itiferka Decision #1548

•

MAW= M/V . "PActsza• OCEAN"

In Fine Proceedings
.

DET-10/10.82-.

' Decided by Board January 7, 1966'
Pine under section 254(a) (1), Immigration and Nationality Act, for failure
to detain on board an alien crewman until inspected by an immigration officer, does not lie for merely failing to present a crewman tor inspection;
position of fine under section 254(a) (1) places on the Government the burden of establishing by affirmative evidence that the crewman did, in fact,
leave the vessel before be was inspected:
Jr BE:

BIJI, 'PACIFIC OCEAN,", which arrived at the port of Detroit, Michigan, from foreign, on September 26, 1565. Alien crewman involved.:
Almerindo Adrian°.
•

'

This appeal is directed to..an administrative penalty of $200, $1000
mitigated , to the extent of $800, which the District Director at
. Detroit has ordered imposed. on the vessel's .Master,. Eric L. Vogel,
and/or its agents, Compass Agencies, Inck for failure to detain the
above-namkd alien crewman aboard the vessel at all times until he
had been inspected. by an immigration 'officer. The basic claim here
is that...the. District Director erred in permitting s!.., fine to stand in any
amount.

Mile this vessel was docking in Detroit at.approximatelY 6 p.m. on.
September 26, 1965, the Chief Mate .ordered the Boatswain to inform the crew that it was to stand immigration:inspeetion. During
the period the ship was docking, an immigration 'Aber' was standing
on the pier 'Waiting to board. the vessel•:to inspect its crew. Xinutes
after the ship docked, he came aboard. Also, within minutes after the
ship docked a crew member was placed 'at the gangway .. HOwever,
the subject crewman a 23-year-old native and citizen of Brazil, was
not presented,to the boa
rding immigration officer for inspection. The
ship's radio operator, who acted: as interpreter and had the crewmen's passports in his possession, checked the vessel for a period of
about 45 minutes and reported back to the immigration officer -that he
could not find this crewman aboard, and that some other member of
the crew had indicated he had overheard the crewman here involved
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Interim Decision #1548,
expressing a desire to go ashore to the nearest bar and get a drink.
The fact that he could not be found on the ship was then reported to
the captain, who sent two members of the crew ashore to try to locate this crewman. They searched for approximately one hour without success. However, the crewman reported to duty -at 0 a.m. the
following morning. Insofar as the record shows, he sailed foreign
with his ship.
The District Director draws an adverse inference from the following facts: the crewman was not presented for inspection to an immigration officer on the vessel's arrival; a 45-minute search of the vessel by two fellow crew members failed to locate him; and an unknown member of the crew stated that this crewman had indicated
a desire to go ashore for a drink. The carrier, on the other hand, has
submitted an affidavit from the crewman concerned in which he
states that when he finished his tour of duty just prior to docking
and immigration inspection he went to his cabin, got a. fish line, and
went directly to the forecastle; that he fished there for about four
hours; that he caught six fish; that he then went to the -galley- and
cooked them and ate them; that he did not see any crew members in
the galley because most of them were ashore at that time; and he
then returned to his cabin and went to sleep until 6 a.m. the follow-

ing morning when he reported for duty. The carrier has also submitted an affidavit from a seaman" aboard this ship who has stated
that lie went on duty at the gangway at 6:05 p.m. on. the date of the
vessel's arrival, remained on duty there until 7 a.m. the following
morning and that during such period he did not see the crewman
here involved either leave or board the ship. In addition, the carrier has submitted an affidavit from the Chief Mate who has stated
that when the ship docked he directed the BOatswain to inform the
crew to stand immigration inspection; that a. guard was posted at

the gangway as soon as the ship docked; and that the boarding immigration officer was standing on the dock as the ship .arrived.
Finally, the appellant has submitted an affidavit from the vessel's
radio operator who assisted the boarding immigration officer in
which he states that it was dark when he was searching the ship.
and therefore difficult to see on parts of the deck; that the entire
deck was not searched because•t did not seem that the crewman here
in question Would be out on deck at that hour; and that the crewman for whom the search was being conducted had been fishing
behind the anchor wench on the forecastle Where he could not have
been seen from the bridge or the deck. •
We think that the foregoing evidence of record submitted by the
carrier clearly overcomes the inferepcs drawn by the District Direc476

Interim Decision #1518
tor. Accordingly, and for the following reasons, we agree that the
fine has been improperly ordered imposed in this case.
Statutes enforcing penalties are to be strictly construed (Rederidetiebolaget Nordatiernen v. United States, 61 F. 2d 808). Section
254(a) (1) of the Immigration and Nationality Act imposes a fine
for failure to detain an alien crewman until he is inspected by an
immigration officer. Only by extremely loose construction of that
section could it be held that a fine will lie for merely failing to present him for inspection. We believe that such a holding is not valid.
Consequently, before a fine may be imposed under that section, the
burden is on the immigration authorities to establish by affirmative
evidence that the crewman did, in fact, leave the vessel before he was
inspectP-d.i

We appreciate the difficulties encountered by the Service in achieving effective enforcement of the law under such circumstances, but
the remedy, if any, lies elsewhere than with this Board. We find,
ourselves compelled to conclude, by reason of the language of the
law and controlling precedents, that the Service has the burden of
establishing a violation here which it has not met. If this leaves a

loophole in the law, we have no power to plug it.
No evidence has been introduced showing that this crewman left
the ship and went ashore in the United States. Since no such•showing has been made, it cannot be found that a violation of section
254(a) (1) has been established. The appeal will, therefore, be sustained.
Finally, if the crewman had not sailed foreign with_ his ship, then
the provisions of section 254(b) of the statute would have been op-

erative. Under such circumstances, a. prima facie case for imposition
of a fine based on the failure to detain him for inspection would have
been established without the necessity of obtaining evidence that he

had, in fact, left the ship. In view of 'the foregoing, however,, it is
clear that section 254(b) of the statute is inapplicable here.
ORDER: It is ordered that the appeal be sustained and that no
.fine be imposed.
'Our ruling to this effect herein is consistent with decisions we have handed
down previously in the unreported cases of theSS "Astatine," F-0502/125, BIA,
1/28/55; and SS "Port Saint John," F-0300/8112, BIA, 5/23/57

477


Interim Decision #2066

MATTER OF URPI-SANCHO

In Deportation Proceedings
A-48822222
Decided by Board September 15, 1970
An alien admitted as a nonimmigrant student who was convicted of a single
petty offense involving moral turpitude for which she was imprisoned, is
not by reason of such conviction precluded by the provisions of section
101 (f) (3) of the Immigration and Nationality Act from establishing good
moral character during the period required for establishing eligibility for
voluntary departure under section 244 (e) of the Act. [Matter of Neely
and Whylie, 11 I. & N. Dec. 864, overruled insofar as it deals with the
privilege of voluntary departure.]
CHARGE:

Order : Act of 952—Section 241 (a) (9) [8 U.S.C. 1251 (a) ( 9 ) ] —Nonimmigrant student—Failure to maintain status.

This case presents an appeal from a decision of a special inquiry officer denying the respondent's application for the privilege of voluntary departure, and ordering her deportation to
Costa Rica.
The respondent is a 21-year-old unmarried native and citizen of
Costa Rica, who has resided in the United States since her arrival at Miami, Florida, on or about September 28, 1969. She was
admitted as a nonimmigrant student to attend the University Of
Miami, and was authorized to remain in this country until September 27, 1970.
Early in February, 1970, the respondent interrupted her studies at the University of Miami, allegedly for one semester only.
She has stated that a Service officer advised her that, in view of
the short period involved, an application for a status change was
unnecessary.
On February 19, 1970, the respondent was arrested for shoplifting. She was tried in the Miami, Florida, Municipal Court, on
February 24, 1970, and was sentenced, on the charge of theft of
goods of the total value of $48.23, to imprisonment in the city jail

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Interim Decision #2066
for five days, and was fined $300. She did not pay the fine, and
served 15 days in the city jail. While she had pleaded guilty to
the charge, she now maintains that the articles which were found
in her handbag had been placed there by a friend who had accompanied her.
The special inquiry officer found that the respondent had not
maintained her student status, that she had failed to comply with
the conditions of her admission as a nonimmigrant student, and
that her deportability had been established by clear, convincing,
and unequivocal evidence. He then found the respondent ineligible
for the privilege of voluntary departure, and cited Matter of
Neely and Whylie, 11 I. & N. Dec. 864 (BIA, 1966), as the basis
for his decision. There we had sustained the Service appeal, had
found each respondent deportable, and had added that, in view of
the recent conviction of a crime involving moral turpitude, each
respondent was statutorily ineligible for the relief of voluntary
departure, under section 101 (f) (3), since good moral character
could not be established for the five-year period required under
section 244 (e). Apparently, the fact that the crime involved was
a petty offense was overlooked.
We hereby overrule our decision in Matter of Neely and Whylie, supra, insofar as it deals with the privilege of voluntary departure.
Good moral character for at least five years immediately preceding an alien's application for voluntary departure under
subsection (e) of the section 244 of the Immigration and Nationality Act is a prerequisite for a grant of voluntary departure
under that subsection. Section 101 (f) of the Act lists eight
classes of aliens who shall not be regarded as persons of good
moral character. Persons described in paragraph (9) of section
212(a), that is, generally speaking, aliens who have been convicted of a crime involving moral turpitude, are included in the
third class of persons who are precluded from establishing good
moral character. Section 101(f) (3). However, petty one-time offenders are specifically excepted in paragraph (9) of section
212(a), with the result that conviction of just one petty offense
involving moral turpitude will not make an alien excludable
under that section. It follows that, under section 101 (f) (3), such
a conviction of a petty offense involving moral turpitude cannot
preclude an alien from establishing good moral character in a
deportation proceeding. We so held in Mutter of M—, 7 1. & N.
Dec. 147 (BIA 1956).

