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Matter of M-D-C-V-, Respondent
Decided July 14, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Under section 235(b)(2)(C) of the Immigration and Nationality Act, 8 U.S.C.
§ 1225(b)(2)(C) (2018), an alien who is arriving on land from a contiguous foreign territory
may be returned by the Department of Homeland Security to that country pursuant to
the Migrant Protection Protocols, regardless of whether the alien arrives at or between
a designated port of entry.
FOR RESPONDENT: Bashir Ghazialam, Esquire, San Diego, California
BEFORE: Board Panel: MALPHRUS and CREPPY, Appellate Immigration Judges;
MORRIS, Temporary Appellate Immigration Judge.
MALPHRUS, Appellate Immigration Judge:

In a decision dated October 11, 2019, an Immigration Judge denied the
respondent’s applications for asylum and withholding of removal under
sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality
Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2018). 1 The respondent
has appealed from that decision, requesting termination of her proceedings.
The request for oral argument is denied. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of El Salvador. On May 27, 2019,
the Department of Homeland Security (“DHS”) initially served a notice to
1

On appeal, the respondent generally states that the Immigration Judge erred in denying
her application for protection under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec.
10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
(1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988), and she
requests that her application be granted. However, because the respondent has not
meaningfully challenged the Immigration Judge’s denial, this issue is not properly before
us. See, e.g., Matter of N-A-I-, 27 I&N Dec. 72, 73 n.1 (BIA 2017) (noting that because
the respondent did not challenge the Immigration Judge’s denial of his application for relief
under the Convention Against Torture, the issue was deemed waived).

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appear on the respondent, charging her with inadmissibility under section
212(a)(7)(A)(i) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i) (2018), as an alien
who has no valid entry document. 2 The notice to appear factually alleges
that the respondent entered the United States at or near the Otay Mesa port
of entry on May 26, 2019. A Record of Deportable/Inadmissible Alien
(Form I-213) states that, on the same day she entered, the respondent was
apprehended 20 yards north of the southern border and 3 miles west of the
Otay Mesa port of entry. The DHS returned the respondent to Mexico to
await removal proceedings under the Migrant Protection Protocols. 3
On August 29, 2019, the respondent appeared without counsel at the port
of entry for her removal hearing. At that time, the DHS served her with a
Form I-261 (Additional Charges of Inadmissibility/Deportability), which
amended the notice to appear to state that the respondent was “an arriving
alien” and that she was paroled into the United States for the sole purpose
of attending removal proceedings. The Immigration Judge sustained the
charge of inadmissibility and determined that the respondent did not establish
eligibility for relief from removal on the merits.

II. ANALYSIS
The respondent, who is now represented on appeal, argues that her
proceedings should have been terminated. Specifically, she asserts that her
return to Mexico by the DHS under the Migrant Protection Protocols
was unlawful because only arriving aliens may be returned to contiguous
countries to await proceedings under section 235(b)(2)(C) of the Act,
8 U.S.C. § 1225(b)(2)(C) (2018). She further contends that the DHS
improperly classified her as an arriving alien after apprehending her inside
2

Section 212(a)(7)(A)(i) of the Act provides, in pertinent part, as follows:
Except as otherwise specifically provided in this Act, any immigrant at the time of
application for admission—
(I) who is not in possession of a valid unexpired immigrant visa, reentry permit,
border crossing identification card, or other valid entry document required by this
Act, and a valid unexpired passport, or other suitable travel document, or document
of identity and nationality . . .
....
is inadmissible.

3

We note that on March 11, 2020, the Supreme Court granted the Government’s
application for a stay pending its filing of a petition for certiorari to contest an April 8,
2019, order from the United States District Court for the Northern District of California
granting a preliminary injunction against the DHS’s implementation of the Migrant
Protection Protocols. Wolf v. Innovation Law Lab, 140 S. Ct. 1564 (2020).

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the United States between ports of entry. For the reasons that follow, we
conclude that termination of these proceedings is inappropriate. See Matter
of J.J. Rodriguez, 27 I&N Dec. 762, 766 (BIA 2020) (“It is well settled that
an Immigration Judge may only ‘terminate removal proceedings under
[specific] circumstances identified in the regulations’ and where ‘the charges
of removability against a respondent have not been sustained.’” (alteration in
original) (quoting Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G.
2018))); cf. Matter of Herrera-Vazquez, 27 I&N Dec. 825, 831 (BIA 2020)
(following Matter of J.J. Rodriguez in holding that the Immigration Judge
had no basis to terminate the proceedings of an alien who had been returned
to Mexico under the Migrant Protection Protocols). 4
A. Inadmissibility Under Section 212(a)(7)(A)(i) of the Act
The United States Court of Appeals for the Ninth Circuit, in whose
jurisdiction this case arises, has stated that section 212(a)(7)(A)(i)(I) of the
Act “has three elements: the individual in question (1) is an immigrant
(2) who ‘at the time of application for admission’ (3) lacks a valid entry
document.” Minto v. Sessions, 854 F.3d 619, 624 (9th Cir. 2017) (citation
omitted). The respondent conceded alienage before the Immigration Judge,
and there is nothing in the record to indicate that she is not properly classified
as an “immigrant” or that she possessed a valid entry document. See Matter
of Herrera-Vazquez, 27 I&N Dec. at 833 (holding that an alien seeking
admission who cannot establish entitlement under section 101(a)(15) of the
Act, 8 U.S.C. § 1101(a)(15) (2018), to status as a nonimmigrant, such as a
tourist, student, or temporary worker, is properly deemed to be an immigrant
without the requisite travel or entry documents (citing Matter of Healy and
Goodchild, 17 I&N Dec. 22, 26 (BIA 1979))). More specifically, there is no
indication that the respondent possessed a valid entry document at the time
of her application for admission, that is, the date that she physically entered
the United States.
According to section 235(a)(1) of the Act, “An alien present in the United
States who has not been admitted or who arrives in the United States
(whether or not at a designated port of arrival . . .) shall be deemed . . . an
applicant for admission.” See also Minto, 854 F.3d at 624; Matter of Lemus,
25 I&N Dec. 734, 743 (BIA 2012) (“Congress has defined the concept of an
‘applicant for admission’ in an unconventional sense, to include not just
those who are expressly seeking permission to enter, but also those who are
4
In Matter of Herrera-Vazquez, 27 I&N Dec. at 834, we declined to address
constitutional or statutory challenges to the alien’s return to Mexico under the Migrant
Protection Protocols because he did not appear for his hearing. The respondent, through
counsel, has raised the statutory and regulatory issues we discuss here.

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present in this country without having formally requested or received such
permission . . . .” (citing section 235(a)(1) of the Act)); Matter of E-R-M& L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011) (stating that “the broad
category of applicants for admission . . . includes, inter alia, any alien present
in the United States who has not been admitted”). An alien’s application for
admission begins on the date he or she is present in the United States without
admission or arrives in the country, whether or not at a port of entry. See
Minto, 854 F.3d at 624 (stating that “an immigrant . . . is deemed by law
to be making a continuing application for admission by his mere presence”
in the United States). The respondent does not dispute that she meets
the definition of an applicant for admission. Accordingly, the Immigration
Judge properly found the respondent to be inadmissible under section
212(a)(7)(A)(i) of the Act. See Matter of Herrera-Vazquez, 27 I&N Dec. at
833 (stating that the alien, who was apprehended between ports of entry and
returned to Mexico under the Migrant Protection Protocols, was potentially
subject to removal under section 212(a)(7)(A)(i)(I) where the DHS proffered
evidence of his presence in the United States without a valid entry
document).
The respondent also argues that termination was appropriate because the
DHS did not initially check the box on the notice to appear classifying her as
an arriving alien at the time of service, so she did not receive proper notice
of the proceedings under section 239(a)(1) of the Act, 8 U.S.C. § 1229(a)(1)
(2018). This argument is foreclosed by Matter of Herrera-Vazquez, 27 I&N
Dec. at 827–31, where we held that a notice to appear similar to the
respondent’s provided proper notice of the nature of the proceedings and the
charge of inadmissibility, as required by section 239(a)(1) of the Act and
8 C.F.R. § 1003.15(b) (2020). See also id. at 834 & n.9 (noting that the DHS
may amend the notice to appear or file a Form I-261 with additional charges
of inadmissibility or deportability).
B. Authority To Return Aliens Pending Removal Proceedings
The DHS’s statutory authority to apply the Migrant Protection Protocols
is derived from section 235(b)(2)(C) of the Act. See Matter of J.J. Rodriguez,
27 I&N Dec. at 763–64. Contrary to the respondent’s arguments, this
authority, as it relates to her, is clearly supported by the text of the statute.
Section 235(b)(2)(C) of the Act provides that “an alien described in
[section 235(b)(2)(A)] who is arriving on land (whether or not at a designated
port of arrival) from a foreign territory contiguous to the United States” may
be returned to that territory by the DHS pending a removal proceeding under

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section 240 of the Act, 8 U.S.C. § 1229a (2018). 5 An alien described in
section 235(b)(2)(A) includes one “who is an applicant for admission,” such
as the respondent, “if the examining immigration officer determines that [the]
alien seeking admission is not clearly and beyond a doubt entitled to be
admitted.” However, section 235(b)(2)(B) makes an exception, providing
that section 235(b)(2)(A) “shall not apply” to crewmen, stowaways, or
aliens “to whom [section 235(b)(1)] applies.” Section 235(b)(2)(B)(ii) of the
Act (emphasis added). Section 235(b)(1), which sets out procedures for
expedited removal, generally refers to aliens who are either “arriving in the
United States” or are “described in [section 235(b)(1)(A)(iii)]” (namely,
those who have not been admitted or paroled and who have not established
continuous physical presence in the United States for the previous 2-year
period), if “an immigration officer determines” they are “inadmissible under
[sections 212(a)(6) or 212(a)(7)].” 6
Read together, these statutory provisions indicate Congress’ intent to
allow aliens, such as the respondent, who were apprehended by the DHS
outside of a port of entry and charged with inadmissibility under section
212(a)(7)(A)(i)(I) of the Act, to be returned to Mexico, so long as the alien
is “arriving on land . . . from a foreign territory contiguous to the United
States,” that is, Mexico. Section 235(b)(2)(C) of the Act. We note that both
section 235(a)(1), which defines an “applicant for admission,” and section
235(b)(2)(C), which provides for the return of aliens to contiguous countries,
5

