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Matter of Jim Willis KAGUMBAS, Respondent
Decided October 13, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An Immigration Judge has the authority to inquire into the bona fides of a marriage when
considering an application for adjustment of status under section 245(a) of the Immigration
and Nationality Act, 8 U.S.C. § 1255(a) (2018).
FOR RESPONDENT: James F. Epo, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Associate Legal Advisor

Meggan G. Johnson,

BEFORE: Board Panel: MULLANE, COUCH, and OWEN, Appellate Immigration
Judges.
MULLANE, Appellate Immigration Judge:

In a decision dated January 10, 2018, the Immigration Judge denied the
respondent’s application for adjustment of status under section 245(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2012). The respondent
appealed from that decision. Both the respondent and the Department of
Homeland Security (“DHS”) submitted briefs on appeal and we heard oral
argument on February 20, 2020. 1 The appeal will be dismissed, in part, and
sustained, in part. The record will be remanded for further proceedings.

I. PROCEDURAL HISTORY AND FACTS
The respondent, a native and citizen of Kenya, was admitted to the United
States as a nonimmigrant on an F-1 student visa on August 26, 2006. His
nonimmigrant status was terminated on October 17, 2007, because he failed
1

Following oral argument, Appellate Immigration Judge Edward F. Kelly retired from
the Board of Immigration Appeals, and Deputy Chief Appellate Immigration Judge Charles
Adkins-Blanch withdrew from the panel to serve as Acting Deputy Director of the
Executive Office for Immigration Review. Appellate Immigration Judges V. Stuart Couch
and Sirce E. Owen replaced them on the panel. Both Appellate Immigration Judges Couch
and Owen have familiarized themselves with the record of proceedings, including
a transcript of the oral argument.

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to maintain full-time study at San Jacinto College. He remained in the United
States without authorization. The DHS served the respondent with a notice
to appear charging him with deportability pursuant to section 237(a)(1)(B)
of the Act, 8 U.S.C. § 1227(a)(1)(B) (2012), for remaining in the United
States longer than permitted. The respondent conceded the charge but filed
an application for adjustment of status with the Immigration Court.
The respondent’s adjustment of status claim is based on his marriage to
his United States citizen wife, whom he married on July 23, 2013. His wife
filed a Form I-130, Petition for Alien Relative, on the respondent’s behalf,
which was approved by the United States Citizenship and Immigration
Services (“USCIS”). The respondent filed an application for adjustment of
status with the USCIS. However, while the application was pending, the
DHS commenced removed proceedings.
At the initial hearing before the Immigration Judge on November 9, 2016,
the respondent sought to terminate removal proceedings to apply for
adjustment of status based on an approved I-130 visa petition as the spouse
of a United States citizen before the USCIS. After the DHS counsel indicated
that she did not oppose termination, the Immigration Judge offered the
respondent the option of a hearing on the adjustment application in
Immigration Court in July or termination of proceedings so that the
respondent could pursue adjustment with the USCIS. The respondent,
through counsel, elected to pursue his adjustment of status application in
Immigration Court, because the Immigration Court could hear the request
sooner. 2
The Immigration Judge held a merits hearing on the respondent’s
application for adjustment of status on July 26, 2017. At the hearing, the
respondent, his wife, and his mother-in-law testified.
The respondent testified that he resides in Houston, Texas, his building
number is 1117, his apartment number is 2072, and he married his wife on
July 23, 2013. He said he worked with his mother-in-law and she introduced
him to her daughter. He testified that he has lived in an apartment with his
wife since they were married. The respondent said that he and his wife filed
taxes jointly in 2013 and 2014, and filed as “married but separate” in 2015.
The respondent also explained that he has one son, through a relationship
with an ex-girlfriend, and that his son lives with him during the summer
months.
2

Nothing in this decision prohibits parties from agreeing to dismiss proceedings so that
a respondent may pursue adjustment of status before the USCIS. See generally Matter of
S-O-G- & F-D-B-, 27 I&N Dec. 462, 466–67 (A.G. 2018) (discussing the distinction
between dismissal and termination).

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The respondent’s mother-in-law testified that she resides in Houston,
Texas. She said that the respondent and her daughter have been married for
about 4 years and that she worked with the respondent at the Dupont
Healthcare Center for about 5 years. She introduced her daughter to the
respondent at a barbeque and they dated for about 1 year before their
marriage.
The respondent’s wife, who was 25 years old at the time of the hearing,
indicated she was unemployed but had previously worked at a nursing home
and had a business selling clothes and hair. She testified that she met the
respondent through her mother and married him about 4 years before the
hearing. The respondent’s wife testified that she and the respondent resided
in building number 11710 and apartment 1012. The Immigration Judge
sought to clarify the apartment number, and the respondent’s wife indicated
it was 2012. When the Immigration Judge asked again about the apartment
number, she indicated it was 20112, 112, or 212. She also indicated that she
could not pronounce the name of the street where she lived with the
respondent. When asked how long she lived on that street, she said, “I was
there, I was just there, my mom didn’t move back into [indiscernible] for two
months.” When the DHS asked the respondent’s wife why she was not living
with the respondent, she stated that “I lived with, I was living with my mom.
We had to take [care] of my brother, you can check my tax records.” She
also testified that she lived with the respondent 6 months before the hearing.
When she was asked how long she lived with the respondent during their
marriage, she said, “I lived with him for maybe [2] years and [8] months.”
She also indicated that she lived with him for 2 years after they were married
and then returned to reside with her mother. The respondent’s wife also
indicated that when the respondent’s son stays with the respondent, she stays
with her mother. The respondent’s wife stated that she does not know the
name of the mother of the respondent’s son.
After the hearing, the Immigration Judge issued a written decision. The
Immigration Judge found the witnesses not credible. She pointed out that the
respondent and his wife testified to different dates for the marriage and noted
that the respondent’s wife “was asked several times and each time responded
with 2014.” The Immigration Judge found that their testimony also diverged
on how long they were living together in the apartment: The Immigration
Judge found that the respondent said “since we got married,” but his wife
“testified that she only lived with [the] [r]espondent for a year and [8] months
and just recently moved back in with him for [2] months.” The Immigration
Judge pointed out that the respondent’s wife also testified that “whenever
[the] [r]espondent’s son is in the residence she leaves to go stay with her
mother.” The Immigration Judge relied on the inconsistent testimony of the
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respondent’s wife about the correct apartment number, “and her inability to
remember the address of the apartment in which she claims to reside with her
husband.” The Immigration Judge found that the respondent’s testimony was
internally consistent but that she would not credit the claim “that the marriage
was bona fide at the time of inception due to [his wife’s] contradictory
testimony.” She noted that without credible testimony, the respondent
needed corroborative evidence, which he did not provide.
The Immigration Judge denied the respondent adjustment of status
because she concluded that his marriage to his wife was not bona fide. She
found that “the marriage was entered into solely to confer an immigration
benefit.” She noted that the respondent has “not submitted any evidence such
as bank statements, photographs, or lease agreements to support the
application.” The only document that supported the marriage claim was a
“2014 tax return” that was jointly filed. The respondent could not explain
his wife’s “2015 and 2016 tax returns in which [she] filed her taxes
separately” and indicated she was “head of household at her mother’s
address.” The Immigration Judge also pointed to the testimony of the
respondent’s wife where she could not remember the address of the alleged
marital home and did not know the respondent’s parents’ names or the
correct date of the marriage. For all these reasons, the Immigration Judge
found “that the [r]espondent’s marriage to [his wife] was not bona fide at its
inception, and that they entered into the marriage for the purpose of
procuring an immigration benefit, namely, Adjustment of Status for [the]
[r]espondent.” She denied the respondent’s application because he was not
statutorily eligible. 3

II. ANALYSIS
A. Immigration Judge’s Authority
The first issue in this case is whether an Immigration Judge can deny
adjustment of status to a respondent who has an approved I-130 visa petition
based on the Immigration Judge’s determination that the respondent has not
shown that the marriage is bona fide. 4 We review this issue de novo. See
8 C.F.R. § 1003.1(d)(3)(ii) (2021). We begin our analysis with the statutory
provision at issue in this case, namely section 245(a) of the Act. Section
3

The Immigration Judge did not reach whether the respondent should be granted or
denied adjustment of status in the exercise of discretion. We also do not consider this issue.
4
There is no dispute that an Immigration Judge lacks authority to cancel or revoke an
approved I-130 visa petition. Cf. 8 C.F.R. § 205.2 (2021) (stating that DHS officers may
revoke an approved visa petition).

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245(a) provides that the Attorney General may, in the exercise of discretion,
adjust the status of an applicant who was inspected and admitted or paroled
into the United States to that of a lawful permanent resident. The applicant
must file an application for adjustment of status, must be eligible to receive
an immigrant visa that is immediately available, and must be admissible to
the United States. There are certain bars to adjustment of status that are not
relevant here because the respondent is classified as an “immediate relative.”
See section 245(c) of the Act.
Applications for adjustment of status can be adjudicated by either an
Immigration Judge or the USCIS. See 8 C.F.R. §§ 245.2(a)(1), 1245.2(a)(1)
(2021). The adjudicator depends on the circumstances of the case.
Immigration Judges have exclusive jurisdiction over applications filed for
adjustment of status by respondents in removal proceedings, with the
exception of “arriving aliens.” 8 C.F.R. § 1245.2(a)(1)(i), (ii). The
respondent is not an “arriving alien,” and so the Immigration Judge had
exclusive jurisdiction over his application for adjustment of status.
An applicant for adjustment of status, in this case the respondent, has the
burden of proof, which includes showing eligibility for the requested relief.
See section 240(c)(4)(A)(i) of the Act, 8 U.S.C. § 1229(a)(c)(4)(A)(i) (2018)
(stating that an applicant applying for relief or protection has the burden to
satisfy “the applicable eligibility requirements”).
Furthermore, the
Immigration Judge must “determine whether or not the testimony is credible,
is persuasive, and refers to specific facts sufficient to demonstrate that the
applicant has satisfied the applicant’s burden of proof.”
Section
240(c)(4)(B). The Immigration Judge must weigh “the credible testimony
along with other evidence of record” to determine whether the respondent
has satisfied the burden of proof. Id. The Immigration Judge’s assessment
of whether the respondent has met his burden of proof does not become
merely a ministerial act simply because there is an approved I-130 visa
petition.
As noted above, the Immigration Judge has “exclusive jurisdiction” over
the respondent’s application for adjustment of status.
8 C.F.R.
§ 1245.2(a)(1). If the respondent were not in removal proceedings and
exclusive jurisdiction over his application rested with the DHS, there would
be no credible claim that the approved I-130 visa petition prohibited the DHS
from considering the bona fides of the marriage as part of the adjustment of
status application. The respondent makes no argument to the contrary. It
follows, therefore, that an Immigration Judge must have the same
authority—no less and no more—by virtue of the exclusive jurisdiction to
adjudicate an adjustment of status application. The regulations do not

