be an unaccompanied alien child but who
turned 18 before filing the application.
FOR RESPONDENT: Cristobal Colindres, Esquire, Dallas, Texas
BEFORE: Board Panel: COLE and WENDTLAND, Board Members; CROSSETT,
Temporary Board Member.
CROSSETT, Temporary Board Member:

In a decision dated September 29, 2017, an Immigration Judge denied the
respondent’s applications for asylum and withholding of removal and
ordered him removed from the United States. The respondent has appealed
from that decision on jurisdictional grounds. The appeal will be dismissed.
The respondent is a 21-year-old native and citizen of El Salvador who
entered the United States on or about January 1, 2015, without being
admitted or paroled. He was 17 years old at the time of his entry. The
respondent was apprehended by the Department of Homeland Security
(“DHS”) and was determined to be an unaccompanied alien child (“UAC”).
On January 15, 2015, he was served with a notice to appear.
On March 31, 2015, the respondent appeared at his initial Immigration
Court hearing with his aunt. Noting that the respondent had turned 18 on
March 21, 2015, the Immigration Judge moved his case from the UAC
docket to the adult docket and continued the proceedings to give him an
opportunity to retain counsel.
On July 22, 2015, the respondent appeared in Immigration Court with
counsel, who admitted the factual allegations and conceded the charge of
inadmissibility set forth in the notice to appear. Counsel also stated that he
had filed an Application for Asylum and for Withholding of Removal
(Form I-589) with the United States Citizenship and Immigration Services
(“USCIS”) on behalf of the respondent because he had entered the country
as a UAC. However, the Immigration Judge determined that she—not the
USCIS—had initial jurisdiction over the respondent’s asylum application
because he had turned 18 and ceased to be a UAC before the application was
477

Cite as 27 I&N Dec. 477 (BIA 2018)

Interim Decision #3942

filed. Having anticipated that the Immigration Judge might decline to
continue the proceedings pending adjudication of the respondent’s asylum
application, counsel had prepared a second application, which he filed with
the court that day. On September 29, 2017, the respondent signed that
application in open court and testified in support of it. The Immigration
Judge denied the application.
The sole issue on appeal is whether the USCIS or the Immigration Judge
has initial jurisdiction over an asylum application filed by a respondent
who was previously determined to be a UAC but who turned 18 before filing
the application. 1 The respondent argues that the Immigration Judge erred by
exercising initial jurisdiction over his asylum application. Invoking the
William Wilberforce Trafficking Victims Protection Reauthorization Act of
2008, Pub. L. No. 110-457, 122 Stat. 5044 (“TVPRA”), he claims that,
regardless of the fact that he turned 18 before filing his application, the
USCIS has jurisdiction because he had been determined to be a UAC. The
respondent therefore requests that we vacate the Immigration Judge’s
decision and remand the record to await an adjudication from the USCIS.
We review this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2018).
The respondent argues that because he was determined to be a UAC
when he was apprehended by the DHS after entering the United States,
the determination should remain in effect unless and until it is formally
revoked by the Department of Health and Human Services (“HHS”), U.S.
Customs and Border Protection (“CBP”), or U.S. Immigration and Customs
Enforcement (“ICE”). In support of his assertion, he relies on an internal
USCIS memorandum to asylum officers, which states that once an alien has
been determined to be a UAC, the asylum office will adopt that determination
without further factual inquiry, absent an “affirmative act” by the HHS,
ICE, or CBP to terminate it before an initial asylum application was filed.
Memorandum from Ted Kim, Acting Chief, USCIS, Asylum Division, to
Asylum Office Staff (May 28, 2013), https://www.uscis.gov/sites/default
/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2013
/July%202013/Memo-Determining-Initial-Jurisdiction.pdf (“Kim Memo”).
According to section 208(b)(3)(C) of the Immigration and Nationality
Act, 8 U.S.C. § 1158(b)(3)(C) (2012), which was enacted pursuant to
section 235(d)(7)(B) of the TVPRA, 122 Stat. at 5081, a USCIS “asylum
officer . . . shall have initial jurisdiction over any asylum application filed
by an unaccompanied alien child . . . .” (Emphasis added.) The term
“unaccompanied alien child” is defined in 6 U.S.C. § 279(g)(2) (2012), as a
child who—
1

The respondent neither disputes removability nor challenges the Immigration Judge’s
determination that he did not demonstrate his eligibility for the requested relief.

