Interim Decision #2513

' MATTER OF YARDEN
'In Section 245 Proceedings
A-20890467
Decided by Regional Commissioner August 6, .1976
In the absence of unusual'or outstanding equities, an application for adjustment of status
under section 245 of the Immigration and Nationality Act wfil be denied as a matter of
discretion where the labor certification supporting such application, or eligibility for
exemption therefrom, was predicated on experience and/or income derived from employment held by applicant in violation of the immigration laws.
ON BEHALF OF APPLICANT: David G. Stern, Esquire
Choate, Hall & Stewart28 State Street

Boston, Massachusetts 02109
This matter is before the Regional Commissioner on certification
pursuant to 8 CFR 103.4. The district director denied the application for
adjustment of status under Section 245 of the Immigration and Nationality Act, as amended, on the ground that the alien failed to
establish that he is exempt from the requirements of Section 212(a)(14)
of the Act; and further, he has not established that his application
merits favorable exercise of discretion by the Attorney General.
The applicant, a 29 year old-native and citizen of Israel, was admitted
to the United States on March 3, 1968, until September 2, 1968, as a
nonimmigrant visitor for pleasure. He had neither requested nor received any extension of his authorized stay. In April., 1968, he accepted
employment as an insurance salesman. He was subsequently employed
as an automobile salesman from August, 1968, to February, 1970. He
then accepted employment with the Y & D Auto Body, Inc., a company
he purchased October 21, 1970, and which he has managed since that
date. He initially applied for adjustment of status under Section 245 of
the Act on June 29, 1973, as a nonpreference immigrant claiming
exemption from the provisions of Section 212(a)(14) on the basis of his
investment in the above-named company. The application was denied
September 13, 1973, because a nonpreference visa number was not
available at that time. On September 28, 1972, Y & D Auto Body, Inc.,
made -application to the Department of Labor for the certification re-

729

Interim Decision #2513
quired by Section 212(a)(14) requesting the applicant's services as an
auto body man. Such application was denied February 11, 1974, on a
finding that Ile wage offer of $6 per hour was below the prevailing wage
rate of $7 per hour and that qualified resident workers were available.
The instant application was filed June 6, 1974. Exemption from Section 212(a)(14) under the provisions of 8 CFR 212.8(b)(4) as an investor
is again claimed. In support of his application, there have been submitted Form I-526, a bill of sale dated October 21, 1970, in the amount of
$4,000 for the purchase of Y & D Auto Body, the Articles of Organization of Y & D Auto Body, Inc., cancelled checks, income tax returns, a
property mortgage, bank letters, a lease agreement, and a Notice of
Change of Corporate Officers. The Articles of Organization show that the
company was incorporated for the purpose of "general auto and truck
body repair and sale of damaged body automobiles and trucks." It is
indicated that there are 5,000 shares of common stock with a par value of
$2 per share. Joseph Yarden, the applicant, and Shifra. Yarden, his wife,
since divorced, are shown as the only officers of the company. Under
capital investments on Form 1-526, applicant's investment is shown as:
cash, $3,000; tools and machinery, $18,000; and inventory of $2,000.
In his decision, the district director states that the bill of sale indicates a payment of $4,000 was made for the purchase of the company;
that further investment consisted of the purchase of equipment and
material required to operate the business, and that the applicant failed

to establish that he had at least one year of experience in any managerial capacity. It was further concluded that the money invested in the
business was earned through the alien's illegal employment in the
United States, and that the application did not warrant the favorable
exercise of discretion by the Attorney General.
Section 245 of the Act states: "The status of an alien other than an
alien crewman who was inspected and admitted or paroled into the
United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien
lawfully admitted for permanent residence if (1) the alien makes an

application for such adjustment, (2) the alien is eligible to receive an
immigrant visa and is admissible to the United States for permanent
residence, and, (3) an immigrant visa is immediately available to him at
the time his application is approved." (Underscoring supplied).
Section 2:.2(a) of the Act lists the classes of aliens who shall be
ineligible to receive visas and shall be excluded from admission into the
United States. Section 212(a)(14) provides for the exclusion of aliens
"seeking to enter the United States, for the purpose of performing
skilled or unskilled labor, unless the Secretary of Labor has determined
and certified to the Secretary of State and to the Attorney General that
(A) there are not sufficient workers in the United States who are able,
730

Interim Decision #2513
willing, qualified, and available at the time of application for a visa and
admission to the United States and at the place to which the alien is
destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working
conditions of the workers in the United States similarly employed . . ."
This section was incorporated into the Act by the Act of October 3, 1965,
79 Stat. 911, to safeguard the livelihood of workers lawfully present in
the United States. H. Rep. 745, 89th Congress, 1st Session (1965).
Regulations to implement the amended statute provide that certain
aliens are not considered to be within the purview of Section 212(a)(14).
The applicant is seeking to establish that he qualified for the exemption
from labor certigication contained in 8 CFR 212.8(b)(4) which states as
follows: "An alien who establishes on Form 1-526 that he is seeking to
enter the United States for the purpose of engaging in a commercial or
agricultural enterprise in. which he has invested, or is actively in the
process of investing, capital totaling at least $10,000, and who establishes that he has had at least one year's experience or training qualify ,
inghmtoeasucnrpi."
In his brief submitted pursuant to the notice of certification, counsel
questions the district director's decision on several points, which we
shall consider seriatim. First, it is stated that: "The decision makes
many legislative and judicial assumptions, including the assumption that
the Petitioner's self - employment in the United States constitutes unauthorized employment. Neither regulation nor judicial decisions are cited
in support of that position."
A nonimmigrant in the United States in a class defined in Section
101(a)(15)(B) of the Immigration and Nationality Act as ,a temporary
visitor for pleasure, may not engage in any employment. 8 CFR
214.1(c). Applicant has been employed in the United States since April,
1958. Such employment is illegal. Wei v. Robinson, 246 F.2d 729 (C. A.
1957), cert. den. 355 U.S. 879 (1957); Matter of S. 8 I. & N. Dec. 574
(1960); Matter of Wong, , 11I. & N. Dec. 704 (1966); Matter of Martinez
and Londmito, 13 L & N. Dec_ 483 (1970) S. Rep. 1137, 82d Cong., 2d Sess.
(1952).
Exception is next taken to the statement that the applicant has failed
to establish he possesses the one year of experience in a managerial
capacity as required by the regulation. We agree with counsel that the
record establishes applicant's employment in this capacity over the last
five to six years. We do not believe, however, that it is proper in this
case to grant an exemption from the requirements of Section 212(a)(14)
by virtue of the applicant's experience gained or funds derived from
employment while unlawfully in the United States.
It is stated that the decision does not mention that the petitioner has
had as many as eight employees, and when interviewed, was employing
731