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provide otherwise, and we see no basis to construct a different adjudication
regime based on the adjudicator.
Our conclusion here is consistent with long-standing precedent. In
Matter of Bark, 14 I&N Dec. 237, 240 (BIA 1972), rev’d on other grounds
by Bark v. INS, 511 F.2d 1200 (9th Cir. 1975), we held that “this Board and
the special inquiry officers are not bound by [a] prior determination of a visa
petition that an alien is entitled to a particular classification.” We reasoned
that just as a “visa petition procedure shall not be construed as entitling an
immigrant to enter the United States,” the same is true for an adjustment of
status application. Matter of Bark, 14 I&N Dec. at 240. We acknowledge
that the special inquiry officer in Matter of Bark “found that respondent had
not established a bona fide marriage and that he did not warrant the favorable
exercise of discretion,” id. at 238, whereas the Immigration Judge here did
not deny the adjustment of status application in the exercise of discretion.
However, we do not read Matter of Bark as only authorizing a denial in the
exercise of discretion, and its reasoning and holding make this point clear.
Cf. Matter of Koloamatangi, 23 I&N Dec. 548, 549–51 (BIA 2003) (holding
that a respondent could not qualify for cancellation of removal based on
lawful permanent residence that was fraudulently obtained).
Our conclusion is further fortified by the two courts of appeals that have
considered this legal issue. In Wen Yuan Chan v. Lynch, 843 F.3d 539, 541
(1st Cir. 2016), the United States Court of Appeals for the First Circuit held
that “the bona fides of the anchoring marriage were properly before the
immigration court” when considering an application for adjustment of status.
In affirming the Board’s holding that an approved I-130 visa petition does
not strip the Immigration Judge of jurisdiction to consider whether the
marriage was bona fide, the court of appeals relied on the Immigration
Judge’s responsibility to determine whether the applicant has met her burden
of proof and the applicant’s burden to show eligibility. Id. at 543–45. The
court pointed out that “[i]f the USCIS’s approval of an I-130 petition were
accorded preclusive effect, the [Immigration Judge’s] hands would be tied
and he would be prevented from fulfilling his statutory responsibility.” Id.
at 543 (emphasis added). The Ninth Circuit reached the same conclusion
regarding this issue in Agyeman v. INS, 296 F.3d 871, 879 n.2 (9th Cir. 2002).
No court of appeals has reached a contrary conclusion.
For all these reasons, we conclude that an Immigration Judge has the
authority to inquire into the bona fides of the marriage when considering an
application for adjustment of status. This does not mean that the approved
I-130 visa petition is irrelevant. See Wen Yuan Chan, 843 F.3d at 545.
Indeed, it is some evidence of the validity of the marriage, but it is not

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dispositive. An Immigration Judge will need to consider all of the evidence
in the record before making a determination as to eligibility for relief.
B. Inadequate Transcript for Review of the Immigration Judge’s Denial of
Adjustment of Status
The next question in this case is whether the Immigration Judge properly
denied the respondent’s application for adjustment of status. While the
Board and an Immigration Judge rely on the same record for adjudicating a
case or an appeal, a written transcript of the proceedings before an
Immigration Judge is only created after an appeal is filed. See 8 C.F.R.
§ 1003.1(e)(3) (2021). Thus only the Board reviews a transcript of the
testimony at an immigration hearing. The Immigration Judge does not see
(or review) the transcript before issuing a decision. This is so even when, as
in this case, the Immigration Judge issued a written decision a few months
after the hearing.
A complete and accurate transcript is therefore essential for the Board
to adjudicate an appeal that turns on witness testimony. See generally
8 C.F.R. § 1003.36 (2021) (“The Immigration Court shall create and control
the Record of Proceeding.”). This does not mean that the transcript has to be
perfect, but it needs to be complete enough for the Board to meaningfully
review an appeal. Often, a transcript with testimony marked as indiscernible
will not require a remand. For example, if there are only a few words that
are indiscernible or the indiscernible testimony is not critical to the outcome
of the case, then remand is not necessary.
The transcript that was produced from the hearing before the Immigration
Judge has significant problems. There are multiple places in the transcript
where the testimony of the respondent’s wife is listed as indiscernible. See
Tr. at 56-58, 60, 62, 64, 67, 77-78, 81, 84-85. The respondent’s wife’s
testimony is essential to this case because her testimony is the main reason
that the Immigration Judge concluded that the marriage was not bona fide.
Accordingly, this is not the type of case that we can adjudicate without a
remand to the Immigration Judge.
A new hearing is not required in all cases where significant testimony is
marked as indiscernible. Even when some testimony is marked as
indiscernible by the transcriber, this does not mean it was actually
indiscernible to the Immigration Judge at the time of the hearing. The
Immigration Judge may have heard and understood what the witness said,
but it was not recorded well and thus was indiscernible to the transcriber.
Another possibility is that the witness’s testimony was indiscernible for a
reason, such as the witness was mumbling or otherwise not clearly
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articulating herself. In other words, the witness was indiscernible and the
Immigration Judge knew it. This case appears to have both kinds of
indiscernible statements. For instance, on page 58 of the transcript, it appears
that the Immigration Judge understood what the respondent’s wife said when
asked about when she first met the respondent. On page 60 of the transcript,
however, the Immigration Judge says: “I don’t understand what you said. If
someone listens to what we’re doing here today, they make a record or
transcript, so they have to understand each word that you say. So some of
your words are running together.”
The DHS, in its brief, acknowledged that there are many places in the
transcript where the testimony of the respondent’s wife is indiscernible and
recognized that a remand might be warranted. Given the sheer number of
indiscernible statements in the transcript, and despite the Immigration
Judge’s best efforts to create a record that could be transcribed clearly, we
need to remand the record.
On remand, the Immigration Judge may be able to look at the transcript
(which, as noted above, she will see for the first time) and revise her decision
to clarify what she did (or did not) rely upon. She may also need to get input
from the attorneys in order to clarify the record. Or she may need to conduct
a part of the hearing again. From our limited vantage point, we cannot decide
which of these options the Immigration Judge needs to pursue and we place
no limitations upon the Immigration Judge on remand. We simply cannot
decide whether the Immigration Judge properly denied the respondent’s
application for adjustment of status based upon the respondent’s failure to
show that his marriage is bona fide until the indiscernible statements in the
transcript are clarified or the Immigration Judge’s decision is revised.

III. CONCLUSION
The Immigration Judge has the authority to deny adjustment of status to
a respondent who has an approved I-130 visa petition if a respondent has not
shown that the marriage underlying the visa petition is bona fide. We remand
the record for further proceedings to clarify those portions of the transcript
that are currently identified as indiscernible.
ORDER: The appeal is dismissed, in part, and sustained, in part.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

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MA21221 OF LAIJ

In Deportation Proceedings
A-15984947

Decided by Board Jaruaary 6, 1968
(1) An order to show cause is not defective for failure to specify the country
of deportation and the subdivision of section 243(a) of the Immigration and
Nationality Act under which designated.
(2) Where respondent did not designate a country of deportation and wee thereafter ordered deported to Formosa, the country of his citizenship, and alter-

natively to Hong Kong, there was no abuse of discretion by the special inquiry
officer in designating Hong Kong as the alternate country of deportation since
the record shows that respondent resided in Kong Kong from 1957-1067; that

be left Hong Kong to join the'veaser which brought him to the United States
as a crewman; and that he is in possession of a seaman's identity book and
a seaman's discharge book issued to him by the government of Hong Kong.
CHARGE:

Order: Act of 1952—Section 241(a) (2) (8 U.S.C. 12513—Nonimmigrant
(crewman)—remained longer.
ON Smuts or REMICK :
Irving A. Appleman
Appellate Trial Attorney

Emma or RESPONDENT:
Jules E. Coven, Esquire
Lebenkoff & Coven
1 Bast 428 StroPt
New York New York 10017

ON

The special inquiry officer, in a decision dated July 6, 1967, granted
the respondent the privilege of voluntary departure, but provided for
his deportation from the United States to the Republic of China on
Formosa, alternatively to Hong Kong, on the charge contained in
the order to show cause, in the event of his failure to so depart. The
appeal from that decision, which brings the case before this Board
for consideration, will be cligpliizsed.
The record relates to a male alien, approiimately 24 years of age,
who was born on the mainland of China. He last entered the United
States on or about February 11, 1967. He was then admitted as a nontipigrant crewman for the period of time his vessel was to remain. in
573

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United States ports, but in no event to exceed 29 days. He has
remained in the United States since the expiration of the temporary
period of his admission without authority.