478

Cite as 27 I&N Dec. 477 (BIA 2018)

Interim Decision #3942

(A) has no lawful immigration status in the United States;
(B) has not attained 18 years of age; and
(C) with respect to whom—
(i) there is no parent or legal guardian in the United States; or
(ii) no parent or legal guardian in the United States is available to provide care and
physical custody.

“Viewing the statute as a whole, nothing in the TVPRA or the statute it
revised suggests that the jurisdictional provision applies to formerly
unaccompanied alien children.” Harmon v. Holder, 758 F.3d 728, 734 (6th
Cir. 2014); see also Matter of Castro-Tum, 27 I&N Dec. 271, 279 n.4 (A.G.
2018) (“An alien who does not meet the statutory definition of an
unaccompanied alien child is not entitled to that status.”). Thus, viewed in
context, the most natural reading of the statutory language is that an
asylum officer only has initial jurisdiction over a UAC’s asylum application
if it is filed while the applicant is in UAC status. Harmon, 758 F.3d at
734 (“The language ‘filed by an unaccompanied alien child’ creates
simultaneous statutory requirements—filing the asylum application while
an unaccompanied alien child. Harmon was not a child when she filed
her asylum application at the age of twenty-three. The provision simply does
not apply to her.”); accord Mazariegos-Diaz v. Lynch, 605 F. App’x 675
(9th Cir. 2015).
While section 208(b)(3)(C) of the Act limits an Immigration Judge’s
jurisdiction over an asylum application filed by a UAC, the statute does not
prevent the Immigration Judge from determining whether initial jurisdiction
over an application filed by an alien who has turned 18 lies with the
Immigration Judge or the USCIS. Neither the TVPRA nor any other
authority of which we are aware states that a DHS or HHS determination of
UAC status is binding on an Immigration Judge in removal proceedings. 2
To the contrary, an “Immigration Judge has the authority to consider and
decide whether he has jurisdiction over a matter presented to him.” Matter of
Bulnes, 25 I&N Dec. 57, 59 (BIA 2009).
Moreover, as an Operating Policies and Procedures Memorandum
(“OPPM”) from the Chief Immigration Judge titled “Guidelines for
Immigration Court Cases Involving Juveniles, Including Unaccompanied
2

Other provisions of the TVPRA appear to contemplate that an Immigration Judge can
independently evaluate a respondent’s UAC status to determine his or her eligibility for
relief from removal. See section 208(a)(2)(E) of the Act (stating that a UAC is not subject
to the 1-year filing requirement and the “safe third country” limitations that are imposed
on adult asylum applicants); 8 U.S.C. § 1232(a)(5)(D)(ii) (2012) (providing that a UAC is
eligible for voluntary departure under section 240B of the Act, 8 U.S.C. § 1229c (2012),
“at no cost to the child” and thus is exempt from the requirements of posting bond and
establishing the financial means to depart the United States).

479

Cite as 27 I&N Dec. 477 (BIA 2018)

Interim Decision #3942

Alien Children” has indicated, “UAC status is not static, as both a UAC’s
age and his or her accompaniment may change. Thus, judges should
ensure that an alien claiming to be a UAC is, in fact, a UAC at the time
his or her case is adjudicated.” OPPM 17-03, at 7 (Dec. 20, 2017),
https://www.justice.gov/eoir/file/oppm17-03/download.
There is no dispute that the respondent was 18 years old when he filed his
applications for asylum and withholding of removal before the USCIS and
the Immigration Judge. He therefore no longer qualified as a UAC at those
times. 3 Accordingly, section 208(b)(3)(C) of the Act is inapplicable and the
Immigration Judge properly exercised initial jurisdiction to adjudicate the
respondent’s application.
The policy set forth in the Kim Memo, which indicates that asylum
offices follow an initial UAC designation unless it is affirmatively terminated
by the HHS, ICE, or CBP, is not embodied in a regulation that has the force
and effect of law. Thus, although it may be relied on to the extent it is
persuasive, it is not binding on either the Immigration Judges or this Board.
See, e.g., Matter of Briones, 24 I&N Dec. 355, 365 & n.7 (BIA 2007) (“DHS
policy memoranda that have not been embodied in regulations are not
binding on the Immigration Judges or this Board, although the policies
contained in such memoranda can be adopted by the Board when
appropriate.”). By its terms, the Kim Memo does not purport to limit
Immigration Judges’ authority to determine whether a respondent in removal
proceedings remains a UAC or whether section 208(b)(3)(C) of the Act
applies.
Although the respondent was determined to be a UAC upon his
apprehension by the DHS, the Immigration Judge properly exercised initial
jurisdiction to adjudicate his asylum application because the respondent
was no longer a UAC by virtue of having turned 18 before he filed his
applications with the USCIS and the Immigration Judge. Since no other
issues were presented on appeal, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