The statutory reference to the Attorney General in section 235(b)(2)(C) of the Act now
refers to the Secretary of Homeland Security. See 6 U.S.C. §§ 251, 552(d) (2018); Clark
v. Martinez, 543 U.S. 371, 374 n.1 (2005).
6
In Matter of E-R-M- & L-R-M-, 25 I&N Dec. at 523–24, we determined that the DHS
retains prosecutorial discretion to place aliens into section 240 removal proceedings, even
though they may also be subject to expedited removal under section 235(b)(1)(A)(i) of the
Act. As noted, we stated in that decision that “aliens who are in the broad category of
applicants for admission, which includes, inter alia, any alien present in the United States
who has not been admitted, are entitled to section 240 removal proceedings.” Id. at 523
(citing section 235(a)(1) of the Act). However, we read the section 235(b)(2)(B) exception
to mean that the three classes of aliens referenced therein, “including those subject to
expedited removal under section 235(b)(1)(A)(i), are not entitled to a section 240
proceeding, not that these classes of aliens may not be placed in such proceedings.” Id.
We have also stated that “neither the Immigration Judges nor the Board may review a
decision by the DHS to forgo expedited removal proceedings or initiate removal
proceedings in a particular case.” Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 170 (BIA
2017) (citing Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998)). We recognize that
the Supreme Court is considering whether to grant a petition for certiorari that raises the
question whether section 235(b)(2)(B)(ii) excepts aliens to whom section 235(b)(1)
(expedited removal) could apply, or whom the DHS has actually placed in expedited
removal. See Wolf, 140 S. Ct. at 1564; Innovation Law Lab v. Nielsen, 366 F.Supp.3d 1110,
1121–26 (N.D. Cal. 2019).

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specify that the statutory provision has effect, “whether or not [the alien’s
arrival is] at a designated port of arrival.” The term “arriving” thus
encompasses an alien, like the respondent, who was apprehended 20 yards
north of the southern border, and not at a port of entry, on the same day she
crossed into the United States.
Our interpretation regarding whom the DHS can properly place into the
Migrant Protection Protocols is not without limitation. The use of the present
progressive tense “arriving,” rather than the past tense “arrived,” implies
some temporal or geographic limit, so that aliens, like the respondent, who
are encountered near the border may be subject to the contiguous territory
provision. The “use of the present progressive, like use of the present
participle, denotes an ongoing process.” Al Otro Lado v. Wolf, 952 F.3d 999,
1011–12 (9th Cir. 2020) (citation omitted) (holding that “arriving” is best
understood as a process rather than a singular moment in time); United States
v. Balint, 201 F.3d 928, 933 (7th Cir. 2000) (stating that the “use of the
present progressive tense, formed by pairing a form of the verb ‘to be’ and
the present participle, or ‘-ing’ form of an action verb, generally indicates
continuing action”). See generally United States v. Wilson, 503 U.S. 329,
333 (1992) (“Congress’ use of a verb tense is significant in construing
statutes.”). Thus, we need only decide in this case whether the respondent,
who was apprehended just inside the border upon crossing into the United
States, meets the statutory requirements for being placed into the Migrant
Protection Protocols. 7 We have little difficulty holding that, under these
facts, the respondent is properly considered to be “arriving.”
The respondent urges us to read certain regulations as narrowing the
DHS’s statutory authority to return aliens to contiguous countries pending
removal proceedings. In relevant part, 8 C.F.R. §§ 235.3(d) and 1235.3(d)
(2020) provide that “[i]n its discretion, the [DHS] may require any alien who
appears inadmissible and who arrives at a land border port-of-entry from
Canada or Mexico, to remain in that country while awaiting a removal
hearing.” (Emphasis added.) The respondent argues that these provisions
thus limit the DHS’s authority to apply section 235(b)(2)(C) of the Act to
“arriving aliens,” as that term is defined in 8 C.F.R. § 1001.1(q) (2020). 8
7

We need not address the question whether section 235(b)(2)(C) of the Act could be
applied to aliens apprehended well within the interior of the United States or long after
crossing the border.
8
As relevant here, 8 C.F.R. § 1001.1(q) currently provides:
The term arriving alien means an applicant for admission coming or attempting to
come into the United States at a port-of-entry, or an alien seeking transit through the
United States at a port-of-entry, or an alien interdicted in international or United
States waters and brought into the United States by any means, whether or not to a
designated port-of-entry, and regardless of the means of transport.

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However, we do not read 8 C.F.R. §§ 235.3(d) and 1235.3(d) as limiting the
DHS’s discretion under section 235(b)(2)(C) in that manner.
First, it is not clear, and we do not assume as the respondent does, that
section 235(b)(2)(C) of the Act or the regulations at 8 C.F.R. §§ 235.3(d) and
1235.3(d) refer to “arriving aliens,” as they are defined in 8 C.F.R.
§ 1001.1(q). “Arriving alien” is a long-standing term of art under the
immigration laws. Congress apparently has never defined the term “arriving
alien,” despite its use in immigration law for over a century. See Immigration
Act of 1917, ch. 29, § 16, 39 Stat. 874, 885 (Feb. 5, 1917) (providing for
“examination of all arriving aliens”). But while there may be uncertainty as
to the exact parameters of the term prior to its definition by the legacy
Immigration and Naturalization Service (“INS”) in 1997, it has traditionally
referred to aliens who appear at a port of entry. See, e.g., Matter of F-, 1 I&N
Dec. 90, 91 (BIA 1941) (using the term “arriving aliens” in discussing aliens
entering the United States from Canada who are questioned by immigration
inspectors).
However, when Congress enacted section 235(b)(2)(C) in 1996, it
included aliens “(whether or not at a designated port of arrival),” which is
clearly broader than the historical understanding of “arriving aliens,” as well
as the regulatory definition at 8 C.F.R. § 1001.1(q). See Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-28, Div.
C, § 302(a), 110 Stat. 3009-546, 3009-583 (“IIRIRA”). At the same time,
because section 235(b)(2)(C) is limited to aliens “arriving on land,” it
describes a class of aliens narrower than the regulation, which includes those
arriving at ports of entry generally, that is, land, air, or sea ports of entry.
This supports the interpretation that section 235(b)(2)(C) was not intended to
be limited to the definition of “arriving aliens” in 8 C.F.R. § 1001.1(q). 9
Moreover, 8 C.F.R. §§ 235.3(d) and 1235.3(d) refer to an alien “who
arrives at a land border port-of-entry,” which also differs from the definition
in 8 C.F.R. § 1001.1(q). By contrast, other regulatory sections explicitly
cross-reference the term “arriving alien,” rather than referring to an alien
9

We recognize that it is possible to interpret the phrase “an alien . . . who is arriving” in
section 235(b)(2)(C) of the Act to be equivalent to an “arriving alien.” See Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,312–13 (Mar. 6, 1997) (interim
rule) (Supplementary Information) (describing sections 240B and 241 of the Act, 8 U.S.C.
§§ 1229c and 1231 (2018), as referring to “arriving aliens”). However, we have not
addressed that phraseology and did not rely on it in determining that arriving aliens are not
eligible for voluntary departure in Matter of Arguelles-Campos, 22 I&N Dec. 811, 814 n.2
(BIA 1999). Moreover, there are sections of the Act that use the exact phrase “arriving
alien.” See, e.g., sections 235(a)(2), (c)(1) of the Act. For our purposes, we need only
consider section 235(b)(2)(C) of the Act and, for the reasons discussed above, we do not
read it as being limited to “arriving aliens,” as that term is defined in 8 C.F.R. § 1001.1(q).