The foregoing establishes the respondent's deportability on the
above-stated charge. This has also been conceded. The point, therefore,
needs no further discussion.
The special inquiry officer has granted the respondent the privilege
of voluntary departure. Suffice it to say, in this connection, that the
record before us supports said official's action in this respect.
It is immaterial that the order to show cause on which these proceedings are predicated did not specify the country to which the Government would request respondent's deportation. There is no requirement
that the order state the section of the statutory provision under which
the Government would proceed in this connection. Our reasons for
rejecting this argument follow.
A proceeding before the special inquiry officer under an order asserting that the alien is to show cause why he should not be deported under
'certain sections of the Immigration and Nationality Act is merely investigative. It does not amount to an order of deportation. It does no
more than obtain direct jnrisqiction over the person of the alien, and
se% in motion an inquiry which may follow broad lines (see Haymes v.
Landon,115 F. Supp. 506).
If deportability is not established, then the question of place of
deportation becomes moot. Practically speaking, then, the procedure
desired by counsel would constitute "putting the cart before the horse."
A warrant of deportation, which issues only after deportability has
been established and discretionary relief questions disposed of, is not
required to set forth the country to which an alien is to be deported
(see Mee Hoek Chan v. Burney, 206 F. Supp. 894; and .1749 v. Kennedy, 292 F. 2d 140.A fortiori, there is no such requirement insofar as
an order to show cause, which merely institutes the proceedings, is
concerned.
We also reject the respondent's other argument, to wit: that the
speCial *quiff officer improperly designated Hong Kong as the alternate place of the respondent's deportation. The reason is that the procedure followed by the special inquiry officer complies strictly with the
controlling statute, which is section 243 (a), Immigration and Nationality Act; 8 U.S.C. 1253 (see Hom Bin v. Evenly, 209 F. Supp. 3).
Step #1 of the statute provides that an alien shall be deported to a
country designated by him if that country is willing to accept him.
Here, however, the alien failed to make such a designation. Therefore,
step #2of the statute had to be taken.
Such step contemplateSthe deportation of an alien to the country of
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#1827

which he is a subject national or citizen, if such country is willing to
accept him Here, the special inquiry officer has correctly concluded
that the respondent is a citizen of the Republic of China on Formosa
(see Ng Kam Fook v. Esperdy, 320 F. 2d 86) . Also, the special inquiry
officer has conditioned this portion of his order upon the Republic of
China on Formosa advising that it will accept'the respondent. If it
does not, then his deportation shall be effected as provided by step #3
of the statute.
That step allows for the alien's deportation to any one of seven
categories of countries within. the discretion of the Attorney General.
In this connection, the statute itself specifically points out that there
is no necessity for giving any priority or preference because of the
order of the countries referred to therein. One of those countries is

the one where the alien resided prior to entering the country from
which he entered the United States.
In connection with the foregoing, the record demonstrates that the
respondent resided in Hong Kong from 1957 until 1967. He left Hong
Kong to join the crew of the vessel which eventually brought him to
the United States. He is in possession of a seaman's identity book issued
to him by the government of Hong Kong, and he is also in possession
of a seaman's discharge book issued to him by the government of
Hong Kong.
Under these circumstances, the special inquiry officer was proceeding
within the scope of the statute when he designated Hong Bong as the
first alternate country of deportation for the respondent (he Peo
Timm v. Kennedy, 293 F.2d 543), and we find no basis for a possible
claim of abuse of discretion on 'his part in doing so. Moreover, the
respondent could have resolved the difficulties which he now stresses
by designating a country to which he.preferred to be deported, but
this he refused to do.
In conclusion, no claim of fear of possible persecution has been
raised in connection with the respondent's deportation to Formosa
or Hong Kong, either before the special inquiry officer or this Board.
No further comment in this respect is required.
ORDER: It is ordered that the appeal be dismissed.

575


.r1

OF C'—CIn EXCLUSION Proce dings

A-12251617

Decided by Board March 8, and August 2, 1961
Imolmisaibility—Section 212 (a) (14) (D)—"Ineligible employer."

Secretary of Labor's certification under section 212 ( a ) (14) (B) of 1952 Act
that employment of aliens by persons on Secretary's list of ineligible employers will adversely affect wages and working conditions of similarly
employed workers in tne United States Goes not bar Remissibility of Mexican national who subsequent to receipt of nonquota immigrant visa obtains
new employer in place of employer on ineligible list to whom he was originally destined.
EXCLUDABLE: Act of 1952—Section 212 (a ) (14 ) (B ) [8 TJ.S.C. 1182 (a ) (14) ( 33 ) ]—
Seeks to enter the United States for employment which would
adversely affect wages and working conditions of workers in
the United States similarly employed.

BEFORE THE BOARD

(March 8, 1961)
DISCUSSION: Appellant is 31 years old, married, male, a native
and citizen of Mexico. He arrived at San Ysidro, California, on
October 21, 1960, and sought admission for permanent residence. He
presented a Mexican passport, valid to June 14, 1062, and a non-

quota, immigrant visa issued by the American Consul at Mexico City
on October 10, 1960, valid to February 9, 1961. These documents
have expired while these proceedings were pending, but it has been
the administrative practice to consider that their validity continues
until disposition of the appeal. The special inquiry officer ordered
appellant excluded and deported from the United States and certified the case to this Board for review.
The special inquiry officer excluded appellant for the reason
that his sponsor and prospective employer is F H----, General
—

Manager of Heringers Enterprises, Oroville, California. I/cringers

Enterprises appears on a list of "Employers Ineligible to ,Contract
Mexican Nationals," dated September 1, 1960, transmitted to the
Attorney General and the Visa Division of the Department of State
from the Director of the Bureau of Employment Security, Depart387

ment of Labor. The Secretary of Labor on March 11, 1958, certified
and determined "pursuant to the provisions of section 212(a) (141')3)
of the Immigration and Nationality Act i that the employment of
any aliens by persons on the aforesaid list of ineligible employers
... will adversely affect the wages and working conditions of the
workers in the United St itte.s similarly employed," The employers
on the list are declared to be ineligible to contract Mexican nationals
because of violations of the Migrant Labor Agreement of 1951, as
amended, or the Standard Work Contract, as amended.
Appellant testified that he, is coming to the United States to perform agricultural work for Heringers Enterprises ; and that his work
would be primarily pruning peach trees. He was employed briefly by
Mr. H— when he was in the United States as a "bracero." His affidavit of support and letter of employment are signed by Mr. II—.
The question is whether the appellant is excludable under section
410(a) (14) (B) 8,3 a person seeking to enter the United States, because his prospective employer is a person who has been declared ineligible to contract on a temporary basis Mexican agricultural workers. The special inquiry officer stated that it appears "that employeris seeking to accomplish indirectly what he has been prevented from
doing directly, namely, to obtain an agricultural worker from Mexico ,
toperfmhsawkprevioulyd'hntUie
States as a tracerO.' By arranging for the immigration for permanent residence of such a worker the employer is enabled to overcome the requirements of section 214 of the Immigration and Nationality Act pertaining to the admission of nonimmigrants and
the specific provisions of 8 CFR 214.2(k) relating to Mexican agricultural workers."
We wql not quote 8 CFR 2142(k), cited by the special inquiry

officer, because of its length, but it relates exclusively to "nonimmi,
grant classes." It describes the conditions for admission of a bona
full nonimmigrant, Mexican agricultural worker, including the fact
that he must agree to abide by the conditions of employment and to

depart upon the expiration of the priod . fo7
Regulations concerned with nonirmnio,rant cos•

t

1- r.3 was admitted.
labor,,,rs have no

Section 212(a) (14) (B) provides: "Sec. 212. (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive
visas and shall'be excluded from admission into the United States: * * (14)
Aliens seeking to enter the united .States for toe purpose of performing stoned
or unskilled labor, if the Secretary of Labor has determined and certified to
the Secretary of State and to the Attorney General that * (B) the employment of such aliens will adversely affect the wages and working conditinTIR of the workers in the United States similarly employed. The ez.clusitm
of aliens under this paragraph shall apply only to the following classes:, (i)
those aliens described in the nonpreference category of section 203(a) (4),
(ii) these aliens described in section 101(a) (27) (C) * *"

388

application to an immigrant who presents himself at the border with
the documents necessary for lawful admission for permanent residence.
The alien requests that he be given an opportunity to obtain another letter of employment and another affidavit of support. He
states that it would be expensive and difficult for him to start over
again to secure the necessary documents and that he is not to blame
for the difficulty between H— and this Government.
We have sought vainly to find in the legislative history of the Act
any legislative intent to use this provision to enforce against specific
employer agreements relating to wages, hours and working agreements. This provision replaces the "contract labor" clause of section 3 of the Immigration Act of 1917. The Senate Committee Report No. 1137. 82d Cong., 2d Sess., which accompanied the 1952 Act,
states, page 11, "Saction 212(a) (14) provides for the exclusion of
aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor if the Secretary of Labor has determined that there are sufficient available workers in the locality of the
aliens' destination who are able, willing, and qualified to perform
such skilled or unskilled labor and that the employment of such aliens
will adversely affect the wages and working conditions of workers in
the United States similarly employed. This provision is applicable to
all aliens other than those whose services have been determined to be
needed in the United States under certain other provisions of the bill
or who are entitled to preferential treatment because of their relationship to United States citizens or aliens who have been lawfully
admitted for permanent residence. It is the opinion of the committee
that this provision will adequately provide for the protection of
American labor against an influx of aliens entering the United States
for the purpose of performing skilled or unskilled labor where the
economy of individual localities i8 not capable of absorbing them at
the time they desire to enter this country." (Emphasis supplied.)
The House Committee Report No. 1365, February 14, 1952, contains
a similar statement, page 51. 2 There is nothing else in the legisla-

tive history of the Act relating to the function of this provision.
The only decision concerning section 212(a) (14) is Amalgamated
Neat Cutters and Butcher Workmen of North America, AFL–C10
v. Rogers and Swing, 186 F. Supp. 114 (D.C. D.C., 1960), wherein

Judge Youngdahl distinguished between legally resident aliens and
2 - An earlier report of the Senate Committee on the Judiniary, Report No.

1515, 81st Cong., 2d Sess., April 20, 1950, discusses in greater detail the reasons for abandoning the contract labor clause or the 1917 Act, pp. 358-363,
and stales that ''such aliens will not be admitted if unemployed persons in
the United States capable of performing such services or labor are available,"
and indicates (p. 430) the desirability of importing "skilled agriculturists."