3

To the extent the Immigration Judge found that the respondent lacked UAC status by
virtue of his release into the custody of a “legal guardian” (his aunt), we find no meaningful
basis for appellate review on this record. Whether the respondent’s aunt qualified as his
“legal guardian” within the meaning of the UAC definition is, in part, a legal question that
the Immigration Judge did not purport to decide. The matter therefore falls outside the
scope of this decision.

480


Interim Decision #1683

MATMIL OF NO

IN VISA PETITION PROCEEDINGS

A-13756336-7-8-9-40
Decided by Board December El, 1986
Where blood grouping tests (M-N system) conducted by 2 experts in the field
establish that there is no incompatibility of blood between a petitioner and
her alleged father, the beneficiary, but, in fact, a strong indication of the
claimed relationship, the visa petition proceedings will be reopened for further
consideration.
ON BEHALS or POITZIONEB Haskell R. Borst, Esquire,
84 William Street,
New York, New York 10038

The District Director at New York denied the visa petitions of the
petitioner in. behalf of her father, mother, and three brothers, because
blood tests conducted, in part, in New York and, in part, in Hong
Kong demonstrated incompatibility between the blood of petitioner
and that .of some of the family members. Counsel requesied that this
Boaid direct that arrangements be made at the expense of the petitioner for retesting in the -United States of the parents' blood samples

taken in Hong Kong, using the same sera or reagents which were used
in the testing of her blood. This procedure has been denied by the
American Consul at Hong Kong.
Following counsel's letter to this Board of October 31, 1966, he
received a letter under the same date from Dr. Alexander S. Wiener,
stating that Dr. Wiener had received two sets of blood specimens from
Hong Kong and that retesting has now established that petitioner
and her alleged father have the same blood type, MN 2. Dr. Wiener
states,
The results thus not only show that parentage Is not excluded, but instead
strongly indicate that the parents are correct, because of the occurrence of the
type Mn in both Ng Wah Hoy I and Mrs. Tit Sea Me. which is too rare to be
merely a coincidence.
I have no doubt that your appeal to have the immigration application reconsidered will now prove successful.
Alleged father
'Petitioner
I

821-604--a0----4

27

Interim Decision #1683
An earlier communication, July 22, 1066, from Dr. Wiener to counsel
states that he originally tested the blood of petitioner and found her
to be type M and so reported her type. Tests from Hong Kong showed
her father and mother both to be type M and all of her brothers to be
type M. When petitioner was tested by Dr. Leon N. Sussman, he
found her to be type MN and informed Dr. Wiener, that he and Dr.
Wiener had come to different conclusions on the subject of the petitioner's blood type. Apparently, it was on the basis of Dr. Sussman's
test (showing petitioner to have an N factor in her blood) that the
visa petition was denied. It is now agreed by these outstanding experts,
that petitioner's blood type is MN., which reacts weakly to some sera
or reagents, and "frequently fails to react at all".
In most cases coming to the Board where allegations of mistaken
typing have been established, the mistakes have occurred in MN testing. Dr. Wiener and Dr. Sussman, two of this country's outstanding
authorities', are now in agreement that respondent and her father
have the same MN type and that there is no incompatibility but, in
fact, a strong indication of the claimed relationship.
The discovery through retesting, carried out in New York with sera
and by experts not available in Hong Kong should be given further
consideration. The records will be remanded for this purpose.
ORDER : It is ordered that the records be reopened and reconsidered in accordance with the foregoing opinion.
'Matter of L—, 8 I. & N. 2559; Matter of D—W-0-4 D—W—H--, 5 L & N.
351, cert. den. 350 U.S. 847, sub nom Dong Wing Ott t Dong Wing Han v.

sinauganessy.