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“who arrives.” See, e.g., 8 C.F.R. § 1240.1(d) (2020) (“An Immigration
Judge may allow only an arriving alien to withdraw an application for
admission.”). In this regard, we find the regulations to be ambiguous as to
whether the definition of an “arriving alien” in 8 C.F.R. § 1001.1(q) is
implicated by 8 C.F.R. §§ 235.3(d) and 1235.3(d).
Second, even if 8 C.F.R. § 1001.1(q) is implicated, it is unclear whether
8 C.F.R. §§ 235.3(d) and 1235.3(d) foreclose the DHS’s discretion
with respect to aliens arriving between ports of entry because those
regulations are permissive, not proscriptive. They provide that the DHS
“may” require certain aliens who arrive at a land port of entry to remain in
Canada or Mexico, but they do not limit that practice only to those aliens.
See Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) (stating that “the
word ‘may[]’ . . . implies discretion” (citation omitted)); cf. United States
v. Cisneros-Resendiz, 656 F.3d 1015, 1020 & n.10 (9th Cir. 2011) (noting
that 8 C.F.R. § 1240.1(d) permits an Immigration Judge to grant a request
for withdrawal “only if the alien . . . is an arriving alien,” as defined by
8 C.F.R. § 1001.1(q) (emphasis added)).
Nor do 8 C.F.R. §§ 235.3(d) and 1235.3(d) prohibit the DHS from
returning other aliens “arriving on land (whether or not at a designated port
of arrival)” to contiguous countries, consistent with the DHS’s broader
statutory authority. Rather, the regulations are silent as to whether aliens
who illegally enter the United States between ports of entry may be returned
to contiguous countries. We should be reluctant to read a regulation as
foreclosing the DHS from taking action that the statute clearly gives it the
authority and discretion to carry out, consistent with its duty to enforce the
immigration laws. See generally Oregon Rest. & Lodging Ass’n v. Perez,
816 F.3d 1080, 1087 (9th Cir. 2016) (noting the “crucial distinction between
statutory language that affirmatively protects or prohibits a practice and
statutory language that is silent about this practice”).
“To determine whether a regulation’s meaning is truly ambiguous, [we]
must ‘carefully consider the text, structure, history, and purpose of a
regulation.’” Sec’y of Labor, U.S. Dep’t of Labor v. Seward Ship’s Drydock,
Inc., 937 F.3d 1301, 1307 (9th Cir. 2019) (quoting Kisor v. Wilkie, 139 S. Ct.
2400, 2415 (2019) (stating that courts afford deference to regulations that are
“genuinely ambiguous” pursuant to Auer v. Robbins, 519 U.S. 452 (1997)));
see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). In
making our determination that 8 C.F.R. §§ 235.3(d) and 1235.3(d) are
ambiguous, we have also considered the history of the regulations.
Prior to Congress’s enactment of section 235(b)(2)(C) in the IIRIRA, the
INS argued in a case before the Board that its long-standing practice was to
require some aliens arriving at land border ports of entry to await exclusion
proceedings in Canada or Mexico. Matter of Sanchez, 21 I&N Dec. 444,
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449–54, 459–62, 464–66 (BIA 1996) (en banc) (terminating exclusion
proceedings where the INS had returned an alien to Mexico and suggesting
that the practice should be addressed by regulation or statutory change).
In 1996, Congress broadened the class of aliens who could be returned
to Mexico to await proceedings beyond that historical practice by (1) in
section 240(a)(2) of the Act, eliminating the distinction between exclusion
and deportation proceedings, (2) defining “applicants for admission” more
broadly than aliens who had previously been placed into exclusion
proceedings, see Matter of Rosas, 22 I&N Dec. 616, 620–21 (BIA 1999) (en
banc), and (3) providing that aliens who are “arriving on land (whether or not
at a designated port of arrival)” from a foreign contiguous territory may be
returned to that country pending removal proceedings in section 235(b)(2)(C)
of the Act. (Emphasis added.)
In subsequently proposing the regulation at 8 C.F.R. § 235.3(d), the INS
stated that “an applicant for admission arriving at a land border port-of-entry
and subject to a removal hearing under section 240 of the Act may be
required to await the hearing in Canada or Mexico.” Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of
Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 445 (Jan. 3,
1997) (Supplementary Information). 10 The supplementary information also
explained that the INS was permitted to return aliens arriving at land border
ports of entry to contiguous countries, consistent with its prior practice under
previously existing statutes and regulations. Id. (“This simply adds to statute
and regulation a long-standing practice of the Service.”).
In light of the ambiguity in the regulations, we decline to find that the
INS’s reference to agency practice then limits the DHS’s practice now,
particularly without an explicit statement to that effect. Doing so would
greatly restrict the Government’s ability to utilize the Migrant Protection
10

We note that the proposed language of 8 C.F.R. § 235.3(d) was not changed in the
interim final rule, and the text of that regulation and of the parallel regulation at 8 C.F.R.
§ 1235.3(d) has remained unchanged. See 62 Fed. Reg. at 10,357; Aliens and Nationality;
Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9823, 9837 (Feb. 28,
2003) (duplicating 8 C.F.R. § 235.3 at 8 C.F.R. § 1235.3). However, the regulatory
definition of an “arriving alien” has been amended since 1997. See, e.g., Eligibility of
Arriving Aliens in Removal Proceedings To Apply for Adjustment of Status and
Jurisdiction To Adjudicate Applications for Adjustment of Status, 71 Fed. Reg. 27,585,
27,585 (May 12, 2006) (clarifying the applicability of the “arriving alien” definition to
paroled aliens); Amendment of the Regulatory Definition of Arriving Alien, 63 Fed. Reg.
19,382, 19,383 (Apr. 20, 1998) (amending the definition to, inter alia, clarify that “an alien
coming from abroad to a port in the United States may be considered an applicant for
admission regardless of whether he or she subjectively desires admission”) (Supplementary
Information).

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Protocols at the southern border because the clear majority of inadmissible
aliens apprehended there are located between ports of entry. See U.S.
Customs & Border Prot., CBP Enforcement Statistics Fiscal Year 2020,
https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics (last
visited July 14, 2020).
In sum, we read the regulations at 8 C.F.R. §§ 235.3(d), 1235.3(d), and
1001.1(q) as not imposing such a severe restriction on the DHS’s statutory
authority under section 235(b)(2)(C) of the Act and thus on the reach of
the Migrant Protection Protocols. This is particularly so given the
ambiguity as to whether 8 C.F.R. § 1001.1(q) was intended to limit the
DHS’s authority under the Act. 11 We therefore conclude that the regulations
do not preclude the DHS from applying the Migrant Protection Protocols to
aliens apprehended between ports of entry. Consequently, we hold that under
section 235(b)(2)(C) of the Act, an alien who is arriving on land from a
contiguous foreign territory may be returned by the DHS to that country
pursuant to the Migrant Protection Protocols, regardless of whether the alien
arrives at or between a designated port of entry.
C. Arriving Alien Classification
The respondent also argues that in improperly classifying her as an
“arriving alien,” the DHS deprived her of her constitutional, statutory, and
regulatory rights, including her right to apply for asylum. In her view, only
“arriving aliens” may be returned to Mexico to await removal proceedings
under section 235(b)(2)(C), and she contends that the DHS cannot establish
that she is an “arriving alien” under 8 C.F.R. § 1001.1(q). She claims that
she was deprived of her rights because the DHS improperly returned her to
11

In contrast, other immigration regulations have clearly and unambiguously limited the
reach of certain statutory language. For example, section 208(d)(6) of the Act, which
addresses frivolous applications for asylum, states that “[i]f the Attorney General
determines that an alien has knowingly made a frivolous application for asylum and the
alien has received the notice [from the Immigration Judge], the alien shall be permanently
ineligible for any benefits under this Act.” The word “frivolous” means there is “no
rational argument based on the law or evidence in support of [a] claim.” Black’s Law
Dictionary 668 (6th ed. 1990). However, the regulation at 8 C.F.R. § 1208.20 (2020) limits
the application of section 208(d)(6) by directing that an asylum applicant is subject to that
provision “only if a final order . . . specifically finds that the alien knowingly filed a
frivolous asylum application. . . . [A]n asylum application is frivolous if any of its material
elements is deliberately fabricated.” Thus, the regulation only permits a finding that an
application is “frivolous” where the alien deliberately presents a claim whose material
elements are false. See Matter of Y-L-, 24 I&N Dec. 151, 153–55 (BIA 2007) (discussing
the statutory and regulatory framework for a frivolousness finding and noting that the
regulation provides procedural safeguards and limitations).

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Mexico and that termination of the proceedings is therefore appropriate.
However, the question whether the respondent was properly classified as an
arriving alien is separate from whether she could be returned to Mexico
consistent with the Migrant Protection Protocols.
It is not necessary to decide whether the DHS properly classified the
respondent as an “arriving alien” upon her return for her asylum hearing,
because she has not established that she was prejudiced in these proceedings
by that classification, or by her return to Mexico under the Migrant Protection
Protocols. See Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018)
(“As a general rule, an individual may obtain relief for a due process violation
only if he shows that the violation caused him prejudice, meaning the
violation potentially affected the outcome of the immigration proceeding.”);
Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (requiring the alien to
demonstrate “prejudice, which means that the outcome of the proceeding
may have been affected by the alleged [due process] violation”). 12 An alien
who is properly classified as an arriving alien faces significant limitations on
his or her options within the immigration system, but the respondent has not
shown that being classified as an arriving alien has impacted her immigration
proceedings in any meaningful way.
First, any distinction regarding the burden of proof on “arriving aliens”
in removal proceedings was not at issue in the proceedings below. By statute,
an applicant for admission bears the burden to establish that he or she is
“clearly and beyond doubt entitled to be admitted to the United States and is
not inadmissible.” Section 240(c)(2)(A) of the Act; see also Matter of
Herrera-Vazquez, 27 I&N Dec. at 831–32. The regulatory burden of proof
for arriving aliens is substantively the same as the statutory burden of proof
for applicants for admission. See 8 C.F.R. § 1240.8(b) (2020). 13 For aliens
charged as being in the United States without being admitted or paroled,
the DHS must first establish the respondent’s alienage and then, “unless
the respondent demonstrates by clear and convincing evidence that he
or she is lawfully in the United States pursuant to a prior admission,” the
12

Since the Ninth Circuit’s legal standard for sufficient prejudice—whether the outcome
“may have been” affected by the alleged due process violation—is controlling in this case,
we need not consider if we would, instead, articulate the standard as “is likely to be.”
13
The regulation at 8 C.F.R. § 1240.8(b) provides in full:
Arriving aliens. In proceedings commenced upon a respondent’s arrival in the
United States or after the revocation or expiration of parole, the respondent must
prove that he or she is clearly and beyond a doubt entitled to be admitted to the United
States and is not inadmissible as charged.

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same regulatory burden applies. 8 C.F.R. § 1240.8(c); 14 see also section
240(c)(2)(B) of the Act; Matter of Herrera-Vazquez, 27 I&N Dec. at 832 n.7.
Here, however, the respondent conceded alienage, and there was no
indication that she was lawfully in the United States pursuant to a prior
admission. Therefore the DHS’s “arriving alien” classification did not result
in prejudice to the respondent as regards this burden of proof.
The respondent filed applications for asylum, withholding of removal,
and protection against the Convention Against Torture, all of which
the Immigration Judge denied on the merits after a hearing and
consideration of the respondent’s testimony and evidence. Classification
as an “arriving alien” does not affect the standards of proof for those
applications. See Matter of Herrera-Vazquez, 27 I&N Dec. at 834. Nor does
such classification impact the right to appeal the removal order. See section
240(c)(5) of the Act; 8 C.F.R. § 1240.15 (2020). Because the respondent
was able to apply for any relief for which she was eligible and has had an
opportunity to appeal, she has not been deprived of due process rights in this
regard. Cf. Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 171 (BIA 2017)
(concluding that the respondents were not deprived of due process rights
when the DHS bypassed the credible fear interview process and initiated
removal proceedings, because they would “receive a full and fair hearing on
their application by the Immigration Judge”).
The respondent argues that, as a practical matter, aliens subjected to the
Migrant Protection Protocols do not have adequate access to counsel. Aliens
in immigration proceedings have the statutory and regulatory privilege to be
represented by counsel of their choice, at no expense to the Government.
See sections 240(b)(4)(A), 292 of the Act, 8 U.S.C. §§ 1229a(b)(4)(A), 1362
(2018); 8 C.F.R. §§ 1003.16(b), 1240.3, 1240.11(c)(1)(iii) (2020). While
many aliens may, as a general matter, face practical impediments to obtaining
counsel, including being in detention or lacking financial resources (whether
or not detained), these circumstances do not alone constitute a due process
violation. Rather, an alien must show more to establish a violation of due
process. We have held that the lack of counsel does not amount to a denial
of due process, so long as it was not unfair or did not demonstrably prejudice
14

The regulation at 8 C.F.R. § 1240.8(c) provides in full:
Aliens present in the United States without being admitted or paroled. In the case
of a respondent charged as being in the United States without being admitted or
paroled, the Service must first establish the alienage of the respondent. Once
alienage has been established, unless the respondent demonstrates by clear and
convincing evidence that he or she is lawfully in the United States pursuant to a prior
admission, the respondent must prove that he or she is clearly and beyond a doubt
entitled to be admitted to the United States and is not inadmissible as charged.