389

commuters, applying the sanction against the latter as strikebreakers,
at the petition of the union. The decision is of no assistance in the
instant case.
The argument that H— is seeking to accomplish indirectly what
he has been prevented from doing directly does not justify creating
an extra legal satiation against the employer, or an unnoCessary hardship for the immigrant. An alien worker in the United States legally
is in a better position to protect himself from exploitation than a
migrant worker in the United States illegally, or than a "bracero"
who is cc atracted to the employer. 3
The Board cannot make a final conclusion'on this record that the
application of section 212(a) (14) (B) of the Immigration and Nationality Act and of 8 CFR 214.2(k) to immigrants, as was done here,
is beyond the scope of the Act. Neither the Immigration and Naturalization Service nor the Department of Labor has made sufficient
representations regarding the practice, However, it is our opinion
that the remedy for the abuse of the migrant worker does not lie
in creating extreme hardship for the individual alien who seeks
legal entry, and arrives at our port properly documented, except that
he chose the wrong sponsor. He is under no contract, and his nonquota visa is unconditional.
It is the conclusion of the Board that the record should be reopened in order that the appellant may have an opportunity to
attempt to secure a different employer and a new affidavit of support.
ORDER: It is ordered that the record be reopened for the purpose
set forth above.
-

BEFORE THE BOARD

(August 2, 1961)
DISCUSSION: On the basis of the Board's decision of March 8,
1961, and the fact that the applicant has secured a different employer
and a new affidavit of support, the special inquiry officer, reversing
an earlier decision, ordered applicant admitted to the United States
for permanent residence and certified the case to this Board for
review. The District Director at Los Angeles recommends that the
decision of the special inquiry officer he set aside and that the
applicant be excluded from the United States as an immigrant not
in possession of a valid immigrant visa. The District Director's
recommendation is based on a documentary ground only.
On March 8, 1961, the Board considered this record, the applicable
statutes and regulations. Applicant's affidavit of support and letter
3 Portions of the testimony before the President's Commission on Immigration and Naturalization, September-October 1952, 82d Cong., 2d Sess., Committee Print, pp. 597, 1051, 1064, show clearly a desire to reduce the number of
contracted migrants and increase the number of permanent, resident, farm
workers.

390

of employment at that time were signed by one who had been declared by the Secretary of Labor to be ineligible to contract Mexican
agricultural workers. Therefore, the special inquiry officer had
found the applicant excludable under section 212(a) (14) (B) as a
person whose employment "would adversely affect the wages and
working conditions of the workers in the United States similarly
employed," pursuant to the determination and certification of the
Secretary of Labor under the provisions of section 212(a) (14) (B)
of the Immigration and Nationality Act. We ordered the record
reopened in order that the alien might secure a different employer
and a new affidavit of support.
The special inquiry officer now finds that the applicant is no
longer destined to an ineligible employer, but has secured an affidavit of support and employment by a rancher in Marysville,
California, whose name does not appear on any list of ineligible
employers. He found that the applicant presented a valid nonquota
immigrant visa and a valid Mexican passport, and is not otherwise
excludable or inadmissible to the United States under section 212
(a) (14) (B) of the Immigration and Nationality Act.
The District Director at Los Angeles urges that the special inquiry
officer erred on the ground that the applicant was ineligible to receive a visa at the time it was issued to him on October 10, 1960.
The District Director states that the authority to revalidate or reissue a visa is vested entirely in the Department of State, and that
the special inquiry officer is not authorized to revalidate a visa by
acceptance of documents in support of the application for the visa.
He urges that the documents and application for revalidation must
be made to the visa issuing authorities of the Department of State,
and that this is the applicant's only relief. It is the opinion of the
District Director that the visa was issued in error and was, and is,
invalid.
It is the Board's opinion that the alien fell within an "ineligible
class" solely because his prospective employer was, unknown to the
alien, an "ineligible employer." The certification under section 212
(a) (14) (B) does not appear to hold the alien ineligible to receive a
visa except for his employment and this condition depends, in turn,
upon the ineligibility of the employer. When the alien found an
eligible employer, the di3ability wan removed. Tho list is "of employers declared ineligible to contract Mexican nationals," and the

ineligibility related to the prior prospective employer, rather than to
the applicant. As we pointed nut in our decision of March 8, 1961,

there is nothing in the statute or in the legislative history of the
statute that indicates that section 212(a) (14) (B) should be used in
the manner in which it has been used in this case, and certainly its
use in this fashion should not be extended to create unnecessary diffi391

culties. It is our opinion that by complying with the order of the
Board of March 8, 1961, the alien has cured the obstacle to his
admission created by the ineligibility of his former prospective employer. The order of the special inquiry officer of May 23, 1961 will
be approved.
ORDER: It is ordered that the order of the special inquiry officer

be and is hereby approved.

392


MATTF,R OF

b1--

In VISA PETITION Proceedings
VP 2—I-34171
Decided by Board August 22, 1958
Approved by Attorney General March 20, 1959
Adopted child—As defined in 1957 amendment to section 101(b)(1) of the 1952
act—Residence with adoptive parents.
(1) Requirement that "adopted child" (section 101(b) (1) of 1952 act, as
amended by Act of September 11, 1957) must have resided with adopting
parents for at least two years does net exclude computation of residence
occurring prior to formal adoption decree.
(2) Proforonco quota &at.. undo, Quenon 901(c ) (5) of 1952 act will be accorded to a ten-year-old child legally adopted in 1955 in Italy who resided
there with adopting parents from 1949 until 1956 when the parents obtained
visas with which they entered the United States as permanent residents.
BEFORE THE BOARD
(August 22, 1958)

Discussion: This case comes forward on motion of the Assistant
Commissioner, Examinations Division, Immigration and Naturalization Service, dated June 25, 1958, requesting withdrawal of our
order of May 20, 1958, and the entry of an order affirming the
decision of the district director denying the visa petilivu.
The facts of the case are fully set forth in our previous order.
The petitioners are husband and wife, natives and citizens of Italy,
who were admitted for permanent residence on April 30, 1956, and
seek preference status under section 203(a)(3) of the Immigration
and Nationality Act on behalf of the beneficiary as their adopted
child. It has been established that the petitioners filed a petition
for adoption of the beneficiary on January 3, 1955, and that a
decree of adoption was entered by the Superior Court of Appeals
of Abruzzi L'Aquila, Italy, on June 7, 1955. The petitioners received their quota immigrant visas and departed from Italy in
April 1956, about ten months after the adoption. However, evidence
has been presented that the petitioners took the beneficiary into
their home when she was but eight months old and have reared her
and maintained her ever since. The delay in actual adoption appears to have occurred through lack of finances as a result of which
the petitioners were unable to afford the necessary lee fee,' inci119

dent to a court order of adoption. No question of fraud is present,
it being conceded that the facts as set forth are true.
The statute involved is section 101(b) (1) of the Immigration and
Nationality Act, as amended by section 2 of the Act of September 11,
1957 (Public Law 85-316), by which the definition of the term
child was expanded to include:
(E) a child adopted while under the age of fourteen years It the child has
thereafter been In the legal custody of, and has resided with, the adopting
parent or parents for at least two years • •

This amendment was designed to prevent hardship in cases where
the child was chargeable to a heavily oversubscribed quota and
would not otherwise be able to accompany his adoptive parents.
Adequate safeguards were included in the legislation to prevent
abuse. , The legislative history fails to spell out what specific abuse
was sought to be prevented. A clue perhaps might be found in the
technical analysis of an administration sponsored predecessor bill,
S. 1006, contained in a statement by the Attorney General prepared
for delivery before the Subcommittee on Immigration of the Senate
Judiciary Committee on July 30, 1957. This analysis pointed out
that section 23 of the proposed bill would extend the definition of
"child" to include adopted children under limited circumstances;
and that it was desirable that consideration be given to an amendment whereby a child adopted while under the age of twelve and
who had lived with his adoptive parents for at least two years prior
to the visa application might be considered a "child" under the
immigration laws. It was pointed out that a proposal of this type
would prevent abuse through ad hoc adoptions made only for the
purpose of circumventing the immigration laws.
It is apparent that this legislation which expanded the definition
of the term "child" to include adopted child, and at the same time
expanded the term in other ways, was designed as remedial legislation to ameliorate the harshness and inequity of certain situations
where there existed bona fide family units and that safeguards were
written into law designed to prevent abuses, such as adoptions entered into for the purpose of evading the immigration laws. This
legislation within the limits set forth should be given a liberal interpretation. A case may be within the meaning of a statute and not
within its letter, and within its letter and not within its meaning;
a statute should be so construed as to carry out the intent of the
legislature, although such construction may seem contrary to the
letter of the statute. 2 Where a law as susceptible of more than out,
meaning, the true spirit of the law should provide the true guide. ,
1 Senate Report No. 1057, (85th Cong., 1st Sees., p. 4).
'Matter of M—, 5 1 . & N. Dec. 261, 286; Stewart v. Hahn, 78 U.S. 493:
Church of the Holy Trinity v. United States, 143 U.S 457.
'Markham et al. v. Cabell, 326 tl.S. 404, 409.