28


Interim Decision #2400

MATTER OF AKINOLA
In Visa Petition Proceedings
A-18159092
Decided by Board June 19, 1975
The District Director revoked his approval of visa petition classifying beneficiary as the
spouse of a United States citizen under section 201(b) of the Immigration and Nationality Act, on the ground that the beneficiary had a prior marriage which had not
been dissolved. The beneficiary and his first wife, natives and nationals of Ghana, had
been married there in 1964 according to local tribal custom. Beneficiary entered the
United States as a nonimmigrant student in 1969, and was later that year joined by his
first wife. He claims they were divorced in 1972, under Ghanaian customary law, at a
time when neither he nor his first wife was in Ghana. He married petitioner in 1973. The
proofs offered as to the termination of the first marriage were found to be insufficient.
Board held that petitioner had failed to sustain the burden of proof as to termination of
prior marriage, citing Matter of Brantigan, 11 L & N, Dec. 493 (BIA 1966) and 8 CFR
204.2(c)(2). Board stated that as a minimum, to establish termination of a Ghanaian
tribal marriage by a tribal divorce, there must be proof of confirmation by a Ghana
Court, or proof of the customary law of the pertinent Ghana tribe or group and proof of
compliance with such law.
ON BEHALF OF PETITIONER:

Ira Ehrlich, Esquire
2140th Street
New York, New York 10016

In a decision dated December 11, 1974, the district director revoked

approval of a visa petition classifying the beneficiary as the spouse of a
United States citizen under section 201(b) of the Immigration and Nationality Act. The district director revoked approval on tha ground
that the beneficiary had a prior marriage which has not been dissolved.
The petitioner has appealed from that decision. The appeal will be
dismissed.

The beneficiary is a native and citizen of Nigeria. He married his first
wife in Ghana in 1964 according to local tribal custom. The beneficiary
entered the United States as a nonimmigrant student in January 1969.
His first wife joined him later that year. The petitioner claims that the
beneficiary divorced his first wife under Ghanaian customary law on
June 6, 1972. At the time, neither party was in Ghana. The petitioner
married the beneficiary on October 5, 1973.

In a visa petition proceeding, the burden of proof is on the petitioner.
359

Interim Decidon #2400

Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). Under 8 CFR
204.2(c)(2), the petitioner must submit proof of the legal termination of
all previous marriages of both the husband and spouse.
As evidence of the termination of the beneficiary's marriage, the
petitioner has submitted affidavits from the parents of the beneficiary,
the parents ehis first Wife, and a letter from the Consulate General of

Ghana in New York. The affidavits state that the beneficiary and his
first wife were divorced in June 1972 and that they are no longer
husband and wife. Both affidavits are dated June 6, 1972. The letter
from the Ghanaian consulate states that the dissolution of the marriage
is authenticated by the affidavits of the parents.
The district director revoked approval on the ground that the divorce
did not conform to the customary law of Ghana. Specifically, the district
director found the purported divorce was defeCtive because the parties
had failed to confront the families, and that it had not been shown that a
"severance drink" had been presented or that the family of the wife had
returned the marriage gift to the family of the husband.
Counsel for the petitioner maintains that a divorce under the customary laws of Ghana is executed solely by the parents of the divorcing
couples and that the other requirements alluded to by the district
director are Lot needed to effect a divorce. Neither the petitioner -nor
the district director cites any legal authority for their respective positions.
We have consulted the Library of Congress which has furnished us
with a memorandum, dated June 2, 1975, concerning customary divorce
in Ghana, as well as copies of relevant Ghana statutes: According to the
memorandum, the District Courts of Ghana have been given jurisdiction
over divorces governed by customary law. Under the Courts Act,
section 50(2), the court is empowered to make broad inquiry to determine the customary rule of law to be employed, since customary law will
vary from place to place and tribe to tribe. Once the court is satisfied
that the relevant customary law has-been followed, the divorce may be
granted.

.

.

