Interim Decision #2938

MATTER OF MAY
In Via Petition Proceedings
A-24967547
Decided by Board April 26, 1983

The Board of Immigration Appeals adopts the State Department assessment of the
reliability of certificates issued by Notarial Offices in the People's Republic of China set
forth in, the State Department Foreign Affairs Manual as revised on July 9, 1982, which
states, inter akin, that such certificates are issued on the basis of primary documentation
submitted by the applicant or as a result of an investigation by notarial office staff and
while generally reliable, are best, used in conjunction with other supporting evidence.
Metter or t.3wang, 17 I&N Dec;. 305 (DI and Matter ofLnn IS LEN Dec. 116 (BIA
1976), modified.
ON BEHALF or Permossa: Edward Jew, Esquire
950 Stockton Street, Suite 200
San Francisco, California 94108
BY: Milhollan, Chairman; Mardatis, Diume, Morris, and Vacca, Board Members

In a decision dated September 1, 1982, the District Director denied
the visa petition filed by the United States citizen petitioner to accord
the benefifty preference status as his sister pursuant to section 203(a)(5)
'of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(5). The petitioner has appealed from that decision. The record will be remanded to
the District Director.
in order to support a claimed "siblingrelationship under section 203(a)(5)
of the Act, the petitioner must establish that he and the beneficiary once
qualified as the "children" of a common "parent" as those terms are
defined by sections 101(b)(1) and (2) of the Act, 8 U.S.C. 1101(b)(1) and
(2). Matter of Gonzatez, 17 I&N Dec. 236 (BIA 1980). The petitioner
maintains that he and the beneficiary are offspring of the same parents.
In support of his petition; the petitioner submitted, inter Witt, a certificate of family relationship that was issued on December 10, 1979, a birth
certificate relating to the beneficiary that was also issued on December
10, 1979, and a birth certificate relating to the petitioner that was
issued on April 8, 1982. Each of those documents was issued by the
Notarial Office, Guangdong Province, People's Republic of China, and
each reflects that the petitioner and the beneficiary were born to the

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Interim Decision #2938
same mother and father.
The District Director denied the visa petition for failure on the part of
the petitioner to satisfy his burden under Matter of Brantigan, 11 I&N
Dec. 493 (BIA 1966), of establishing that a brother-sister relationship
exists between him and the beneficiary. Citing Matter of Cheung, 17
I&N Dec. 365 (BIA. 1980), the District Director determined that little
weight could, be assigned to the birth and family relationship certificates
provided by the petitioner. In Matter of Cheuruj, id., the Board concluded that a certificate of family relationship issued by authorities of
the People's Republic of China was of extremely limited probative value
where, as here, the document was recently issued (i.e., not issued contemporaneously with the events described), was silent as to the source
of the information provided, and the petitioner had failed to establish
that .it was issued after reference to official records or to a reliable,
independent source. See also Matter of Lau, 16 I&N' Dec. 115 (BIA
1976).
, On appeal, the petitioner, through counsel, urges that we reconsider
our position with respect to the evidentiary vatic properly accorded
' 1 documents issued in the People's Republic of China. We find
dfficia
such reevaluation appropriate in light of information originating since
decisiqns in Matter of Cheung and Matter of Lau, supra. To the
extent any conflict exists between our decisions in those.cases and our
present holding,' Matter of Cheung and Matter of Lau, are herewith
modified.
On July 9, 1982, the section relating to the People's Republic of China
in Appendix B of the State Department's Foreign Affaifs Manual, which
is aped by the Immigration and Naturalization Service to determine the
availability of foreign documents,' was extensively revised in a manner
responsive to the concerns we voiced in Matter of G heung and Matter of
Lau, at least with respect to documents issued by China's Notarial
Offices. That section, as revised, provides in pertinent part:
CHINA, PEOPLE'S REPUBLIC OP

DOCUMENTS:
Most of the documents listed below wilt be obtained front one of China's Notarial Offices
(Gong Zheng Chu). Notarial OfEoai are sited in most large Chinese cities and also in
rural county seats. Notarial Offices are part of the Ministry of Justice structure, and as
such are separate from the People's Court system.
Matter of Lau, supra, involved a notarial certificate offered as proof of a Chinese
adoption. The document in question in Matter alCheung, supra, an "Official Certification
of Family Relationship," was issued by. the People's Court of a local district while the
documents here at issue, like the certificate in Matter of Las, emanated from one of
China's Notarial Offices. The probative value of documents issued by the People's Courts .
is a question not presently before us.
2 See Immigration and. Naturalization Service Operations Instruction 204.2a.

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Interim Decision #2938
Notaries in China do not perform the same function as their American counterparts.
Chinese notaries affix their signatures and office seal to certificates which attest to the
probity of claims made by the applicants. There is no manner of oath taking involved,
but the notary is empowered to belle a certificate only if he concludes that the alleged
facts are true. Notaries issue these certificates based either on primary documentation
submitted by the applicant or as the result of an investigation conducted by notarial
office staff. Notarial certificates are generally reliable but are best used in conjunction
with other supporting evidence. The certificate's source of information does not appear
on the certificate itself. Chinese authorities advise that documents issued by commune,
brigade, or work unit officials are not to be accepted in lieu of notarial certificates.
Available. Chinese citizens
may apply for such documents at their local notarial office. Issuance of these certificates
takes from a few days to several weeks, depending on whether the notary conducts an
investigation. The basic issuance fee Is five yuan per document, although this may
increase flan investigation is necessary.

BIRTH, MARRIAGE AND DEATH CERTIFICATES:

• ••
See Vol. 9, Foreign Affairs Manual, Appendix B, "China, People's Repub-

lic of."
We adopt the foregoing State Department assessment of the reliability of documents issued by China's Notarial Offices and shall remand the
record to the District Director for reconsideration of his decision in light
thereof. By the terms of that assessment, such notarial -certificates
should not be regarded as conclusive proof of the facts recited. Rather,
the notarial certificates should be accompanied by any and all supporting evidence that the petitioner may be able to produce. Ultimately,
each case must be decided on its own facts with regard to the sufficiency
of the evidence provided. Cf. Matter of Serna, 16 I&N Dec. 643 (BIA
1978).

In denying the visa petition in this case, the District Director referred
to a sworn Statement allegedly made by the petitioner on January 17,
1961, in which he asserted that he was an only child. The petitioner
insists that the District Director erroneously attributed to him a statement made by another alien with a similar name but different alien
number, birthday, and family history. This matter should be resolved
on remand.

Finally, the petitioner has submitted additional material evidence on
appeal which should be considered by the District Director along with
any further evidence the petitioner or the Government may wish to
present. The District Director should thereupon enter a new decision in
the case. In the event the decision on remand is again adverse to the
petitioner, we direct that the case be certified back to the Board for
review.
ORDER The record is remanded to the District 'Director for further proceedings 'consistent with the foregoing opinion and for the entry
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of a new decision.
FURTHER ORDER: Should the decision on remand again be
adverse to the petitioner, the record shall be certified back to the Board

for review.

284


Interim Decision #1832

MATTER OF PACO

In Exclusion Proceedings
A-17243619
Decided by Board January 10, 1968
Withdrawal, prior to an alien's application for admission to the United States,
of the job offer on which a labor certification was issued to her, renders the
alien inadmissible under section 212(a) (14) of the Immigration and Nationality Act, as amended.
EXCLUDABLE •

Act of 1952—Section 212(a) (14) [8 U.S.C. 1182(a) (14)1—Entering to perform labor—No valid Labor Department
certification.

The decision of a special inquiry officer of August 24, 1967 excluding applicant from admission to the United States has been certified
to us forfinal decision by the District Director, Phoenix, Arizona.
Applicant, a 31-year-old married female alien, a native and citizen
of Mexico, seeks admission to the United States to work and presented
a nonquota immigrant visa issued to her on May 19, 1967, by the
American Consul at Hermosillo, Sonora, Mexico. Applicant's admitted
reason for corning to the United States was to perform work. Attached
'to her TiSa, is an alien employment certification which shows that the
Bureau of Employment Security, United States Department of Labor
had certified her employment in the United States as required by section 212(a) (14) of the Immigration and Nationality Act. The sole
question presented is whether on 'the basis of these documents applicant
is entitled 'to enter the United States when information developed subsequent to the issuance of this said labor certification indicates that the
job offer on the basis of which the labor certification was issued had
been withdrawn. Does the fact that there is no job now available to applicant render the labor certification inoperative and thus forestall
her entitlement to the nonquota immigrant visa
We agree with the decision of a special inquiry officer that the withdrawal of the job offer prior to applicant's entry into the country
negated the labor certification. There is evidence

599

in the record that the

Interim Decision #1832
labor certification originally may have been obtained by certain misrepresentations made by a person acting on behalf of the prospective
employer, but we need not concern ourselves with this since the job
offer, whatever it was, has been withdrawn.
re is no error in refusing admission to The applicant to enter the
The
United States. The change in events, that is, the withdrawal of the job
offer, invalidates the previously issued labor certification and thus we
will affirm the decision of a special inquiry officer excluding applicant
from admission to the United States.
ORDER: It is ordered that the order of the special inquiry officer
that applicant be excluded and deported from the United States be
approved.
ADDENDUM