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the respondent. Matter of Santos, 19 I&N Dec. 105, 107–10 (BIA 1984).
There is no such prejudice here.
We recognize that under controlling Ninth Circuit law, “before [an alien]
continues without counsel in an immigration proceeding for which there is a
statutory right to counsel, due process mandates that ‘there must be a
knowing and voluntary waiver of the right to counsel,’ which requires that
the [Immigration Judge] ‘(1) inquire specifically as to whether [the alien]
wishes to continue without a lawyer; and (2) receive a knowing and voluntary
affirmative response.’” Zuniga v. Barr, 946 F.3d 464, 471 (9th Cir. 2019)
(quoting Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004)).
Moreover, where “an alien . . . shows that he has been denied the statutory
right to be represented by counsel in an immigration proceeding[, he] need
not also show that he was prejudiced by the absence of the attorney.” Id.
(quoting Montes-Lopez v. Holder, 694 F.3d 1085, 1093–94 (9th Cir. 2012)).
In this regard, the record reflects that the respondent stated at her initial
hearing that she wished to represent herself. Nevertheless, the Immigration
Judge provided her a list of free legal services and advised her to try to obtain
counsel. When the respondent appeared alone at the resumed proceedings,
the Immigration Judge asked her again if she wanted to represent herself, to
which she replied, “Yes.” Under these circumstances, the respondent waived
the right to counsel.
Although the respondent appeared pro se below, she is now represented
and has the benefit of counsel on appeal. She has not pointed to any specific
aspects of her claims for relief that were prejudiced as a result of the absence
of counsel at her hearing. See Matter of Santos, 19 I&N Dec. at 110
(declining to find prejudice where the respondent was represented by counsel
on appeal). On this record, therefore, we do not find that the respondent was
deprived of due process by a lack of counsel.
The respondent has not established that she was prevented by her
classification as an arriving alien from applying for any other form of relief
for which she is eligible. She correctly notes that aliens charged as “arriving
aliens” are subject to additional restrictions on eligibility for adjustment of
status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2018), and for
voluntary departure in lieu of being subject to removal proceedings under
section 240B(a)(1) of the Act, 8 U.S.C. § 1229c(a)(1) (2018). See section
240B(a)(4) of the Act; Matter of Silitonga, 25 I&N Dec. 89, 92 (BIA 2009).
However, there is no indication that the respondent would have been eligible
for either form of relief. See 8 C.F.R. §§ 1240.26(b)(1), 1245(a)(1)(ii)
(2020).
In sum, the respondent received a full and fair hearing before the
Immigration Judge and was able to apply for the relief she requested. On
this record, there is no basis to determine that the outcome of the proceeding
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was impacted by the “arriving alien” classification or by her return to Mexico
under the Migrant Protection Protocols. Consequently, we are not persuaded
that the respondent suffered any prejudice or that termination of the
proceedings is appropriate. See Colmenar, 210 F.3d at 971; Matter of S-O-G& F-D-B-, 27 I&N Dec. 462, 465–68 (A.G. 2018); see also Matter of J.J.
Rodriguez, 27 I&N Dec. at 766. 15
D. Respondent’s Applications for Relief
We turn now to the respondent’s applications for asylum and withholding
of removal. The record reflects that she received one threatening phone call
while living in El Salvador and left the country approximately 9 days later.
A few months after her departure, she learned that a threatening note was left
at her home when she left. We affirm the Immigration Judge’s determination
that the respondent did not establish eligibility for the requested relief
because the harm she suffered in El Salvador, considered in the aggregate,
does not rise to the level of past persecution, see Matter of V-F-D-, 23 I&N
Dec. 859, 863 (BIA 2006), and she has not shown a well-founded fear of
future persecution, see Matter of A-E-M-, 21 I&N Dec. 1157, 1159–60 (BIA
1998). 16
In reaching our determination, we have considered the Ninth Circuit’s
case law, which is controlling in this case. Specifically, in Duran-Rodriguez
v. Barr, 918 F.3d 1025, 1028–29 (9th Cir. 2019), the court concluded that
two threats, one over the phone and another in person, did not rise to the level
of persecution. See also Lim v. INS, 224 F.3d 929, 936–37 (9th Cir. 2000)
15

We also point out that termination would render the proceedings ultra vires, and the
respondent would not be in a position to seek the relief she requested here. See Matter of
Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745, 752 n.11 (BIA 2020).
16
The Immigration Judge determined that the pro se respondent was not harmed on
account of her membership in a particular social group based on the social groups he
articulated for her below. On appeal, the respondent, through counsel, attempts to advance
newly articulated social groups and argues that the Immigration Judge did not sufficiently
consider whether she established a claim for asylum on the basis of religion. See section
101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (2018). We need not resolve whether
the respondent’s fear was based on her membership in a valid particular social group, her
religion, or another protected ground because, even assuming that a nexus to a protected
ground exists, she has not established eligibility for asylum. INS v. Bagamasbad, 429 U.S.
24, 25 (1976) (per curiam) (“As a general rule courts and agencies are not required to make
findings on issues the decision of which is unnecessary to the results they reach.”); Matter
of A-B-, 27 I&N Dec. 316, 340 (A.G. 2018) (explaining that if an application is fatally
flawed in one respect, an Immigration Judge or the Board need not examine the remaining
elements of the asylum claim), abrogated on other grounds by Grace v. Whitaker, 344
F. Supp. 3d 96, 127 (D.D.C. 2018), appeal docketed sub nom. Grace v. Barr, No. 19-5013
(D.C. Cir. Jan. 30, 2019).

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(concluding that the alien’s mail and telephone threats alone did not amount
to past persecution). The Ninth Circuit further explained that it has “been
most likely to find persecution where threats are repeated, specific and
‘combined with confrontation or other mistreatment.’” Duran-Rodriguez,
918 F.3d at 1028 (citation omitted). Death threats alone can constitute
“persecution in only a small category of cases, and only when the threats are
so menacing as to cause significant actual suffering or harm.” Id. (quoting
Lim, 224 F.3d at 936). The Immigration Judge reasonably concluded that the
record does not establish that the two threats the respondent received were
sufficiently severe to rise to the level of persecution, particularly since she
was unaware of one of them before she departed. See Matter of V-F-D-,
23 I&N Dec. at 863.
We are unpersuaded by the respondent’s argument that the threat that she
received was sufficiently severe to constitute past persecution because she
was aware of others who had received such threats and what had happened
to them. As explained above, the Immigration Judge reasonably considered
the threatening phone call that the respondent received and the note that was
left at her home in concluding that these acts were not sufficiently severe to
rise to the level of persecution. The Immigration Judge was not required to
interpret the evidence in the manner the respondent advocated. See Don
v. Gonzales, 476 F.3d 738, 744 (9th Cir. 2007).
The respondent argues that the Immigration Judge erred in not
considering that she was also watched by gang members while in El
Salvador. Although the respondent testified that young men observed her,
she did not know why and has not shown any connection to the threats she
received. Further, assuming arguendo that this was considered as part of the
Immigration Judge’s analysis whether the respondent’s past experiences rise
to the level of persecution, we are unpersuaded that remand for further
consideration of this testimony would alter the outcome of the Immigration
Judge’s determination in this regard. See 8 C.F.R. § 1003.1(d)(3)(iv) (stating
that we may remand proceedings if additional fact-finding is needed); see
also Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992).
The respondent’s assertion that the Immigration Judge erred by not
considering that gang members came to her home searching for her after she
left El Salvador does not relate to past persecution. Further, the record
reflects that the respondent did not know if the men who inquired about her
are part of the group that threatened her. Her claim that the threat she
received deprived her of liberty and the ability to practice her religion at
church and caused her severe economic deprivation is unpersuasive. 17
17

We recognize that the inability to practice one’s religion may constitute persecution, but
to the extent that the alleged harm here related to the respondent’s religion, it does not rise