The Library of Congress memorandum indicates that it is possible to
effect a customary Ghanaian divorce without recourse to the courts.
However, proof of such a divorce absent confirmation by a Ghanaian
court, requires that the parties establish the. ethnic group or tribe to
which they belong, the customary divorce law of such tribe or group,
and evidence that the pertinent customary laws were conformed to.
Apparently, according to the memorandum, non-judicial customary divorces require the execution of certain ceremonial formalities to be
effective.
The petitioner, who bears the burden of proof, has met none of the

foregoing requirements. Neither a judicial decree of divorce, nor a
360

Interim Decision #2400
confirmation of a non-judicial divorce has been submitted. The petitioner has not substantiated the claim that there was a non-judicial
customary divorce by submitting evidence of the customary law of
divorce of the tribe to which the beneficiary or his first spouse belonged.
While we do not hold that a Ghanaian tribal or customary divorce may
be established only by a Ghanaian Court decree, we do note that the
courts of Ghana are the body best equipped•to determine the validity of
a customary divorce. Absent such a Court decree, or confirmation by a
Ghana Court, the petitioner must submit proof of the customary law of
the pertinent Ghana tribe or group and proof that such law was conformed to. See Matter of Annang, 14 I. & N. Dee. 502 (BIA 1973).
The result reached by the district director was correct. The appeal
will be dismissed.
ORDER: The appeal is dismissed.

961


Interim Decision #1873

MAn nisi

OF ABREU-SEMINO

In Deportation Proceedings
A-11910724
Decided by Board 'vine RI, 1968
Conviction of unlawful sale and unlawful possession of LSD in violation of 21
17.0.0. (q) (0) and 21 U.S.O. 221(q) (8), reopeeblvol7, is not a conviction of
a crime involving moral turpitude.
CHARON:
Order: Act of 1052--Section 241(a) (4) [8 U.S.C. 1251(a) (4)3—Convicted of

crime involving moral turpitude within Ave years of
entry, to wit: unlawful possession and sale of LSD in
violation of Title 21, sections 331(q) (2) and 331(q) (3)
of U.S.C.
ON BEHALF Or RESPONDENT:

ON BIZEGILT Or &WW2:

B. A. Vielhaber, Esq.

Toney, Rose & Giantism Esqs.
200 East College Avenue
Tallahaisee, Florida 32301
(Brief submitted)

Appellate Trial Attorney
Henry J. Scroope, Jr., Esq.
Trial Attorney
(Brief submitted)

This case comes forward on certification from the special inquiry
officer, who has found that the crime of which respondent was convicted dues not involve moral turpitude, that respondent is therefore,
not deportable as charged, and has ordered the proceedings terminated.
Respondent is a 23-year-old divorced male alien, native and citizen
of Cuba, who came to the United States in 1960 as a political refugee
and who, on December 30, 1963, after a brief visit in Canada, was
lawfully admitted to the United States for permanent residence, upon
presentation of a nonquota immigrant visa.
On April 12, 1967, respondent was convicted in the United States
District Court for the Northern District of Florida, on four counts
of violating Title 21, U.S.C., two for unlawful sale and delivery of
LSD, a depressant or stimulant drug, in violation of section 331(q)
(2), and two for unlawful possession of LSD, in violation of section
331(q) (3). He was sentenced to one year each on the first two counts,
the sentences to run consecutively; sentence was suspended on counts

775

Interim Decision #1878
three and four, with the direction that he be placed on probation for
two years, to commence after termination of the sentence imposed on
the first two counts. There is no evidence that respondent has ever been
charged with or convicted of any other crimes.
Respondent having conceded that the above convictions relate to
him, and there being no question that the drugs involved were not
narcotics (see discussion of special inquiry officer at p. 3 of his opinion),
the issue of his deportability rests on whether or not the crimes of
which he was convicted involve moral turpitude. We hold, with the
special inquiry officer, thatthey do not.
The prohibition we are here concerned with, upon unauthorized
traffic in depressant and stimulant drugs, was enacted by Public Law
89-74; the legislative statement of purpose accompanyincr the proposed legislation and contained in Senate Report No. 337t'(June 21,
1965, 89th Cong.), was as follows :
The bill provides increased controls over the distribution of barbiturates,
amphetamines, and other drugs having a similar effect on the central nervous system. The controls are accomplished through increased record-keeping and inspection requirements, through providing for control over intrastate traffic in these
drugs because of its effect on interstate traffic, and through making possession of

these draw (other than by the user) illegal outside of the legitimate charmers of
commerce. The bill also increases the authority of the Department of Health,
Education and Welfare over counterfeit drugs. * • • (Emphasis supplied.)