[Oral decision of special inquiry officer August 24, 1967]
Applicant is a 31-year-old married, female alien, a native and
citizen of Mexico, who seeks admission to the United States to work.
She has presented a nonquota immigrant visa issued to her on May 19,
1967, by the American Consul at Hermosillo, Sonora, Mexico (Exhibit No. 2). Attached to the said visa is a visa application in which the
applicant states that she was going to enter the United States to work
antl going to the home of George T. Vaught in Yuma, Arizona, and
that would be her permanent address in the United States. In Item
No. 31 (2) (d), the applicant states that she has an offer of work and
can work: Item No. 85 of the said visa application shows that one
Robert F. Wilson of 625-4th Avenue, Yuma, Arizona, assisted the applicant in its preparation.
Attached to the respondent's aforementioned visa application is an
application for alien employment certification, Part B, Job Offer
for Alien Employment, with signature thereon of the prospective
employer, George T. Vaught, dated January 24, 1967, and therein
the jurat showing that it was sworn to on the same date before
the aforementioned Robert F. Wilson, Notary Public, at Yuma, Arizona. The said application for alien employment certification bears the
stamp of the Regional Administrator, Bureau of Employment Security, dated February 6, 1967, showing that a determination was made
thereon as required by section 212(a) (14) of the Immigration and
Nationality 'Act, as amended, and it is stamped "certified", indicating
that it had been determined as to availability of workers in the United
States and that approval of applicant's job offer would have no adverse effect on wages and working conditions of workers in the United
States similarly situated. •
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Interim Decision #1832
The prospective employer, Mr. Vaught, testified herein today
that he was considering the employment for a temporary period only
of a part-time domestic and part-time chicken-helper in connection
with egg raising due to the very poor health of his wife, but that
his wife died on April 11, 1967, at which time he informed the notary
public aforementioned, Robert F. Wilson, that his wife had died and
he would no longer require this houseworker. Mr. Vaught identified
a letter dated May 1, 1967, bearing a notarial jurat of the same day
and testified that the only part of that letter which was true and correct is his signature thereon and that the job offer contained in the
body of the letter dated May 1, 1967, was not true and that there was
no job open at the time and he would not pay $35 per week and
the position would not be permanent. In other words, it appears from

Mr. Vaught's testimony today that the notary public, Mr. Wilson,
twisted the retraction of any offer of employment following the
prospective employer's wife's death to a job offer. Mr. Vaught, the
prospeCtive employer, further identified his signature on an affidavit
of support attached to the aforementioned job offer, and stated that
he was induced to sign it upon the assurance of the notary public,
Mr. Wilson, that it was all right for Mr. Vaught to sign it. Mr. Vaught
further stated that the net annual income stated in Item 4 (B of the
said affidavit of support) was not true and that the annual income
shown on the aforementioned application for certification also was
not true:
It clearly appears from Mr. Vaught's testimony herein that he
was induced to sign the aforementioned alien employment job offer
for certification and the attached offer dated May 1, 1967, and the

attached affidavit of support in blank by the notary public who
handled the preparation of the said documents and applicant's visa
application. Mr. Vaught further testified that he has only occasionally employed a domestic, about once every two weeks for several
hours to clean his home and do some ironing.
Mr. Vaught's testimony was confirmed by the applicant's testimony.
She frankly admitted that Mr. Vaught informed her that his wife was
very ill and he didn't have much work for her, and such Work that he
had would be only for about six months he thought. She further testified that she has never worked regularly and washes and sews for

her family, consisting of her husband and four children all of whom
are natives, citizens, and residents of Mexico, and that she occasionally
does this for relatives and acquaintances. Applicant further stated

that her husband on one occasion sought to emigrate to the United
States but his application was not granted.
Section 212(a) (14) of the Immigration and Nationality Act ex601

Interim Decision #1882
eludes from admission into the United States any alien seeking to
enter for the purpose of performing skilled. or unskilled labor unless
the Secretary of Labor has determined and certified that there are not

sufficient workers in the United States, able, willing, qualified, and
available at the time of application for a visa and admission to the
United. States and at the plans to which the alien is destined to perform
such skilled or unskilled labor, and has further certified that the employment of such alien will not adversely affect wages and working
conditions of workers of the United States similarly employed.. The
said section specifically applies to special immigrants defined in section 101(a) 27(A) other than the parents, spouses, or children of
United States citizens or of aliens lawfully admitted to the United
States for permanent residence.
It must be concluded on the basis of the evidence herein that the
labor certificate attached to applicant's visa is not a valid labor certificate in that there is no job for the applicant to fill in accordance with
the certification made by the Bureau of Employment Security, Department of Labor, on the baths of the job offer submitted by the aforementioned notary public apparently on behalf of the prospective employer. The said prospective employer has pointed out a number of
misrepresentations in the job offer which vitiated it and invalidated
it. In any event, there is no job within the terms of the labor certificate
presently available to this applicant. Her application for admission
must be denied in that it is found that the applicant is presently inadmissible to the United States under the provisions aforementioned of
section 212(a) (14) of the Immigration and Nationality Act.
The foregoing discussion shall constitute my Findings of Fact and
Conclusion of Law herein.
ORDER: It is ordered that the applicant be excluded and deported
from the United States.

602


Interim Decision *2256

MATTER OF PATEL

In Deportation Proceedings
A-20316944
Decided by Board March 20, 1975
An alien seeking voluntary departure under section 244(e) of the Immigration and Nationality Act must establish that he has been a person of good moral character as
defined in section 101(f)(3) of the Act, for at least five years prior to the application for
voluntary departure. Conviction of a crime involving moral turpitude as contemplated
in section 212(s)(9) of the Act within the statutory period precludes a finding of good
moral character unless the conviction was for a petty offense as measured by the
sentence imposed. Where respondent was convicted of the crime of receiving stolen
property and sentenced to imprisonment in the state prison, the offense is a felony
involving moral turpitude and the respondent is not eligible for voluntary departure,
notwithstanding the sentence was suspended and respondent was placed on probation.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Nonimmigrant—remained
longer.
ON BEHALF OF RESPONDENT: Milton T. Simmons, Esquire
517 Washington Street
San Francisco, California 94111

This is an appeal from an order of an immigration judge finding the
respondent deportable and denying his application for voluntary depature. The appeal will be dismissed.
The record relates to a single male alien, 26 years of age, a native and
citizen of India, who entered the United States on September 5, 1970 as
nonimnugrait student. The respondent was authorized to remain until
September 4, 1973. He has remained thereafter without authority.
Deportability is conceded. We find that deportability has been estabished by clear, convincing and unequivocal evidence.

The respondent seeks the relief of voluntary departure, pursuant to
;ection 244(e) of the Immigration and Nationality Act. That section
-equires a finding that the person has been a good moral character for at
east five years immediately preceding his application for voluntary
leparture. The Act, in its definition section, provides that:
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Interim Decision #2356
"No person shall be regarded as, or found to be, a person of good moral character
who, during the period for which good moral character is required to be established, is,
or was—
(3) a member of one or more of the classes of persons, whether excludable or not,
described in paragraphs . . . (9) . . . of section 212(a), if the offense described therein,
for which such person was convicted . . . was committed during such period . . ."
section 101(f).

'section 212(a)(9) describes aliens' who have been convicted of a crime
nvolving moral turpitude, with an exception for
.. fa]ny alien who would be excludable because of the conviction of a misdemeanor
classifiable as a petty offense under the provisions of section 1(3) of title 18, United
States Code, by reason of the punishment actually imposed, . . . ."

The respondent was convicted in the California Superior Court for the
Jity and County of San Francisco of the crime of receiving stolen
zoperty (two counts) in violation of section 496.1 of the California Penal
Aide. The offense occurred during August or September of 1973. The
;rime of receiving stolen property involves moral turpitude, if knowl?Age that the goods were stolen is an element of the offense, Matter of
?—, 6 I. & N. Dee. 772 (BIA 1955); Matter of Z—, 7 I. & N. Dec. 253
BIA 1956). The California statute involved here requires knowledge
;hat the goods were stolen; therefore, it involves moral turpitude. The
-espondent contends that by reason of the punishment actually imposed,
ds conviction is within the exception of section 212(a)(9) above.
California has a system whereby alternative punishment is provided
'or many offenses. Determination of whether such an offense is a felony
m• a misdemeanor depends upon the punishment imposed.
"(a) A felony is a crime which is punishable with death or by imprisonment in the
state prison . . . .
(b) When a crime is punishable, in the discretion of the court, by imprisonment in the

state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all
purposes under the following circumstances:
(1) After a judgment imposing a punishment other than imprisonment in the state
prison."
Section 17 of the. California Penal Code.

The offense of which the respondent was convicted provides for alternative sentences of imprisonment either in the state prison or in the
county jail, California Penal Code, section 296.1. The respondent contends that although he was sentenced to imprisonment in the state
prison, the judge suspended that sentence and imposed another
punishment, making the offense a misdemeanor, pursuant to section
17(b)(1) above.
The order of the judge sentencing the respondent reads as follows:
"It is therefore ordered, adjudged and decreed that he be punished by imprisonment
in the State Prison for the term provided by law. It is further ordered that execution of
said sentence be suspended and:

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Interim Decision #2356
his orderk that he be placed on Probation fa- a period of THREE (3) YEARS AND,
as a condition •)f Probation, that he be confinefin the County Jail of the City and County
of San Francii.co, State of California, for the term of SIX MONTHS . . . ."