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The record does not support a conclusion that the sole threat the
respondent claimed she received and the one she was unaware of before her
departure were sufficiently severe to rise to the level of persecution. Since
she has not established that she suffered past persecution, she does not have
a rebuttable presumption of a well-founded fear of persecution upon return.
8 C.F.R. § 1208.13(b)(1) (2020).
In considering whether the respondent has established a well-founded
fear of persecution, we affirm the Immigration Judge’s determination that
she has not met her burden to establish that authorities of the Salvadoran
Government are unable or unwilling to control the private actors she fears.
See Melkonian v. Ashcroft, 320 F.3d 1061, 1064–65 (9th Cir. 2003)
(“Eligibility for asylum based on a well-founded fear of future persecution
requires [applicants] to . . . credibly testif[y] that they genuinely fear
persecution by their government, or forces their government is unable or
unwilling to control . . . .”); see also Matter of A-B-, 27 I&N Dec. 316, 337
(A.G. 2018) (stating that for an applicant to prevail on an asylum claim based
on the violent conduct of a private actor, she “must show more than
‘difficulty . . . controlling’ private behavior” (citations omitted)), abrogated
on other grounds by Grace v. Whitaker, 344 F. Supp. 3d 96, 127 (D.D.C.
2018), appeal docketed sub nom. Grace v. Barr, No. 19-5013 (D.C. Cir. Jan.
30, 2019). 18
to that level. See Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (finding no past
persecution where although the alien’s “religious practice and work was not free from
interruption or harassment, she was not prevented from practicing her religion”). See
generally Guo v. Sessions, 897 F.3d 1208, 1215 (9th Cir. 2018) (“In evaluating religious
persecution claims, we have previously focused on how substantially the government (or
other individuals that it was unable or unwilling to control) have restrained a petitioner’s
practice of his or her religion.”).
18
We recognize that Matter of A-B- was abrogated by the United States District Court for
the District of Columbia in Grace v. Whitaker. However, we are not bound by a published
decision of a Federal district court, even in cases arising in the same district, unless it relates
to the parties involved in the case. See Matter of Robles, 24 I&N Dec. 22, 28 (BIA 2006);
Matter of K-S-, 20 I&N Dec. 715, 718–19 (BIA 1993). In addition, an appeal of the district
court’s decision in Grace is currently pending. See Matter of L-E-A-, 27 I&N Dec. 581,
589 n.1 (A.G. 2019). In any case, the injunction in Grace only relates to credible fear
determinations in expedited removal proceedings and does not govern asylum and
withholding of removal claims, which are at issue in this case. See Gonzales-Veliz v. Barr,
938 F.3d 219, 227–28 (5th Cir. 2019). But see Juan Antonio v. Barr, 959 F.3d 778, 790
n.3, 792 (6th Cir. 2020) (finding the reasoning in Grace persuasive and remanding for
further proceedings as to the social group analysis). Moreover, we follow the decisions of
the Attorney General unless they are reversed by circuit court authority. See Matter of
Jimenez-Santillano, 21 I&N Dec. 567, 571 (BIA 1996); see also Matter of E-L-H-, 23 I&N
Dec. 814, 815 (BIA 2005). We therefore consider our application of Matter of A-B- in this
case to be appropriate.

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Based on the foregoing, we agree with the Immigration Judge that the
respondent has not met her burden to establish eligibility for asylum.
8 C.F.R. § 1208.13(a). Since the respondent has not satisfied the burden
of proof required for asylum, it follows that she has not satisfied the
higher standard of proof required for withholding of removal. See 8 C.F.R.
§ 1208.16(b) (2020); see also Pedro-Mateo v. INS, 224 F.3d 1147,
1150 (9th Cir. 2000). Given our disposition of the appeal, we need not
address the respondent’s remaining arguments regarding her eligibility for
asylum and withholding of removal. See INS v. Bagamasbad, 429 U.S. 24,
25 (1976) (per curiam); Matter of A-B-, 27 I&N Dec. at 340. Accordingly,
the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $799 for each day the respondent is in violation. See section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

34


Interim Decision #2602

MATTER OF CHARTIER
In Deportation Proceedings
A-20927428
Decided by Board August 3, 1977
(1) Respondent, a native and citizen of Canada was employed in Canada by the subsidiary
of a United States corporation located in Michigan. Respondent worked directly for that

company, which had no subsidiary or branch office in Canada. Respondent was admitted
to the United States in 1974 as an intra-company transferee under section 101(a)(15)(L)
of the Immigration and Nationality Act. In 1976 respondent filed an application for labor
certification and the Service instituted an investigation which culminated in deportation
proceedings under section 241(a)(1) of the Act predicated on the ground that the
respondent was not entitled to L-1 classification.
(2) Section 101(a)(15)(L) of the Act does not expressly require the employer to have a
subsidiary or other legal entity abroad. In the context of a deportation proceeding, such
a requirement should riot be implied.

(3)An alien may be admitted into the United States as an intra-company transferee under
section 101(a)(15)(L) of the Act even though the petitioning employer has no subsidiary
or other legal entity abroad.
CHARGE:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]--Excludable at time of entry
under section 212(a)(26)—Nonimmigrant not in possession of
valid nonimmigrant visa
Act of 1952—Section 241(a)(1) (8 U.S.C. 1251(a)(1))--Excludable at time of entry
under section 212(a)(20)—Immigrant not in possession of immigrant visa
ON BEHALF OF RESPONDENT:
Daniel N. King, Esquire
McClintock, Donovan, Carson & Roach
2150 Guardian BuildingDetroit, Michigan 48226

ON BEHALF OF SERVICE:
George Indelicate
Apellate Trial Attorney

BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

In a decision dated November 18, 1976, the respondent was found
deportable upon the charges contained in the Order to Show Cause, but
granted the privilege of departing voluntarily in lieu of deportation. The
immigration judge has certified his decision to us for review, in accordance with the provisions of 8 C.F.R. 3.1(e). We have decided to reverse
the immigration judge's decision.
The respondent is a 52 year old native and citizen of Canada. Immediately preceding the time of his application for admission to the

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United States, the respondent had been employed in Canada, as Canadian Manager of Technical Services, by Grow Chemical Company, a
Michigan corporation.
Grow Chemical Company is a wholly owned subsidiary of Grow Chemical Corporation, headquartered in New York City. The parent corporation had sales of $92.8 million in 1975. The Michigan company forms part
of the Automotive Group of the parent corporation. Other subsidiaries,
which are part of this Automotive Group, are located in California and
Thalginm

Grow Chemical Company manufactures and sells high efficiency thinners, solvents and specialty coatings for industrial applications. Its
principal customers are manufacturers of automobiles, trucks and automotive parts in the United States, Canada and Western Europe.
Grow Chemical Company's sales to Canadian customers are approximately one million dollars a year. Despite this substantial Canadian
business, the company has never established a Canadian subsidiary or
even an office in Canada. Nor is the company officially licensed to do
business in Canada. However, the company has stated that it intends to
establish a Canadian sales and service subsidiary at some point, when
market conditions and the supply of raw materials permit this.
When the respondent was employed by Grow in Canada, he worked
out of his home. His job involved visiting automotive assembly plants on
a regular basis to make sure that Grow's' paint products were being
applied properly.'
In 1974, Grow decided to transfer the respondent to the United
States, in order to perform similar services here.
The company filed a visa petition to classify the respondent as an
intra-company transferee under section 1O1(a)(15)(L) of the Immigration and Nationality Act. The petition was approved by the District
Director in Detroit, Michigan. The respondent entered the United
States on June 14, 1974, with an L-1 nonimmigrant visa. He received
extensions of stay, in the same status, until May 18, 1976. On September 17, 1974, the respondent brought his wife and four children from
Etibicoke, Ontario, to Walled Lake, Michigan, to join him.
In July, 1975, the respondent filed an application for a labor certification from the Department of Labor. This event precipitated an investigation into the respondent's immigation status by the. Immigration and
Naturalization Service office in Detroit.
' In his affidavit of December 12, 1975, Leslie Stott, Vice-President and General Sales
Manager of Grow Chemical Company, stated: "The painting of an automobile is an

extremely complex process, and our technical service representative is required to know
the process in detail, to know the chemical and other properties of the material being'
coated, and the coating materials as well as the conditions under which paints and lacquers
are prepared and applied in the automotive plants."
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Interim Decision #2602
The District Director now decided that he had made a mistake in
approving an L-1 visa petition in behalf of the respondent. The respondent was informed that he was not qualified for L-1 nonimmigrant
status, and that he would be required to leave the United States. The
respondent contested the District Director's interpretation of the law,
and refused to leave the country voluntarily.

An Order to Show Cause was issued on November 14, 1975. In it, the
Service charged that the respondent was not entitled to his L-1 visa
classification because he was "not the representative of a foreign subsidiary or entity conducting business in Canada."
By this inartful language, what the Service meant to say was that the
respondent's company did not have a subsidiary or affiliate in Canada,
and that therefore he did not qualify as an intra-company transferee.
The wording of the Order to Show Cause did not, however, cause any
confusion.
Because he did not,qualify as an intra-company transferee, continued
the Order to Show Cause, the respondent was deportable under section
241(a)(1) of the Immigration and Nationality Act, in that, at the time of
his entry he was within one or more of the classes of aliens excludable by
the law, to wit, aliens who are nonimmigrants not in possession of a
valid nonimmigrant visa, as described in section 212(a)(26) of the Act.
The Order to Show Cause also charged that the respondent was
excludable under section 212(0(20) of the Act as an hinnigrinit not hi

possession of a valid, unexpired immigrant visa. In charging that the
respondent entered the United States as an immigrant, the Service was
alleging, somewhat redundantly, that, at the time of his entry, the
respondent did not come within any of the defined classes of nonimmigrants set out in section 101(a)(15) of the Act. That same section of the
Act defines the term "immigrant" as every alien who does not come
within one of the defined classes of nonimmigrants.
The respondent denied deportability, claiming that, under a correct
interpretation of section 101(a)(15)(L), he did qualify as an intracompany transferee. The respondent also argued that, even if the Service's interpretation of the Act was correct, it should be equitably

estopped from deporting him, since it had approved his L-1 visa petition, and he had relied on that approval to his substantial detriment.
On April 7, 1970, the 91st Congress amended the Immigration and
Nationality Act, to facilitate the entry of certain aliens into the 'United
States, by creating additional categories of nonimmigrants. See Public
Law 91-225. This law added section 101(a)(15)(L) to the Act, 8 U.S.C.
1101(a)(15)(L). It reads as follows:
(L) an alien who, immediately preceding the time of his application for admission into
the United States, has been employed continuously for one year by a thin or Luiporation

or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the

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United States temporarily in order to continue to render his services to the same
employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive,
or involves specialized knowledge, and the alien spouse and minor children of any such
alien if accompanying him or following to join him.