Further description of the purpose and intent of the legislation is in
the law itself which, immediately after setting forth its title, goes on to
state:
Sec. 2. The Congress 'hereby tin& and declares illicit truffle in depressant and
Stimulant drugs moving in or otherwise affecting interstate commerce : that the

use of such drugs, when not under the supervision of a licensed practitioner, often
endangers safety on the highways (without distinction of interstate and intrastate traffic thereon) and otherwise has become a threat to the public health and
Safety, making additional regulation of such drugs necessary, regardless of the
intrastate or interstate origin of such drugs; that in order to make regulation and
protection of interstate commerce in such drags effective, regulation of intrastate
commerce is also necessary because, among other things, such drugs, when held
for illicit sale, often do not bear labeling showing their place of origin and because
in the form. in which they are so held or in which they are consumed a determination of their place of origin is often extremely difficult or impossible: and that
regulation of interstate commerce without the regulation of intrastate commerce
In such drugs, as provided in this Act, would discriminate against and adversely
affect interstate commerce in such drugs. (Emphasis supplied.)

It is clear, therefore, that this is regulatory legislation. We have
many times held that the violation of a regulatory, or licensing, or
revenue provision of a statute is not a crime involving moral turpitude;
Matter of V—, 1 I. & N, Dec. 293 (violation of Narcotic Drugs Im776

Interim Decision #1876
port and Export Act of 1909) ; Matter of H—, 1 I. & N. Dec 394 (violation of section 3281 of the Revised Statutes (26 U.S.C. sec. 1397 (a)
(1) ), carrying on business of retail liquor dealer without having paid
special tax required by law; Matter of J , 2 I. & N. Dec. 99 (violation of 25 U.S.C.A. 241, sale of intoxicating liquor to a tribal In—

dian) 1 ; Matter of R—, 4 I. & N. Dec. 644 (violation of Chapter 249
of the Criminal Code of the State of Washington, unlawfully disposing of narcotic drugs; see citation and discussion of cases, both administrative and judicial, on the question of whether such offenses involve
moral turpitude, contained in this decision).
As we pointed out in Matter of 1?—, supra, moral turpitude normally inheres in the intent; U.S. an rel. Meyer v. Day, 54 F.2d 336;
U ex. rel. Shladzien v. Warden, 45 F.2d 204. Thus, crimes in which
evil intent is not an element, no matter how serious the act or how
harmful the consequnces, do not involve moral turpitude. See Gordon
and Rosenfield, Immigration Law and Procedure, secs. 4.14(b)-4.14e,
for enumeration of specific examples of such crimes.

In the statute under consideration, intent is nowhere mentioned in
defining the prohibited act; it is nowhere mentioned in describing the
crimes charged in the four counts of the information. Although other
sections of the statute describe sets in which fraud or intent to mislead
must be shown, all that is required for conviction under sections 331(q)
(2) and (q) (3), as we read the statute and the information, is the
showing . of possession, and sale, and the showing that the person
charged with the violation is not within the classes authorized by
statute to have posession or make a sale of the specified drugs. We
concur with the special inquiry officer, upon examination of the
purpose and applicable provisions of the statute, that the crimes
therein defined and of which respondent was convicted, do not involve
moral turpitude_

ORDER: It is ordered that the decision of the special inquiry officer
certified to this Board for final action, be and the same is hereby
sustained.
1 1n Matter of Y—, 2 I. & N. Dec. 600, where it was held that conviction of
violation of section 4(1) (f) of the Dominion Opium and Narcotic Drug Act
(Canada) for unlawful sale and possession of drugs was a crime involving
moral turpitude, there were two specific pronouncements by judges of the
Canadian courts that the statute violated was neither a licensing nor a revenue
statute but had been enacted to prevent the commission of a crime and to
punish criminals.