Counsel's contention that the punishment is distinguishable from the
sentence is without merit.
"As to a crime which may be either a misdemeanor or a felony, depending upon the
punishment imposed therefor (Penal Code, §17), it is the punishment specified by the
sentence which determines the character of the crime for all purposes' (§17) . ."
People v. Hamilton, 33 Cai.2d 45, 198 P.2d 873 (1948).

Suspending tie execution of the sentence and granting probation do not
1n1lify the fact that the punishment actually imposed by the sentence
vas imprisonment in the state prison.

•
"It is also clear that when a crime is punishable by imprisonment in the state prison,

or in the discretion of the court by imprisonment in the county jail, the actual punishment ordered :s the test . . . . Thus on problem is prevented when bentence is actually
imposed, even though the defendant is granted probation." Meyer v. Superior Court, In
and For County of Sacramento, 55 Cal. Rptr. 350, 247 C.A.2d 133 (Ct. of App., 5th
Dist. 1966). (Emphasis supplied.)

anting probation to a person sentenced to imprisonment in the state
rison does not affect that person's legal status as a person who has been
mvicted of a felony, People v. Brasley, 115 Cal. Rptr. 910, 912, 41 Cal.
pp. al 211 (Ct. of App. let Dist., Div. 1, 1974). By granting probation
id withholding commitment the court retains jurisdiction over the
afendant under the probation procedures, People v. Brasley, supra.
alifornia law permits imprisonment in the county jail as a condition of
-obation, section 1203.1, California Penal Code. The provision in the
dge's order requiring the respondent to spend six months in the
unty jail was a condition of probation, and not the punishment actually
posed.

Accordingly, we agree with the immigration judge's decision to deny
luntary departure. The respondent is statutorily ineligible for it
der section 101(f)(3), as a person excludable under section 212(a)(9).
reject the contention that the respondent was convicted of a mismeanor. He was sentenced to the state prison. Under California law,
entence to the state prison operates to classify an offense as a felony.
cordingly, the respondent has not established that he has been a
-son of good moral character during the five years which precede his
Dcation for voluntary departure.
)11DER; The appeal is dismissed.

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Interim Decision #3847

Matter of M-A-F- et al., Respondents
Decided August 21, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) Where an applicant has filed an asylum application before the May 11, 2005,
effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119
Stat. 302, and, on or after that date, submitted a subsequent application that is properly
viewed as a new application, the later filing date controls for purposes of determining
the applicability of section 208(b)(1)(B)(iii) of the Immigration and Nationality Act,
8 U.S.C. § 1158(b)(1)(B)(iii) (2012), to credibility determinations.
(2) A subsequent asylum application is properly viewed as a new application if it
presents a previously unraised basis for relief or is predicated on a new or substantially
different factual basis.
(3) Where an alien has filed more than one application for asylum and the subsequent
one is deemed to be a new application, the filing date of the later application controls
for purposes of determining whether the 1-year statutory time bar applies under
section 208(a)(2)(B) of the Act.
FOR RESPONDENTS: Manpreet Singh Gahra, Esquire, Berkeley, California
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Assistant Chief Counsel

Kathleen W. Taylor,

BEFORE: Board Panel: GUENDELSBERGER and MALPHRUS, Board Members;
GELLER, Temporary Board Member.
MALPHRUS, Board Member:

This case was last before us on November 5, 2012, when we dismissed
the respondents’ appeal from an Immigration Judge’s decision, effective on
March 16, 2011, denying their applications for asylum, withholding of
removal, and protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and
opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR
Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force
June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against
Torture”).
The respondents filed a petition for review with the
United States Court of Appeals for the Ninth Circuit, which has remanded

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Interim Decision #3847

the record to the Board. The record will be remanded to the Immigration
Judge for further proceedings. 1

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Pakistan who was admitted to
the United States as a nonimmigrant visitor for business on October 11,
2000, with authorization to remain until November 10, 2000. On
February 26, 2003, the respondent filed an Application for Asylum and
Withholding of Removal (Form I-589) and a five-page written declaration
with the former Immigration and Naturalization Service (“INS”). He
subsequently appeared for an interview with an asylum officer. On
May 20, 2005, the Department of Homeland Security (“DHS”) served the
respondent with a notice to appear for removal proceedings. At a hearing
on May 4, 2006, he conceded removability as an overstayed nonimmigrant
and filed a second Form I-589.
During his testimony, the respondent acknowledged that his first
application contained a name and birth date somewhat different from his
own. He also admitted that the application contained inaccurate statements
indicating that he was arrested five times on specific occasions based on his
participation in rallies or protests involving the Pakistan Peoples Party
(“PPP”). The respondent also claimed in that application that he had been
held for certain specific periods of time ranging from 6 days to 2 months
and that he was tortured by various specific means during those detentions.2
By contrast, in his 2006 application, the respondent stated that he had
participated in two PPP protests but evaded arrest both times, and he made
no claim that he was ever detained or tortured.
In her decision, the Immigration Judge found that the respondent was
ineligible for asylum because his application was not timely filed within
1

The lead respondent’s wife and son, who are derivatives of his application, also filed
independent asylum applications. They concede that they are not eligible for asylum
based on those applications because they were not timely filed. Since we are remanding
the record, we need not resolve any issues related to their applications at this time. Our
decision will therefore focus on the claims of the lead respondent, whom we will refer to
as “the respondent.”
2
The falsity of the application came to light pursuant to a DHS investigation of a
person who assisted the respondent in the preparation of his 2003 asylum application and
acted as a translator during his interview. That person was eventually convicted for his
role in preparing false asylum applications. At the respondent’s hearing, the DHS
presented testimony from the officer who investigated the individual, as well as that of
the asylum officer who interviewed the respondent. The Immigration Judge found these
witnesses to be credible.

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Interim Decision #3847

a year of his arrival, as required by section 208(a)(2)(B) of the Immigration
and Nationality Act, 8 U.S.C. § 1158(a)(2)(B) (2006), and his untimely
filing was not excused by changed or extraordinary circumstances pursuant
to section 208(a)(2)(D). The Immigration Judge evaluated the credibility of
the respondent’s claims for withholding of removal and protection under
the Convention Against Torture pursuant to the provisions of section
208(b)(1)(B)(iii) of the Act, which were enacted by the REAL ID Act of
2005, Division B of Pub. L. No. 109-13, 119 Stat. 302 (“REAL ID Act”).
In doing so, she considered the respondent’s filing date to be that of his
second application in 2006, relying on Matter of S-B-, 24 I&N Dec.
42 (BIA 2006), which held that the REAL ID Act amendments apply to
applications filed after May 11, 2005. Applying these provisions, the
Immigration Judge found that the respondent’s claim was not credible.
We dismissed the respondent’s appeal from that decision, agreeing that
the REAL ID Act applied to the respondent’s claims and upholding the
Immigration Judge’s adverse credibility determination. We alternatively
determined that the adverse credibility finding would stand under the law
that was applicable prior to the REAL ID Act. We did not reach the
question whether the respondent was ineligible for relief because his
asylum application was untimely filed.
The Ninth Circuit has remanded the record for us to further consider,
among other issues, the filing date of the respondent’s asylum application
for purposes of determining (1) whether the REAL ID Act applies, and
(2) whether his application was statutorily barred as untimely filed. The
DHS requests that we make determinations regarding these two issues and
remand the record to the Immigration Judge. The respondent has submitted
no response to the DHS’s request. We conclude that the respondent’s claim
for relief is subject to the provisions of the REAL ID Act and that the date
of his second asylum application is determinative of whether his asylum
application was timely filed. 3

II. ANALYSIS
A. Application of the REAL ID Act
The REAL ID Act amended the statute by adding the provisions of
section 208(b)(1)(B)(iii) of the Act, which specify the factors to be
3

We review the Immigration Judge’s findings of fact, including those relating to
credibility, to determine if they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i) (2015).
We review de novo all other questions of law, discretion, and judgment, including
whether the parties have met the relevant burden of proof. 8 C.F.R. § 1003.1(d)(3)(ii).