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Interim Decision #2066
The fact that a person is not within one of the eight classes
listed under section 101(f) does not preclude a finding that, for
other reasons, the person is, or was, not of good moral character.
Section 101(f), last sentence. In other words, where specific conduct does not preclude a finding of good moral character under
the enumerated categories of section 101(f), that same conduct
may nevertheless be considered in making a determination on
good moral character in accordance with the provisions of the
last sentence of section 101 (f). Matter of L D—E—, 8 I. & N.
Dec. 399 (BIA, 1959); Matter of Turcotte, 12 I. & N. Dec. 206
(BIA, 1967).
In the case now before us, the special inquiry officer correctly
found that the respondent was deportable, for even a petty offense involving criminal conduct constitutes a violation of an alien's nonimmigrant status and renders the alien deportable.
Matter of A—, 6 I. & N. Dec. 762 (BIA, 1955). The exception
to the general rule, in certain student cases (see Matter of C—, 9
I. & N. Dec. 100 (BIA, 1960) ), does not apply here, since the special inquiry officer found that the respondent had not maintained
her student status, and since, moreover, the respondent's conviction had resulted in her actual incarceration.
The special inquiry officer followed our holding, now overruled,
in Matter of Neely and Whylie, 11 I. & N. Dec. 864 (BIA, 1966),
and found the respondent ineligible for voluntary departure. We
shall remand this matter to him so that he can determine whether
or not the respondent should be granted the privilege of voluntary departure under section 244(e) of the Immigration and Nationality Act.
Voluntary departure is a privilege and a matter of grace. Matter of Turcotte, 12 I. & N. Dec. 206 (BIA, 1967). While statutory
eligibility is a prerequisite to a grant of voluntary departure, an
alien does not discharge his burden of establishing good moral
character merely by showing that a particular act in violation of
the law does not preclude a finding of good moral character.
Matter of Turcotte, supra. At a new hearing this respondent
should be given the opportunity to show that, in spite of her recent conviction of a petty offense, she has been a person of good
moral character for the required five-year period. Section 244 (e).
The special inquiry officer will then determine whether or not
good moral character has been established, and whether or not
voluntary departure shall be authorized.
ORDER: It is ordered that this matter be and hereby is remanded to the special inquiry office for further proceedings in accordance with this opinion.

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Interim Decision #4036

Matter of Luk Rial KOAT, Respondent
Decided January 27, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Section 714.1 of the Iowa Code is divisible with respect to whether a violation of the
statute involved theft by taking without consent or theft by fraud or deceit, permitting an
Immigration Judge to review the conviction record under a modified categorical approach
to determine whether the violation involved aggravated felony theft as defined in section
101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018).
FOR RESPONDENT: Allison J. Heimes, Esquire, Omaha, Nebraska
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Associate Legal Advisor

Kathleen M. Zapata,

BEFORE: Board Panel: O’CONNOR and BAIRD, Appellate Immigration Judges;
DE CARDONA, Temporary Appellate Immigration Judge.
O’CONNOR, Appellate Immigration Judge:

In a decision dated July 9, 2020, an Immigration Judge determined that
the respondent’s convictions for theft in the first degree under Iowa law and
aggravated robbery in the second degree under Minnesota law rendered him
removable as charged and denied his applications for relief from removal.
The respondent has appealed from the Immigration Judge’s determination
regarding his removability. Because we conclude that the respondent’s Iowa
theft offense is an aggravated felony, his appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native of Ethiopia and citizen of South Sudan who is
a lawful permanent resident of the United States. In November 2018, he was
convicted of aggravated robbery in the second degree under Minnesota law,
and, in May 2019, he was convicted of theft in the first degree in violation of
sections 714.1 and 714.2(1) of the Iowa Code. For the latter offense, he was
sentenced to a term of imprisonment not to exceed 10 years.
Based on these convictions, the respondent was placed in removal
proceedings and charged with removability under section 237(a)(2)(A)(iii)
of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2018),
as a respondent convicted of an aggravated felony theft offense for which the
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Interim Decision #4036

term of imprisonment is at least 1 year as defined in section 101(a)(43)(G)
of the Act, 8 U.S.C. § 1101(a)(43)(G) (2018). 1 He was also charged with
removability under section 237(a)(2)(A)(ii) of the Act, as a respondent
convicted of two or more crimes involving moral turpitude not arising out of
a single scheme of criminal misconduct.
The Immigration Judge sustained both charges, finding that the
respondent’s conviction for theft in the first degree under Iowa law is
a conviction for an aggravated felony theft offense and that this offense and
his Minnesota aggravated robbery are crimes involving moral turpitude. The
Immigration Judge further found both convictions barred the respondent
from applying for relief from removal and denied his applications.
On appeal, the respondent contends the Immigration Judge erred in
finding that his conviction for theft in the first degree under Iowa law is a
conviction for an aggravated felony theft offense and a crime involving moral
turpitude. 2 The Department of Homeland Security (“DHS”) has submitted
a brief in opposition to the appeal. 3 For the following reasons, we conclude,
upon our de novo review, that the respondent’s conviction for theft in the
first degree under sections 714.1 and 714.2(1) of the Iowa Code is
a conviction for an aggravated felony theft offense that renders him
removable as charged under section 237(a)(2)(A)(iii) of the Act. See
8 C.F.R. § 1003.1(d)(3)(ii) (2021). Because this conclusion is dispositive of
the respondent’s removability, we need not address whether he was
convicted of two or more crimes involving moral turpitude under section
237(a)(2)(A)(ii) of the Act. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
(per curiam) (“As a general rule courts and agencies are not required to make
findings on issues the decision of which is unnecessary to the results they
reach.”).

1

The respondent had been previously placed in removal proceedings based on different
convictions. He was found to be removable based on these convictions but was granted
relief from removal.
2
The respondent does not challenge the Immigration Judge’s determination that his
Minnesota aggravated robbery offense is a crime involving moral turpitude, nor does he
challenge the Immigration Judge’s grounds for denying his applications for relief. We
deem any arguments in this regard to be waived. See, e.g., Matter of Y-I-M-, 27 I&N Dec.
724, 730 n.2 (BIA 2019).
3
We requested supplemental briefing from the parties and amici curiae on whether State
case law establishes that section 714.1 of the Iowa Code is divisible with regard to the type
of theft involved in a violation of the statute. We acknowledge and appreciate the briefs
submitted by the parties and amici.

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Interim Decision #4036

II. DISCUSSION
A. Categorical Approach
To determine whether the respondent’s crime is an aggravated felony
theft offense, we employ the categorical approach by comparing the elements
of his Iowa statute of conviction to the generic definition of aggravated
felony theft at section 101(a)(43)(G). See Matter of Delgado, 27 I&N Dec.
100, 100–01 (BIA 2017). If the elements of the statute of conviction plainly
reach conduct outside the generic definition, or if there is a realistic
probability the statute would be used to prosecute such conduct, the statute
is overbroad and does not categorically match the generic definition. See
Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013).
If the respondent’s statute of conviction is overbroad, we must consider
whether it is divisible—that is, whether it “sets out one or more elements of
the offense in the alternative.” Descamps v. United States, 570 U.S. 254, 257
(2013). If it is divisible, we may examine the relevant conviction records—
including the criminal complaint and plea agreement—under a modified
categorical approach to identify under which statutory alternative the
respondent was convicted. See id.; see also Shepard v. United States, 544
U.S. 13, 26 (2005).
For purposes of the categorical approach, the Supreme Court provided
a specific definition for the term “elements,” stating that they “are the
‘constituent parts’ of a crime’s legal definition,” which the “prosecution must
prove to sustain a conviction” and “the jury must find beyond a reasonable
doubt to convict the defendant.” Mathis v. United States, 136 S. Ct. 2243,
2248 (2016) (citation omitted). In contrast to “elements,” the Court stated
that alternative “means” in a statute merely describe diverse ways “of
satisfying a single element,” or “spell[] out various factual ways of
committing . . . the offense.” Id. at 2249. In other words, “means” “are
‘circumstance[s]’ or ‘event[s]’ having no ‘legal effect [or] consequence’”
that need not “be found by a jury.” Id. at 2248 (alterations in original)
(citation omitted). If the respondent’s statute of conviction lists alternative
“means,” rather than “elements,” then we do not apply the modified
categorical approach, and his conviction cannot serve as a predicate for his
removal. See id. at 2251.
The courts have specified “authoritative sources of state law” we may
look to in determining whether, for purposes of divisibility, a statute sets
forth alternative “elements,” rather than “means”: (1) the statutory language;
(2) State court decisions; (3) relevant jury instructions; and (4) if State “law
fails to provide clear answers,” the record of conviction. Id. at 2249,
2256–57; see also Martinez v. Sessions, 893 F.3d 1067, 1071 (8th Cir. 2018).
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Interim Decision #4036