The Service concedes that the express statutory language does not
require the employer to have a subsidiary or other legal entity abroad.
The Service argument is that such a requirement should be implied from
the statutory requirement that the employment in the United States be
temporary. The service contends that if the corporation has no established foreign branch, there is no place for the alien to return to, and
therefore his employment in the United States cannot be deemed temporary.
There are several reasons why this argument fails to convince us..
In the first place, we are reluctant to read implied restrictions into the
statute, particularly in the context of a deportation proceeding. It is
settled doctrine that deportation statutes must be'construed in favor of
the alien. "Since the stakes are considerable for the individual, we
not assume that Congress meant to trench on his freedom beyond that
which is required by the narrowest of several possible meanings of the
words used." Lennon v. INS, 527 F.2d 187, 193 (2 Cir. 1975). See
Rosenberg v. Fleuti, 374 U.S. 449, 459 (1963); Bonetti v. Rogers, 356
U.S. 691, 699 (1958); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948).
Furthermore, the Service has given us no reason to believe that its
interpretation of the statute accords with Congress' intent. Section
101(a)(15)(L) was added to the Act in order to make it easier for
corporations doing business in the United States to bring key foreign
employees here to work. 2
The Service's interpretation of the statute would restrict the ability of
companies such as Grow, which have not gone through the formalities of
establishing subsidiaries or branch offices abroad, to bring their executives or technical specialists to the United States. 3 We. see no reason
why a distinction should be made between United States companies
a See House Report No. 91-851.

The respondent has argued that such a result, in this particular ease, would be
inconsistent with the public policy expressed in the Automotive Products Trade Act of
1965, 19 U.S.C. section 2001 et seq., which implements the United States-Uanachan
Automobile Agreement of January 16, 1965. The Act sets forth a policy of encouraging the
development of a single, unified, North American automobile industry uninhibited by
tariffs. It gives United States vehicle and parts manufacturers the opportunity to make
their operations more efficient by obviating the need for duplicate production facilities in
Canada. The Act thereby makes it possible for some American lams to avoid setting up
subsidiaries or extensive facilities in Canada.
In view of our general interpretation of section 101(a)(15)(L), we need not decide what,
if any, weight should be given here to the policy set forth in the Automotive Products
Trade Act.
287

Interim Decision #2602
with subsidiaries abroad and United States companies with employees
abroad who work directly for the parent company.
The Service contends that this distinction is necessary to guarantee
that the employee's stay in the United States be temporary. However,
the Service ignores the possibility of sending the respondent back to his
previous job in Canada. It also ignores the fact that Grow has an affiliate
in Belgium to which the respondent could be sent after his sojourn in the
United States.
Finally, the Service itself has consistently interpreted section
101(a)(15)(L) generously, so as to facilitate intra-company transfers. 4
The Service appears to be concerned by the fact that the respondent
has applied for a labor certification, which may indicate that he intends
to become a permanent resident if he can. However, there is nothing in
the law which prevents the respondent from seeking to change his
status to that of a lawful permanent resident. In fact, section 245 of the
Act, which enables an alien to adjust his status to that of a lawful
permanent resident without having to leave the United States to obtain
an immigrant visa abroad, is designed to facilitate such changes of
status. 5
In view of our interpretation of section 101(a)(15)(L), we need not
reach the estoppel issue raised by the respondent.
ORDER: The decision of the immigration judge is reversed. The
deportation proceeding will be terminated.

4 See Matter of Pozzoli, 14 I. & N. Dec. 569 (R. C. 1974); Matter of Continental Grain
Company, 14 I. & N. Dec. 140 (D. D. 1972); Matter of L..e Blanc, 13 I. & N. Dec. 816 (R. C.
1971); Matter of Vaillancourt, 13 I. & N. Dec. 654 (It. C. 1970); Matter of Bocris, 13 I. &
N. Dec. 601 (R. C. 1970); Matter of Realise, 13 I. & N. Dec. 618 (R. C. 1970).
The l.st two cases, in particular, appear to be inconsistent with the position of the
Service here.
4 The Service has not raised the issue of the respondent's subjective intent when he
applied for his L-1 nonimmigrant visa. If the Service h ad claimed that the respondent was
really an intending immigrant when he entered the United States, and therefore not

entitled to a nonimmigrant visa, it would have to prove more than the mere fact (assuming
it is a fact) that he hoped from the beginning to be able to adjust his status to that of a
lawful permanent resident. See Bong Young Choy v_ Barber, 279 F.2d 642, 646 (9 Cir.
1960); Brownell v. Carija, 254 F.2d 78 (D.C. Cir. 1957); Chrysrikos v. Commissioner of
Immigration, 3 F.2d 372 (2 Cir. 1924);. Matter of Hosseinpour, Interim Decision 2349
7 I. &
(BIA 1975); Matter of Wellitufer, 12 1. & N. Dec. 522 (R.C. 1907); Matter of
N. Dec. 651 (R.C. 1958). See also Matter of Bocris, supra.
,

288


:KAltElt OF

Z

Application for PERMISSION TO REAPPLY
A-15031155
Decided by Regional Commissioner February 15, 1960
Approved by Assistant Commissioner February 24, 1960
Permission to reapply—Not granted to crewman previously deported for deliberate violation of crewman landing privileges.
Permission to reapply after arrest and deportation to allow reentry as a crewman is denied where the alien's record shows a deliberate violation of crewman landing privileges IvIda would disqualify him from again obtaining a
conditional landing permit.

BEFORE THE REGIONAL COMMISSIONER

Discussion: This case is before me by certification under 8 CFR
103.4 pursuant to the district director's denial of tl --3 application
dated November 7, 1959.
The applicant is a 20-year-old single male, a native and citizen of
Italy. He was last admitted to the United States at New York,
New York, on September 4, 1958, as a member of the crew of the

SS. TEKLA TORM for the period that the vessel was in port, not

to exceed twenty-nine days.
The applicant deserted his vessel on September 15, 1958. He was
subsequently apprehended by officers of this Service on March 4,
1959, at the Port Authority Terminal, New York, New York. Deportation proceedings were instituted and on March 6, 1959, the
applicant was found deportable under the provisions of section 241
(a) (2) of the Immigration and Nationality Act, in that after admission as a nonimmigrant under section 101(a) (15) (D) of said act
he remained in the United States for a longer period of time than
was permitted. During the proceedings the applicant was very uncooperative and refused to reveal the whereabouts of his seaman's
document until one week following his arrest. The applicant was

deported from the port of New York on March 20, 1959, on the SS.
AGNETE TORM on the ground previously stated.

On October 19, 1959, the applicant filed an application for permission to reapply for admission into the United States after arrest
and deportation indicating that he desired such permission in order
that he could reenter the United States in pursuit of his calling as a
seaman.
566

Section 212(a) (17) of the Immigration and Nationality Act provides, in pertinent part, that aliens who have been arrested and
deported shall be excluded from admission into the United States
unless prior to embarkation or reembarkation at a place outside the
United States or their attempt to be admitted from foreign contiguous territory, the Attorney General has consented to their applying
or reapplying for admission.
The applicant was last admitted to the United States as a nonimmigrant crewman under section 252(a) (1) of the Immigration
and Nationality Act, and subsequent thereto did knowingly and
willfully violate his status by deserting his vessel and accepting
employment ashore in the United States. The applicant has attempted to justify his actions by stating that the salary he earned
as a crewman was only $50 a month and that he was not paid for
overtime services performed. The applicant's explanation for his
'past immigration violation is without merit.
Section 101(a) (15) (D) defines a crewman as an alien serving in
good faith as such in any capacity required for the normal operation and service on hoard a vessel (other than a fishing vessel having
its home port or an operating base in the United States) or aircraft,
who intends to land temporarily and solely in pursuit of his calling
as a crewman and to depart from the United States with the vessel
or aircraft on which he arrived or some other vessel or aircraft.
Section 252(a) of the Immigration and Nationality Act, in part,
states that no alien crewman shall be permitted to land temporarily
in the United States unless an immigration officer finds upon examination that an alien crewman is a nonimmigrant under section 101
(a) (15) (D), and is otherwise admissible and has agreed to accept
the conditions of such permit.
The evidence of record indicates that at the time of admission on
September 4, 1958, it was the applicant's intention to desert his
vessel and seek employment ashore, and that he deliberately withheld this information from the immigration officer which, if known,
would have prevented him from receiving a conditional landing
permit. It is concluded from the subject's past violation of the
immigration laws that he cannot be considered a bona fide crewman
within the meaning of section 101(a) (15) (D) of the act. If he
were now to apply for admission to the United States as a crewman
in pursuit of his calling, he would on the basis of his past record
be denied a conditional landing permit under section 252(a) of the
act. Accordingly, no purpose would be served in granting permission to reapply on the basis of the instant application and it will be
denied.
Order: It is ordered that the denial of the district director be
affirmed.
567


Interim Decision #2325

MATTER OF BRAND!

*

In Deportation Proceedings
A-20324237
A-20324239.
Decided by Board September 17, 1974
(1) Respondents, natives and citizens of Mexico are parents of two United States citizen
children. They are not ineligible foi special immigrant visas under any of the provisions
of section 212 of the Immigration and Nationality Act. They are not eligible for
suspension of deportation under section 244(a)(1) of the Act, as persons who. are
ineligible to obtain a nonquota immigrant visa merely because visas are not immediately
available.
(2) The legislative history of the Act shows that within the context of section 244(0(3) of
the Act the term "non-quota immigrant' and "special immigrant" are synonymous.