Interim Decision #2513
four workers. This is not substantiated in the record nor is the contention that sa:aries paid by applicant have averaged over $40,000 per
year. The company's income tax returns for 1972 and 1973; the only
evidence present, show salaries paid for those years as $29,850 and
$18,735, respectively.
It is contended that, in addition to the initial investment of $4,000,
amounts in excess of $10,000 have also been expended for purchase of
capital goods. We have only the applicant's statement in this regard
since it is impossible to determine from the checks submitted precisely
what they were used to purchase. These checks were written between
February, 1')72, and May, 1974. Many of the later checks are for uni-

form amounts to banks such as would be used to pay a loan. The balance
could have been written in the normal day-to-day transactions of a
business or represent re-investment of money earned. Counsel states
that applicant has formed a Massachusetts corporation and made an
additional investment of $5,000 while negotiating for distribution rights
for automobile paint. To support his claim, there is a copy of Articles of
Organization dated April 9, 1975, for Northeast Auto Paint Distributors, Inc., showing 2,000 shares of stock with a par value of $1 per
share listing the applicant as president and a bank 'statement in the
name of the -company showing a balance of $4,450. With regard to
applicant's real estate holdings, we will abide by the finding in the
Matter of Heitland, 14 I. & N. Dee_ 589 (1974), which finds that land
holdings and savings bank accounts do not qualify as investments within
the contemplation of the regulation. An alien who asserts that he qualifies
for the "investor" exemption for labor certification has the burden of
establishing his claim through unambiguous proof and doubt should be
resolved against the "investor" claimant. Matter of Ahmad, 15 I. & N.
Dec. 81, (1974). In the instant case, it is determined that the applicant has
failed to establish that he qualifies under 8 CPR 212.8(b)(4) as one who
has invested or is actively in the process of investing capital totaling at
least $10,000.
Additionaly, an alien seeking discretionary relief under Section 245
of the Act bears the burden of establishing that he is statutorily eligible
for such relief and that discretion should be exercised in his behalf.
Matter of Arai, 13 I. & N. Dee. 494, (1970). The applicable statute does
not contemplate that all aliens who meet the required legal standards
will be granted adjustment of status to that of a permanent resident
since the grant of an application for adjustment of status is a matter of
discretion and of administrative grace, not mere eligibility. Matter of
Ortiz-Prieto; 11 I. & N. Dec. 317, (1965). Thus, assuming arguendo that
the applicant is exempt from the labor certification of Section 212(a)(14),
his application is denied as a matter of discretion. He -has- been in
violation of the immigration laws of the United States since April, 1968.
732

Interim Decision #2513
His disobedience of our laws commenced only one month after he arrived in this country as a visitor. His total work experience was acquired while he was illegally in the United States—in violation of his
status as a visitor for pleasure and thus not permitted to be employed.
He has no unusual or outstanding equities. In the absence of unusual or
outstanding equities, an alien will not as a matter of administrative
discretion be granted permanent resident status on the basis of a labor
certification issued under Section 212(a)(14) of the Act or exemption
therefrom, which is predicated on employment while unlawfully in the
United States.

It is ordered that the decision of the District Director be and same is
hereby affirmed.

733


Interim Decision #2901

MATTER OF DRIGO

In Visa Petition Proceedings
A-22631584
Decided by Board May 6, 1982
(1) A visa petition filed on behalf of a beneficiary whose adoption occurred after his
fourteenth birthday, but before his sixteenth birthday, was properly denied by the
District Director of the Immigration and Naturalization Service because the beneficiary
was not eligible for preference status as an adopted child under section 101(bX1XE) of
Ile Immigration and Nationality Apt, 8 U.S.C. 1101(b)(1)(E), at the time the application was filed.
(2)Notwithstanding a recent amendment to section 101(b)(1)(E) which changes the age
limitation of an adopted child from fourteen to sixteen years and the fact that the adoption was timely oxectiti.d under the amended language of the statute, the beneficiary
does not qualify for immigration benefits under section 203(a)(2) of the Act, 8 U.S.G.
1153(a)(2), because a visa petition approval would result in giving a priority date to which
the beneficiary was not entitled at the time of the filing of the visa petition.
ON BEHALF OF PETITIONER: Brian L Masony, EscluiTe
155-56 Company Street
Christiansted, St. Croix
Virgin Islands 00820
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vaccs, Board Members

The lawful permanent resident petitioner applied, for preference status for the beneficiary as her adopted, unmarried son under section
203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2).
In a decision-dated June 1, 1981, the District Director denied the petition on the ground that preference status could not be conferred on the
basis of the relationship between the petitioner and beneficiary because
the adoption occurred after the beneficiary had reached the age of 14
years. The petitioner has appealed. The appeal will be dismissed.
The beneficiary is a 16-year-old native and citizen of Dominica, West
Indies. The petitioner is a 41-year-old native and citizen of Dominica,
West Indies .who was admitted to the United States as a lawful permanent resident in 1978. The petitioner filed a visa petition on behalf of the
beneficiary on May 19, 1981.
In support of the petition, the petitioner submitted a birth certificate
223

Interim Decision #2901
which shows that the beneficiary was born on June 25, 1965, and an
adoption decree which was rendered on October 2, 1979, in the Virgin
Islands.

-

On appeal, the petitioner contends through counsel's brief dated June
15, 1981, that "a decree of adoption is fully effective as of the date
entered inure pro tune and is entitled to recognition. for immigration
purposes." Petitioner adds that the "Territorial Court of the Virgin
Islands entered a decree of adoption untie pro tune as of May 7, 1979,"
when the beneficiary was only 13 years old. We rejected this argument
in Matter of Cariaga, 15 ISSN Dec. 716 (BIA 1976). We note that at the
time of the District Director's decision, the act of adoption- must have
occurred before the child attained the age of 14. It was Congress' intent
that the age restriction in section 101(bX1)(E) be construed strictly.
Petitioner further contends that it is an abuse of discretion to deny the
visa petition under the facts of this case. There is nothing in the record
which -lends any substance to this claim and it will not be further
considered. 'Bee Matter of Cariaga, supra.
Section 203(a)(2) provides for the granting of preference status to an
unmarried son or unmarried daughter of an alien lawfully adinitted for
permanent residence. The petitioner must show that the beneficiary
once qualified as her "child" within the meaning of section 101(b)(1) of

the Act. When the District Director's decision
"child" was defuied in section 101(b)(1)(E) as:

was

rendered, the term

•••

a child adopted while under the age of fourteen years if the child has thereafter been
in the legal custody of, and has resided with, the adopting parent or parents for at
least two years. . . .
In this case, the adoption occurred after the beneficiary's 14th birthday but before his 16th birthday. Consequently, when the petition was
filed the beneficiary was not eligible for preference status as an adopted
child under section 101(b)(1)(E) of the Act. Accordingly, we find that
the District Director's decision was correct. However, subsequent to
the District Director's decision the definition of an adopted child within
the statute was amended, raising the age limitation from 14 to 16 years.,
Section 101(b)(1)(E) of the Act, 8 U.S.C. 1101(b)(1)(E), as amended by
section 2 of the Immigration and Nationality Act Amendments of 1981,

Pub. L. 97-116, 95 Stat. 1611 (December 29, 1981). Since the beneficiary's
adoption occurred before his 16th birthday, he would appear to be eligible for preference status as an adopted child under current law.
Although the beneficiary's adoption was timely as far as the current
version of section 101(b)(1)(E) is concerned, we cannot give the petitioner the benefit of that change in the law. The Board has held that in
order to be eligible for relative preference status under section 203(a)(2)
of the Act, the alien beneficiary must be fully qualified at the time the
224

Interim Decision #2901
visa petition is filed, otherwise this would result in our giving a priority
date to which the beneficiary was not entitled at the time of filing.
Matter of Bardouille, 18 I&N Dec_ 114 (RTA 1981). See 22 C.F.R.
42.62(a); S C.F.R. 245.1(g)(2).
We note that the petitioner may now wish to file a new visa petition.
The petitioner has the burden to establish eligibility for the benefits
sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). Furthermore,
the petitioner must establish that the beneficiary has been in her legal
custody for a period of two years subsequent to the adoption, see Matter
of Lee, 11 I&N Dec. 911 (BIA 1966), and that he has resided with his
adoptive parent for the same length of time, either before or after the
formal adoption. See Matter of M-, 8 I&N Dec. 118 (BIA 1958; A.G.
1959). From this record, it appears that the beneficiary has resided with
the petitioner and has been in her legal custody for more than two years
since the adoption.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