119

It, therefore, becomes necessary to examine the factual situation
present in the instant case to determine what result may be achieved
by a construction of the statute which is liberal and within the
spirit -of the law without doing violence to the plain language of
the statute. If, however, an ambiguity exists, it should be construed in favor of the person whom the Congress intended to benefit.
Viewing in this perspective the language of section 101(b) (1) (E)
of the Immigration and Nationality Act as amended by the Act
of September 11, 1957, we see that it is intended to include "a
child adopted while under the age of Thin -teen years if the child
has thereafter been in the legal custody of and has resided with the
adopting parent or parents for at least two years." The requirements, therefore, are (1) the child be adopted while under the age
of fourteen years; (2) that the child thereafter be in the legal
custody of the adopting parent or parents for at least two years;
and (3) that the child has resided with the adopting parent or
parents for at least two years. It is noted that the word "thereafter" appears in the second clause relating to legal custody and
is 'not repeated in the clause relating to residence. We, therefore,
are not compelled to adopt a construction that the

wsidellea

be

Subsequent to the adoption, even if we do find that there must be two
years' legal custody after the adoption.
Accordingly, we deem it proper to re-examine the facts of the
case to determine whether they fit within the foregoing analysis of
the statute. In the present case the beneficiary was born on August
3, 1949, and was taken into the family of the petitioner when eight
months old and was reared and maintained and resided with them
continuously since that time until their departure to the United
States in April 1956. The beneficiary was, therefore, a bona fide
member of the household approximately nix years before the adoptive parents left for the United States and during that entire time

resided with them. In addition, the beneficiary resided with the
petitioners at the time of the commencement of the formal adoption
proceedings in January 1955, on the date of the entry of the formal
decree in June 1955, and at all times while the adoptive parents
resided in Italy. At the time of this adoption an adopted child
obtained no benefit through the immigration laws. Therefore, it is
obvious that this adoption was not entered into with the purpose of
obtaining a benefit under the immigration laws; nor have the bona
fides of the adoption been challenged. Since the date of the decree
of adoption more than two years have elapsed and the adoptive
parents have had legal custody for more than two years.
The facts of the case therefore fit within the statutory framework of this remedial legislation which permits the granting of
preference or nonquota status to an adopted child. We, therefore,
120

find upon the facts of this case that the beneficiary is eligible for
the preference status sought. In view of this finding, we find it
unnecessary at this time to enter into a discussion of whether the
minor beneficiary has resided with the adopting parents since they
left Italy. We adhere however to our order granting third preference status to the beneficiary.
Order: It is ordered that the motion to reconsider our order of
May 20, 1958, granting third preference status to the beneficiary
be and the same is hereby denied.
BEFORE THE ATTORNEY GENERAL

(March 20, 1959)

Order: The order of the Board of Immigration Appeals, dated
May 2Q, 1998, approving a petition for preferential status ender
section 203(a) (3) of the Immigration and Nationality Act for the
beneficiary in this case, is approved.

This case is before me pursuant to the provisions of 8 CFR 3.1
(h) (1) (iii) for review of the decision by the Board of Immigration
Appeals.
The petitioners are lawful permanent residents of the United
States and parents of an adopted daughter who will be 10 years old
in August of this year. She lived with Use petitioners in Italy
since she was a baby, less than one year old. When they obtained
their visas and decided to take the step of emigrating to the United
States in 1956, it meant leaving the child in Italy. She had been
legally adopted 10 months before their departure but they were
unable to bring her with them because the law at that time made
no provision for preference status for an adopted child.
Subsequent legislation aimed at preventing such hardships has
remedied the situation. Under present law, an adopted child under
14 years of age who is able to meet the requirements of the statute
is given the same privileges for immigration purposes as a child
whose- status is not dependent on adoption. Section 2 of Public
Law 85-316 extends the privileges to "a child adopted while under
the age of fourteen years if the child has thereafter been in the
legal custody of, and has resided with, the adopting parent or parents for at least two years * * *."
The whittled child in thin ease has mot the conditions. She has
been in the legal custody of her parents since adoption was finalized in 1955, and when they departed from her in 1956 she had resided with them for considerably. more than the required two-year
period.

562713-61-----10

121


MATTER OF G—
In DEPORTATION Proceedings

A-10028465
Decided by Board September 7, 1960
Approved by Attorney General January 17 , 1961
Deportability—Section 241(a)(4), 1952 act—Convicted within five years of en
try—Effect of California expungement law.
An alien whose conviction by a California court is later expunged under section 1203.4 of the California Peual Code has not been "convicted" of a
crime for the purposes of section 241(a) (4) of the Immigration and Nationality Act. (Cf. Matter of A—F—, 8-429.)
CHARGE :
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted of
crime committed within five years after entry, to wit: Forgery of
fictitious name (sec. 470, Penal Code of California).
REVOKE THE BOARD

(September 7, 1960)
DISCUSSION: The special inquiry officer terminated proceedings
and certified the case to this Board for final decision. No change
will be made in his decision.
Respondent, a single male about 22 years of age, a native and
national of Grerfnany, was admitted to the United States for perma
nent residence in 1955. On June 12, 1959, he committed forgery.
He was convicted on July 12, 1959, in a California court. Sentence
was to confinement in the county jail for one year, but execution
was suspended and respondent was placed on probation. On December 15, 1959, the same court set aside the plea of guilty and dismissed the case pursuant to section 1203.4 of the Penal Code of
California. The special inquiry officer, relying upon precedents
holding that such an expungement of the record prevents the use
of the "conviction" as a basis for deportation, terminated proceedings. The Service representative has filed a brief asking that deportation be ordered because the expungement does not eliminate
the "conviction" as a ground of deportation. Counsel for respondent asks that the order of the special inquiry officer be affirmed.
159

Expungement of the conviction occurred under section 1203.4 of
the Penal Code of California which provides:
Every defendant who has fulfilled the conditions of his probation for the
entire period thereof, Or who shall have been discharged from probation prior
to the termination of the period thereof, shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter ,a plea of not
guilty ; or if he has boon convicted after a plea of not guilty, the court shall

set aside the verdict of guilty ; and in either case the court shall thereupon
dismiss the accusations or information against such defendant, who shall
thereafter be released from all penalties and disabilities resulting from the
offense or crime of which he has been convicted. The probationer shall be
informed of this right and privilege in his probation papers. The probationer
may make such application and change of plea in person or by attorney, or
by the probation officer authorized in writing; Provided, That in any subsequent prosecution of such defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.
A review of decisions concerning expungement reveals some conflict as to its effect, but the latest cases reaffirm the rule that the
expungement wipes out the criminal proceedings and places the
defendant in a position which he would have occupied if no accusation or information had been presented against him (People v.
Taylor, 3 Cal. Rptr. 186 (1060) ; Stephen v. TOomey, 338 P.M 182
(1959) ; Kelly v. Municipal Court, 324 P.2d 990 (1958)). There are
exceptions to the rule. Despite the expungement, the State of California recognizes the existence of a conviction in a subsequent prosecution, in impeachment of the defendant, and in the regulation of
privileges concerning drivers of motor vehicles, attorneys-at-law,
doctors, and public school teachers (People v. Taylor, supra). An
expungement may be obtained only by a person who has been placed
on probation, a matter wholly within the discretion of the court
(People v. Walker, 5 Ca.l. Rptr. 283; People v. Judson, 18 P.2d
379). The court may not give probation to a person guilty of the
more serious crimes (California Penal Code, section 1203). The
expungement must be applied for and the petitioner must establish
that he has complied with the conditions of his probation. In some
respects the expungement carries with it greater rights than does an
executive pardon (People v. Taylor, supra, pp. 190-191).
While the Federal courts considered the issue hcfnrc the State

made exceptions to the rule that an expungement eliminates the existence of a conviction, the Federal cases were decided when the law
provided, as it does today, that the expungement does not eliminate
the existence of the conviction in a subsequent prosecution. In re
Paoli, 49 F. Supp. 128, 130 (N.D. Cal., 1943), reveals that after an
expungement there was technically "no formal records remaining
of a conviction." Another court stated that the record of arrest, the
conviction, and the probation are wiped out leaving no proof of
160

_ . Stipp. 975, 978 (SI) Cal
delinquency (In. re Ringnalda, 48 F
1943). Judge Yankwich, then, as now, United States District
Judge, Southern District of California, in an article on the Federal
penal system stated that the expungement proceeding enables the
convicted person "to claim truthfully that he has never been convicted of a felony" ("The Federal Penal System," 10 F.R.D. 539,
554-555).
Prior to the decision of the Attorney General in Matter oof A

—

F

—

,

8-429, the Board consistently held (with the knowledge of the Attorney General, Matter of H—, 6 619, 622 (1955)) that a conviction
which had been expunged could not be made the basis for deportation
proceedings because there was no longer a record of conviction (Matter of O—T—, 4 265; Matter of E—V—, 5-194; Matter of A—F—,
supra). However, in Matter of A—F—, the Attorney General held
that when a narcotic violation is concerned (section 241 (a) (11), Immigration and Nationality Act) a conviction which had been expunged
would nevertheless support• an order of deportation. The decision
-

-

of the Attorney General was based in part on the actions of Con

gress showing a policy of severity to alien narcotic offenders. Stress
was placed on the effect of an amendment to section 241(b) of the
1952 Act (8 U.S.C. 1251(b) ) which originally provided that a
judicial recommendation against deportation or an executive pardon
would relieve an alien from liability to deportation under either
section 241(a) (4) of the Act (8 U.S.C. 1251(a) (4)) because of
conviction of crime involving moral turpitude, or section 2410.)
(11) of the Act (8 U.S.C. 1251(a) (11)) because of conviction of a
narcotic violation. We shall therefore briefly consider section
241(b) of the Act, and its predecessor, section 19 of the Immigration Act of February 5, 1917.
Prior to the Immigration and Nationality Act, a judicial recommendation against deportation or a pardon (whether legislative or
executive) barred deportation proceedings based on the conviction
of crime (section 19, Act of February 5, 1917). No distinction was
made between narcotic and nonnarcotic violations. Section 241(1)
of the Immigration and Nationality Act eliminated the legislative
pardon as a bar to deportation proceedings (Matter of R—, 5 612).
In 1956, an amendment to section 241(b) provided that a judicial
recommendation againgt deportation or an executive pardon should
not apply to an alien convicted of a narcotic offense (Act of July 18,
1956).
It was our belief that neither the 1952 change nor the one made
in 1956 prevented an expungement from being given effect. The
issue in a narcotic case was referred to the Attorney General, who,
in Matter of A—F—, Supra, ruled that in a narcotic case a convic-