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Interim Decision #3847

considered in making a credibility determination. See REAL ID Act
§ 101(a)(3), 119 Stat. at 303; see also sections 240(c)(4)(C), 241(b)(3)(C)
of the Act, 8 U.S.C. §§ 1229a(c)(4)(C), 1231(b)(3)(C) (2012). This
provision applies to asylum applications that were filed on or after May 11,
2005, whether filed initially before an asylum officer or an Immigration
Judge. REAL ID Act § 101(h)(2), 119 Stat. at 305 (providing that the
changes to the Act “shall apply to applications for asylum, withholding,
or other relief from removal made on or after” the May 11, 2005, date of
enactment); see also Matter of S-B-, 24 I&N Dec. at 43.
The respondent submitted two asylum applications. The first was
affirmatively filed with the former INS in 2003, and the other was
defensively filed in removal proceedings before the Immigration Judge in
2006. The initial question before us is whether the REAL ID Act’s
credibility provisions apply to the respondent’s current claims. See
Shrestha v. Holder, 590 F.3d 1034, 1039−45 (9th Cir. 2010) (discussing
credibility determinations under the REAL ID Act); see also Li Hua Yuan
v. Att’y Gen. of U.S., 642 F.3d 420, 425 n.9 (3d Cir. 2011) (“Whether the
REAL ID Act applies can be significant because it imposes certain
conditions upon asylum applicants regarding credibility and corroboration
evidence.”).
The Immigration Judge found that the respondent’s application that was
filed before her was subject to the provisions of the REAL ID Act. The
respondent argues that this 2006 filing was an amended or renewed
application and therefore is not subject to the REAL ID Act. According to
the DHS, the REAL ID Act does apply because the respondent’s first
asylum application was fraudulent and was replaced by the second
application, which was not simply an amendment to his initial filing.
The regulations state that an asylum officer or Immigration Judge may
permit an asylum applicant “to amend or supplement” the application upon
request of the alien and as a matter of discretion. 8 C.F.R. §§ 208.4(c),
1208.4(c) (2015). However, the regulations do not address whether such a
supplemented or amended application should be considered a separate
filing for purposes of determining if the REAL ID Act applies. One
possible interpretation could be that the REAL ID Act provisions apply to
any asylum application filed “on or after” the May 11, 2005, effective date,
making such an application subject to the REAL ID Act, regardless of its
similarity to a previous one. However, given that the regulations allow for
the amendment of an application, we believe that the key consideration in
determining if the REAL ID Act applies should be whether the later
application is essentially a new one, rather than an amendment or
supplement to the original application.

654

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Interim Decision #3847

We find support for this position in Li Hua Yuan, 642 F.3d 420, where
the court found that the REAL ID Act would apply to an asylum
application submitted in reopened proceedings in July 2005, even though
the respondent had previously filed an application that was denied in 2002.
The court held that the second application “raises a new basis for asylum
following a motion to reopen and so is a new application rather than a
continuation of the initial one.” Id. at 425 n.9.
To determine whether a second or subsequent asylum application is
“new” and thus subject to the REAL ID Act, we must examine the specific
facts and circumstances of each filing. A later filed application that
presents a previously unraised basis for relief—such as a fear of persecution
on account of a different protected ground—will generally be considered a
new application. Even an application that is based on the same protected
ground may also be considered a new application if the alien’s later claim is
predicated on a new or substantially different factual basis. By contrast, a
subsequent application that merely clarifies or slightly alters the initial
claim will generally not be considered a new application.
The respondent filed an asylum application in 2003, which he admitted,
and the Immigration Judge found, was based on a false narrative that he had
been arrested following his participation in PPP rallies or protests and was
detained five times for periods ranging from 6 days to 2 months, during
which detentions he had been tortured. Unlike the initial application, the
respondent’s second application, filed in 2006, made no claim that he had
been arrested, detained, or tortured. Thus, while the second application was
based on the same protected ground, the facts presented there are
substantially different from those in the earlier application. The second
application did not simply correct minor errors or omissions present
in the existing claim. It was not “a continuation of the initial one.”
Li Hua Yuan v. Att’y Gen. of U.S., 642 F.3d at 425 n.9. Rather, the 2006
filing effectively substituted a new claim for the original one. Under these
circumstances, the second application did not supplement or amend the
initial application and was, instead, properly viewed as a new application.
We conclude that an alien should not be able to bypass the credibility
provisions of the REAL ID Act simply because he or she filed an earlier
application. This is particularly true here because the respondent’s initial
application contained false information, including details of specific
incidents of arrest and torture that were central to his original claim but
were not included in his later application. We therefore agree with the
Immigration Judge that the credibility provisions of the REAL ID Act
apply to the respondent’s current claim.
Where an applicant’s initial asylum application was filed before
May 11, 2005, and a second or subsequent one was submitted on or after
655

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Interim Decision #3847

that date, the filing date of the later application controls if it is properly
viewed as a new one. We emphasize, however, that the filing of a second
application after May 11, 2005, alone will not always trigger the
application of the REAL ID Act provisions. Rather, each case depends on
its own facts and circumstances.
B. Timeliness of an Asylum Application
Section 208(a)(2)(B) of the Act provides that an alien is not eligible to
apply for asylum unless he or she “demonstrates by clear and convincing
evidence that the application has been filed within 1 year after the date of
the alien’s arrival in the United States.” However, an application may be
considered “if the alien demonstrates to the satisfaction of the Attorney
General either the existence of changed circumstances which materially
affect the applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application within the period.” Section
208(a)(2)(D) of the Act; see also, e.g., Vahora v. Holder, 641 F.3d 1038,
1042−48 (9th Cir. 2011); Sagaydak v. Gonzales, 405 F.3d 1035, 1039−41
(9th Cir. 2005); Matter of A-M-, 23 I&N Dec. 737, 738−39 (BIA 2005);
8 C.F.R. §§ 208.4(a)(4), (5), 1208.4(a)(4), (5).
The respondent entered the United States on October 11, 2000, and filed
his first asylum application on February 26, 2003. Although the
Immigration Judge stated that she “agreed to consider” this the filing date
for purposes of determining whether the statutory time bar applies, we
conclude that the determinative date is May 4, 2006, when the respondent
filed his second asylum application, given that this application is deemed to
be a new one.
In Dhital v. Mukasey, 532 F.3d 1044, 1049 (9th Cir. 2008), the Ninth
Circuit agreed with our conclusion that because the alien had initially filed
a fraudulent asylum application, the date of his second application
controlled in determining whether a subsequent application with a new
claim was timely filed. In that case, the applicant had been granted asylum
under a fraudulent identity and reapplied for asylum after being placed in
removal proceedings under his true identity.
Similarly, the respondent in this case applied for asylum under a false
factual predicate and then submitted a new asylum application before the
Immigration Judge after being placed in proceedings. Consistent with the
Ninth Circuit’s analysis in Dhital v. Mukasey, we conclude that the date of
the respondent’s second asylum application is the relevant date for purposes
of determining whether the 1-year statutory bar applies. Because the
respondent submitted his application on May 4, 2006, almost 6 years after
his arrival in the United States, it was not timely filed. Therefore, his
asylum claim is statutorily barred unless he can show either “changed
656

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Interim Decision #3847

circumstances” or “extraordinary circumstances” to excuse the untimeliness
of his application. 8 C.F.R. § 1208.4(a)(4), (5). The Immigration Judge
should further address this issue on remand. 4

III. CONCLUSION
The respondent’s second asylum application is a new application
because it was predicated on a substantially different factual basis. Since
that application was filed after May 11, 2005, the provisions of the REAL
ID Act apply, including those relating to credibility. The date the second
asylum application was filed is controlling in determining the timeliness of
the respondent’s application for relief. Because that application was
submitted almost 6 years after the respondent’s arrival in the United States,
it was not timely filed unless he can establish an exception to the 1-year
filing requirement. The record will be remanded for further consideration
of this and any other remaining issues, including those noted in the Ninth
Circuit’s order.
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing order and for the entry of a new
decision.

4

We note that the Immigration Judge found that the respondent’s 2003 application was
not timely filed and that no extraordinary circumstances excused the delay in filing. See
8 C.F.R. § 1208.4(a)(5). On appeal, the DHS argued that the Immigration Judge made
erroneous findings of fact in her determination, including those regarding when the
respondent first made contact with his second attorney, who he claims rendered
ineffective assistance of counsel. Since the record will be remanded, we will not evaluate
this matter further. The Immigration Judge should consider this argument and make
further factual findings and legal determinations, as appropriate.

657


Interim Decision #2179

MATTER OF REYES-GOMEZ

In Deportation Proceedings
A-19261843
Decided by Board January 26, 1973
Neither the Immigration and Nationality Act, nor the regulations thereunder,
nor the demands of due process require that an immigration officer assigned
to perform the duties of a trial attorney in deportation proceedings shall be, in

fact, an attorney at law.

CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]--Entered without
inspection.
ON BEHALF OF RESPONDENT: Dan P. Danilov, Esquire
3828 Seattle First Nat'l Bank Bldg.
Seattle, Washington 98104
(Brief filed)

This case is before us on appeal from an order of a special
inquiry officer finding the respondent deportable and granting
him the privilege of voluntary departure. The appeal will be
dismissed.
Respondent is a 42-year-old unmarried male alien, a native and
citizen of Mexico, who entered the United States at San Ysidro,
California on February 14, 1972. On August 14, 1972 an order to
show cause in deportation proceedings was issued, charging that
respondent had entered without inspection and was deportable
under section 241(a)(2) of the Immigration and Nationality Act.
Hearing was scheduled August 28, 1972. Counsel for respondent
filed a prehearing motion with the special inquiry officer, requesting him to disqualify any person from representing the Immigration and Naturalization Service at the hearing who is not a
member of the Bar. The special inquiry officer denied the motion
in a formal order dated August 28, 1972, holding that the motion
was premature as no trial attorney had as yet been assigned to
the case and there was no showing the case would entail complex
issues.
At the hearing before the special inquiry officer, respondent
258

Interim Decision #2179
adthitted the truth of the factual allegations of the order to show
cause that he is an alien, a native and citizen of Mexico, and that
he 'had entered on or about February 14, 1972. Counsel objected to
further questions as to the remaining allegations of the order to
show cause and the District Director designated Harold C. Halvorson, a Service employee who is not an attorney, to conduct further
inquiry. Counsel objected to Mr. Halvorson's appearing, for the
Service on the ground that he was not a lawyer. The special
inquiry officer overruled the objection. Mr. Halvorson then proceeded to examine the respondent, who admitted that he was not
inspected by an immigrant inspector when he made his entry on
February 14, 1972. In his oral order at the close of the hearing, the

special inquiry officer found the respondent deportable as charged
and granted him the privilege of voluntary departure on or before
September 28, 1972. This appeal followed.
The essence of the respondent's position on appeal is that he
was denied due process because the Service's case against him was
presented by a layman rather than a lawyer. Counsel points to 8
CFR 242.91, which governs the use of trial attorneys, and asserts
that a layman not trained in the law cannot be a trial attorney.
There is nothing in the regulation which restricts the term "trial
attorney" to members of the bar. Quite the contrary, the opening
sentence of 8 CFR 242.9(a) refers to the assignment of "an
additional immigration officer . . . to perform the duties of a trial
attorney." The term "immigration officer" is defined in section
101(aX17) of the Act to mean "any employee or class of employees
of the Service or of the United States designated by the Attorney
General, individually or by regulation, to perform the functions of
an immigration officer specified by this Act or any section
§ 242.9 Trial attorney.
(a) Authority. When an additional immigration officer is assigned to a proceeding under this part to perform the duties of a trial attorney, he shall present on
behalf of the Government evidence material to the issues of deportability and
any other issues which may require disposition by the special inquiry officer.
The trial attorney is authorized to appeal from a decision of the special inquiry
officer pursuant to § 242.21 and to move for reopening or reconsideration
pursuant to § 242.22.
(b) Assignment. The district director shall assign a trial attorney to every case
within the provisions of § 242.16(c), to every case in which an unrepresented
respondent is incompetent or under 16 and is not accompanied by a guardian,
relative or friend, and to every case in which the special inquiry officer requests
assignment of a trial attorney. He shall also assign a trial attorney to every case
in which the Commissioner approved the submission of nonrecord information
(4 242.17(a)). In his discretion, whever he deems such assignment necessary or
advantageous, the district director may assign a trial attorney to any other case
at any stage of the proceeding.

259

Interim Decision #2179
thereof. Section 242(b) of the Act, which authorizes the assignment of "an additional immigration officer . . . to present evidence
on behalf of the United States" in deportation proceedings, contains no provision restricting such assignments to members of the
bar. Thus, nothing stated in the statute or the regulations requires that a person acting as a trial attorney be in fact an
attorney-at-law.
Neither can such a requirement be spelled out from the demands of due process. The immigration officer who acts as trial
attorney- is engaged in prosecuting, and not adjudicative, functions. By the specific terms of section 242(b), the statutory provision for assignment of an additional immigration officer and the
definition of his duties may not "be construed to diminish the
authority conferred upon the special inquiry officer conducting
such proceedings." Separation of investigative and prosecuting
from adjudicative functions is assured. If an immigration officer
assigned to prosecute a deportation proceeding lacks adequate
expertise because he is not a lawyer, in a realistic sense it is the
Government's case, and not that of the alien, which is prejudiced
by his inadequacy.
Counsel sets forth three examples of how an alien's case can be

damaged if a non-lawyer trial examiner appears. First, he asserts,
in such adversary proceedings the alien's attorney may be reluctant to bring the full weight of his expert training and legal
knowledge against a layman without such advantages. Such
hypothetical forebearance on the part of counsel flies in the face of
reality. It has been our experience that aggressive counsel appearing for aliens in deportation proceedings are more likely to take
advantage of, rather than to yield before, inadequacy on the part
of their adversaries in the Service.
Second, argues counsel, in view of the many fine issues presented in deportation cases, the lack of any real competition
between the ill-matched Service representative and the superblyequipped attorney for the alien may induce a feeling of complacency on the part of the latter, with the result that the alien's case
may not be adequately presented. We reject this hypothesis, too,
as unrealistic. Based on our own experience, we very much doubt
that counsel representing aliens in deportation proceedings rely to
any extent upon the intellectual stimuli provoked by their scintillating Service adversaries to goad them into effective representstiOn of their clients. Certainly, the demands of due process do not
go so far as to require that the Service not only prove its case, but
do so in a manner sufficiently stimulating to counsel to induce him
to do his job.
Finally, counsel contends that the Service, in appearing by a
260

Interim Decision #2179
trial attorney who is not actually a lawyer, may downgrade the
whole proceeding by the subtle implication that its case is so "cut
and dried" that it does not call for a trained attorney, and that the
special inquiry officer may be subconsciously influenced by this
suggestion in arriving at his decision. The short answer is that the
special inquiry officer must base his decision on the evidence of
record before him and not on the Service's characterization,
express or implied, of the strength of its case.
On appeal before us, counsel does not challenge the special
inquiry officer's fact findings or his conclusion that the respondent
is deportable as charged. Counsel points to no objectionable question put to the respondent by Mr. Halvorson and to no erroneous
ruling by the special inquiry officer. Despite the hypothetical
possibilities of prejudice suggested by counsel, he points to nothing
in this record to indicate that the respondent was actually prejudiced in any way by Mr. Halvorson's conduct of the case. As a
Mexican native who entered so recently, the respondent is ineligible for any form of discretionary relief from deportation except
voluntary departure. The special inquiry officer granted him that
privilege. We fail to see how he was adversely affected by either
the manner in which the proceedings were conducted or the
judgment rendered by the special inquiry officer.
Our review of the record satisfies us that the hearing was fair in
all respects and that respondent's deportability has been established by evidence which is clear, convincing and unequivocal.
ORDER: The appeal is dismissed:
Further order: The respondent is permitted to depart from the
United States voluntarily to any country of his choice and at his
own expense within 31 days of the date of this order or within any
extension beyond that period as may be granted by the District
Director; and upon his failure so to depart when and as required,
the special inquiry officer's order for his deportation to Mexico
shall become immediately effective without further notice or
pro ceedings.

261


Interim Decision #1706

MATrEn or PPAULER

In Exclusion Proceedings
A-17085998
Decided by Board February 27,1967
Where an applicant for admission as an immigrant who comes within the provisions of section 212(a) (14) of the Immigration and Nationality Act, as
amended, and who has been issued a clearance order for a job as paintersupervisor promised him by a painting contractor, is also Coming to the
United States to work at a second job, namely, as a dock foreman, he is at
the same time entering another section of the labor market and, therefore,
it is encumbent upon him to obtain and present a labor certification to cover
the second area of work.

MCCOMB= : Act of 1952—Section 212(a) (14) [8 U.S.C. 1182]—Seeks to enter
the United States to accept employment different
from that for which a labor certification has been
granted.
ON BENAIN OF AFFLIMUIT : Edgar J. Dietrich, Esquire
1133 First National Building
Detroit, Michigan 48226

Applicant is a 34-year-old married male alien, a native and citizen
of Canada, in possession of a non-quota immigrant visa. As a would-be
special immigrant, who is neither the parent, spouse nor child of a
United States citizen or lawful permanent resident, applicant comes
within the provisions of section 212(a) (14) and must present a labor
certification in order to be admissible.
Attached to applicant's immigrant visa which, incidentally, shows
his occupation to be "truck driver," is a certification from the Department of Labor on Form ES-575-4 and ES-575-B. This certification
covers a job promised to applicant by John Loree, a painting contractor. The job is that of painter-supervisor for Loree, who does
business from a Detroit address. On the portion of the ES-575 form
filled in by the alien, and from the record in general, it appears that
the applicant is qualified to work either as a painter or truck driver.
When applicant applied for admission as an immigrant at Detroit,
Michigan on January 6, 1067, he stated that he was destined to work
114

Interim Decision #1706
for Hennis Freight Lines as a dock foreman, and that if such work was
not available he would then work for John Loree as a painter-supervisor; that the reason he was not immediately going to work for John
Loree was Loree's business was in a seasonal slack period. Applicant
was detained for an exclusion hearing as one not clearly entitled to
enter.
At the hearing herein, applicant testified that it had been his intention at all times to work for John Loree, but at the same time to work
for Hennis Freight Lines at a dock foreman. He claimed that he would
be able to put in a forty-hour week for both employers, the dock work
being from 3 to 12 every day on weekdays, and that he would be able to
put in several hours a, day plus full days on weekends working for
John Loree. He stated that he had discussed this arrangement with
Loree and Loree had agreed to it. Mr. Loree testified that this was the
case, and that he had approved this course of action since in his own
business, where he definitely intends to employ applicant, the hours are
often irregular so that applicant's proposed schedule could be used to
advantage. He testified that he understood that the applicant for financial reasons, had to start work immediately and because at the time of
the discussion Loree's business was having the usual year end holiday
-

slack, he suggested the applicant go to work first for the freight lines.
Applicant testified that he had never discussed with Hennis Freight
Lines the question of whether they would apply for and obtain a
clearance for him. It appears that he did not know such a clearance
would be asked for or required.
The special inquiry officer, in making his decision, indicated it as his
belief that the applicant was destined to work for Hennis Freight
Lines alone, and not for both companies and that in any event he did
not have a clearance for employment by the Freight Lines and therefore did not possess the proper documentation to enter the United
States and must be excluded. He further stated that because he believed
the Board of Immigration Appeals had not had occasion to consider
the issnei'presented in this case, he would certify the same to the Board
for review. His conclusion is formally stated in the following fashion :
"Oonduelon of Log,: (1) That because the applicant is seeking to enter the
United States to accept employment different from that for which he has been
granted a labor certification under section 212(a) (14) of the Immigration and
Nationality Act he is excludable under that provision of law."