B. Aggravated Felony Theft
Generic theft under section 101(a)(43)(G) of the Act is defined as “the
taking of, or exercise of control over, property without consent whenever
there is criminal intent to deprive the owner of the rights and benefits of
ownership, even if such deprivation is less than total or permanent.” Matter
of Garcia-Madruga, 24 I&N Dec. 436, 440–41 (BIA 2008) (footnote
omitted). This definition does not encompass crimes committed by fraud or
deceit because such an offense “ordinarily involves the taking or acquisition
of property with consent that has been fraudulently obtained.” Id. at 440.
Section 714.1 of the Iowa Code sets forth a number of alternative
definitions of “theft”—some of which involve generic theft, while others
involve theft by fraud or deceit. Compare Iowa Code Ann. § 714.1(1) (West
2019) (criminalizing theft by taking without consent), with Iowa Code
§ 714.1(3) (theft by deception), and Iowa Code § 714.1(6) (theft by check). 4
4

At the time of the respondent’s offense, section 714.1 of the Iowa Code provided, in
pertinent part, that an individual
commits theft when the person does any of the following:
1. Takes possession or control of the property of another, or property in the
possession of another, with the intent to deprive the other thereof.
2. Misappropriates property which the person has in trust, or property of another
which the person has in the person’s possession or control, whether such
possession or control is lawful or unlawful, by using or disposing of it in a manner
which is inconsistent with or a denial of the trust or of the owner’s rights in such
property, or conceals found property, or appropriates such property to the person’s
own use, when the owner of such property is known to the person.
....
3. Obtains the labor or services of another, or a transfer of possession, control,
or ownership of the property of another, or the beneficial use of property of
another, by deception. . . .
4. Exercises control over stolen property, knowing such property to have been
stolen, or having reasonable cause to believe that such property has been stolen,
unless the person’s purpose is to promptly restore it to the owner or to deliver it to
an appropriate public officer. . . .
5. Takes, destroys, conceals or disposes of property in which someone else has
a security interest, with intent to defraud the secured party.
6. Makes, utters, draws, delivers, or gives any check, share draft, draft, or
written order on any bank, credit union, person, or corporation, and obtains
property, the use of property, including rental property, or service in exchange for
such instrument, if the person knows that such check, share draft, draft, or written
order will not be paid when presented.
....
7. Obtains gas, electricity or water from a public utility or obtains cable
television or telephone service from an unauthorized connection to the supply or

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Accordingly, section 714.1 is overbroad relative to the definition of
aggravated felony theft under section 101(a)(43)(G). See Moncrieffe, 569
U.S. at 190–91.
We must therefore determine whether the alternative definitions of theft
under section 714.1 of the Iowa Code are alternative elements of the statute,
rendering it divisible with respect to whether a violation of the statute
involved theft by taking without consent or theft by deception or fraud. 5 See
Descamps, 570 U.S. at 257. Based on the Iowa Supreme Court’s decision in
State v. Nall, 894 N.W.2d 514 (Iowa 2017), the Immigration Judge found,
and the DHS argues on appeal, that the respondent’s statute of conviction is
divisible.
In that case, the Iowa Supreme Court held that to be convicted of theft by
taking under section 714.1(1), “a person must acquire property without the
consent or authority of another.” Id. at 524 (emphasis added). The defendant
in Nall was convicted of theft by taking under section 714.1(1) after she used
service line or by intentionally altering, adjusting, removing or tampering with the
metering or service device so as to cause inaccurate readings.
8. Knowingly and without authorization accesses or causes to be accessed
a computer, computer system, or computer network, or any part thereof, for the
purpose of obtaining computer services, information, or property or knowingly and
without authorization and with the intent to permanently deprive the owner of
possession, takes, transfers, conceals, or retains possession of a computer,
computer system, or computer network or any computer software or computer
program, or computer data contained in a computer, computer system, or computer
network.
9. a. Obtains the temporary use of video rental property or equipment rental
property with the intent to deprive the owner of the use and possession of the video
rental property or equipment rental property without the consent of the owner.
....
10. Any act that is declared to be theft by any provision of the Code.
Section 714.2(1) of the Iowa Code, in turn, provided, in relevant part, that the “theft of
property exceeding ten thousand dollars in value, or the theft of property from the person
of another . . . is theft in the first degree.”
5
We recognize that in Matter of Reyes, 28 I&N Dec. 52, 52–54 (A.G. 2020), the Attorney
General concluded that a respondent had been convicted of an aggravated felony under
a State theft statute where all the elements in each alternative statutory definition of theft,
and thus all the means of committing theft under the statute, corresponded to either an
aggravated felony theft or an aggravated felony involving fraud or deceit in which the loss
to the victim exceeds $10,000 under section 101(a)(43)(M)(i) of the Act. However, Matter
of Reyes does not apply here because, at the time of the respondent’s offense, not all thefts
by fraud under section 714.1 involved a loss of more than $10,000, as required by section
101(a)(43)(M)(i). See, e.g., Iowa Code Ann. § 714.2(2) (West 2019) (grading “theft of
property exceeding one thousand five hundred dollars but not exceeding ten thousand
dollars” as theft in the second degree (emphasis added)).

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Interim Decision #4036

counterfeit checks and “a phony money order” to make bank withdrawals
and pay for services. Id. at 515–16, 525. Because the defendant had obtained
the consent of her victims through fraud and deceit, the court concluded that
her conduct could not support a charge for theft by taking under section
714.1(1) and reversed her conviction. Id. at 524–25.
Significantly, the court then said that this very same conduct may support
a “charge under section 714.1(6) (theft by check).” Id. at 525. This statement
suggests that the alternative definitions of theft listed at sections 714.1(1) and
(6) are alternative elements of the statute, which the State must prove to
sustain a conviction. If these definitions are merely means of committing
theft, and the individual definition under which a defendant is charged and
convicted has no “legal effect [or] consequence,” then the court in Nall would
have upheld the defendant’s conviction. Mathis, 136 S. Ct. at 2248
(alteration in original) (citation omitted).
It is likewise significant that in a separate case the court reversed
a conviction for theft by check under section 714.1(6), while opining that the
defendant’s conduct could support a conviction for theft by deception under
section 714.1(3). State v. Schiebout, 944 N.W.2d 666, 671–72 (Iowa 2020).
In doing so, the court recognized that sections 714.1(3) and (6) “overlap” but
emphasized that the overlap is not complete and that each provision covers
some conduct not covered by the other provision. Id. at 672 (quoting State
v. Hogrefe, 557 N.W.2d 871, 878 (Iowa 1996) (noting that sections 714.1(3)
and (6) are “complementary rather than redundant”)). Again, if it is legally
irrelevant under which subsection of 714.1 a defendant is convicted, we do
not see why the Iowa Supreme Court would have reversed the convictions in
Nall and Schiebout if the conduct at issue could support a conviction for theft
under at least one of those subsections. 6
The legislative history of section 714.1, which the court addressed at
length in Nall, lends additional support to our conclusion that theft by taking
under section 714.1(1) and theft by fraud or deceit under sections 714.1(3)
and (6) are alternative crimes with discrete elements. In 1978, the Iowa
Legislature collected a number of “definitions of theft” under section 714.1
“that had been previously scattered” throughout the Iowa Code, including
theft by taking and theft by fraud and deception. Nall, 894 N.W.2d at 519.
However, the Iowa Supreme Court noted in Nall that this restructuring “does
not necessarily mean that the legislature intended [theft by taking under]
6

We additionally note that the court stated that each definition of theft in a prior version
of section 714.1 requires proof of a different “degree[] of intent: 714.1(1) requires intent
to deprive; 714.1(3) requires deception; 714.1(4) requires knowledge; 714.1(5) requires
intent to defraud; and 714.1(6) requires knowledge.” Eggman v. Scurr, 311 N.W.2d 77,
79 (Iowa 1981); see also Matter of Chairez, 26 I&N Dec. 819, 824 (BIA 2016) (stating
that a statute is divisible into separate offenses with distinct mental states if the State is
required to prove that these offenses were committed with a particular mental state).