225


Interim Decision #1770

MATZ= OP TALANOA
In Deportation Proceedings
A-18550300
Decided by Board August 11, 1967
Where the Service applied prematurely for a quota number for respondent and
had to return it unused to the Department of State because processing of rile
section 245 application for adjustment of status had not been completed and as
a result of the subsequent amendment of section 212(a) (14) of the Act by
P.L. 89-236 respondent was subject to the labor certification requirement in
order to qualify for adjustment of status, the Service is not now estopped from
requiring him to present a labor certification in conjunction with his adjustment application since there is no evidence the Service was remiss in its actual
processing of his case and he was given all reasonable opportunity to qualify
for such relief both before and after the amendment of section 212(a) (14),
and he was, in fact, granted such relief but he now finds himself without that
status and ineligible for it as a result of his own actions.
ONARGE :
Order : Act of 1952—Section 241(a) (9) [9
1251(a) (9)3—Nonimmi•
grant—Failed to comply with conditions of status.
ON BEHALF or RESPONDENT
ON BETIALTI or 5n Brow
Donald L. Ungar, Esquire
Irving A. Appleman
Phelan, Simmons & Ungar
Appellate Trial Attorney
517 Washington Street
(Oral argument)
Ren Frnnelnee, Calif. 94111

StephenAL Sunln

(Oral argument)

Trial Attorney
(Brief submitted)

Deportability on the charge contained in the order to show cause
was conceded by respondent at the first hearing held in these proceedings and has never been in issue. Respondent appeals from the special
inquiry officer's decision of April 27, 1967, finding him to be subject
to the labor certification provisions of section 212(a) (14) and, because
he has not presented a labor certification, holding him statutorily
ineligible for adjustment under section 20. The prior grant of voluntary departure has been renewed by the special inquiry officer.
Respondent, a native of Tonga, applied for adjustment at a deportation hearing in February, 1964. Under existing State Department de371

Interim Decision #1770
terminations, Tonga was then considered a colony or dependency of
Great Britain located within the Asia-Pacific Triangle, and a person
born therein was statutorily chargeable to the Asia Pacific quota
(former section 202 (b) (3), Immigration and Nationality Act). There
were no nonpreference Asia-Pacific quota numbers available and respondent could not establish the quota availability necessary under
section 245. No appeal was taken from the special inquiry officer's
decision denying adjustment and granting voluntary departure.
On October 12, 1964, respondent moved to reopen the proceedings
on the ground that Tonga had been recognized by the Department of
State as a separate quota area. The special inquiry officer denied the
motion on November 19, 1964 and we dismissed the appeal on January 29, 1965 because, although Tonga had its separate (pinta, nonpreference numbers under that quota were available to persons with
a registration priority of January 1, 1961, which respondent did not
-

have.

On March 9, 1965, respondent and several other Tonganese moved
to reopen their cases because the quota for Tonga had become current. The Board granted the motion on March 23, 1965 and ordered the
hearings reopened, but even before the Board's decision, the Service
on March 15, 1965 had requested quota numbers of the Department of
State for respondent. and the other Tonganese applicants. Such quota
numbers were allocated for use during the month of May, 1965, but
were returned by the Service because they could not be used during
that month, since the cases had not yet been completely processed and
reopened hearings could' not be held during the month of May.
Respondent's reopened hearing was held on June 22, 1965, and his
application for section 245 adjustment was renewed. The special inquiry officer specifically asked the trial attorney whether the adjustment application had been completely processed, and the trial attorney answered that it had not been (Tr. p. 18). Both sides then entered
into the usual stipulation that documents in connection with that
processing might be made a part of the record, without a reopening
of the hearing, unless they contained adverse information, and the
hearing was closed.
In or about August, 1965, respondent moved from Hawaii to San
Francisco, California, and it was there that a reopened hearing was
held on January 13, 1966. Prior to the hearing, Public Law 89-236
had been enacted, containing the changes in section 212(a) (14) which
required the presentation of a labor certification by a nonpreference
immigrant coming to the United States to perform skilled or unskilled labor. Prior to the hearing, the Service had, by letter, suggested to counsel that respondent obtain a labor certification, and
372

Interim Decision. #1770
counsel, also by letter, had taken the position that respondent, who
was self-employed as a gardener, was not coining to the United States
for the purposes stated in section 212(a) (14) and did not require a

certification. At the hearing, both sides maintained the positions
initially taken, with the Service adding that the State Department
would not allocate a quota number unless advised by the Service that
the labor certification had been obtained, and counsel contending that
it would be required to issue a number if advised by the Service that
respondent was exempt from the certification requirement. The special inquiry officer then ruled that in the situation before him, it was
his function to make the decision as to whether a certification was
necessary (Tr. pp. 29-31), and the hearing proceeded, its focus being
the nature, size, scope, etc. of respondent's claimed business operation. At the close of the hearing, the special inquiry officer rendered
an oral decision, declaring the issue to be whether, under the terms
of section 212(a) (14), respondent required a certification from the
Secretary of Labor, and reasoning as follows :
• • • As I read the statute, the test is whether the nonexempt alien is seeking
to enter the U.S. to work, not the form of the legal entity under which he will
operate. If the alien's purpose in seeking admission is to perform skilled or unskilled labor, that is, to work, whether it be with band or mind, for self, for or
as part of a partnership, or for a corporation, he is within section 212(a) (14),
unless he is in one of the exempt classes.

Evaluating the testimony, he found that respondent's earnings derived principally from his own toil rather than his capitalinvestment,
that he therefore was coming to perform labor, and that he came
within the certification provisions. Not having presented a certification, respondent was found to be statutorily ineligible for adjustment,
and was granted voluntary departure in the exercise of discretion.
On appeal, counsel argued his contention that because respondent
was self-employed he did not come within the certification requirement, and he raised the claim that the Government was estopped from
requiring a labor certification of respondent because it had allegedly
failed to act with due diligence to arrange for a hearing On respondent's application in May, 1965, when it had a quota number .for him
and before the'llaw had been amended to require a lahor certification.
The appeal was dismissed on May 17, 1966, the Board being in substantial agreement with the special inquiry officer's finding that
respondent was closer to a day laborer than an independent contractor,
that there was virtually no investment in the business, and that a
certification was required. The estoppel contention was not readied.
Respondent moved for reconsideration on June 16, 1966, alleging
changed circumstances; he no longer performed the labor, having