From the record before us, we do not find it as manifest as did the
special inquiry officer that the applicant has no intention of working
at the painter-supervisor job for which he has the certification. The
record does establish, however, that the applicant has a definite intention to work for the Hennis Freight Lines as -well.
115

Interim Decision #1706
The purpose of the labor certification as specifically set forth in the
statute, is to establish (1) that there are not sufficient workers in the
United States who are able, willing, qualified and available at the
place to which the alien is destined to perform such skilled or unskilled
labor as he intends to perform and (2) that the employment of this
particular alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. Thus, even
though the applicant has a clearance order for the job as painter-supervisor, if he also is coming to the United States to work at a second job,
namely, as a dock superintendent or foreman for }Tennis Freight
Lines, he is at the same time entering another section of the labor
market. It is therefore incumbent upon him to obtain and present
evidence that his proposed entry into this second area of work will
likewise not have the prejudicial effects which the statute seeks to
prevent.
The Secretary of Labor has issued schedules and categories of employment for which the determination and certification required by

section 212(a) (14) cannot be made. These are grouped in a list entitled "Schedule B" (29 CFR section 60.2(a) (2)). Neither the occupation of dock superintendent nor foreman, nor truck driver, appears
on Schedule B, and, therefore it may be assumed that under proper
conditions certifications can be issued for either of those occupations.
Since it appears that the second job to which the applicant is destined
is one for which a labor certification may be obtained, we believe the
applicant should be given an opportunity to obtain and present such a
,

certification.

We will therefore set aside the exclusion order heretofore entered
herein and remand these proceedings with the direction that the applicant be given an opportunity to obtain and present a clearance as a
dock worker and/or truck driver, whichever is deemed appropriate
by the local office of Labor Department, to cover the second position at
which the applicant intends to work.
ORDER: It is ordered that the decision of the special inquiry
officer heretofore entered herein, ordering that applicant be excluded
and deported from the United States, be set aside.
It is further ordered that this case be remanded to the special inquiry
officer for proceedings not inconsistent with this opinion.

:116


Interim Decision #1460

MATTER

OF

Law

In Section 245 Proceedings
A-8939220

Decided by District Director April 7, 1965
Adjustment of status under section 245, Immigration and Nationality Act, as
amended, is denied an alien WOO, pursuant to section 203(a) (1) (B) of the
Act, derived first preference classification through her husband but who is no
longer entitled thereto since a bona fide husband-wife relationship has not
existed since at least July 8, 1964, when an interlocutory decree of divorce
was granted her husband.

Discussion: On February 2, 1965 subject's application for status
as permanent resident was denied on the ground that an immigrant
visa was not immediately available to her, she being no longer entitled to derivative first preference classification through her hus'band by reason of an interlocutory decree of divorce granted to him
upon her default. On March 22, 1965 the applicant filed the instant
motion for reconsideration urging that the interlocutory decree of
divorce did not terminate ,the marriage; that that would only occur
at the time a final decree was entered; that until then she remained

the wife entitled to derivative first preference classification thiough
her husband; and, therefore, that her application for permanent
residence status should be granted as the first preference portion of
the Korean quota was immediately available. In the alternative, she
requested that action in the case be deferred until the decree of divorce becomes final.
The applicant, native and citizen of Korea by birth there on
March 20, 1938, was admitted to the United States as a temporary
student on September 30, 1953 and remained in lawful status until
April 18, 1962 on which date her third period of practical training
expired. Her application for permanent resident status was filed on
January 30, 1963.
The applicant's husband, Mr. Young Lew, the subject of Service
file AS 956 238, a native and citizen of Korea by reason of birth

148

Interim Decision #1460
there on January 9, 1932, was admitted, to the United Sta.0• en
March 10, 1955 as a student and remained in that status until April
12, 1962 when his third period of practical training expired. He
married the applicant in the United States on August 20, 1960 of
which marriage one child was born in the United States on December
14, 1961. A petition seeking first preference classification for the
husband NM's filed June 22, 1962,. approved September 12, 1962, and
was the basis for the grant of permanent resident status to the husband on April 8, 1963 pursuant to an application filed by him.
Under section 203(a) (1) (B) of the Immigration and Nationality
Act, the applicant became .entitied to first preference classification'
under her appropriate qucita as the spouse of in immigrant who was
found eligible for such classification.
The instant record includes a certified 'copy of an interlocutory
judgment of divorce by default dated July 8, 1964 adjudging that
the husband is entitled: to a divorce from the applicant; that when
one year shall have expired after the entry of the interlocutory judgment a final judgment dissolving the marriage be entered.
A study of the provisions of the Immigration and Nationality Act
and the legislative hisfory leading to its enactment clearly evidences
a congressional desire to retain and unite family relationships To ac-:
complish this objective, nonquota or preference quota cl assification is
accorded the spouse, child, parent, son, daughter, brother or sister of
designated "United States citizens or immigrants (sections 101(a) (27)
and 203 of the Immigration and Nationality Act). The Congress in
slated, however, that the claimed relationship exist -right up to the
time that permanent status was acquired (section.. 205(d) of the
Immigration and Nationality Act).
Since the objeotive of the Congress was the preservation of the
family unit, the 'Congress could only have intended to confer the
quota•benefit where the bona fide relationship existed in fact as wallas in law. That a lawful marriage alone was not within the congressional contemplation is evidenced by -section 101(a) (35) of the
Immigration and Nationality Act which provides that the terms
"spouse, "Wife", or "husband", do not include a spouse, wife, or
husband by reasons of any marriage ceremony where the contracting
parties• thereto were not physically present in the presence Of each
other, unless the marriage shall have been thereafter consummated
(Matter of B , 5 L & N. Dec. 698). The alien spouse of such a proxy
unconsummated marriage derives no quota benefit under . the 'immigration law eyen in a situation where the proxy marriage is regarded as a lawful marriage in the place where it was performed
and, therefore, lawful elsewhere.
,

•

—

149

Interim Decision #1460
In Matter of Ai—, 8I. & N. Dec. 217, 218, the Board of Immigration
Appeals, after reviewing judicial decisions, stated the rule to be as
follows:
We believe the rule to be drawn from the eases is that an alien is

314

legally

entitled to receive a nonquota visa as the spouse of a citizen unless a valid
marriage existed when the visa was issued and that even if the marratge is
considered valid in the place where it is performed, it cannot serve as the basis
for• the proper issue of a nonquota visa to a "spouse" of the marriage unless
there is a bona fide husband and wife relationship in existence.

In the instant case the evidence establishes and the applicant concedes that her marriage was the subject of an interlocutory decree
of divorce and that she is not residing in a husband and wife relationship with the person through whom she claims to be entitled to
derivative first preference classification. Although the interlocutory
decree was entered July 8, 1964, the parties thereto have not effected

or evidenced an intention to effect a reconciliation. To the contrary,
on October 28, 1964 Mr. Lew furnished the certified copy of the
interlocutory decree.
It must be concluded, therefore, that at the present time and continuously since at least July 8, 1961, there has been no bona fide husband and wife relationship in existence between the applicant and
Mr. Lew. While under the law of the State of California the marriage between the parties is not finally dissolved until the entry of a
final decree of divorce some time after the expiration of one. year
from the date .of filing of the interlocutory decree, for immigration
, purposes the.inarriage entered into by the applicant, with Mr. Lew
cannot'serve as the basis -for the proper issuance of a visa under the
first preference classification of the quotatto a "spouse" of the marriage absent the existence of a bona Me husband and wife relationship. Such relationship is n.Onexistent in the instant ease. While a
bona fide resumption of the' husband and wife relationship in the
future and prior to the entry of the final decree wouldagain entitle
this applicant to derive fires preference classification, that eventuality is not diapositive of the issue presently 'before this Service for
consideration.
ORDER: It is ordered that the motion for reconsideration be
granted.
It is further ordered that.upon reconsideration no change be made
in the decision of the District Director dated February 2, 1965 denying the application for status as a permanent. resident.