455

Cite as 28 I&N Dec. 450 (BIA 2022)

Interim Decision #4036

Iowa Code section 714.1(1) to subsume the other subsections of newly
enacted section 714.1.” Id. Significantly, the court stated:
If section 714.1(1) applied whenever the defendant tricked the victim into voluntarily
transferring property, there would be no need for section 714.1(3) covering [theft by
deception]. Similarly, if passing a knowingly bad check or money order to obtain
services or property violated section 714.1(1), then section 714.1(6) would seem
unnecessary.

Id. at 519–20 (citations omitted).
The court observed that “the Nebraska Supreme Court upheld
[a] defendant’s conviction for theft by taking even though the defendant had
been charged only with theft by deception.” Id. at 521 (citing State
v. Jonusas, 694 N.W.2d 651, 655 (Neb. 2005)). “As in Iowa, the two theft
alternatives are separately defined . . . .” Id. However, unlike Iowa law,
Nebraska law contains a consolidation provision, stating that “all variants of
theft constitute a single offense.” Id.; see also id. at 521–22 (noting that “the
Iowa legislature chose not to adopt [a similar] consolidation provision . . .
when it enacted” section 714.1). The court in Nall found it significant that
most jurisdictions that lack such a consolidation provision “recognize[] and
enforce[] distinctions among . . . various theft offenses.” Id. at 523
(collecting cases). Accordingly, the court concluded that the Iowa
Legislature intended to distinguish between different modes of theft when it
enacted section 714.1. It only intended section 714.1(1) to reach theft
involving a taking without consent, not theft by fraud or deceit, and any other
interpretation would render sections 714.1(3) and (6) superfluous. Id. at 524.
The relevant Iowa jury instructions also support our view that theft by
taking under section 714.1(1) and theft by fraud or deceit under sections
714.1(3) and (6) are separate crimes with discrete elements. See Martinez,
893 F.3d at 1071. Iowa provides separate instructions for theft by taking,
deception, and check under sections 714.1(1), (3), and (6), respectively, and
each of these instructions sets forth distinct elements that the State must
prove and a jury must find. 7 Because the State must prove that a defendant
7

The instruction for theft by taking, at Iowa Crim. Jury Instr. § 1400.1 (Iowa Bar Assoc.
2018), provides that the State must prove the following elements:
1. On or about the ______ day of _____, 19__, the defendant took possession or
control of (property).
2. The defendant did so with the intent to deprive (victim) of the (property).
3. The property, at the time of the taking, [belonged to] [was in the possession of]
(victim).
The instruction for theft by deception, at Iowa Crim. Jury Instr. § 1400.10, provides that
the State must prove these elements:

456

Cite as 28 I&N Dec. 450 (BIA 2022)

Interim Decision #4036

committed one of these specific forms of theft, we conclude that these
definitions of theft under section 714.1 are alternative elements, not
alternative means of committing a theft offense. Cf. State v. Duncan, 312
N.W.2d 519, 523 (Iowa 1981) (stating that if “alternative method[s] of
committing” an offense are consistent with and “not repugnant to each other”
the State need not prove that the defendant committed one specific alternative
(citation omitted)).
Finally, even if the above sources do not clearly resolve the means versus
elements inquiry, we may “peek” at the respondent’s record of conviction
“for ‘the sole and limited purpose of determining whether [the definitions
under section 714.1 are alternative] element[s] of the offense.’” Mathis, 136
S. Ct. at 2256–57 (second alteration in original) (citation omitted). The
criminal complaint and plea agreement in the record reveal that the
respondent was charged with and convicted of one count of theft in the first
degree under section 714.1. This count alleged that he “did take property
from the person of another with intent to deprive the person thereof.” The
conviction record’s “referenc[e] [to] one alternative” form of theft—
specifically, theft by taking under section 714.1(1)—“to the exclusion of”
theft by deception or by check supports our view that these alternative
definitions of theft are separate offenses with distinct elements. Id. at 2257.
In light of our review of the above “authoritative sources of state law,”
we conclude that theft by taking under section 714.1(1) and theft by
deception and check under sections 714.1(3) and (6), respectively, are
alternative crimes with discrete elements, rendering the statute divisible with

1. On or about the ______ day of _____, 20__, the defendant did (set forth acts of
deception—words, conduct, or representation) to (victim).
2. The defendant knowingly deceived (victim) in one or more of the following ways:
(add the appropriate subsections of 702.9 of the Code).
3. The defendant obtained [labor or services] [transfer of possession] [control or
ownership] [the beneficial use of property] from (victim) by the deception.
Finally, the instruction for theft by check, at Iowa Crim. Jury Instr. § 1400.17, provides
that the State must prove the following elements:
1. On or about the ______ day of _____, 20__, the defendant did [make] [utter]
[draw] [deliver] [give] to (victim) a [check] [draft] [written order] in the amount of
$_______.
2. The [check] [draft] [written order] was drawn on (e.g., bank).
3. The defendant received [property] [services] [money] in exchange for the [check]
[draft] [written order].
4. The defendant knew at the time [he] [she] gave the [check] [draft] [written order]
to (victim) it would not be paid by the [bank] [other institution] because (state facts
shown by evidence, e.g., insufficient funds, closed account, no account).

457

Cite as 28 I&N Dec. 450 (BIA 2022)

Interim Decision #4036

respect to whether a violation of section 714.1 involved aggravated felony
theft, or theft by fraud or deceit. Id. at 2256.
Citing State v. Williams, 328 N.W.2d 504 (Iowa 1983), and State
v. Conger, 434 N.W.2d 406 (Iowa Ct. App. 1988), the respondent argues that
the definitions of theft at section 714.1 are alternative means, rather than
elements. We are not persuaded that these cases, which predate Mathis and
its progeny by several decades, support the respondent’s argument. These
State court decisions may, at first blush, appear to conclude that the
definitions of theft at section 714.1 are alternative means of committing theft,
rather than alternative elements. However, we recently emphasized that it is
important to read such cases carefully, paying close attention to the context
in which a State court used terms like “elements” and “means” and the
specific questions addressed. See Matter of Laguerre, 28 I&N Dec. 437, 441
(BIA 2022).
In Conger, 434 N.W.2d at 409, a defendant was convicted of a single
count of theft after a jury was given instructions for both theft by taking under
section 714.1(1) and exercising control over stolen property under section
714.1(4). The defendant argued that the trial court erred in allowing the jury
to convict him of theft without being unanimous as to the type of theft
committed. The Iowa court of appeals upheld the conviction, noting that
a “person cannot commit theft by taking without also exercising control over
the property, so the two . . . . alternatives are not inconsistent or repugnant in
that they represent different points of time within one crime.” Id. at 409–10.
This language appears to suggest that theft by taking and exercising control
over stolen property are alternative means of committing theft, not elements.
However, the court noted it could only reach this result because these
statutory alternatives are “consistent with and not repugnant to each other.”
Id. at 409. As we explained above, theft by taking under section 714.1(1)
and theft by fraud or deceit under sections 714.1(3) and (6) are clearly
inconsistent with, and thus repugnant to, each other because the former
section requires a taking without consent, while the latter do not.
Accordingly, we believe Conger is consistent with our conclusion that theft
by taking and theft by fraud or deceit are alternative crimes with distinct
elements under section 714.1, rather than means of violating the statute.
In Williams, 328 N.W.2d at 505–06, the Iowa Supreme Court concluded
that the State’s decision to amend the form of theft charged—from theft by
taking under section 714.1(1) to theft by exercising control of stolen property
under section 714.1(4)—after the defense had rested was reversible error.
The court noted that a charge may be amended “only if (1) substantial rights
of the defendant are not prejudiced thereby, and (2) a wholly new or different
offense is not charged.” Id. at 505 (citation omitted). The court’s decision
rested solely on its finding that the “first prong, no prejudice to substantial
rights of defendant, [was] not satisfied in the . . . case.” Id. It then noted that
458

Cite as 28 I&N Dec. 450 (BIA 2022)