373

Interim Decision #1770
hired an American citizen employee for that purpose, and the business had been enlarged to include the sale of nursery products, respondent's function being to purchase the nursery products and find
the customers for them. The estoppel contention was repeated. On
July 12, 1966, the case was reopened and remanded for consideration
of both issues. At the reopened hearing on September 21, 1966, on the
basis of the evidence presented, the special inquiry officer found that
respondent was not seeking to enter for the purpose of performing
skilled or unskilled labor, and did not require a labor certification;
all other aspects of eligibility having been established, the special
inquiry officer granted adjustment in the exercise of discretion upon
condition that a quota number be allocated to respondent by the
Department of State.
The Service appealed, urging that the special inquiry officer had
erred in finding a certification was not required, and further, that even
if eligibility had been established, respondent did not merit the favorable exercise of discretion. Counsel supported the special inquiry officer's finding as to the labor certification, urged again his estoppel
argument, and presented the further one that respondent was exempted
from the labor certification requirement under the newly enacted P.L.
89432 because his application for adjustment had been filed before
December 1, 1965. Oral argument was held on December 12, 1966, and
on February 10, 1967 the Board affirmed the special inquiry officer's
decision and dismissed the Government's appeal.
On March 13, 1967, the Service moved for reconsideration and reopening, presenting material to show that respondent's American citizen employee no longer worked for him, respondent no longer had
a business at the address given by him, respondent's business
telephone service had been discontinued in November, 1966, and
that respondent, as of December 12, 1966 (the date of oral argument)
had been working full time for Pan American Airways as a fleet
service man, loading and unloading cargo. In his reply brief, counsel
conceded the truth of these allegations, but argued that respondent
had already met the burden of showing he was not engaged in skilled
or unskilled labor at the time of his adjustment application and should
not be required to meet that burden again. By order dated April 17,
1967, we granted the Service motion and reopened proceedings, holding
that since the cessation of business was reasonably contemporaneous
with the hearing at which respondent had the burden of establishing
his good faith intention of carrying on such business and his ability to
do so, there was sound basis for reconsideration of his eligibility for
adjustment. We also held that Public Law 89432, by its terms, related
only to natives of Western Hemisphere countries who had filed appli-

374

Interim Decision #1770
cations for adjustment before December 1, 1965, citing Matter of Hoeft,
Int. Dec. No. 1723.
At the reopened hearing on April 27, 1967, no new evidence of respondent's eligibility for adjustment under section 245 was offered.
Counsel specifically withdrew the previous contention that respondent
did not require a labor certification because he had been self-employed.
Total reliance was placed upon the claim that the Government, under
the circumstances in this particular case, was estopped from requiring
a labor certification of respondent. Counsel stated for the record that
if the administrative decision should be unfavorable, it was intended
to take the case to court for judicial review on the estoppel question.
He asked for, and received, clarification on the record that in May of
1965 the Service had had a quota number for respondent. The bulk of

the hearing was then taken up with questioning of respondent by the
trial attorney on factors relevant to whether respondent merited the
favorable exercise of administrative discretion.
The decision now before us was rendered by the special inquiry officer at the close of the hearing on April 27, 1967. In it, he held that respondent was subject to the changed requirements of the law, amended

while his ease was pending (citing Patsis v. Immigration and Naturalization Service, 837 F. 2d 733 (8th Cir., 1964), cert. den. 860 U.S.
952 (1965), reh. den. 381 U.S. 921 (1965) ; and I? oti v. Immigration
and Naturalization Service, 332 F. 2d 424 (2d Cir., 1964), which relied
on Fos-ilia v. Eeperdy, 301 F. 2d 429 (2d Cir., 1982) ) , unless the estop-

pel contention was valid. He summarized the relevant facts surrounding the receipt and disposition of the quota number in May, 1965 and
the processing of respondent's application. He pointed out that all
quota numbers assigned for section 245 applications were required to
be used during a specified month, and must be returned to the State
Department if not used during that month; and although the Service
normally made every effort to schedule a hearing during the specified
month it might on occasion, despite diligent efforts, become necessary
to return a quota number to the State Department. He discussed and
rejected counsel's contention that the Service should have advised
counsel of the arrival of the quota number and was remiss for not doing
so. He stated:
* * * Assuming that counsel for the respondent had intended to arrange for

the respondent to come to the mainland for h hearing in May 1965 had be been
informed of the assignment of a quota number for the respondent's use during
May, it is unreasonable in the light of Service practice, counsel's familiarity
therewith, and his silence to have expected the Honolulu office to have divined
his unmentioned intention and sua spode to have informed him the respondent's
ease was ready for hearing and that a quota number had been assigned for use
in Hay, but that hearing could not be held In Hawaii that month, to give counsel
375

Interim Decision #1770
an opportunity to arrange for a hearing outside the Hawaii district • • •
(Decision, p. 8.)

He found nothing in the conduct of the case to warrant an estoppel
and held that since respondent required a labor certification and had
not presented one, he was ineligible for adjustment of status under
section 245. Voluntary departure was granted.
Estoppel is closely related to fraud (ef. p. 80, Handbook on the
Principle.? of Equity, Henry L. McClintock, Second Edition,
Hornbook Series, 1948).
• * * The vital principal is, that be who, by his language or conduct, leads
another to do what he would not otherwise have done, shall not subject such
person to loss or injury by disappointing the expectations upon which he acted.
Such a change of position is sternly forbidden. It involves fraud and falsehood.
and the law abhors both. * * * Dickerson 1. Colgrove, 100 U.S. 578, at p. 580.

Here, search as we may, we can find nothing in the record to indicate
Service, by its language or conduct, led respondent to any
course of action which he would not otherwise have taken, or led him
to change his situation in any way, whether to his detriment or otherwise. Counsel is apparently urging, as the mainstay of his estoppel
claim, that the Service was remiss in failing to advise him that it had
a, quota number available in May, 1965 and that it would not be able
to hold a hearing on respondent's application in Hawaii in May. But
silence of itself will not raise an estoppel.
* * * TO constitute an estoppel by silence there must be something more than
that the

an opportunity to speak. There must be an obligation. * * * Wiser v. Lawler,
189 US. 250. at p. 270.

The record is bare of any showing that it is incumbent upon the Service to advise an applicant or his counsel of the receipt of a quota number allocated for the use of that applicant, or to advise him that it will
not be able to schedule his hearing at a particular time.
There is nothing in the file, and counsel alleges nothing, which would
justify the estoppel counsel seeks? What appears is that the Service,
acting with perhaps excessive diligence, obtained a quota number for
respondent prematurely, before it had reached the point in the processing and hearing of his case at which the quota number could be
used; realizing this, it returned the quota number at a time when
neither it, respondent, counsel, nor the State Department could say
with any certainty that another number would not be available when
1 Whether the doctrine of estoppel may be raised against the united Stakes is
not entirely clear. See Sims Motor Transport Lines, Inc v. United States, et al.,
9 Ad. L. 2d 931 (N.D. D1.4959) ; Mannerfrid v. Brownell, 145 F. Supp. 55; Cole v.
Railroad Retirement Board, 289 F. 2d 65, etc. ; 31 Corpus Juris Secundum 291,
675; etc.

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Interim Decision #1770

procegsing was completed, or had any idea that the Immigration
and Nationality Act would be amended to require° a labor certification of respondent when a quota number again became available. Counsel's allegations now as to what he would have done then if he had
known the Service had the quota number for use during the month of
the

May, 1985, come within the category of hindsight.