150


Interim Decision #1951

MATTER OF AMADO AND MONTEMO

In Visa Petition Proceedings
A-18018518-9
Decided by Board April 1, 1969
Beneficiaries—the illegitimate children of the United States citizen petitioner's husband and two other women—whom petitioner has never seen, with
whom she. has had no personal contact, and who live with their respective
natural mothers, are not the stepchildren of petitioner under section
101(b) (1) (B), Immigration and Nationality Act, as amended, within the
close-family-unit rationale of Nation v. Eeperdy, 239 F. Supp 531 (1965).
While the circumstances of the case fall within the ambit of Andrade v.
Esperdy, 270 F. Supp. 516 (S.D. N.Y., 1967), the Andrade rationale (no
close family unit) is not binding in cases, as the instant one, arising outside the jurisdiction of the Southern District of New York.
ON BEHALF or

PETITIONER:

Guy A. Scutell, Social Worker
Board of Higher Education
Division of Immigration and Americanization
73 Tremont Street
Boston, Massachusetts 02108

The cases come forward on appeal from the order of the District Director, Boston District, dated January 10, 1969 denying
the visa petitions for the reasons that the petitioner has failed to
establish that the relationship of stepmother and stepchildren exists between the petitioner and the beneficiaries.
The petitioner, a native of Portugal, a naturalized citizen of
the United States, 38 years old, female, seeks immediate relative
status on behalf of the beneficiaries as her stepchildren. The beneficiaries are natives and citizens of Portugal. The female beneficiary was born November 16, 1953 and the male beneficiary was
born May 14, 1956. The petitioner and her husband, the putative
father of the beneficiaries, were married on June 13, 1959 at
Duxbury, Massachusetts.
The birth certificate of the female beneficiary shows that she
was born on November 16, 1953, the illegitimate daughter of
Domingos Barbosa Amado, single; and that the inscription was
179

Interim Decision #1951
made by the declaration of the father. The birth certificate of the
male beneficiary shows that he was born on May 14, 1956, the illegitimate son of Francisca Monteiro, single; and that the declaration of birth was made by the mother.
A memorandum in the file dated December 18, 1968 discloses
that the petitioner has never seen either child and that they are
living with their respective natural mothers. The putative father
said that he had not seen the children since 1956 when he came to
Brazil. He claims that the beneficiaries are living with his father
in the Cape Verde Islands. The natural father exhibited receipts
for money sent to a school in the Cape Verde Islands covering the
period from 1965 to 1967 but the receipts do not indicate that the
payments were to the children. He has never legitimated these

children. The husband stated that the children have never met his
wife, the petitioner, and have never lived with them in their
home or elsewhere.
The cases are to be distinguished from Nation v. Esperdy, 239
F. Supp. 531 (S.D.N.Y. 1965). In that case the beneficiary was
abandoned by her mother in infancy, the plaintiff commenced caring for the beneficiary in 1949 and married the beneficiary's natural father in 1952 when the beneficiary was five years old. As
soon as the plaintiff became a naturalized citizen in 1962, she immediately thereafter petitioned for the beneficiary's, admittance
on a nonquota visa. The, court ruled that, since the plaintiff, her
husband, and the beneficiary had concededly made up a close family unit, on the facts of that case the child should properly be regarded as 'the plaintiff's stepchild within the meaning of section
101 (b) (1) (B) of the Immigration and Nationality Act, While we
have adopted the rationale of Nation and now apply it where
the facts spell out a close family unit, Matter of The, 11 I. & N.
Dec. 449 (1965), that is not the situation here.
In the instant case, the petitioner has never seen the, beneficiaries and has testified that they are both living with their natural
mothers. The petitioner was naturalized in 1957 and married her
husband in 1959. During the interval between her marriage until
the visa petition was filed on November 7, 1967, the petitioner
has not had any personal contact with the beneficiaries. The father has not seen the beneficiaries since 1956. Under these circumstances, since the petitioner and the beneficiaries never made
up a close family unit, the rule of Nation does not apply.
It is true that in Andrade v. Esperdy, 270 F. Supp, 516 (S.D.
N.Y., 1967), a decision by another judge of the same district, the
Nation rule was extended to a situation where, as here, there had

180

Interim Decision #1951
never been a close family unit. Were we to accept the Andrade
conclusion as a rule of general applicability, we would sustain the
appeal in these cases.
With all due respect to the Andrade court, we do not accept its
opinion as definitive on this issue. As we recently pointed out in
Matter of Lim, Interim Decision No. 1947 (March 13, 1969),
the fact that a lower federal court has rejected a legal conclusion

of this Board does not require us to recede from that conclusion
in other jurisdictions. Similarly, the Government's failure to appeal for the adverse decision in Andrade does not of itself indicate acquiescence. While we must apply the Andrade rule in cases
which arise in the Southern District of New York, we are not so
bound in cases arising in other jurisdictions. Conceivably, reviewing courts in other jurisdictions may agree with our reading of
the statute.
In Matter of Soares, 12 I. & N. Dee. 653, (1968), we pointed
out why we doubted that Congress intended the result reached in
Andrade. For the reasons stated in Matter of Soares, we will dismiss this appeal.
ORDER: It is ordered that the appeal be and it is hereby dismissed.

181


Interim Decision #1397

Karma or Barre

In DEPORTATION Proceedings

A-12097094
Decided by Special Inquiry 0 Oar July 16,1964
Decided by Duard Ootaber 7,104

Attempted assault, second degree (with intent to commit carnal abuse and rape),
in violation of section 242 (5), New York Penal Law, is a crime involving moral
turpitude.
Oxman.
Order: Act of 1952—Section 241 (a) (4) [8 U.S.C. 1251]—Convicted of crime
involving moral turpitude committed within 5 years after entry and
sentenced to confinement therefor in a prison or corrective institution
for a year or more, to wit, attempted assault, 2d degree (section 242,
New York Penal Code).
BEFORE THE SPECIAL INQUIRY OFFICER
The respondent is o. 32 year old married male alien, a native and
citizen of Italy who entered the United States at the port of New York
on November 19, 1960, at which time he was admitted for permanent
residence. On November 15, 1963, he was convicted in the County
Court, Nassau County, New York, of attempted assault, second degree
and was sentenced to Sing Sing State Prison for a term of one year
and three months to two years and six months, but execution of the
sentence was suspended and he was placed on probation.
Deportability is predicated on section 241(a) (4) of the Immigration and Nationality Act on the ground that the respondent was convicted of a crime involving moral turpitude committed within five
years after entry and sentenced to confinement in a prison for a year
or more. The respondent urges that he is not subject to deportation
as it cannot be determined from the record whether he was convicted
of a crime involving moral turpitude. •
To decide whether the crime of which the respondent stands convicted involves moral turpitude reference must be had to the record of
conviction which includes the indictment (information or complaint) ,

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Interim Decision #1397
plea, verdict and sentence. United States ex rel. Meyer v. Day, 54 F.
2d 336 (C.O.A. 2, 1931) ; United States ex rel. Robinson. v. Day, 54 F.
2d 1022 (C.O.A. 2, 1931) ; United States ea rel. Zaffarano v. Corsi, 63
F. 2d 757 ( C.C.A. 2, 1933) .
The record reflects that on_ September 18, 1952, the respondent was
indicted by the grand jury of Nassau County, New York, on four
counts relating to his alleged misconduct on July 30, 1962, with an
eight year old girl as follows :
First count—carnal abuse of a female child in violation of section 483–A of
of the Penal Law of New York
Second count—attempted rape, first degree
Third count—assault in the second degree with intent to commit the crimes and
felonies of carnal abuse and rape
Fourth count—endangering the life, health and morals of a child, by placing

his bands, fingers, and private parts in contact with the private parts of the
girl.

The indictment concludes as follows :
All of the acts and transactions alleged in each of the several counts of this
indictment are crimes of a similar nature, are connected together and form part
of a common scheme and plan.

On October 1, 1962, the respondent pleaded not guilty to the indictment but subsequently on October 15, 1963, withdrew his plea of not
guilty and pled guilty to attempted assault, second degree, in satisfaction of the indictment.
Section 242 of the New York Penal Law, defining the crime of assault
in the second degree, provides as follows
A person who, under circumstances not amounting to the crime specified in
section two hundred and forty,
1. With intent to injure, unlawfully administers to, or causes to be administered
to, or taken by another, poison, or any other destructive or noxious thing, or
any drug or medicine the use of which is dangerous to life or health ; or,
2. With intent thereby to enable or assist himself or any other person to commit any crime, administers to or causes to be administered to, or taken by another, chloroform, ether, laudanum, or any other intoxicating narcotic or anaesthetic agent ; or,
3. Willfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon ; or,
4. Willfully and wrongfully assaults another by the use of a weapon, or other
instrument or thing likely to produce grievous bodily harm ; or,
5. Assaults another with intent to commit a felony, or to prevent or resist the
execution of any lawful process or mandate of any court or officer, or the lawful
apprehension or detention of himself, or of any other person,
Is guilty of assault in the second degree.