Interim Decision #4036

an “amendment without prejudice . . . might have been made . . . , alleging
the alternate theory of theft by exercising control over stolen property”
because the State “would not have been alleging a ‘wholly new and different
offense’ but merely an alternative means of committing the same offense.”
Id. at 506 & n.3 (emphasis added). Because this latter statement was not
necessary to the court’s holding, which rested solely on the finding of
prejudice, we consider it dicta. See Passmore v. Astrue, 533 F.3d 658, 661
(8th Cir. 2008) (defining “dicta” as a statement that “is unnecessary to the
decision in the case” (citation omitted)).
More importantly, Williams did not discuss the issue we address today,
namely, whether Iowa’s theft statute is divisible with respect to whether
a violation involved theft by taking under section 714.1(1) or theft by fraud
or deceit under sections 714.1(3) and (6). As noted, our review of State law
reflects they are discrete crimes with distinct elements. Williams also did not
accord the term “alternative means” the specific meaning and significance
the Supreme Court did in Mathis. Nor could it have. Williams was issued
years before the Supreme Court first articulated the categorical approach in
Taylor v. United States, 495 U.S. 575 (1990), and decades before the Court
articulated the distinction between “means” and “elements” in Mathis. We
doubt the court in Williams intended to describe each subsection of section
714.1 as mere facts, “extraneous to the crime’s legal requirements.” Mathis,
136 S. Ct. at 2248.
We therefore hold that section 714.1 of the Iowa Code is divisible with
respect to whether a violation of the statute involved theft by taking or theft
by fraud or deceit. It was therefore permissible for the Immigration Judge to
review the respondent’s conviction record, including his plea agreement and
criminal complaint, to determine whether his violation involved generic
theft. See Shepard, 544 U.S. at 26. As noted, this record establishes that he
was specifically convicted of theft by taking under section 714.1(1) of the
Iowa Code, the elements of which match the generic definition of aggravated
felony theft under section 101(a)(43)(G). See Nall, 894 N.W.2d at 524.
There is no dispute that the respondent’s theft offense is one for which the
term of imprisonment is at least one year, as required by section
101(a)(43)(G) of the Act. We will therefore affirm the Immigration Judge’s
conclusion that the respondent’s conviction for theft in the first degree under
sections 714.1(1) and 714.2(1) of the Iowa Code is one for an aggravated
felony theft offense that renders him removable as charged under section
237(a)(2)(A)(iii) of the Act. Accordingly, the appeal is dismissed.
ORDER: The respondent’s appeal is dismissed.

459


.11.411•Gl...141/

7T- .Y•Jt.../

MATTER OF C-ARCIA-RODRIGUEZ
In Visa Petition Proceedings
A-22365073

Decided by Board January 13, 1978
(1) In order to support application for "immediate relative status" under section 201(b) of
the Immigration and Nationality Act, 8 U.S.C. 1151(b), for the beneficiary as her
adopted daughter, petitioner must establish that .the adoption was accomplished in
compliance with controlling foreign law (Civil Code of Tamaulipas, Mexico).
(2) Under article 400 of the Civil Code of -Tamaulipas, Mexico, only persons "who have no
descendants" are permitted to adopt.
(3) A purpoited adoption of the beneficiary by the petitioner and her spouse in
Tamaulipas, Mexico, while they had living natural children, was not accomplished in
compliance with controlling law and cannot be recognized for the purpose of bestowing
an immigration benefit.

(4) Contention that article 400 of the Civil Code of Tamaulipas, Mexico, applies only to
single persons and that article 401 allows a man and wife to adopt, even if they have
descendants, so long as both consent, is wejected because article 400 is not restricted on its
face to single persons, the adoption order in question cites article 400 and not article 401

among its "legal bases", and because article 401 would appear to be an additional (rather
than an alternative) requirement imposed upon married couples who wish to adopt.
014 BEHALF OF PETITIONER: Pro se
BY: Milhollan, Chairman; Wilson, Mania.tis, Appleman, and Maguire, Board Members

The United States citizen petitioner applied for immediate relative
status for the beneficiary as her adopted daughter under section 201(b)
of the Immigration and Nationality Act, 8 U.S.C. 1151(b). In a decision
dated October 5, 1976, the District Director denied the petition. The

petitioner has appealed.' The appeal will be dismissed.
The beneficiary, a 15-year-old native and citizen of Mexico, was
"adopted" by the petitioner and her husband in H. Matamoros, State of
Tamaulipas, Mexico, on August 6, 1974. The couple had natural children
of their own living at the time of this "adoption." A visa petition was
submitted on behalf of the beneficiary on August 16, 1976.
' The appeal was properly filed on October 18, 1976, but was not received by this Board
until November 15, 1977. The Service etplains that the delay resulted because a position
in the relevant field office became vacamt the month the appeal was filed and was not
staffed until some ten months later.

438

Certain adopted children of United States citizen parents can qualify
for "immediate relative status" under section 201(b) of the Act. See
section 101(b)(E), 8 U.S.C. 1101(b)(1)(E). The District Director, however, denied this petition based on his finding that the petitioner failed
to establish that the beneficiary had been lawfully adopted. Noting that
article 400 of the Civil Code of Tamaulipas authorizes only persons "who
do not have natural descendants" to adopt minor children, he concluded

that the beneficiary's adoption was not in compliance with controlling
law as the petitioner and her spouse had other natural children living in
August 1974.

On appeal, the petitioner submits that the District Director erred by
looking only to article 400 of the Civil Code of Tamaulipas. She states
that article 400 governs only adoptions by single persons and that article
401 authorizes a "married couple [to] adopt if both agree to consider the
adopted one as their son." The petitioner maintains that the adoption of
the beneficiary was in compliance with the requirements of the Civil
Code of Tamaulipas and that her daughter should, therefore, be recognized as her "immediate relative."
The burden of establishing both controlling foreign law (Matter of
Awning, 14 L & N. Dec. 502 (BIA 1973)) and eligibility for the benefit
sought (Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966)) rests with
the petitioner. We conclude that the petitioner has failed to sustain
either burden.
Article 400 of the Civil Code of Tamaulipas provides:
Persons over 30 years of age, in the full exercise of their rights and who have no
descendants, may adopt a minor or an incompetent, even if he is of legal age, provided
the adopter is 17 years older than the person adopted, and that the adoption is beneficial
to the latter.
Article 401 of the Code states:
The man and wife can adopt when both are in accord in considering the adopted child as
their own son or daughter.

It seems evident that the former article is a general provision governing all adoptions, while the latter article sets forth an additional requirement to be imposed upon married couples. Thus, it would appear
that the petitioner and her spouse were subject to the restrictions in
article 400 at the time they attempted to adopt the beneficiary.

The petitioner would have us conclude that article 400 applies only to
single persons. On its face, however, no such limitation appears.
Moreover, to accept such an interpretation would be to conclude that
the age differential and "welfare of the child" provisions of article 400 do
not apply to adoptions by married couples. We decline to so conclude,
and find that the petitioner has failed to establish that her reading of
articles 400 and 401 of the Civil Code of Tamaulipas is correct.
439

This conclusion is supported by the fact that an extract from the
adoption order submitted by the petitioner cites article 400 among the
"legal bases" for the adoption. No reference is made in the order to
article 401 of the Code. It would, therefore, certainly appear that the
provisions of article 400 did apply to the "adoption" of the beneficiary.
In light of the above, we find that the petitioner has failed to establish
that the beneficiary qualifies as her "child" within the meaning of section

101(b)(1)(E) of the Act. Thus, the beneficiary has not been shown to be
eligible for "immediate relative" status under section 201(b) of the Act.
See Matter of Allmon, Interim Decision 2339 (BIA 1975).
Accordingly, the appeal will be dismissed. We note, however, that
nonpreference immigrant visas are presently available for qualified
applicants from Mexico. 2
ORDER: The appeal is dismissed.

2

See United States Department of State Visa Bulletin Number 12, Volume III,

November 11, 1977.

440


interim Decision It ZtAz

MATTER OF WIESINGER
In Deportation Proceedings
A-20351136

Decided by Board March 27, 1978
Neither the Board of Immigration Appeals nor the immigration judge has authority to
rule upon the qualifications of respondent (a nonpreference applicant for section 245
adjustment of status) for precertification as a minister under Schedule A of 29 C.F.R.
60.7. since, by regulation, such authority lies solely with the District Director and in the
absence of approval of precertificatiort by the District Director, his application for
adjustment must be denied. Matter of Kjeiclaas, Interim Decision 2605 (BIA 1977)
modified.
CHARGE:
Orden Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)—Nonimmigrant visitor—
remained longer
ON BEHALF OF SERVICE:
George Indelicato

ON BEHALF OF RESPONDENT:
David Carliner, Esquire

Appellate Trial Attorney

Carliner & Gus duo

931 Investment Building
1511 K Street, N. W.
Washington, D. C. 20005
BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

The respondent appeals from the decision of an immigration judge,
dated February 25, 1977, in which he found the respondent deportable
as charged, denied his application. for adjustment of status, and granted
him the privilege of voluntary departure in lieu of deportation. The
appeal will be dismissed.
The respondent is a 25-year-a1d native and citizen of Austria who
entered the United States on January 22, 1973, as a nonimmigrant
visitor for pleasure, authorized to remain until February 6, 1976. The
District Director denied his application for adjustment of status on
January 27, 1976. At his deportation hearing on April 27, 1976, the
respondent admitted the allegations in the Order to Show Cause and
conceded deportability. The only issue on appeal involves his application
for adjustment of status under section 245 of the Immigration and
Nationality Act, 8 U.S.C. 1255, based upon his claim to precertification
as a missionary under 29 U.F.11.. 60.7.
480