554377-63-----12

161

tion exists for deportation purposes even though the record of conviction has been expunged under the state law. The Attorney General's order pointed out that Congress had shown a policy of progressively greater severity in the treatment of the narcotic violator
culminating in the refusal to give the narcotic violator the same
freedom from liability to deportation which the nonnarcotic violator
obtained through an executive pardon. He held, therefore, that it
would be illogical to permit an expungement, which is less than an
executive pardon, to defeat deportation proceedings. The holding
was expressly confined to a charge under section 241(a) (11) of the
Act relating to narcotic violations, and the Attorney General refrained from passing on the effect of an expungement _where the
conviction formed the basis for a deportation proceeding under
section 241(a) (4) of the Act relating to conviction for a crime involving moral turpitude.
Matter of A—F—, supra, holds that a conviction under section
341(a) (11) of the Act exists although the state has expunged the
conviction. Matter of A—F— can be interpreted as calling for the
same rule where deportation is sought under section 241(a) (4) of
the Act for conviction of a crime involving moral turpitude. The
argument would run so. Just as Congress in narcotic cases revealed a policy of severity, so with regard to convicted aliens generally Congress revealed a policy of severity—grounds for deportation of criminal aliens were made broader, retroactive, and the requirements that a convicted alien had to serve a prison sentence and
that convictions could not be in one trial were eliminated (H.R. No.
1356, Feb. 14, 1952, 82d Cong., 2d Sess., U.S. Code Congressional
and Administrative News, 1952, Vol. 2, p. 1679; Commentary, p. 61,
8 Tr.S.C.A.; Lehmann v. United States ex rel. Carson, 353 U.S.
685). Moreover, just as in narcotic cases a judicial recommendation against deportation or a pardon was made ineffective in preventing deportation, so in all criminal cases a legislative pardon
was made ineffective (Matter of R—, 5-612). 1 The importance
of the last limitation is apparent_ if an expungement is viewed
in the nature of a legislative pardon. Thus, the situation presented would seem to be very similar to that found in Matter
of A—F—, supra,which could be the basis for holding that an erasure
of a conviction by other than the executive power and other than on __
the merits does not relieve an alien from liability to deportation in
nonnarcotic cases.
In Caul., t h is is the view the Service representative asks us to
acjopt, it is the one which he emphasizes was advanced by the So3 We assume that Congressional rejection of the legislative pardon was based
on its automatic application to one who had served his sentence irrespective
of the merits of the case. The record Is silent on the reason for the change.

162

licitur General in arguing Arrellano Flrrro.R v. Hoy (262 F.2d 667,
cert. den. 362 U.S. 921 (1960)) before the Supreme Court, and the
Service representative has supplied us with a copy of the Solicitor
General's brief which contains support for the view (Sol. Gen. brief,
pp. 7-8) 2 While a case may be made for concluding that a nonnarcotic violation is not affected by an expungement of the record
for immigration purposes, we feel that adherence to the contrary
view is indicated for the reasons which follow:
(1) The contrary rule has been in effect since at least 1943
(Matter of A—F, supra, p. 6).
(2) There has been no Congressional criticism of this rule.
(3) The reasoning in Matter of A—F---, supra, is most pertitent if an expungement is considered as a legislative pardon. For then, just as Congress indicated that a pardon
would not suffice in a narcotic case, it indicated that a legislative pardon would not suffice in any criminal case and
it would follow that an expungement should not be recognized. Here it is pertinent to note that Cnngress apparently does not consider an expungement as a legislative
pardon for it made no effort to class an expungement as a
legislative pardon after administrative decisions held that
an expungement eliminated a conviction under the Immigration and Nationality Act (Matter o f E—V---, 5194 (1953)). This lack of action is especially significant since Congress corrected other administrative rulings
which brought about results it did not desire. Moreover,
an expungement is not a legislative pardon. The feature
of legislative pardon with which we have dealt in immigration matters has been its indiscriminate and automatic
application as an administrative function to any person
who had served his prison teen. An expungement (considered in the nature of a pardon for the purpose of the
comparison) is not available to one who has served a prison
term. It is a judicial act. While it must be given to one
who satisfactorily completed probation, the granting of
probation is a discretionary matter. The expungement
must be applied for. It does not automatically attach to
-

2 The Service representative, in further support of his belief that the Immigration proceedings are not affected by an expungement even In a nonnarcotic
case, cites Arrellano-Flores v. Hoy, 262 F.2d 667 (C.A. 9), cert. den. 362 US.
921 (1960), and Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959). He Is of the
belief that these cases considered together establish that a "federal standard"
exists which requires that the state expungement proceedings be giVen no effect
in deportation proceedings. We cannot consider these cases as the basis for
such a far - reaching rule. Neither case involved an expungement. They were
concerned with the issue as to whether a suspended sentence is a "conviction?'

163

one who has served his probation. We have pointed out
the expungement carries in some respects even greater benefits than an executive pardon. The disabilities which exist
after an expungement are no more significant than those
which exist after an executive pardon is granted (see
People v. Biggs, 71 P.M 214).
(4) For purposes of the record, the State of California has
wiped out the entire proceeding. There is now no conviction (Pinov. Landon, 349 U.S. 901).
(5) The Attorney General in Matter of 21—F—, supra, restricted his ruling to an expungement of a narcotic violation where deportation proceedings were based on section
241(a) (11) of the Art, and the Solicitor General in arguing the case before the Supreme Court stated that the

Congressional policy as to narcotic offenses is different
from that relating to other offenses so that very different
considerations were involved than were found in other
criminal convictions (p. 7 of the Sol. Gen. brief). If we
were to apply the exception of the narcotic rule to the instant proceeding, there would be nothing for the narcotic
cases to be exceptional to.
(6) Matters of doubt should be resolved in favor of the alien
in deportation proceedings

(Fong Haw Tan v. Phelan,

333 U.S. 6).
(7) While section 241 ( a) (4) of the Immigration and Nationality Act must be interpreted in light of the attitude of
strictness shown by Congress when it was written, it is
not amiss to refer to the fact that Congress has progressively alleviated the rigor of the laws relating to convicted
aliens so that an alien who has been convicted of a petty
offense may enter as a matter of right (section 4, Act of
September 3, 1954, 8 U.S.C.A. 1182a), and an alien convicted of more serious offenses may be permitted to enter
as a matter of discretion (section 5, Act of September 11,
1957, 8 U.S.C.A. 1182b).
We conclude that an expungement of the record in California

eliminates the "conviction" as a basis for deportation proceedings
based on section 241(a) (4) of the Immigration and Nationality
Act. In view of the arguments made concerning Matter of A—F---,
supra, and in view of the brief of the Solicitor General, we shall
certify this case to the Attorney General for review so that there
shall be but one controlling administrative view.
ORDER: It is ordered that no change be made in the order of the
special inquiry officer.
164

G is fur-titer ordered that this case be referred to the Attorney

General for review under 8 CFR 3.1(h) (1) (ii).
BEFORE THE ATTORNEY GENERAL

(January 17, 1961)
This deportation matter is before me pursuant to a referral under
8 CFR 3.1(h) (1) (ii) for a review of the order of the Board of
Immigration Appeals dated September 7, 1960, by whict it adopted
a special inquiry officer's order terminating the proceedings against
the respondent.
The respondent, an alien who entered the United States in 1955,
pleaded guilty in a California court to a charge of forgery of fictitious name committed June 12, 1959. The court sentenced him on
July 99, 1959, to a term of one year in county jail but simultaneously suspended the sentence except as to 150 days thereof and
placed him on probation for three years.
On August 25, 1959, a special inquiry officer ordered respondent
deported under the provisions of section 241(a) (4) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (4) ) on the ground that
he had been convicted of a crime involving moral turpitude committed within five years after entry into the United States and
sentenced to confinement in a prison or corrective institution for a
year or more. Respondent's appeal was dismissed by the Board of
Immigration Appeals.

Following his release from county jail, respondent moved the
court which had sentenced him for an expungement of his conviction under section 1203.4 of the Penal Code of California. His
motion was granted, as reflected by the following minute of the
court :
On defendant's motion, defendant's plea of "Guilty" is vacated and set aside
and a plea of "Not Guilty" is entered. Probation is terminated and the case
dismissed, pursuant to section 1203.4, Penal Code.

Respondent thereupon applied to the Board of Immigration Appeals for a reconsideration of its decision approving his deportation. The Board reopened and remanded the proceedings to the
special inquiry officer. The subsequent order of the Board approving termination of the proceedings is the one before me. now.
Section 1203.4 of the California Penal Code provides that a defendant who has fulfilled the conditions of probation or who has
been discharged from probation prior to the termination of its
stated period shall be permitted by the court
• • • to withdraw his plea of guilty and enter a plea of not guilty; or if
he has been convicted after a plea of not guilty, the court shall set aside the
verdict of guilty; and in either case the court. Oath thereupon ditnnias the

165

accusations or information against such defendant, who shall thereafter be
released from all penalties and disabilities resulting from, the offense or crime
of which he has been convicted. The probationer shall be informed of this
right and privilege in his probation papers. The probationer may make such
application and change of plea in person or by attorney, or by the probation
officer authorized in writing; Provided, That in any subsequent prosecution of
such defendant for any other offense, such prior conviction may be pleaded
and proved and shall have the same erect as 11 probation bud not been
granted or the accusation or information dismissed.