The cases cited by counsel are clearly distinguishable from the instant case. In McLeod v. Peterson, 283 F. 2d 180, the alien was given
incorrect advice by a Service officer as to his eligibility for suspension
of deportation, and was assured that his wife would be assisted by the
Service in petitioning for preference quota status for him so that he
could return from abroad with a visa. In reliance on the statement
and assurances, respondent forbore to appeal and left the United

States, thereby breaking the continuity of his physical presence here.
This action was clearly to his damage, because the Service took no action on its promise to assist his wife with the preference petition and
she died without filing a Petition; respondent then found himself out-

side of the United States without anyone who could petition for preference status for him, with a United States citizen child of tender years
dependent upon him for support, and with no prospect for a visa,. He
reentered the United States without a visa and during deportation proceedings applied for suspension of deportation. It was denied to him
upon the ground that because of his departure, he had broken the continuity of his physical presence and thus could not show the seven
years of continuous presence necessary for statutory eligibility. The
Court there held that a fundamental error had been committed by the

Government in (the information it had given to respondent; respondent
had been induced to leave the United States on the basis of that information; to permit the Government to assert the departure which it
had induced es an obstacle to the relief which respondent had applied
for before his departure and for which he had then been eligible would
result in a gross miscarriage of justice. It went on to rule that the
continuity of the alien's residence had not been broken by the absence
thus brought about. (No mention of estoppel was made, although many
of the elements were present; instead, the court acted 'to prevent a
gross miscarriage of justice.)
The second case, Tejeda v. Immigration. and Naturalization Service, 346 F.2d 389, involved the claim by an alien that he had been

given demonstrably erroneous information by an American Government official and that because of his reliance thereon, he was prevented

from obtaining the necessary documentation to return to the United
States on a nonquota visa during the period when such admission was
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Interim Decision #1770
possible, thereby changing his situation to his damage. The Court,
finding respondent had definitely been qualified for such a nonquota
visa, and relying on the reasoning of McLeod, supra, and Moser V.
United States, 341 'U.S. 41, remanded the case for further exploration
of the facts, stating:
• va, hold that petitioner would be eligible for relief under at least one
set of findings, viz., if it is shown that he was actually and reasonably misled
by the affirmative acts and misstatements of the American Oonsni. To bold to the
contrary if this is in fact what transpired, and deny any form of relief from the
order of deportation, would result in the punishment of a poorly-educated alien
for his reliance on the advice of a presumptively well-informed official of the
United States Government. This we would deem improper.
The two other cases referred to by counsel, Petition of T =lidos, 155
F. Supp. 427, and Application of Martini, 184 F. Supp. 895, both involved naturalization under special eligibility provisions, which peti-

tioners had met at the time when their applications were filed. In each
instance, the provisions had a statutory limitation on their period

of effeetivenes, and the date of expiration was specifically set by the
statute. In each case there was indication that the Service had not
proceeded with due diligence to fulfill its responsibility in processing
these cases after a timely filing of the applications. On a showing of
the above facts, the court in each case held that the applicant's rights
had been preserved by a timely filing of his application.
In the case before us, even assuming arguendo that counsel's statement is correct and respondent's application had been completely processed by the time the quota number was allocated (but see Tr. p. 18,
and the trial attorney's statement, on June 22, 1965, that as of that date
the file had not been completely processed) there was no indication.
whatever of any deadline for any phase of eligibility. The adjustment
section is a continuing provision of the Immigration and Nationality
Act; respondent had a registration priority date on the Tonga nonpreference quota two years earlier than the date of the quota number
allocation (see counsel's statement at Tr. p. 96, about anticipated
quota availability) ; and only a clairvoyant could have known that
the law -would be changed four or five months later to require a labor
certification. There was no reason to think of having a special inquiry
officer make a special trip from the Mainland to hear respondent's
case, or to suggest to counsel that he might wish to have respondent
take a trip to the Mainland for a hearing there. There is no showing
that other than normal processing of the case was indicated, and no
showing that the Service was in any way remiss in its actual processing of the case.
To warrant an estoppel, the fact situation must be a glaring and
obvious one in which, to permit the party against whom estoppel is

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Interim Decision #1770
sought to assert as a bar the position that it has induced the claimant
to assume would be to countenance a gross miscarriage of justice. This
is hardly the picture before us. Respondent was given all reasonable
opportunity to qualify for adjustment, both before and after the
changes in section 212(a) (14), and in fact was granted an adjustment
of status by the special inquiry officer. That he now finds himself without that status and ineligible for it Is due to his own actions and not
to those of the Service.
We hold, as did the special inquiry officer, that the estoppel claim,
is without sound basis. The elements necessary for estoppel are not
present. In addition, there has been no miscarriage of justice, gross
or otherwise; there has been no showing that the Service was remiss
in any duty it may have had to this applicant. On the contrary, the

respondent has been permitted to remain in the United States for
more than four years to await the outcome of the various phases of
these proceedings; he has been accorded every opportunity to establish eligibility for adjustment of status; and when he was finally able
to establish such eligibility and was granted adjustment, that grant
was upheld by this Board until evidence was presented to show that
respondent himself had undercut the basis on which he had estab-

lished eligibility.

The special inquiry officer's decision is a correct one, proper and
just in the circumstances, and it will be sustained.
ORDER: It is ordered that the appeal herein be and the same is
hereby dismiesed.

821-661-49-28

379


Interim Decision #2053

MATTER OF BOCRIS
In Visa Petition Proceedings
NYC—N-29669
Decided by Regional Commissioner June 26, 1970
An alien beneficiary who, immediately preceding the filing of the visa petition, has been employed for more than one year abroad as an executive of
the petitioner's French affiliate, and whose transfer to the United States
is being sought for employment as an executive on a temporary basis, is
eligible for classification as a nonimmigrant intra-company transferee
under section 101 (a) (15) (L) of the Immigration and Nationality Act, as
amended, notwithstanding he is the beneficiary of an approved sixth preference visa petition.
ON BEHALF OF PETITIONER: Elmer Fried, Esquire
515 Madison Avenue
New York, New York 10022

This matter is before the Regional Commissioner on appeal
from the denial of the petition to classify the beneficiary
as a nonimmigrant intra-company transferee under section
101 (a) (15) (L) of the Immigration and Nationality Act, as
amended. Although oral argument was requested in this case, in
view of the decision which follows, the grant of such privilege
will not be necessary.
The petitioning firm, which is engaged in worldwide marketing
and manufacture of consumer and industrial products, seeks to
transfer the beneficiary to its New York office to assume the position of Manager of Marketing for Far Eastern Operations. In
such capacity, he will be responsible for the profitable operation
of the concern's marketing organizations in approximately ten
foreign countries. The petition reflects that the position is permanent and pays $385 per 35-hour-week. The alien is a 41-year-old
native and citizen of France who presently resides in that country. He has been employed by the petitioner's affiliate concern in
France since October 1, 1951 and is currently the Regional Marketing Manager for the company's Industrial Products Group. He
is the beneficiary of an approved visa petition filed by the petitioning concern on February 18, 1970 to accord him preference

601

Interim Decision #2053
immigrant status as a marketing executive under section
203 (a) (6) of the Act, as amended.
The District Director denied the instant petition on the ground
that the petitioning firm seeks the services of the beneficiary on a
permanent basis and, therefore, the latter cannot be regarded as
coming to the United States temporarily for the purpose of classification under section 101(a) (15) (L) of the Act. On appeal, the
petitioner has asserted in pertinent part :
In Item No. 7 on our petition form, we put in the word "permanent" as the
'period required to completed services or training" • This was done, actually,
to conform the "L" petition to the 6th preference petition previously submit:ed by us (File No. A18 699 173). Ironically, we had originally filed a 6th
preference petition for Mr. Bocris only because under the law existing at
,hat time there was no "L" petition; and we had been informed that even
;hough Mr. Bocris might not be coming to fill our position permanently, the
aw required us to proceed via 6th preference petition, since the position itelf was not of a "temporary" nature (and thus did not come within Section
01(a) (15) (H) of the Immigration and Nationality Act). Our firm structure
s, in fact, a somewhat mobile one with respect to talented managerial and
xecutive employees, and it would surprise us if Mr. Bocris were still after
our years only the Manager of Marketing for our Far Eastern operations.