CHARGE:

Order: Act of 1952 — Section 241(a)(2) [8 U.S.C. 1251(a)(2)] —Nonimmigrant visitors,
remained longer than permitted.
ON BEHALF OF RESPONDENTS:

ON BEHALF OF SERVICE:
Paul C. Vincent, Esquire
Appellate Trial Attorney

Joseph S. He rtogs, Esquire
Jackson & H•rtogs
580 Washington Street
San Francisco, California 94111

This is an appeal from an order of an immigration judge, finding the

respondents deportable on the above-stated charge, denying their applications for suspension of deportation under section 244(a)(1) of the
Immigration and Nationality Act, but granting them voluntary departure. The appeal will be dismissed.
The respondents are husband and wife, both 30 years of age. They are
aliens, natives and citizens of Mexico, who entered the United States at
Los Angeles, California on or about June 17, 1965 as nonimmigrant
visitors for a temporary period. Thereafter, they were authorized to
remain until August 20, 1966. They failed to depart within the time
specified.
They admitted the truth of the factual allegations in their respective
orders to show cause and conceded deportability. We find that deportability has been established by evidence which is clear, convincing and

unequivocal.
116

Interim Decision #2325
To be eligible for suspension of deportation under section 244(a)(1) of
the Act, the respondents must establish, inter alia: (1) physical presence
in the'United States for a continuous period of not less than seven years
immediately preceding the date of application; (2) good moral character
during all that period; and (3) extreme hardship to the respondents or
other specified family members, which would result from deporta.tion -.
Under section 244(0(3) of the Act, the provisions of section 244(a)
shall not be applicable to an alien who is a native of any country
contiguous to the United States or of any adjacent island named in
section 101(b)(5): Provided, That the Attorney General may in his dis. eretion agree to the granting of suspension of deportation if the alien

establisheeto the satisfaction of the Attorney General that he is ineligible to obtain a nonquota immigrant visa, Mt- of October 24, 1962 (76
Stat. 1247).

. We agree with the conclusion of the immigration judge that the
respondents are not eligible for suspension of deportation since they did
not establish that they were ineligible to obtain special immigrant visas
as required under section 244(f)(3) for natives of a' country contiguous to
the United States. As parents of United.States citizen children, they are
exempt from the labor certification requirements of section 212(a)(14) of
the Act. The various grounds of ineligibility for immigrant visas are set
out in the separate paragraphs, (1) through (31), of section 212(a) of the
Act. There is no evidence in this record to demonstrate that these
respondents are ineligible under any of the aforesaid paragraphs. The
contention that the respondents are ineligible for special immigrant
visas because visas are unavailable at the present time and will be
unavailable for a substantial period of time was rejected by us in Matter
of Najar, 13 I. & N. Dec. 737 (BIA 1971). In that case we stated:
". . . We concur with the special'inquiry officer's opinion that the nonavailability of an
immigrant quota number under the Western Hemisphere, and the need to wait some
fourteen months for the assignment of a number, is an element of extreme hardship and
is to be distinguished from the matter of being ineligible to obtain an immigrant visa."

judge's
decision that the respondents are not eligible for suspension of deportation under 'section 244(a)(1) of the Act.
Counsel contends that on the basis of our unreported decision in
Matter of Ka Mei Lam, A44702549 (BIA' December 13, 1973), we
should sustain his position that the respondents are ineligible for immigrant visas within the 'meaning of the proviso to section 244(0(3) of the
Act. We do not agree. Although in Matter of Ka Mei Lam, supra, we
found the alien ineligible for a visa, that conclusion was grounded on the
fact that the alien was a citizen of who had failed to establish her
Relying' on Matter of Najar, we concur with the immigration

birth in Mexico;

117

Interim Decision *2325
The main objection raised by counsel is that the proviso to section
244(f)(3) of the Act pertains, as specified by the language, to ineligibility
to obtain a nonquota immigrant visa and not to ineligibility to obtain a
special immigrant visa as indicated in a footnote in the publication of the
Immigration and 'Nationality Act, printed for the use of the Committee
on the Judiciary, House of Representatives.
Under section 101(a)(27) of the Immigration and Nationality Act,
approved June 27, 1952, provision is made for the admission without a
quota charge of an immigrant who is a native of an independent Western
Hemisphere country, 'U.S. Code Cong. & Adm. News, 82d Cong., 2d
Sess. (1952), p. 1692.. The term "nonquota immigrant" was defined to

mean, inter elia: "(C) an immigrant who was born in Canada, the
Republic of Mexico, the Republic of Cuba, the Republic of Haiti, the
Dominican Republic, the Canal Zone, or an independent country of
Central or South America, and the spouse or the child of any such
immigrant, if accompanying or following to join him.
By the Act of October 3, 1965 (70 Stat. 911) the definition of "special
immigrant" was substituted for the definition of "nonquota immigrant."
Section 101(a)(27) of the Act now defines "special immigrant" to mean,
PS

inter alia: "(A) an immigrant who was born in any independent foreign

country of the Western Hemisphere or in the Canal Zone and the spouse
and children of any such immigrant, if accompanying, or following to
join him: Provided, That no immigrant visa shall be issued pursuant to
this clause until the consular officer is in receipt of a determination made
by the Secretary of Labor pursuant to the provisions of section 212
(a)(14)." By section 21(e) of the Act of October 3, 1965 (79 Stat. 911),
provision was made for a numerical limitation of 120,000 annually on
special immigrants within the meaning of section 101(a)(27)(A), exclusive of special immigrants who are immediate relatives of the United
States beginning July 1, 1968 unless the Congress enacted legislation

providing otherwise prior to that date. See U.S. Code Cong. & Adm.
News, 89th Cong., 1st Sess. (1965), p. 3344.
- After careful analysis of the statutory changes made to section 101
(a)(27) of the Act, we are convinced that it was the intent of Congress to
substitute the term "special immigrant" for the term "nonquota immigrant," since the quota limitation for special immigrants was to begin in
1968 and then only if no legislation was enacted by the Congress prior

thereto. The failure on the part of Congress to change the language in
the proviso to section 244(f)(3) of the Act from "nonquota immigrant" to
"special immigrant" when the Western Hemisphere quota limitations
took effect in 1968 did not in any way alter the Congressional intent with
respect to aliens from Western Hemisphere countries. Our decisions
interpreting section 244(f)(3) indicate that within the context of this
section "nonquota immigrant" and "special immigrant" are synonymous.
118

Interim Decision #2325
See Matter of Najar, supra; Matter of Longsworth, 13 I. & N. Dee. 225
(BIA. 1969); Matter of Valesquez-Hernandez, 11 I. & N. Dec. 781 (BIA
1966); Matter of Padilla-Munoz, 11 I. & N. Dec. 836 (BIA 1966); and
Matter of Reeves, 11 I. & N. Dec. 618 (BIA 1966).
We are satisfied that the respondents have not established that the
relief of suspension of deportation under section 244(a)(1) of the Act is
available to them. Voluntary departure is the only discretionary relief
for which the respondents are eligible and they were afforded this relief.
Since execution of the immigration judge's order has been stayed during
the pendency of this appeal, we will provide for voluntary departure for
the respondents in accordance with the time fixed in the order.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondents shall be deported as provided in the
immigration judge's order.

119


Interim Decision *1930

MATTER OP BUNAG

In Section 248 Proceedings
A-15809264

Decided by Disfrrict Director December 4, 1967
An alien who upon arrival in 1961 was found to be a stowaway, was ordered
detained on board by the examining immigration officer and was deported
without hearing, was not "arrested and deported" from the United States
within the meaning of section 212(a) (17), Immigration and Nationality
Act, and at the time of his last entry on October 3, 1966 be did not need
permission to reapply under section 212(a) (16) of the Act, more than one
year having elapsed since his exclusion and deportation.

The applicant is a 29-year-old single alien, a native and citizen
of the Philippines. He last entered the United States at Rouses
Point, New York on October 3, 1966 when he was admitted as a
visitor for pleasure. He seeks a change of status to that of a noniramigra.nt student under section 101(a) (15) (F) (i) of the Immigration and Nationality Act, as amended.
Section 248 of the Act provides, so far as pertinent here: "The
Attorney General may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification
to any other nonimmigrant classification in the case of any alien
lawfully admitted to the United States as a, nonimmigrant who is
continuing to maintain that status. . . ." (Emphasis supplied.)
The application is supported by a Certificate of Eligibility,
Form 1-20, and evidence of satisfactory financial arrangements
to meet the applicant's expenses as a student. The application was
filed during the period of his admission. The only issue presented
here is whether the applicant was excludable at the time of his
last entry by reason of his prior deportation from the United
States, no permission to reapply having been granted.
The applicant first arrived at Apra Harbor, Guam, on March
19, 1961 as a stowaway on a United States Naval vessel. Upon
arrival he was presented for immigration inspection on board the
vessel, found inadmissible as a stowaway by the examining immi-

103

Interim Decision #1930
gration officer without referral for a hearing by a special inquiry
officer, and ordered detained on board pursuant to section 273 of
the Immigration and Nationality Act. Criminal prosecution was
declined by the United States Attorney. On .March 21, 1961 the
immigration officer ordered that the alien be deported from the
United States, and, at the request of the carrier, directed that the
alien be removed to the MATS terminal for deportation by a
MATS flight to the Philippines. The alien departed from Guam
on March 21, 1961 pursuant to that order.
On August 23, 1962, the alien sought entry into the United
States as a member of the crew of the "SS Tai Ping." He was denied a crewman's landing permit on the ground that he was exclodable under section 212 (a) (17) of the Act as an alien who had
been arrested and deported from the United States. On August
14, 1963, he submitted an application for permission to reapply
for admission after deportation to enable him to pursue his calling as a crewman. That application, the only application for permission to reapply of record, was denied on the ground that he
was not considered a bona- fide crewman.
The classes of aliens subject to exclusion by reason of a prior
"deportation" are defined in section 212 (a) of the Act as foMows
(16) Aliens who have been excluded from admission and deported and
who again seek admission within one year from the date of such deporta-

tion,

unless prior ^to their reembarkation at a place outside the United
States or their attempt to be admitted from foreign contiguous territory the
Attorney General has consented to their reapplying our admission;
(17) Aliens who have been arrested and deported, or who have fallen into
distress and have been removed pursuant to this or any prior act, or who
have been removed as alien enemies, or who have been removed at Government expense in lieu of deportation pursuant to section 242(b), unless prior
to their embarkation or reembarkation at a place outside the United States
or their attempt to be admitted from foreign contiguous territory the Attorney General has consented to their applying or reapplying for admission;
(Emphasis supplied.)