The issue to be decided here is whether an alien who has sustained
a conviction which is later expunged under this statute is an "alien
. . . who . . . is convicted of a crime . ." for the purposes of section
241(a) (4) of the Immigration and Nationality Act (emphasis
added).
California has enacted legislation to prevent the operation of this
statute in a few specified situations in addition to the one affected
by its proviso. As a result of this legislation, some of which overruled and some of which codified judicial deeibiu.u, au order uf release under the provisions of section 1203.4 will not prevent revocation of a driver's license (section 13555, formerly 309, Vehicle Code)
or disciplinary action against members of the bar (section 6102,
Business & Professions Code), physicians (sections 2383 and 2384,
• Business & Professions Code) and public school teachers (section
12911, formerly 12011.5, Education Code). Cf. People v. Mackey,
58 Cal. App. 123, 208 P. 135 (1922) ; Sh erry v. Ingels, 34 Cal.
App.2d 632, 94 P.2d 77 (1939) ; In re Phillips, 17 Ca1.2d 55, 109
P.2d 344 (1941) ; Meyer v. Board of Medical Examiners, 34 Ca1.2d
62, 206 P.2d 1085 (1949). In general, however, an expungement
under section 1203.4 renders a conviction of no force and releases
the offender from penalties and disabilities to which he would otherwise be subject. Stephens v. Toomey, 51 Ca1.2d 864, 338 P.2d 182
(1959), offender restored to voting rights; Kelly v. Municipal
Court, 160 Cal. App.2d 38, 324 P.2d 980 (1958), sex offender relieved from requirements of registration statute; People v. Banks,
53 Ca1.2d 370, 388, 1 Cal. Rep. 669, 681 (1959), and People v.
Taylor, 178 A.C.A. 482, 3 Cal. Rep. 186 (1060), offender relieved
from prohibition against possession of firearms. In other words,
insofar as the law of California is concerned, the expungement
statute is generally effective to return a defendant to a status the
same as though he had not been convicted.
For some fifteen years the Board of Immigration Appeals has
consistently held that a conviction expunged under the California
statute does not afford the basis for deportation under either section 241(a) (4) of the Immigration and Nationality Act or section
241(a) (11), relating to the expulsion of aliens convicted of nar-

166

ootice violations. Molter of 0—T—, 4-26:5 (1951) ; Matter of D—,
7-670 (1958) ; Matter of A—F—, 8-429 (1959); see also Matter
5 194 (1953). Howof H—, 6-619 (1955), and Matter of
I
ruled
that
expungement
in nar;
ever, in Matter of A—F—, supra
cotics eases has no effect in deportation proceedings brought under
section 241(a) (11) and disagreed with the Board's position that in
such proceedings "there is no conviction whatever to support an
order of deportation."' I specifically limited my disagreement to
cases under section 241(a) (11) and did not rule on the issue presented here under section 241(a) (4) with respect to nonnarcotics
offenses.
My ruling in Matter of A—F—, supra, was grounded on the history of section 241(a) (11) and section 211(b), which is concerned
with pardons and judicial recommendations against deportation.
These histories disclose that. Congress has progressively and substantially strengthened the deportation laws dealing with aliens
involved in narcotics traffic. Accordingly, I concluded that there
is a clear national policy militating against the abridgement of
the term "convicted" in the cases of aliens who are able to obtain
expungement of narcotics convictions under state law.
Although section 241(a) (4) is today a somewhat more severe
statute than its earlier counterpart, it remains substantially less
severe than section 241(a) (11), especially when viewed in conjunction with section 241(b). Furthermore, and perhaps of more significance, it is not the end product of a history pointing to a stringent national policy of the nature referred to in my decision in
Matter of A—F—.
Consequently, a decision in the instant case
similar to that decision cannot be based simply upon the authority
of the latter.
The Immigration and Naturalization Service points out that my
decision in Matter of A—F— applies a "federal standard" and
suggests that when considered with Arrellano-Ftores v. Hoy, 262
F.2d 667 (C.A. 9, 1958), cert. den. 362 U.S. 921, and Wood v. Hoy,
266 F.2d 825 (C.A. 9, 1959), the decision is applicable to cases arising under section 241(a) (4). Arrellano-Flores v. Hoy was an
action by the respondent in Matter of A—F— challenging the order
of deportation issued against him under section 241(a) (11) on the,
ground that a suspension of sentence and grant of probation meant
he had not been "convicted." The court disagreed:
Appellant relies heavily on United States ex rel. Freislinger, on Behalf of
lappel v. Smith, 7 Cir., 41 F.2d 707. The Seventh Circuit held that whether
I Although the respondent A—F-- was on probation pursuant to a suspended
sentence, his conviction on a narcotic charge had not been set aside under
section 1203.4 of the Penal Code. For reasons which appear in my decision
in Matter of A—F—, I nevertheless considered the question raised by an alien's
use of that section to resist deportation for violating the narcotics laws.

167

a man had been "convicted" in state court was to be determined by the law
of the state where the offense was committed and proceedings had. It was of
the opinion that under Illinois law Freislinger had not been convicted because
a final judgment of conviction had not been entered.
While one cannot close one's eyes to the state's statutes and what transpired in the state's proceedings, we are inclined to the belief that perhaps
here Congress intended to do its own defining rather than leave• the matter to
the variable state statutes. Credence for this view can be found in the fact
the present statute reads "convicted" while its predecessor, 4d Stat. 1171
(Chap. 224), read "convicted and sentenced." It would appear that federal
courts have generally taken the view that a plea of guilty or a finding of
guilty, which is in repose and remains undisturbed, amounts to a conviction.
See If ercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009. 2

In Wood v. Hoy, supra, which was concerned with a challenge to
a deportation order issued under the authority of section 241(a) (4),

the court broadened its decision in the earlier case to encompass
that section, stating (266 F.2d 825, 828) :
We held her (Arrellano-Flores v. Hoy) and we reaffirm here, that a conviction in California followed by a suspended sentence and placement on pro-

bation remains a "conviction" within the meaning of the Immigration and
Nationality Act of 1952.

As appears from this statement, section 1203.4 of the California
Penal Code had not been brought into play in either case. The
two cases are therefore not helpful in assessing the consequences
of

expungement whether in proceedings under section 241(a) (4)

or section 241(a) (11).
Thus I am unable to agree that the Arrellano-Flores and Wood
decisions serve to extend my ruling in Matter of A—F— beyond
the precise boundary which I marked out for it—i.e., beyond the
limits of section 241(a) (11).
Pino Y. Landon, 349 U.S. 901 (1955), has a bearing on the issue
presented here. In that case, as revealed by the lower court opinions sub non?, Ping v. Nicolls, 119 F. Supp. 122 (D.C. Mass.), and

215 F.2d 237 (C.A. 1), an alien who had been ordered deported
under section 241(a) (4) because of convictions for two crimes
argued that he had not been "convicted" of the second. He had
been tried, found guilty and sentenced to one year in prison on a
charge of petty larceny in the second proceeding, but the judge
had suspended the sentence and entered an order putting him on

probation for a period of one year. At the end of the period the
court revoked the sentence and, under a unique Massachusetts practice requiring the consent of the defendant, placed the case "on
The court prefaced this language by the erroneous statement that under
California law the sentence received by the defendant did not constitute a
final judgment from which an appeal could be taken. In fact, a 1951 amendment to section 1237 of the California Penal Code had specifically provided
that an order granting probation "shall be deemed to be a final judgment" for
the purposes of appeal.

168

file." An "on file" care stands on the records of the court and al

usually no further action is taken, the case may at any time
be called up and sentence imposed, or some other final disposition
may be made.
In accordance with United States ex rel. Freislinger on Behalf
of Koppel v. Smith, supra-, the Court of Appeals examined the Massachusetts precedents dealing with the meaning of the word "convicted." It found that the Massachusetts courts had never been
called upon to interpret it in the context of a deportation case
and concluded that such meaning, in the interest of a uniform application of the federal statutes, is a "federal question to be determined upon due consideration of the policy which section 241(a)
(4) was designed to serve." The court went on to hold that on the
record the alien stood convicted within the purview of that section.
The Supreme Court disagreed, rendering the following per curiam
opinion:
On the record here we are unable to say that the conviction has attained
such finality ae to oupport an order of deportation within the contemplation
though

of section 241 of the Immigration and Nationality Act. The judgment is
reversed.

Cryptic as this cursory decision may be, it almost certainly evidences rejection of the Court of Appeals' view that the construction
of section 241(a)(4) is purely a "federal question" to be deteimined
in terms of the policy behind its enactment and without regard to
state law and procedure. But whatever it was that led to the Supreme Court's decision in the case, it is pertinent to observe that
the Massachusetts procedure, although revoking the sentence, leaves
the plea or finding of guilt undisturbed while the California procedure, by setting aside the plea or finding of guilt, moves a conviction even farther away from an area of finality. Pin° v. Landon
would seem, therefore, to make it an a fortiori conclusion in a
nonnarcotics case that an expungement of an alien's conviction
under section 1203.4 of the California Penal Code withdraws the
support of that conviction from a deportation order under section
241(a) (4) and brings it to the ground. Cf. Matter of L—R—,
7-318 (1957).
Since what judicial precedent there is points to the validity of
the long-standing rule of the Board of Immigration Appeals which
it invoked in the instant matter and since there is no Congressional
signpost pointing in the opposite direction, I find no reason to reverse the rule. Accordingly, the Board's order herein dated September 7, 1900 is approved.

169


Interim Decision #2644

MATTER OF HRANKA.
In Section 212(d)(3) Proceedings
A-20925982
Decided by Board April 6, 1978
(1) In an application for advance permission to enter as a nonimmigrant pursuant to
section 212(d)(3) of the Act, there is no requirement that the applicant's reasons for
wishing to enter the United States be "compelling."
(2) An application under section 212(d)(3XB) requires a weighing of at least three factors:
(1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the
applicant's immigration law, or criminal law violation, if any; and (3) the nature of the
applicant's reasons for wishing to enter the United States.
(3) Upon application of the balancing test to the facts of this case, the applicant's previous
deportation for having engaged in prostitution in April 1975, was held to have been
outweighed by the fact that she has no other criminal or immigration law violations, she
has demonstrated that she is rehabilitated, and she has a substantial reason for desiring a
waiver under section 212(d)(3) in that she has many close relatives living across the
border in the United States; thus, the requested waiver should be granted.
ON BEHALF OF APPLICANT: Pro se
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This is an appeal from a decision of the District Director of the
Immigration and Naturalization Service in Detroit, Michigan, dated
August 9, 1977, denying the applicant's request for advance permission
to enter the United States as a nonimmigrant visitor pursuant to section
212(d)(3)(B) of the Immigration and Nationality Act, S U.S.C.

1182(d)(3)(B). The appeal will be sustained.
The applicant is a 25-year-old native and citizen of Canada who is
inadmissible to the United States because she was previously deported
for having engaged in prostitution. See section 212(a)(12) of the Act, S
U.S.C. 1182(aX12).
Regardless of the fact that she is otherwise inadmissible, a nonimmigrant may be admitted into the United States temporarily in the discretion of the Attorney General. Congress provided for this procedure
because it recognized that there are cases where the temporary admission of otherwise inadmissible aliens is desirable for humane reasons or
for reasons of public interest.'
The District Director denied the application for a waiver of inadrnissiS. Rep. No. 1131, 82nd Cong., 2nd Seas., 12, IL Rep. No. 1365, Sand Cong., 2nd Sens.,

51 (1952).