As the statute is divisible, conviction thereunder may or may not
involve moral turpitude, Matter of

5 I. &

N. Dec. 383 (BIA,

1953). If the basic crime involves moral turpitude then the attempt
731

Interim Decision #1397
to commit that crime likewise involves moral turpitude, United States

ex rel. Meyer v. Day, supra.
The third count of the indictment, which is the only one involving
assault, alleges an assault with intent to commit the felonies of carnal abuse and rape. The phraseology of this count clearly brings it
within the purview of the fifth subdivision of section 242. As the
crimes of carnal abuse and rape clearly involve moral turpitude, an
assault with intent to commit such crimes involves moral turpitude.
Hence, had the respondent pleaded guilty to the third count of the indictment, he unquestionably would fall within the scope of section
241(a) (4) of the Immigration and Nationality Act. The fact that
he pleaded guilty to attempted assault, second degree is not deemed
to alter this conclusion. That plea was not made in a vacuum, but
must be considered with relation to the indictment, as is indicated by
the recitals in the conviction record that such plea was "in satisfaction
of the indictment."
Under the criminal procedure of New York, an indictment is essential to the prosecution of a crime in a county court and to the acceptance of a plea with reference thereto, Code of Criminal Procedures,
section 4, 222, 444, 445. Hence, there cannot be a plea or a conviction
of any crime in such court without an indictment. As a matter of law,
a criminal judgment must be supported by an indictment charging
the crime adjudged or a higher degree thereof, or a crime necessarily
involving Or included in the crime for which the sentence is imposed,
Matter of TV—, 4 L & N. Dec. 241, at 245 (BIA., 1951). The effect
of the respondent's guilty plea to attempted assault in the second degree was to reduce the maximum punishment to which he was subject,
(New York Penal Law, sec. 261, subd. 2). In other respects he is
considered as having pleaded to the basic crime.
In United States ex rel. Valenti v. Kternat71, 1 F. Supp 370 (U.S.
D.C., N.D., N.Y., 1932) an alien charged. in the indictment with assault in the first degree pled guilty to assault in the second degree. In
holding that the allegations in the indictment pertinent to the crime to
which the guilty plea was entered could properly be considered, the
court stated.:
When confronted with the necessity of deciding whether the named crime to
which the relator pleaded guilty involves moral turpitude, this court may, in
reaching a decision, when the question is doubtful, look behind the plea to the
charge or indictment upon which the plea was made for the purpose of determining the question.

Following this rationale it has been held that where an indictment
charges a particular offense and there is a plea of guilty to a lesser
offense the allegations pertaining only to the greater offense are disregarded and the remaining allegations to which the plea has been
732

Interim Decision #1397
taken are considered to determine whether there has been a conviction of a crime involving moral turpitude. Thus where the indictment alleged manslaughter in the first degree based upon the use of an
instrument to procure an abortion resulting in the death of a woman
and the alien pled guilty to assault in the second degree it was
concluded that the conviction was under section 242, subd. 5, of the

New York Penal Law for assault in the second degree with intent to
commit the felony of abortion and that the crime involved moral turpitude, Matter of M—, 2 I. & N. Dec. 525 (BIA, 1946).
Similarly in Matter of W—, 4 I. & N. Dec. 241 (BIA, 1951) the
Board held that where the respondent was convicted of attempted unlawful entry and unlawful entry under indictments charging attempted
burglary in the third degree and burglary in the third degree with
intent to commit larceny, the respondent was, in. fact, convicted of
attempted entry and entry with intent to commit larceny and was
therefore convicted of crimes involving moral turpitude.
In the instant case the indictment alleged that all the acts in each

count of the indictment were crimes of a similar nature and formed
a part of a common plan. The crime alleged in each count involves

moral turpitude. 1 It would be anomalous, indeed, to hold that the
respondent, by pleading guilty to an attempt to commit one of those
crimes was acknowledging guilt of a totally different crime having no
relation to the crimes in the indictment. That claim must be rejected
in favor of the conclusion that the respondent has been convicted of a
crime involving moral turpitude. As he was sentenced to confinement to prison for more than one year he is subject to deportation
under section 241(a) (4) of the Immigration and Nationality Act as
charged in the order to show cause, Matter of M—, 6 I. & N. Dec. 346
(BIA.,1961).

The respondent has applied for the privilege of voluntary departure.
According to the record he was married to a United States citizen in
1960 and is now living with her. He stated that he has no other criminal record.
Since the respondent is deportable under section 241(a) (4) of the
Immigration. and Nationality Act he cannot qualify for voluntary
departure pursuant to the provisions of section 244(e) of the Act unless he meets the good moral character and physical presence requirements for suspension of deportation set forth in section 241 (a) (2) of
the Immigration and Nationality Act, as amended. As the respondMatter of R—, 3 I. & N. Dec. 502 (BIA, 1940) (Carnal abuse) ; Wine v. United
States, 46 F. 2d 755 (C.A. 7, 1931) (Rape) ; Matter of Z—, 7 I. & N. Dec. 253 (BIA,
1950) ; Fitzgeral4 c. Landon, 238 F.20 664 (O.A. 1, 1956) (Assault with intent
to commit carnal abuse and rape) ; Matter of C'—, 5 I. & N. Dec. 65 (BIA, 1953)

(Endangering morals of a minor).
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Interim Decision #1397
ant became deportable by reason of his conviction of 1963, he does
not meet either of those requirements. Hence, he is ineligible for
voluntary departure.
On this record the only appropriate order is one directing the respondent's deportation. As he has failed to designate any country
to which he prefers to be deported, deportation will be directed to
Italy, the country of his nationality.
ORDER: It is ordered that the respondent be deported. from the
United States to Italy on the charge contained in the order to show
cause.
BEFORE THE BOARD

This case is before us on appeal from a special inquiry officer's
decision of July 16, 1964, holding the respondent ineligible for voluntary departure and directing that he be deported from the United
States to Italy on the charge contained in the order to show cause.
The record relates to a 82 -year- old married male alien, a native and
citizen of Italy, who was admitted to the United States for permanent
residence on November 19, 1960. On November 15, 1963, in the County
Court, Nassau County, New York, he was convicted of attempted
assault, second. degree, and was sentenced to Sing Sing State Prison
for a term not to exceed two years, six months, with a minimum of one
year, three months. Execution of the sentence was suspended, and
he was placed on probation.
The respondent first urges that the special inquiry officer erred
in holding him subject to deportation on the above-stated charge, on
the theory that it cannot be determined from the record whether

the crime of which he was convicted was one involving moral turpitude.
However, said official has succinctly set forth in his opinion the reasons
why he answered this argument adversely to the respondent, together

with amore than adequate analysis of the administrative and judicial
precedents supporting him in this respect. It would serve no useful
purpose here to restate his rationale in its entirety, or to restate all his
citations of authority. The record reflects that on September 18, 1962, the respondent was
indicted by the grand jury of Nassau County, New York, on four
counts relating to his alleged misconduct on July 30, 1962, with an
eight-year-old girl, in violation of section 483—A of the Penal Law
of the State of New York. On October 1, 1962, the respondent
pleaded not guilty to the indictment. However, on October 15, 1963,
he withdrew that plea and pleaded guilty to attempted. assault in the
second degree, as defined. in section 242 of the New York Penal Law, in
satisfaction of the indictment.
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Interim Decision #1397
Careful consideration of the special inquiry officer's opinion convinces us that he has correctly pinpointed this crime as coming within
the third count of the indictment which alleges assault with intent to
commit the felonies of carnal abuse and rape, and the fifth subdivision
of section 242 covering assault with intent to commit a felony. We
agree with the special inquiry officer's reasoning that, eliminating the
allegations pertaining only to the greater offense covered in the third
count of the indictment, the lesser offense to which he pleaded guilty is
one involving moral turpitude. That is, we concur in his conclusion
that the plea was not made in a vacuum, but must be considered with
relation to the indictment, as indicated by the recitals in the conviction record that such plea was "in satisfaction of the indictment." The
judicial and administrative precedents cited by the special inquiry
officer clearly support him in this respect.
The respondent next argues that the special inquiry officer committed error when he received the indictment into evidence as explanatory of the record of conviction, but then failed to receive testimony of
the attorney who represented the respondent in the criminal proceedings as to why the respondent pleaded guilty to a violation of section
242 of the New York Penal Code, rather than to face the charges in the
indictment brought under section 483—A thereof. The answer to this
argument is that the indictment is a part of the record of conviction, as
pointed out in court cases cited by the special inquiry officer, whereas the
testimony of the respondent's then attorney is not. The cases relied
on by the special inquiry officer clearly point up the impropriety of an
administrative officer or tribunal going behind the record of conviction
in this respect. The only further comment we think that is required on
this point is that careful analysis of the cases cited by the special inquiry officer fully supports his refusal to accept such testimony.
Finally, at the time the special inquiry officer was considering the
respondent's case, the controlling precedent decisions were to the effect
that aliens such as the respondent were not eligible to have their status
adjusted under section 245 of the Immigration and Nationality Act (8
U.S.C. 1255)., Accordingly, the special inquiry officer did not advise
the respondent of any rights he might have in this respect. Since that
time, however, the court of appeals for the second circuit has ruled that
an alien who became deportable under section 241(a) (4) of the Immigration and Nationality Act, for a crime or crimes committed after
lawful admission for permanent residence, is eligible for relief under
section 245 of the Immigration and Nationality Act, even though
originally admitted as an immigrant (Tibke v. Immigration and
Naturalization Service, 335 F. 2d 42). in the light of that decision,
we will remand the case to the special inquiry officer to afford the
735

Interim Decision 4t1397
respondent an opportunity to file and prosecute an application for such
. relief.
ORDER: It is ordered that the alien's request for termination of
the proceedin gs be denied, and that his appeal, insofar as it relates to
deportability,'be dismissed.
It is fierther ordered that the hearing be reopened for appropriate
action not inconsistent with the foregoing opinion.
It is flurtker ordered that if discretionary relief is granted by the
special inquiry officer, the outstanding order of deportation be then
withdrawn.

736