An alien, other than a crewman whose conditional landing permit may be revoked pursuant to section 252 (b) of the Act, may
be "arrested and deported" from the United States only after an
entry has been made, an order to show cause has been served, a
hearing held before a special inquiry officer, and an order of deportation entered. (Section 242, Immigration and Nationality
Act; and 8 CFR 242). None of these factors was present here.
The summary procedure set forth in section 252(b) of the Act
for the revocation of a conditional permit to land and deportation
without a hearing comes into effect only if the crewman is found
to have violated his crewman status within the period of his ad-

104

Interim Decision #1930
mission as a crewman. (See Matter of M—, 5 I. & N. Dec 127.)
In the case of our applicant, there was a denial but no revocation
of a crewman's conditional landing permit.
The subject was, in fact, found by the immigration officer,
upon his arrival at Guam on March 19, 1961, to be an alien and a
stowaway. Hence, he was found to be excludable under section
212 (a) (18) of the Act, and since he was not a lawful resident of
the United States, his detention and deportation without hearing
was ordered by the immigration officer pursuant to section
273 (d) of the Act. (See Matter of B—, 5 I. & N. Dec. 712.) Had
he sought entry within one year of the date of his exclusion and
deportation he would have been excludable under section
212(a) (16). However, he did not do so. He was deported on
March 21, 1961 and did not apply for admisssion into the United
States until August of 1962 more than one year later. Therefore,
section 212 (a) (16) was not a bar to his admission when he applied in August of 1962.
The applicant, an alien stowaway presented for inspection on
arrival in 1961 and deported without hearing pursuant to the detention order of the examining inunigration officer, was not "arrested and deported" from the United States within the meaning
of section 212 (a) (17) of the Act. More than one year having
elapsed since his exclusion and deportation, he did not at the time
of his last entry on October 3, 1966 need permission to reapply
under section 212(a) (16) of the Act. He was lawfully, admitted
as a nonimmigrant on that date, and is eligible for a change of
status to that of a nonimmigrant student. Accordingly, the application will be approved.
It is ordered that the application be and hereby is approved.

105


Interim Decision #2709

MATTER OF ROBINSON
In Deportation Proceedings
A-2..9393943
Decided by Board June 13, 1979
(1) Although there is no "judgment of conviction" under the laws of California when the
sentence is suspended and probation imposed, an adjudication of guilt followed by a
suspended sentence and probationary period is sufficient to subje eta person to deportation on the basis that he has been convicted. Gutierrez v. INS, 323 F.2d 593 (9 Cir.
1963).
(2) Willful misapplication of funds of a savings and loan association in violation of 18 U.S.C.
667 Includes the clement of intent to defimul and therefore involves moral turpitude
despite omission of the element of intent to defraud from the statute. Matter of Batten,
11 L & N. Dec. 271 (BIA 1965), followed.
CHARGE:

Order. Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor—
remained longer than permitted
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Thomas Y.E. Fong
Trial Attorney

Jose Angel Rodriguez, Esquire
Gomez, Paz, Rodriguez & Senora
304 S. Broadway, Suite 532
Los Angeles, California 90013

WY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The respondent has appealed from a decision of the immigration judg e
dated October 31, 1977, in which he found the respondent deportable
illoon her own admission under section 241(a)(2) of the Immigration and
Nationality Act, 8 U.S.C. 1251(9X2), as a nonimmigrant who remained
it the United States longer than permitted. He also denied her applications for suspension of deportation under section 244(a)(1) of the Act,
U.S.C. 1254(a)(1), and for voluntary departure. The respondent has
appealed only from the immigration judge's denial of discretionary relief. The appeal will be dismissed.
The respondent is a 34-year-old native and citizen of Panama who
entered the United States on. March 20, 1970, as a nonimmigrant visitor_

©n December 14, 1976, she pled guilty in the United States District
Court of the Central District of California to a charge of misapplication
762

Interim Decision #2709
of funds of a savings and loan association in violation of 18 U. S. C. 657.
The respondent was adjudged to be guilty as charged and convicted, but
imposition of sentence was suspended. She was required to be on probation for a period of two years and to make restitution of the misapplied
funds.

The immigration judge denied both of the respondent's applications
for discretionary relief on the ground that her conviction of a crime of
moral turpitude within the last five years precluded a finding of good
moral character.
On appeal, the respondent contends that she was not, in fact, convicted of a crime since imposition of sentence was suspended, and that
the crime with which she was charged was not one involving moral
turpitude, since the indictment contained no allegation of fraud.
The respondent cites our decision in Matter of Amesquita, Interim
Decision 2608 (BIA 1977), in which we recognized that there is no
"judgment of conviction" under the laws of California when a court
chooses to "suspend, or refrain from, the pronouncement of judgment,
subject to the administration of the probation laws." However, in that
case, we also stated that such a dispositional order following an ascertainment of guilt would clearly support a finding of deportability. As
authority for that proposition, we cited Gutierrez v. INS, 323 F.2d 593
(9 Cir. 1963), in which the terms "convicted" and "judgment of conviction," as applied under California law, were distinguished. It was de-

termined in that case that a person was "convicted" after entry of a plea
of guilty or a verdict of guilty by a jury, but that there was no "judgment of conviction" until a sentence was imposed. The court thereupon
held that an adjudication of guilt followed by suspension of sentence and
imposition of probation was sufficient to subject a person to deportation
on the basis that he had been convicted.
In Matter of Varagianis, Interim Decision 2537 (BIA 1976), we held
that a conviction exists for immigration purposes when (1) there has
been a judicial finding of guilt, (2) the court takes action which removes

the case from the category of those which are (actually or in theory)
pending for consideration by the court—the court orders the defendant
fined, or incarcerated or the court suspends sentence, (3) the action of
the court is considered a conviction by the state for at least some
purpose. See also Matter of Pikkarainen, 10 I. & N. Dec. 401 (BIA_
1963); Matter of L--R , 8 I. & N. Dec. 269 (BIA 1959).
Since in the respondent's case there was an adjudication of guilt and
the sentence was suspended, which under the laws of California constitutes a conviction, we conclude that the respondent has been convicted
—

for purposes of the immigration laws.

The respondent also argues that the crime of misapplication of funds
is not one involving moral turpitude because the statute upon which the
763

Interim Decision #2709
indictment is based fails to include the element of fraud. In Matter of
Batten, 11 I. & N. Dec. 271 (BIA 1965), we specifically held that a crime
charging the defendant with misapplication of funds includes the element of intent to defraud and, therefore, involves moral turpitude
despite omission of the element of intent from the statute. Although the
respondent was convicted under 18 U.S.C. 657 for willful misapplication
of funds from a savings and loan association, we find that the statute
involved in the Rattan decision, 18 U.S.C. 656, dealing with embezzlement from banks, is so similar as to render that ruling applicable to the
instant case. Therefore, we conclude that the crime of which the respondent was convicted is one involving moral turpitude, and we agree
with the determination of the immigration judge that the respondent
cannot be considered to be a person of good moral character. See section
101(f)(3) of the Act, 8 U.S.C. 1101(f)(3).
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

764


Interim Decision #2612

MATTER OF STEVENS

In Deportation Proceedings
A-21170480

Decided by Board August 81, 1977

(2) Operations Instruction 242. (a(28) published April 27, 1977, which sets forth Service
Policy not to seek the deportation of aliens convicted of simple possession of a minimal
amount of marihuana, applies only to aliens lawfully admitted for permanent residence.
‘This operations instruction doos not apply to nonimmigrant aliens.

CHARGE:

Order: Act of 1952—Section 241(a)(12) [8 U.S.C. 1251(a)(11)}_ Convicted of a violation
vf law ur segulatiun relating ly die Mlicly possession of hashish,

ON BEHALF OF RESPONDENT: Ronald T. Mitchell, Esquire
P.O, Box 696
St. Thomas, Virgin Islands 00801

BY; Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members

The case is before us on motion of the Service requesting that we
reconsider our decision dated April 27, 1977, in which we remanded the
record to the immigration judge. The primary basis for our decision was
our understanding that it was tho procont Sorvico policy not to occk the
deportation of aliens convicted of simple possession of a minimal amount
of marihuana.! Therefore, as the record did not contain information on
the amount of hashish involved, we remanded. The Service now con-
tends that its aforementioned policy does not pertain to nonimmigrants,
but solely to lawful permanent residents.

‘We recognize that the respondent was admitted to the United States
as a nonimmigrant temporary worker vu April 18, 1974, and that he
received extensions until April 11, 1977. As we noted in our prior
decision, the date given for the respondent’s conviction on the Order to
Show Cause was not the same as the date on his record af conviction.
Hfowever, the respondent clearly admitted the truth of all of the allega-
tions contained in the Order to Show Cause (Tr. p. 8 & 4) and he was

‘ See the Service’s Operations Instructions, 0.1. 242.1(a)(28), as amended April 27,
1977.

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represent ed by counsel at the deportation hearing. Therefore, the re-
spondent was correetly found deportable by clear, convincing and un-
equivocal evidence.

The respondent is clearly deportable within the meaning of section

241(a\(11) of the Act regardless of the amoumt’of hashish involved.
Jnasmuch as the Service has taken the posiliun that this respondent
does not fall within the aforementioned policy of the Service, because he
is not a lawful permanent resident, no purpose would be served in
remanding the record for a redotermination in light af this policy.

We note that the statement of Service policy presents no hard and
fast relief from deportation and we have no authority to review a
decision by the Service refusing to either defer the issuance of an Order
to Show Cause? or to stay deportation.*

Accordingly, the motion will be granted and the appeal dismissed.

ORDER: The motion for reconsideration is granted.

FURTHER ORDER: The appeal is dismissed.

2 See Mettter of Lennon, Interim Decision 2304 (BLA 1974); Matter of Merced, 141. & N~
Dew. G41 CRIA 1074); Matter af Callaves, 14 T. & N. Dec. 250 (BIA 1972); Matter of
Geronimo, 13 1. & N, Dec. 680 (BIA 1971).

® See Matter of Paduano, 13 1. & N. Dec. 658 (BIA 1941).

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