The petitioner has further stated that the alien's previous expeience has been national, rather than international in scope; that
e is being brought to the United States for orientation with
?gard to the firm's international operations, particularly their
ar Eastern market; that it is anticipated such orientation proram would take approximately six months.
The entire record in this case has been very carefully consid'ed in the light of the representations made on appeal. Section
11 (a) (15) of the Immigration and Nationality Act, as amended
Public Law 91-225 dated April 7, 1970, provides in part for
e following additional nonimmigrant category:
(L) an alien who, immediately preceding the time of his application for
mission into the United States, has been employed continuously for one
it by a firm or corporation or other legal entity or an affiliate or subsidi7 thereof and who seeks to enter the United States temporarily in order
continue to render his services to the same employer or a subsidiary or
]fate thereof in a capacity that is managerial, executive, or involves spelized knowledge, and the alien spouse and minor children of any such
m if accompanying him or following to join him.

The legislative history of such amendment discloses that the
)ve provision was intended to help eliminate problems faced by
lerican companies having offices abroad in transferring key
•sonnel freely within the organization; that, previously, inter;ional executives coming for temporary assignments have been

602

Interim Decision #2053
forced to apply for immigrant visas and qualify as permanent
resident aliens ; that the class of persons eligible for such nonimmigrant visas has been narrowly drawn and it is anticipated that
their number will not be very large; that the stay under an "L"
visa should not exceed three years, although bona fide requests
for extension beyond such time as well as applications for adjustment for permanent residence would be considered. (House
Report (Committee on the Judiciary), No. 91-351, February 24,
1970 (To accompany S.2593) ).
In the matter at hand, it has been satisfactorily established
that the beneficiary immediately preceding the filing of this petition has been employed for more than one year abroad as an
executive of the petitioner's French affiliate, whose transfer to
the United States is being sought, for employment as an executive,
on a temporary basis. We find, therefore, that he meets the
requirements for classification as an intra-company transferee
under section 101 (a) (15) (L) of the Immigration and Nationality
Act, as amended. Accordingly, this appeal will be sustained.
It is ordered that the decision of the District Director be
reversed and that the petition be approved.

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Cite as 27 I&N Dec. 482 (BIA 2018)

Interim Decision #3944

Matter of J-R-G-P-, Respondent
Decided October 31, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where the evidence regarding an 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), plausibly establishes that abusive or squalid conditions in
pretrial detention facilities, prisons, or mental health institutions in the country of removal
are the result of neglect, a lack of resources, or insufficient training and education, rather
than a specific intent to cause severe pain and suffering, an Immigration Judge’s finding
that the applicant did not establish a sufficient likelihood that he or she will experience
“torture” in these settings is not clearly erroneous.
FOR RESPONDENT: Munmeeth K. Soni, Esquire, Los Angeles, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: James T. Dehn, Associate
Legal Advisor
BEFORE: Board Panel: GREER and WENDTLAND, Board Members; CROSSETT,
Temporary Board Member
GREER, Board Member:

In a decision dated November 27, 2017, an Immigration Judge denied the
respondent’s application for deferral of removal pursuant to the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res.
39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
(1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988)
(“Convention Against Torture”). The respondent has appealed from that
decision. The appeal will be dismissed. 1

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United
States without inspection at an unknown time and place. The Department of
1

We acknowledge and appreciate the thoughtful arguments submitted on appeal by the
parties and amici curiae.

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Cite as 27 I&N Dec. 482 (BIA 2018)

Interim Decision #3944

Homeland Security (“DHS”) initiated removal proceedings, in which the
respondent requested protection from removal in the form of deferral of
removal under the Convention Against Torture. The respondent did not
claim that he had experienced past torture in Mexico. Instead, he asserted
that given his mental health issues, he will be arrested and either imprisoned
or committed to a mental health facility in Mexico, where law enforcement
officials or mental health workers will subject him to harm rising to the level
of torture. The Immigration Judge denied the respondent’s application and
ordered him removed from the United States.
On April 12, 2017, we held that in light of the respondent’s limited ability
to testify and assist counsel in his case, there was good cause to remand
the record and continue the proceedings to allow his attorney to further
develop the record. We also found clear error in the Immigration Judge’s
determination that the respondent’s symptoms were not always readily
apparent to others and that he had not shown a likelihood that he would come
to the attention of authorities if he were returned to Mexico. More precisely,
based on the respondent’s mental health diagnoses, his behavior in court, his
involuntary hospitalizations in the United States, and his interactions with
the criminal justice system in this country, we concluded that it was more
likely than not that his mental health symptoms would be evident in Mexico.
On remand, the Immigration Judge found that there is a likelihood that
the respondent will be arrested and imprisoned and that it is more likely than
not that he will be involuntarily committed to a mental health facility in
Mexico. However, she again determined that he had not established that it
is more likely than not that he will be “tortured” in Mexico, finding that there
was insufficient evidence to show that Mexican authorities would have the
specific intent to harm him in a penal or psychiatric institution. She therefore
concluded that he had not met his burden to prove his eligibility for
protection under the Convention Against Torture.
The DHS does not challenge the Immigration Judge’s finding that there
is a sufficient likelihood that the respondent will come to the attention of
Mexican authorities based on his mental health issues and that he will be
arrested, imprisoned, or involuntarily committed to a mental health facility
in Mexico. The sole issue on appeal, therefore, is whether the respondent
has shown that it is more likely than not that he will be “tortured” in pretrial
detention, prison, or a mental health facility. 2
2

The respondent argues on appeal that the Immigration Judge did not consider whether
he would be tortured in a homeless shelter in Mexico. However, he did not meaningfully
advance this basis for protection under the Convention Against Torture before the
Immigration Judge. See, e.g., Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190 (BIA
2018) (declining to consider, for the first time on appeal, a basis for protection from
removal that was not meaningfully advanced before the Immigration Judge).

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Interim Decision #3944

An Immigration Judge’s findings regarding the specific intent of
individuals who may harm an applicant for protection under the Convention
Against Torture in the country of removal, as well as what may or may not
happen to the applicant in that country in the future, are findings of fact that
we review for clear error. See Matter of Z-Z-O-, 26 I&N Dec. 586, 590
(BIA 2015); Matter of D-R-, 25 I&N Dec. 445, 453 (BIA 2011), remanded
on other grounds, Radojkovic v. Holder, 599 F. App’x 646, 648 (9th Cir.
2015).

II. ANALYSIS
To qualify for deferral of removal under the Convention Against Torture,
the respondent must prove that “it is more likely than not that he [will] be
tortured” if he is arrested and put in prison or in a mental health facility in
Mexico. Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015)
(quoting 8 C.F.R. § 1208.16(c)(2) (2015)). Claims under the Convention
Against Torture “must be considered in terms of the aggregate risk of torture
from all sources, and not as separate, divisible . . . claims.” Id. However, to
meet his burden, the respondent must show that each link in a “hypothetical
chain of events is more likely than not to happen.” Matter of J-F-F-, 23 I&N
Dec. 912, 917 (A.G. 2006); see also Haile v. Holder, 658 F.3d 1122, 1131
n.9 (9th Cir. 2011).
A. Specific Intent To Inflict Torture
For an act to constitute “torture” it must be “specifically intended to
inflict severe physical or mental pain or suffering.” 8 C.F.R. § 1208.18(a)(5)
(2018). 3 As we stated in Matter of J-E-, 23 I&N Dec. 291, 299, 301 (BIA
2002), “torture” does not cover “negligent acts” or harm stemming from a
lack of resources. We held there that detention under substandard conditions
in Haitian prisons would not constitute “torture” within the meaning of the
Convention Against Torture because “there is no evidence that [Haitian
authorities] are intentionally and deliberately creating and maintaining such
prison conditions in order to inflict torture.” Id. at 301 (emphases added).
Rather, the record in that case established “that Haitian prison conditions are
the result of budgetary and management problems as well as the country’s
severe economic difficulties.” Id.