491

interim

► ecision

ir4u4=1

bility for two reasons. He concluded that insufficient time had elapsed
since the applicant's deportation to permit a determination that she had
been rehabilitated. He also found that there were no "compelling
humanitarian . . . circumstances involved" in the applicant's desire to
enter the United States.
The evidence in the record convinces us that the applicant has been
rehabilitated. She was deported in April 1975. Her United States
citizen mother informs tis that the applicant has been holding down two
jobs since September 1976, working between 60 and 70 hours a week.
The applicant's mother also stated that her daughter had always been

well-behaved until the time she began living with a certain man in
Detroit. This man had a very negative influence upon her. She began
using heroin and engaged in occasional acts of prostitution. She has had
no contact at all with this man since June 1976, and has resumed living
with her parents in Windsor, Ontario.
The statements of the applicant's mother impress us as being sincere
and truthful. They are supported by a letter from the principal of the
high school which the applicant attended. This man is a psychologist and
a close friend of the applicant's family.
The applicant's reasons for desiring to enter the United St ates occasionally are stated by her mother as follows:
Being a border town it is a little more difficult to go about the every day life if she is
unable to cross into Detroit. She is trying to put the past behind her as she is very
embarrassed and ashamed and every time she is invited out on a date and the date
suggests going to Detroit to a show or dinner or ball game it is all brought. back to her

and is very embarrassing.
As well as three uncles living in Detroit she has numerous cousins who are all
marriageable age. She has already missed one of her cousins' weddings.
It is true that these reasons for wanting to enter the United States
cannot be fairly characterized as "compelling." However, there is no
requirement that the applicant's reasons for wishing to enter the United
States be "compelling."
In deciding whether or not to grant an application under section
212(d)(3)(B), there are - essentially three factors which we weigh together. The first is the risk of harm to society if the applicant is
admitted. The second is the seriousness of the applicant's prior immigration law, or criminal law, violations, if any The third factor is the

nature of the applicant's reasons for wishing to enter the United States.
Iii this case, the risk of harm to American society if the applicant is
allowed to enter is very small. The applicant has no other criminal or
immigration law violations. The fact that she has many close relatives
Irving in Detroit is substantial reason for desiring a waiver. Balancing

the three factors, we conclude that the requested -waiver should be
granted.
492

interim pecision

ifc.xyl%

ORDER: The appeal is sustained.
FURTHER ORDER: The applicant for advance permission to enter
as a nonimmigrant will be granted under such conditions as the District
Director deems appropriate.

493


Interim Decision 4:fr1441

Km= or LEE
In Section 13 Proceedings, Act of Sept. 11, 1957
A-13849129
Decided by District Director March, 1, 1966
Statutory eligibility for adjustment of status to that of a permanent resident
pursuant to the provisions of section 13, Act of September 11, 1957, is
established notwithstanding applicant's admission to the 'United States as a
nonimmigrant under section 3(3), Immigration Act of 1924, and subsequent
change of status to that of wife of a foreign government official under
section 8(1) of that Act, which was automat:it:any changed to that under
section 101(a) (15) (A) (1) upon the effective date of the Immigration and
Nationality Act..

Discussion: The applicant is a 71-year-old native and citizen of
Chin
' a. She was last admitted to the United States on December 5,
1943 as an alien in. transit pursuant to section 3(3) of the Immigration Act of 1924. On July 31, 1944, the applicant's status was
changed from that of a transit to that of the wife of a foreign government official under section. 8(1) of that Act,. • She was entitled to
this status as the wife of the Minister for the Republic of China in
Washington, D. C. Her husband held this position until his death
on February 21, 1956.
Section 13 of the Act of September 11, 1957 (71 sStat. 642-643)
provides for the adjustment of status to that of permanent residents
for. certain persons who have 'been admitted to the United States
under section 101(a) (15) (A) (i) or (ii), or 101(a) (15) (G) (i) or
(ii) of the Immigration and Nationality Act. The applicant was
admitted under section 3(3) of the Immigration Act of 1924 and
had her status changed to section 3(1) of that act. The change of
;taus is the equivalent of admission under section 3(1), there being
no necessary distinction between being planted that status at the
border or being granted it within the United States. The classes of
aliens described in section 101(a) (15) (A) (i) or (ii) of the Immigration - and Nationality Act include souie.who were formerly in class
96

Interim Decision *1441
•
3 (1).of the Immigration Act of 1924. The applicant's classification
was accordingly automatically changed to 101(a) (15) (A) (i) uponthe effective date of the Immigration and Nationality Act, December
24;1962. It is found that notwithstanding that her admission to the
United States and her acquisition of the nonimmigrant status of the
-wife of a. foreign government official was -under a prior law, the admission and status meet the requirements of section 13 of the Act of
September 11, 1957.
The applicant was gainfully employed by the New York Chun
Gift Shop, New York City, as a saleswoman, from April 1956 until
April 1957. She worked for the Ming Sang Company at 25 Elizabeth Street, New York City, as a sewing machine operator, from
-

November 1959 until March 1061. She is presently supported by
her son, Robert C. Lee, who is employed by the Insulation Manufacturing Company, 11 New York Avenue, Brooklyn, New York, with
a salary of $500 per month.
The applicant presently resides with her son, Robert, at 430 West
119th Street, Apartment . 47, New York 27, New York. She has
three children, Robert C. Lee and Rose Lee Kingman, who are
United States citizens, and Frank Lee, Jr., who resides on the mainland of China.
The good moral character of the applicant has been established.
She is not inadmissible to the United States under the excluding
provisions of the Immigration and Nationality Act,•except for lack
of entry documents. She his fulfilled all of the requirements for
eligibility of section 13 of the Act of September 11, 1957. The Secretary of State has no objection to the granting of permanent residence
status.
The applicant is chargeable to the quota for Chinese persons, which
is oversubscribed. All the evidence of record justifies thd conclusion
that were she now applying for admission, in possession of appropriate documents, she would be admitted.
It is ordered that the. status of the applicant be adjusted to that
of lawful permanent resident of the United States.
It is further ordered that if, during_ the session of Congress at
which this case is reported or the session next following, either the
Senate or the House of Representativei passes a resolution unfavorable to the applicant, this order be automatically revoked, and the

97

Interim Decision *1441
applicant be required to depart from the United States in the manner provided by law.
Note: Section 3(1) of tne immigration Act or 1524 classifies the following
aliens, inter Wits, as nonimmigrants :
"an accredited official of a foreign government recognized by the Government of the United States, his family, attendants, servants and employees,

•
•
Section 101(a) (15) (A) of the Immigration and Nationality Act classifies
the following aliens, inter olio, as nonimmigrants:
"(1) an ambassador, public minister, or career (Wilmette or consular
officer who has been accredited by a foreign government recognized
de Jere by the United States and who is accepted by the President or by
the Secretary of State, and the faembere of .the alien's immediate family;
"(if) upon a basis of reciprocity. other officials and employees who have
been accredited by a foreign government recognized de jute by the United
States, who are accepted by the Secretary of State, and the members
of their immediate families; and
"(iii) upon a basis of reciprocity, attendants, servants, personal employees, and members of their immediate families, of the officials and
employees who have a nonimmigrant status under (1) and (ii) above ..."
As the wife of an accredited high-ranking career diplomatic officer, the applicant was found to be within the class of aliens described in section 101(a)
(15) (A) (1) of the Immigration and Nationality Act, and her status was
automatically changed to that classification on December 24, 1952.

98


Interim Decision #2398

MATTER OF ALLOTEY
In Deportation Proceedings
A-19790414
Decided by Board June 17, 1975
(1) In an application for adjustment of status under section 245 of the Immigration and
Nationality Act, the applicant's preconceived intent to remain as a student, having
entered the country on the pretext of being a nonimmigrant visitor, was held to be an
adverse factor which could only be overcome by unusual or outstanding equities. See
Matter of Arai, 13 L & N. Dec. 494 (BIA 1970).
(2) Applicants marriage to a United States citizen—entered into during the voluntary
departure period he was given to make departure arrangements—was not, standing
alone, such an unusual or outstanding equity.
CHARGE:

Order: Act of 1952—Section 241(a)(2) U.S.C. 1251(a)(2)1—Nonimmigrant visitor-remained longer than permitted.
ON BEHALF OF RESPONDENT:

Rodney W. Banks, Esquire

P. 0. Box 505
Gearhart, Oregon 97138

This is an appeal from the immigration judge's denial of the respondent's application for adjustment of status. In his decision, entered on
June 18, 1972, the immigration judge found the respondent deportable
and granted to him the privilege of voluntary departure. The appeal will
be dismissed.
The record relates to a married male alien, 27 years of age, a native
and citizen of Ghana, who entered the United States as a nonimmigrant
visitor on August 8, 1971, authorized to remain until February 2, 1972.
Deportability is conceded. The immigration judge denied the respondent's application for adjustment of status as a matter of discretion. We
agree with the decision of the immigration judge.
The respondent applied for a student visa for the United States which
was denied, because he was unable, due to foreign exchange regulations
of his own country, to establish that he would have sufficient funds. He
thereupon joined a travel group which was arranging a charter flight to
and tour of the United States. He entered the United States as a
member of the group, classified as a visitor for pleasure. Two days later,
351

Interim Decision #2398
he left the group and flew to Oregon, where he commenced studies at
the institute which he had previously arranged to attend.
From these facts we find that at the time of the respondent's application for his visitor's visa and his admission as a visitor he had a preconceived inter tion to be a student in the United States, for which status he
had been unable to obtain a visa. We find his use of a pretext to gain
entry to the United States to constitute an adverse factor. Where an
adverse factor is present, it can be overcome only by a showing of
unusual or outstanding equities, Matter of Arai, 13 I. & N. Dec. 494, 496
(BIA 1970). We do not find his marriage to a United States citizen-entered into during the month for which he had requested and been

granted voluntary departure in order to make his departure
arrangements—alone, to constitute such an unusual or outstanding
equity that we would grant him the extraordinary remedy of adjustment of status as a matter of discretion.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 30 dus 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.
Board Member Louisa Wilson, dissenting, would grant adjustment of
status under section 245 of the Immigration and Nationality Act.

352