Interim Decision #2642
The respondent seeks adjustment of status as a nonpreference immigrant. The immigration judge found that the respondent was inspected
and admitted into the United States and that a nonpreference immigrant visa is available. He concluded, however, that the respondent had
failed to establish that he had obtained the necessary labor certification.
He was, therefore, excludable under section 212(a)(14) of the Aet, S
U.S.C. 1182(a)(14), and his application for adjustment was denied.
The respondent claims that he is eligible to receive a nonpreference
immigrant visa because he is seeking to enter the United States as a
missionary and, thus, he is precertified by regulation. Schedule A, Part
III(b), 29 C.F.R. 60.7.' We have held that aliens who seek to enter the
United States to perform religious duties are considered to be coming to
perform skilled and unskilled labor and, therefore, must obtain a labor
certification, although they are precertified by regulation. 29 O.F. R..
60.2(a)(1) and 60.7, Schedule A, Group 111(a), (b), and (c). Matter of
Friess, Interim Decision 2492 (BIA 1976).
A blanket labor certification has been granted to persons who seek
admission to perform a religious occupation, and to persons with a
religious commitment who seek admission in order to work for a nonprofit religious organization. The occupation, "missionary," .is listed on
Schedule A—the list of occupations for which the Secretary of Labor
has issued a blanket labor certification by regulation (formerly 29
C.F.R. 60.7, presently 20 C.F.R. 656.10).' See Matter of Kjoldatto ,
Interim Decision 2605 (BIA 1977). 3

29 C.F.R. 60.7 Schedule A, Group £11(b) covers:
Any person of any religions denomination having a religious commitment, such as a
Monk, Nun, Brother, Missionary, and others, who is seeking admission to the United
States to perform the duties require& of him by virtue of such commitment..
2 20 C.F.R. A66.10(c) includes the latest version of Schedule A, Group III.
(c) Group III:
(1)Aliens who seek admission to the United States in order to perform a religious
occupation, such as the preaching or teaching of religion; and
(2) Aliens with a religious commitment who seek admission into the United States
in order to work for a nonprofit religious organization.
20 C.F.R. 656.22 describes the requirements needed to qualify for Schedule A:
(e) Aliens seeking a labor certification under Group III of Schedule A shall file as
part of their labor certification applications documentary evidence showing that they
have been primarily engaged in the religious occupation or in working for the nonprofit religious organization for the previous two years, and they will be principally
engaged (more than 50 percent of 'working time) in the United States in performing
the religious occupation or working for the non-profit religious organization.
These regulations became effective on February 18, 1977. 42 F.R. 3441 (January 18,
1977).
We note that in Matter of Kjeldaas, supra, we found that the respondent's occupation
was one listed on Schedule A. but the issue of our jurisdiction over this matter was not
raised in that case. In the present case, however, we fmd that neither the Board nor the
immigration judge has jurisdiction to pale upon the respondent's qualifications for precer'

4g1

Interim Decision #2642

The immigration judge found that the respondent was employed as a
State Director of the Unification Church since October 1975, i n a
managerial capacity rather than as a missionary. He also found that the
term missionary as used in Schedule A, Part III(b), 29 C.F.R. 60.7,
referred to someone devoted to an area of service and not a supervisor,
manager, or director.
On appeal, the respondent claims that he devotes the great majority
of his time to missionary work, although he does also act as a supervisor
for other missionaries. On January 27, 1976, the District Director denied the respondent's application for adjustment on the ground that the

respondent has not distinguished himself from the rank and file membership of the church and, thus; does not fall within the ambit of 29

C.F.R. 60.7. His application for adjustment was, therefore, denied
because it was not supported by a valid labor certification.
In an earlier case, we held that the authority to rule upon an alien's
qualifications for precertification under Schedule C of 29 C.F.R. 60.3
lies solely with the District Director and that the immigration judge
may not rule on the accuracy of the, District Director's conclusions
regarding the sufficiency of the stated qualifications for precertification.

.Matter of Grove, 13 1. & N. Dee. 572 (BIA 1970). 4 See also Matter of
Last, 14 I. & N. Dec. 694, n. 13 at 700 (BIA 1974). The regulation relied
upon in that case was 8 C.F.R. 204.1(d)(2). 5 That regulation was
tification under Schedule A. Thus, it appears that we erroneously assumed jurisdiction in
Matter of Kjeldaas, supra, and we will refuse to do so again.
In Matter of Grove, supra, we held that under 8 C.F.R. 245.1(e) the burden is ea the
respondent to establish that he is within Schedule C of the Precertified List set forth in 29
C.F.R. Part 60.-We also cited 8 C.F.R. 245.2(b) for the proposition that a determination
concerning certification under section 212(a)(14) of the Act will be made in accordance with
the pertinent provisions of 8 C.F.R. 204.1(d)(2). The current version of 8 C. F.R. 245. 1(e)
placee the burden of establishing that he is within Schedule A (20 C.F.R. Part 656) on the
respondent. The current version of 8 C.F.R. 245.2(b) states that the determinatiOn
concerning certification under 212(a)(14) of the Act will be made in accordance with the
pertinent provision of 8 C.F.R. 204.2(e)(4).
8 C.F.R. 204.1(d)(2) read in pertinent part:

(2) Certification under section 212(a)(14). An alien whose occupation is currently
listed in Schedule A (29 C.F.R. Part 60) will be considered as having obtained a
certification under section 212(a)(14) of the Act upon determination by the district
director that the alien is qualified for and will be engaged in such occupation. An alien

whose occupation is currently listed in Schedule C—Precertificatbn List will be
considered as having obtained a certification under section 212(a)(14) of the Act upon
determination by the district director that the alien is qualified for and will be
engaged hi such occupation and that the alien will not reside in an area excluded from
precertification by the Secretary of Labor. . . . (Emphasis supplied.)
8 C.F.R. 204.2(e)(4), which replaced the above regulation, reads in pertinent part:
(4) Certification under section 212(a)(14). No third or sixth preference petition shall
be approvablo unless it is supported by a valid labor certification issued under section

212(a)(14) of the Act. An alien whose occupation is currently listed in Schedule I (20

482

111 LG11111 LGLIOILUI

77- 4V -t4

amended March 30, 1971 (36 F.R. 5835). The new regulation, 8 C.F.R.
204. 2(e)(4), is different only in that it speaks of Schedule A as opposed to
Schedules A and C. Upon a review of the old regulation, 8 C.F.R.
204.1(d)(2), it is apparent that the District Director's authority to determine whether the alien is precertified applies to both Schedules A
and C. 6 Therefore, we hold that the decision reached in Matter of Grove,
supra, is applicable today and we are without authority to rule upon the
respondent's qualifications for precertification under Schedule A of 29
C.F.R. 60.7. Inasmuch as the respondent has not established his eligibility for adjustment of status in the absence of an approved labor
certification or his exemption therefrom, the immigration judge was
correct,in denying his application for that relief. Accordingly, the appeal
will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: In accordance with Matter of Choutiaris,
Interim Decision 2572 (BIA 1977), the respondent is permitted to depart
from the United States voluntarily within 30 days from the date of this
order or any extension beyond that time as may be granted by the
District Director; and in the event of failure so to depart, the respondent
shall be deported as provided in the immigration judge's order.

C.F.R. Part 656) will be considered as having obtained a certification under section
212(a)(14) of the Act upon determination by the district director that the alien is
qualified for and will be engaged in such occupation. (Emphasis supplied.)
6 See note 3.
The Schedule G—Precertification List was eliminated by the revision of 29 C.F.R. 60 on
February 4, 1971. 36 F.R. 2462. However, before that date, the Immigration and
Naturalization Service regulations had been amended to permit District Directors to
determine whether an alien was precertified under Schedule C or Schedule
A—Precertification List. 8 C.F.R. 204.1(d)(2) (1970), 34 F.R. 5325 (March 8, 1969).