777


Interim Decision #2334

• MATTER OF HEUNG

In Visa Petition Proceedings
A-21020882

Decided by Board November 25, 1974
In order to support a claimed brother and sister relationship a petitioner has to establish.
that he and the beneficiary are or once were "children of a common parent" within the
meaning of section 101(b)(1) and (2) of the Immigration and Nationality Act. Petitioner's
mother married the father of the beneficiary in 1974. By virtue of that 1974 marriage,
the beneficiary became the stepchild of petitioner's mother through operation of section

101(b)(1)(B) of the Act, and petitioner's mother became the parent of the beneficiary
within the meaning of section 101(b)(2). Therefore, the petitioner and beneficiary have a
common parent for immigration purposes, and the petition under section 203(a)(5) of the
Act should be approved, notwithstanding there is no eonsanguineons relationship between petitioner and beneficiary. Matter of Campbell 13 I. & N. Dec. 552 (BIA 1970),

overruled.
ON BEHALF OF PETITIONER: Joseph P. Fallon, Jr., Esquire.
30 Hotaling Place
San Francisco, California 94123

The United States citizen petitioner applied for preference status for
the beneficiary as his stepsister under section 203(a)(5) of the Immigration and Nationality Act. In a decision dated August 16, 1974, the
district director approved the visa petition, concluding that the petitioner and the beneficiary should be regarded as "brother" and "sister"

within the meaning of the Act. Inasmuch as this conclusion is in conflict
with our decision in Matter of Campbell, 12 I. & N. Dee. 552 (MA 1970),

the district director has certified his decision to us pursuant to the
provisions of 8 CFR 3.1(c). We shall overrule Matter of Campbell, and
affirm the decision of the district director.
In Matter of Campbell, supra, we held that a United States citizen
petitioner could not confer a fifth preference classification upon her
stepsister, since they were not "sisters of the whole or half blood" in
that the petitioner and the beneficiary did not have a common natural
parent. However, in cases dealing with adoption, we have recognized
that individuals may qualify as "brothers and sisters" by virtue of
adoption in accordance with section 101(b)(1)(E), even though such a
relationship is not consanguineous. Matter of Fong, 10 I. & N. Dee. 497
145

Interim DecLsion #2834
(BIA 1964); Matter of Butterly, 14 I. & N. Dec. 460 (BIA 1973): We
overrule our holding in Matter of Campbell, supra, because it is inconsistent with the reasons underlying the foregoing decisions.
We agree with the district director that the definitions of the terms
"parent" and "child" in section 101(b)(1) and (2) should be applied in
determining whether an alien qualifies as a "brother" or "sister" within
the meaning of section 203(a)(5). We have employed such definitions in
similar instances. See, e.g., Matter of Coker, 14 I. & N. Dec. 521 (BIA
1974), where we held that in order to qualify as a "daughter" for
preference purposes, a beneficiary must once have qualified as a "child"

of the petitioner under section 101(b)(1), and Matter of Kim, 14 I. & N.
Dec. 561 (B LA. 1974), where we held that a beneficiary who fails to
qualify as a legitimated , child under section 101(b)(1) is ineligible for
preference status under section 203(a)(5) as the "brother" of the petitioner through the paternal relationship. In support of a claimed brother
or sister relationship, a petitioner has to establish that he and the

beneficiary are or once were "children" of a common "parent" within the
meaning of section 101(b)(1) and (2) of the Act.
In this case, the petitioner's mother, Helen Cheung Heung, married
Joseph Wing Kau Wong in 1949. The petitioner was burn of this marriage in 1952. The petitioner's parents were divorced in 1955, and the
petitioner's mother married Bernard Kwok Hing Henn' in 1974. The
latter had also been married previously, and the beneficiary was the

legitimate child of that prior marriage, which ended in divorce in 1971.
By virtue of the 1974 marriage, the beneficiary became the stepchild
of Helen Cheung Heung, through operation of section 101(b)(1)(B) of the
Act. Conversely, Helen Cheung Heung became the parent of the beneficiary within the meaning of section 101(b)(2). Helen Cheung Heung,
of course, already qualifies under the Act as the parent of her son, Alan
Shul Lun Wang, the'petitioner herein. Thus within the context of the

Immigration and Nationality Act, the petitioner and the beneficiary
have a common "parent", namely Helen Cheung Heung.
Since the petitioner and the beneficiary are "children" of a common
"parent" within the meaning of section 101(b)(1) and (2) of the Act, they

may be regarded as "brother"- and "sister" for purposes of section
203(a)(5). Accordingly, we affirm the decision of the district director.
ORDER: The decision of the district director is affirmed.

146