3
This regulation is consistent with the resolution of the United States Senate ratifying the
Convention Against Torture, which provides: “[T]he United States understands that, in
order to constitute torture, an act must be specifically intended to inflict severe physical or
mental pain or suffering . . . .” 136 Cong. Rec. 36,198 (1990) (emphasis added).

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Interim Decision #3944

A majority of the circuit courts have deferred to the interpretation we
articulated in Matter of J-E- regarding the specific intent requirement of the
Convention Against Torture. See, e.g., Oxygene v. Lynch, 813 F.3d 541, 550
(4th Cir. 2016) (collecting cases). For instance, in Villegas v. Mukasey,
523 F.3d 984, 989 (9th Cir. 2008), the United States Court of Appeals for
the Ninth Circuit, in whose jurisdiction this case arises, held that “to establish
a likelihood of torture for purposes of the [Convention Against Torture],
[an alien] must show that severe pain or suffering was specifically intended—
that is, that the actor intend the actual consequences of his conduct, as
distinguished from the act that causes these consequences.” (Emphases
added.)
In that case, the court considered a question similar to the one at issue
here—namely, whether housing mental patients in the “terrible squalor” of a
Mexican mental health facility would amount to “torture.” Id. It concluded
that even though the conditions in those facilities were “deplorable,” they
were not the result of a specific intent on the part of the Mexican Government
to cause severe pain or suffering. Noting the Government’s efforts to
alleviate the situation, the Ninth Circuit stated that “the evidence of a
desire to improve confirms the conclusion that, currently, the conditions in
the Mexican mental health system exist not out of a deliberate intent to
inflict harm, but merely because of officials’ historical gross negligence
and misunderstanding of the nature of psychiatric illness.” Id. The court
therefore concluded that subjecting patients to the poor conditions in
Mexico’s mental health facilities was not “torture” within the meaning of the
Convention Against Torture.
In Chavarin v. Sessions, 690 F. App’x 924, 926 (9th Cir. 2017), the Ninth
Circuit reaffirmed its holding in Villegas. The court rejected the applicant’s
assertion that the Mexican Government’s failure to meaningfully improve
poor conditions in mental health facilities “has transformed what was mere
negligence into a specific intent to cause severe pain and suffering.” Id.
Recognizing a report finding that “progress has been made,” the Ninth
Circuit stated that this “defeats any notion that the Mexican government
intends to cause severe pain and suffering, and substantial evidence thus
supports the finding that there is no such intent.” Id. (emphasis added). It
therefore upheld our determination that the applicant had not shown a
sufficient likelihood that the Government would torture him.
We likewise conclude that where the evidence regarding an application
for protection under the Convention Against Torture plausibly establishes
that abusive or squalid conditions in pretrial detention facilities, prisons, or
mental health institutions in the country of removal are the result of neglect,
a lack of resources, or insufficient training and education, rather than a
specific intent to cause severe pain and suffering, an Immigration Judge’s
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Cite as 27 I&N Dec. 482 (BIA 2018)

Interim Decision #3944

finding that the applicant did not establish a sufficient likelihood that he
or she will experience “torture” in these settings is not clearly erroneous.
See Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) (stating that under review
for clear error, a “finding that is ‘plausible’ in light of the full record—even
if another is equally or more so—must govern”); Matter of D-R-, 25 I&N
Dec. at 453–55 (holding that an Immigration Judge’s choice between two
plausible alternative interpretations of the record is not clearly erroneous).
B. Respondent’s Application
The Immigration Judge found that any extreme pain and suffering the
respondent may experience as an arrestee, in prison, or in a mental health
facility in Mexico will more likely than not result from a lack of resources,
training, education, or negligence—rather than acts specifically intended to
inflict severe pain or suffering upon the respondent. There is no clear error
in that finding of fact. Accordingly, we will uphold the Immigration Judge’s
determination that the respondent has not shown that he is eligible for
protection under the Convention Against Torture.
First, the Immigration Judge properly found that it is not more likely than
not that the respondent will be tortured in either police custody or prison in
Mexico. The Immigration Judge did not clearly err when she found that
the record does not establish that Mexican police are targeting mentally
incompetent individuals in that country for arrest and incarceration. Further,
while the record indicates that detainees and prisoners with mental health
issues often do not receive necessary medications and medical attention, it
reflects that such appalling conditions result from a lack of resources and
training to provide adequate medical and psychological care, rather than a
specific intent to deprive detainees and prisoners of treatment.
Moreover, although the record indicates that some detainees and
prisoners in Mexico have experienced physical abuse at the hands of
officials, it is the respondent’s burden to show that it is more likely than not
that he will be subjected to this abuse and that this harm will rise to the level
of torture. See Matter of J-F-F-, 23 I&N Dec. at 917. The record includes
evidence that the Mexican Government has created additional pretrial
detention facilities to reduce overcrowding, devoted more resources to
training prison officials, instituted an ombudsman to oversee conditions in
Mexico’s prisons, and made other efforts to bring its prisons in line with
international standards.
We will likewise affirm the Immigration Judge’s finding that it is not
more likely than not that the respondent will be tortured by health care
workers in a Mexican mental health facility. As with the conditions in
pretrial detention facilities and prisons in Mexico, the record reflects that the
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Interim Decision #3944

conditions in that country’s mental institutions are the result of limited
options for controlling patients’ violent behavior and a lack of resources and
training—not a specific intent to inflict pain or suffering on patients. See
Villegas, 523 F.3d at 989. Moreover, although the record establishes that
some individuals committed to mental health facilities have experienced
abuse, the respondent has not shown that such abuse is so common that it is
more likely than not that he will personally experience it.
We recognize the testimony of the respondent’s expert witness, which
highlights instances where the Mexican Government has failed to take action
to improve impoverished conditions or correct abusive conduct in some
mental health facilities. However, the record reflects the Government’s
continued efforts to increase access to psychiatric care, emphasize the
importance of community-based treatment options for individuals with
mental health issues, and form commissions tasked with recommending
improvements to that country’s mental health facilities. Significantly, the
respondent’s expert witness worked for two of these commissions, reporting
his observations of mental health facilities and recommending reforms
based on his observations. This evidence supports the Immigration Judge’s
finding that the respondent has not shown a sufficient likelihood that
Mexican health workers, with the acquiescence of a Government official,
would have the specific intent to torture him. Villegas, 523 F.3d at 989;
Chavarin, 690 F. App’x at 926; Matter of J-E-, 23 I&N Dec. at 301.
The evidence of record indicates that the substandard conditions in
mental health facilities, pretrial detention, and prisons in Mexico are the
result of neglect, lack of resources, or insufficient training and education. In
light of this evidence, and recognizing the Mexican Government’s efforts to
improve those conditions, we will uphold the Immigration Judge’s finding
that the respondent has not shown that it is more likely than not that he will
experience acts of torture specifically intended to inflict severe physical or
mental pain or suffering on him by or at the instigation of, or with the consent
or acquiescence of, a Mexican public official or an individual acting in an
official capacity. See 8 C.F.R. § 1208.18(a)(1). Accordingly, because the
respondent has not established that he is eligible for protection under the
Convention Against Torture, his appeal will be dismissed.
ORDER: The appeal is dismissed.