483


Interim Decision #1708

MAT;rER or

Mor

Application for Classification as Refugee
A-14805376
Decided by Regional Comoniseknter February 2, 1967
Applicant, a native of OhInn, who, because of political beliefs, gave up his inane

in China and in December 1949 fled the'mainland to Hong gong, pausing there
a short time before proceeding to the *United States where he has been physically present since his•admission as a nonimniigrant visitor in July 1950, has
not effected a firm resettlement in any other country since leaving his homeland ; therefore, he is eligible for refugee classification under the proviso to section 203(a) (7) of the Immigration and Nationality Act, as amended.
ON

Ern.srs, OP APPLICANT ; Tohn L. Murif, Esquire
-•
.680 Fifth Avenue

14w York, New York 10019

This matter is before the Regional Commissioner on certification by
the District Director at New York, New York who denied the application for adjustment of status under section 245 of the Immigration
and Nationality Act, as amended. It was found -that the alien is ineligible for preference classifica:tion as a refugee under section 203(a)
(7) of the Act, as amended, and that an immigrant visa is not immediately available to him under the nonpreference portion of the quota for
China to which he is otherWise chargeable.
The applicant is a married, citizen of .Chins, born September 22, 1911
at litan .Wah Lee, Toysan, Kwangtung, China. He has been in the
'United States since his admission at Anchorage, Alaska on July 26,
1950 as a nonimmigrant visitor to -attend the Chicago World's Fair.
On June 22, 1966, the alien filed an Application for Status as Permanent Resident and, in conjunction therewith, applied for a classification
as .a refugee under the proviso to section 203(a) (7) of the Act, as
amended. The latter application reflects that he left China in late 1949
,

because of the Communists and is unwilling to return for the same
reason. His request for refugee status was disapproved by the District

Director whose decision of November 9, 1966 states, in part, as follows:

121

Interim, Decision. #1708
"In interviews before this Service July 8, 1966 and October 4, 1966 you have
stated that you are a native and citizen of China born in Toysan, Kwontung,
China on September 22, 1911 and that you are in possession of a valid passport
issued by Republic of China. You last entered the U.S. at Anchorage, Alaska on
July 26, 1950 when you were admitted to attend the Chicago World Fair until
November 1, 1950, and you have remained in the U.S. since that entry.

"You further stated that you maintained a residence in Hong Kong from 1945
until 1950; that your wife, Dong Ying Fang, and children have resided in Hong
Kong since May 1948; and that you were engaged in business in Hong Kong
from 1945 until 1949. You have maintained that you travelled during the period
from 1945-1949 on business between Hong Kong and Canton, China and that
you considered your native village your home during that period.
You stated that your wife and two daughters are currently residing in Hong
Sung; and your three bona are currently residing in Japan, England and Taiwan

respectively.
You have not made any allegations that you were subjected to persecution
based on your race, religion or political opinions during the period you were in
Hong Kong, nor have you alleged fear of persecution should you return to reside

in Hong Kong or in Taiwan, China, the country of your nationality.
In view of the above, your application for status as a refugee has been denied
because you have not established that you would be subjected to persecution
based on your race, religion or political opinion should you return to reside iu
Hong Kong or to Taiwan, China."

It has been asserted on appeal that the applicant has never resided
in Taiwan; that during the period from 1945 to 1949, he spent as much
time in connection with his tea business in Canton as in Hong Kong,
where he only occupied "bed space"; that his native village was occupied by the Communists in October 1949; that he gave up his home and
left China permanently when he fled to Hong Kong in December
1949; that he only paused in Hong Kong for a short time before proceeding to the United States in July 1950
Section 203(a) (7) of the Immigration. and Nationality Act, as
amended, states in pertinent part as follows:
"Conditional entries shall next be made available by the Attorney General,
pursuant to such regulations as he may prescribe and in a number not to exceed
6 per centum of the number specified in section 201(a) (II), to aliens who satisfy
an Immigration and Naturalization Service officer at an examination in any
non-Communist or non-Communint-dominated country, (A) that (I) because of
persecution or fear of persecution on account of race, religion or political opinion
they have fled (I) from any Communist or Communist-dominated country or
area, or (II) from any country within the general area of the Middle East, and
(Ii) are unable or unwilling to return to such country or area on account of
race, religion, or political opinion, and (iii) are not nationals of the countries

or areas in which their application for conditional entry is made; . . . Provided,
That immigrant visas in a number not exceeding one-half the number specified
in this paragraph may be made available, in lieu of conditional entries of a
like number, to such aliens who have been continuously physically present in

122

Interim Decision. #1708
the United States for a period of at least two years prior to application for
adjustment of statue."

In the matter at hand, we find that the District Director has
imposed a condition precedent to the grant of refugee classification
which is neither provided for nor contemplated by the statute. In order
to be eligible for the benefits of section 203 (a) (7) , the applicant must
have fled from one of the aforementioned countries or areas because
of persecution or fear of persecution on account of race, religion or
political opinion, Additionally, he must establish that he is unable or
unwilling to return to such country on account of race, religion or
political opinion. The alien is not required to substantiate that he
would in fact be subjected to persecution if he returned there. Further,
the ability of the applicant to proceed to some other country is of no
consequence, provided he has not firmly resettled in such country and,
therefore, can no longer be regarded as a refugee.
The record in this case satisfactorily establishes that the applicant
herein has fled from the Communist-dominated China mainland and
is unwilling to return there because of his political beliefs. We further
find that he has not effected a firm resettlement in any other country
since leaving his homeland. He has been physically present in the
United States since July 26, 1950 and satisfies the prerequisites for
classification as a refugee under section 203 (a) (7) of the Act. We
further find that his eligibility for the benefits of section 245 has been
established. Accordingly, the following order will be entered.
It is ordered that the applications for classification as a refugee
under the proviso to section 203(a) (7) of the Immigration and Nationality Act, as amended, and for adjustment of status to permanent
resident under section 245 of the Act be and the same are hereby
granted.

123
321-654--69-10


Interim Decision #2135

MAYIBR

OF MARTINEZ-SOLIS

In Deportation Proceedings
A44615365

Decided by Board March 22, 1972
(1) The action of the Board in its prior order remanding the case to the special
inquiry officer for further investigation and a reopened hearing, did not
commingle its functions as an impartial adjudicator with those of a prosecutor
and investigator; a contested deportation proceeding is in essence a quest for
the truth, and the Board does not cease to be impartial merely because in its
quest for truth it perceives avenues of unexplored inquiry.
(2) Under California law, a presumption of validity of a second marriage entered
into by a married person attaches only if contracted in good faith, founded on
the honest belief the former spouse is dead, and adequate investigation is
made to verify this belief. Hence, a presumption of validity of the second
marriage is precluded in the instant case where the alleged citizen wife was
paid $215 to marry respondent about a week after she met him, there is no
evidence her first marriage was dissolved by divorce or annulment, and there
is no evidence an effort was made to learn if her first husband was dead.
CHARGE:

Order: Act of 1952—Section 241(aX1) [8 U.S.C. 1251(a)(1)]—Excludable at time of
entry—no labor certification.
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Donald L. Ungar. Esquire
517 Washington Street
San Francisco, California 94111
(Brief filed)

R. A. Vielhaber

Appellate Trial Attorney
Stephen M. Suffin
Trial Attroney
(Brief filed)

The respondent appeals from the special inquiry officer's order
of deportation dated May 24, 1971. The case was originally before

us on November 27, 1970. Our order of that date remanded the
case to the special inquiry officer for additional evidence. The
respondent on this appeal excepts to that order.
The respondent, a native and citizen of Mexico, was admitted to
the United States for permanent residence at the port of Calexico,
California, on June 23, 1967. He presented an immigrant visa
issued to him by the United States Consul at Monterrey, Nuevo
Leon, Mexico on June 1, 1967 as the husband of Herminda

93

Interim Decision #2135
Martinez Borunda, a United States citizen. He was not required to
present a labor certification under section 212(a)(14), Immigration
and Nationality Act, as the spouse of a United States citizen.
The respondent refused to testify at the deportation hearings
accorded him on July 9, 1969 and February 4, 1970. The primary
evidence relied upon by the Service to support the deportation
charge is a sworn statement taken from Erminda Duran, nee
Borunda, on February 18, 1969 (Ex. 10) and an affidavit executed
by her on April 1, 1969 (Ex. 5). The respondent's alleged wife stated
under oath in her statement and affidavit that a prior marriage
contracted by her had not terminated at the time she married the
respondent.
Counsel for the respondent objected to the introduction of the
statement and affidavit on the ground that he had no opportunity
to cross-examine the maker (pp. 5 and 11, hearing of July 9, 1969).
The hearing was adjourned to afford counsel an opportunity to
take the wife's testimony by deposition. It later developed that the
respondent's alleged wife could not be located.
This Board, after a thorough review of the evidence in light of
the objections raised by counsel, remanded the case to the special
inquiry officer with the request that the Service make a further
attempt to locate the respondent's alleged wife in order that she
could be cross-examined by counsel. We noted in our decision that
there was no showing of an investigation in and around Stockton,
California, notwithstanding the fact that the Service had been
informed that "Stockton, California has in the past been her
[respondent's alleged wife's] stomping grounds." We cited in support of our action a case which holds that the presumption of a
valid marriage may be overcome if the divorce records from the
residences of the parties involved reveal that there was no divorce
from a former spouse and no annulment of the marriage, Spradlin
v. United States, 284 F. Supp. '763 (D. Mont., 1968).

The respondent's alleged wife was thereafter located but counsel
declined to cross - examine her. A search of the court records in

Sacramento, Fresno and San Joaquin, California as well as a
report from the Bureau of Vital Statistics, which maintains a
centralized record of divorces in the State of California, failed to
reveal that the respondent's alleged wife had obtained a divorce
from her former husband (Ex.11).
Counsel maintains that our order of November 27, 1970, remanding the case to the special inquiry officer for further investigation
and a reopened hearing had the effect of denying the respondent
his right to a fair hearing before an impartial tribunal. It is the
position of counsel that the Board's action commingled its functions as an appellate body and trier of fact with those of prosecu94

Interim Decision #2135
for and investigator, thereby denying the respondent a fair hearing and rendering all subsequent proceedings invalid.
Counsel's charge that this Board deviated from its role of
impartial adjudicator misconceives the nature Of our function. The
charge is based on the following chain of reasoning: (1) In deciding
to rest on the original record, without seeking further to locate the
missing -witness, the Service made a deliberate prosecutive judgment to which it should be held. (2) The respondent had a right to
have the deportation order assessed by this Board on appeal
strictly on that record. (3) The respondent had a right to have the
deportation order set aside and the proceedings terminated if, as
he maintained, the record was inadequate to sustain the charge.
(4) In remanding and directing that a further attempt be made to
locate the missing witness, this Board overruled the Service's
prosecutive judgement, thereby leaving its role of impartial adjudicator and assuming a prosecutive function.
A contested deportation proceeding is in essence a quest for the
truth. The stakes are high; the Service has the duty of enforcing
the law, and the alien's valuable right to remain here is threatened. We may not approach such an inquiry like an umpire at a
sporting event, awarding the prize to the side that has scored the
most points. The "sporting theory of justice" has long been
disavowed by the courts and there is no reason why we should
accept it. We do not cease to be impartial merely because, in our
quest for the truth, we perceive avenues of inquiry not yet
explored.
This Board is an appellate administrative body created to decide
questions of law. Section 242(b)(4) of the Immigration and Nationality Act provides that "no decision of deportability shall be valid
unless it is based upon reasonable, substantial and probative
evidence." The Supreme Court has interpreted section 242(b)(4) to
mean that no deportation order may be entered unless it is found
by clear, convincing and unequivocal evidence "that the facts
alleged as grounds for deportation are true," Woodby v. INS, 385
U.S. 276 (1966).
8 CFR 3.1(dX2) provides that the Board may return a case to the
Service for such further action as may be appropriate without

entering a final decision on the merits of the case. When it is
apparent from the record that the facts alleged as grounds for
deportation may be proved or disproved by supplementing the
record with additional evidence, we believe that in determining
the truth, it is our duty both to the Government and the alien, in
the administration of justice, to remand the case for such evidence. Our authority to reopen and remand a case for such a
purpose has been sustained by the courts, Tejeda v. INS, 346 F.2d
95

Interim Decision #2135
389, 392 (C.A. 9, 1965); Field v. INS,313 F.2d 743 (C.A.3, 1963); Wood
v. Hoy, 266 F.2d 825, 831 (C.A.9, 1959); Tandaric v. Robinson, 257
F.2d 895, 899 (C.A. 7, 1958). Cf. United States v. Ramos, 413 F.2d
743, 746 (C.A. 1, 1969).
Accordingly, we find no merit to counsel's contention that the
Board's action in this case commingles its functions as an appellate body with those of a prosecutor and investigator. 8 CFR
3.1(d)(1) confers upon the Board such authority "as is appropriate
and necessary for the disposition of the case." Cf. Matter of N—, 9
I. & N. Dec. 506, 511 (BIA, 1961).

Counsel also contends that, assuming the respondent had a fair
hearing, the evidence of record fails to meet the exacting standard
demanded by the Supreme Court in Woodby v. INS, supra. The
primary evidence relied upon by the special inquiry officer includes the sworn statement taken from the respondent's alleged
wife on February 18, 1969 (Ex. 10), an affidavit executed by her on
April 1, 1969 (Ex. 5), and a report of investigation (Ex.11) dated
April 16, 1971, to the effect that there is no record of her divorce in
the State of California.
We reject counsel's contention that the evidence is insufficient
to overcome the presumption of validity which attaches to the
respondent's marriage to a citizen of the United States under
California law. This presumption is not applicable here because,
after a thorough investigation by the Service, there is no evidence
that the first marriage of the respondent's citizen wife was
dissolved by divorce or annulment, In re Smith's Estate, 201 P.2d
539, 540 (Sup. Ct. Cal., 1949); Spradlin v. United States, supra.
Counsel also contends that there must be some proof that the
alleged citizen wife's first husband was not living at the time of
her marriage to the respondent. It has been judicially determined
in California that in order for a presumption of statutory validity
to attach to a second marriage entered into by a married person,
the second marriage must have been contracted in good faith,
founded on the honest belief that the former spouse was dead and
that an adequate investigation had in fact been made to verify
this belief, Goff v. Goff, 52 C.A. 2d 23, 125 P.2d 848, 851 (C.A. Cal.,
1942).

We are satisfied from the evidence before us that the alleged
citizen wife did not contract a marriage in good faith, founded on
the honest belief that her former spouse was dead. There is no
evidence of any investigation on her part to verify such belief. She
stated in her affidavit of April 1, 1969 that the respondent paid her
a total of $215 to marry him for immigration purposes. She also
stated that she first met the respondent "about a week before

[she] married him" (Ex. 5). Thus, the evidence before us precludes
96

Interim Decision #2135
the applicability of the statutory presumption of the validity of a
second marriage.
The respondent's deportability has been established by evidence
that is clear, convincing and unequivocal. The order of deportation
is affirmed and the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

97


Interim Decision #2876

MATTER OF LEE
In Visa Petition Proceedings

A CHI N 20149
-

-

-

Decided by Regional Commissioner May 8, 1981
(1) To qualify for nonimmigrant classification as a temporary worker of distinguished
merit and ability within the meaning of section 101(a)(15)(HXD of the Immigration and
Nationality Act, 8 U.S.C. 1101(a)(15)(H)(i), a beneficiary must be a member of a profession offered a temporary position performing services which require professional
skills.
(2) A beneficiary who is a dentist, offered a position practicing dentistry for an hidefinite period of time with nu opeciiied termination date has not been offered a temporary
position and . does not qualify for nonimmigrant classification as a temporary worker
of distinguished merit and ability within the meaning of section 101(a)(15)(11)(9 of the
Act, 8 U.S.C. 1101(a)(15)(11)(1).
ON BLIIALF OF PETITIONER: William Newell Siebert, Esquire
111 E. Wacker Drive, Suite 515
Chicago, Illinois 60601

This matter is before me on appeal from the District Director's decision dated March 11, 1981, denying the petition to classify the beneficiary as a temporary worker of distinguished merit and ability (H-1)
under section 101(a)(15)(H)(i) of the Immigration and Nationality Act,
as amended, 8 U.S.C. 1101(a)(15)(H)(i). The appeal will be dismissed.
The petitioner is a partner in a professional association of dentists.
The beneficiary is a 34 year old native and citizen of Hong Kong who
last entered the United States on September 2, 1975, as a nonimmigrant
student. He earned a Doctor of Dental Surgery degree from the Loyola
University's Chicago College of Dental Surgery on May 27, 197R
Thereafter, he was granted two periods of authorized practical training
to June 30, 1979. The petitioner has offered the beneficiary a 40% share
in the net income of the partnership in exchange for his services as a
dentist. The petitioner indicated no specific ending date for this
arrangement. '11,e beneficiary has been working pursuant to these terms
since March 3, 1979. The visa petition to classify the beneficiary as a
nonimmigrant temporary worker on the basis of this position as a dentist in a partnership or professional association was filed on June 28,
1979.
-

-

96

Interim Decision #2876
Nonimmigrant classification as temporary worker of distinguished
merit and ability is granted where the beneficiary L4 a member of the
professions, the duties to be performed are of an exceptional nature
requiring a member of the professions, and the services are to be performed for a temporary period of time (Matter of General Atomic Company, 17 I&N Dec. 532 (Comm. 1980). Temporary means "that which is
to last for a limited time only, as distinguished from that which is
perpetual, or indefinite, in duration." Black's Law Dictionary (4th Ed.
1968).
In the present case the beneficiary is a professional dentist whose
duties of providing dental care to low-income families require his exceptional abilities. However, the District Director found that his employment is contemplated for a period of indefinite duration, not fixed by
any set date in the future. On appeal, attorney for the petitioner did not
satisfactorily refute this conclusion. He indicated that the petitioner is
presently looking for an American dentist without success. The offer on
this application is extended only to the point of hiring an American to fill
the position. I note, however, that the beneficiary has occupied this
position for more than 2 years now; the petitioner appears to have no
prospects of filling this position; and the petitioner has not documented
his efforts to fill the position in support of his claimed intention to only
employ the beneficiary temporarily. Such circumstances are not indicative of temporary employment.
I conclude that the petitioner has failed to establish that his intention
with respect to the employment of the beneficiary is merely for temporary employment. Following Matter of University of Oklahoma, 14
I&N Dec. 213 (BIA 1972), the petition was properly denied.
ORDER The appeal is dismissed.

WI