487


Interim Decision #2781

MATTER OF KONDO
In Rescission Proceedings
A-19855118
Decided by Board February 20, 1980

(1) A marriage legally valid but "factually dead" (nonviable) at the time of the adjustment of status cannot be the basis.for rescission for cases arising in the Ninth Circuit.
Dabaghiatt v. INS, 607 F2d 868 (9 Cir. 1979) followed. Matter of Si:4(41518W Dec. 572

(BIA 1976) no longer applied in that circuit.
ON Harr u' or Rrarosniuvr.
William F. Thompson, III Esquire
925 Bethel Street
Suite 205
,

ON Btatate us SERVICE:
Gary Y. Fujiwara, Esquire
Trial Attorney

Honolulu, Hawaii 96810

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

The respondent through his counsel moves the Board to reconsider
our decision of August 1, 1978, where we dismissed his appeal ruling
that respondent's adjustment of status to that of a lawful permanent
resident must be rescinded pursuant to section 246 of the Immigration
and Nationality Act, 8 U.S.C. 1256, since it was based upon a marriage
that was nonviable at the time of his adjustment. In reaching that
result, we relied upon our precedent decision of Matter of Sosa,15 MN
Dec. 572 (BIA 1976). The pertinent facts in the instant matter we fully
stated in our previous opinion and need not be repeated here. For the
reasons stated below, the motion will be granted and rescission
proceedings terminated.
Recently, the United States Court of Appeals for the Ninth Circuit,
the circuit in which the instant case arose, has held that a marriage
legally valid but "factually dead" (nonviable) at the time of the adjustment of status cannot be the basis for rescission. Dabaghian v. INS,
607 F.2d 868 (9 Cir. 1979). We find that case controlling here and must
follow its holding in the Ninth Circuit. In that respect, Sosa, is no
longer applicable law in the Ninth Circuit on this issue. Furthermore,
there is nothing in the record to support a finding that respondent's
330

Interim Decision #2781
marriage was a sham or fraudulent from its inception.

ORDERI The motion is granted and the rescission proceedings are
terminated.

331


MATTEn or C C Y

In DEPORTATION Proceedings
A-10436785

Decided by Board February 28,1961
Fair hearing—Deportation proceedings—Defects in original hearing cured by
valid reopened hearing—Privilege against self-incrimination waived 1 ...y voluntary pre-hearing statement—Validity of warrant of arrest unaffected by
withdrawal of deportation order and reopening of proceedings.
(1) Defects in original deportation hearing in 1954 which may have arisen
from failure to inform respondent of right to counsel and to provide an interpreter were cured when the proceedings were reopened in 1959 and the
respondent was accorded a further hearing satisfying the requirements of
due process.
(2) Respondent is not entitled to invoke the privilege against self-incrimination in respect to pre-hearing statement which was voluntarily given to
Service investigating officer; such statement was admissible in evidence at
the deportation hearing, although the special inquiry officer excluded It from
the record.
(3) The warrant of arrest which initiated the deportation action in 1954 remained effective as authority for respondent's detention, despite withdrawal
in 1959 of the original order of deportation and subsequent reopening of
the proceedings. See 309 F.2d 857 (1962).
CH.MIGE :

U.S.C. 1251(a) (11)] —Convicted of law relating to illicit traffic in narcotic drugs: Title
26, U.S.C., sections 2553 and 2557 (unlawful sale of heroin);
and Title 21, U.S.C., section 174 (unlawful concealment of
heroin).

Warrant : Act of 1052 Section 241 (a ) (11) [8

BEFORE THE BOARD

DISCUSSION: Tn our decision of <Tune 14, 1960, in this-matter,
we briefly stated the facts relating to respondent's appeal and the
basic contentions of counsel. We ordered the record reopened for
the admission of certain evidence. The reopened hearing was held
and the special inquiry officer, on the basis of the entire record,
adopted the decision and order of the special inquiry officer dated
December 7, 1959. Respondent again appeals to the Board.
Respondent is married, male, widowed, a Chinese alien, 78 yearS
of age, who originally entered the United States on September 8,
225
654377-63-1e

1906, as a merchant's son. He has resided in the United States
continuously since that entry, with two trips to China. Respondent's immigration and entry documents, protested as inadmissible by
counsel, establish that he last entered the United States at San
Francisco, California, on July 28, 1926. The special inquiry officer
found respondent deportable on the charge stated in the warrant of
arrest and ordered his deportation to China.
The hearing under the warrant charge began on September 15,
1954, at the United States Penitentiary, McNeil Island, Washington,
after which the special inquiry officer ordered respondent's deportation. Respondent was not represented by counsel and filed no appeal
from the special inquiry officer's order. Therefore, the record was
not transcribed. Shortly before his scheduled release from that
institution, counsel appeared and asked to see a record of respondent's hearing. The record was transcribed on August 19, 1959,
after which the examining officer recommended that the hearing be
reopened because of errors in procedure. The examining officer's
motion of August 20, 1959, stated that the record of the first hearing
did not indicate that at the time of hearing the respondent was
informed of his right to counsel, nor was he asked any questions
with regard to his ability to understand the English language.
On the same day, August 20, 1959, the special inquiry officer, stating that the procedural defects reached the question of essential
fairness, granted the motion for reopening.
Counsel appeals on the ground that the motion of the examining
officer and the order of the special inquiry officer granting the reopening do not comply with the requirements of Title 8, Code of
Federal Regulations, section 11 (now section 103.5)? The objection
is not well taken for two reasons. First, counsel has repeatedly
requested a "fair hearing" and "due process," which the order to
reopen was designed to guarantee. Respondent had no cause to
oppose the reopening which was designed to benefit him. He suffered no damage from the fact that the motion and order were
served on the same date. Counsel was granted several delays and
postponements thereafter. Second, if counsel had desired to oppose
the reopening, he had an opportunity to do so when the hearing
was reconvened at Seattle, Washington, on September 1, 1959. He
did not oppose the reopening and, in fact, stated, "As I understand
it, the warrant of arrest which was served on the respondent was
served prior to the time that orders to show cause were used, and
for that reason we would like at this time to consent on behalf of
the respondent to proceed under the current regulations." Counsel's
only request at that time was that the reopened hearing be not eon1 8 CFR 103.5 provides: The party opposing the motion shall have 10 days
from the date of service thereof within which he may submit a brief.

226

fined to what happened at the first (1954) hearing, and to this
request the, special inquiry officer assented. Counsel again consented
to continue with the hearing when he stated that he waived any
-further explanation through the interpreter of respondent's rights,
inasmuch as they had advised him of rights. Counsel further waived
- the reading and explaining to respondent of the warrant of arrest,
in that it also had been explained to him through the interpreter.
Not having objected to the reopening on September 1, 1959, as a
"party opposing the motion" and having consented to proceeding
with the hearings, counsel cannot now raise the issue on appeal.
Counsel appeals on the ground that the hearing of September 18,
1954, and all proceedings thereunder are invalid. Counsel points
-again to the fact that the Immigration Service did not provide an
interpreter at the first hearing (1954), and that the record does
not show the special inquiry officer advised appellant of his right
to counsel. The warrant of arrest states, "The alien was then in
formed as to cause of arrest, the conditions of release, advised as
to right of counsel and furnished with a copy of this warrant"
(emphasis supplied), and it is signed by the investigator who served
the warrant on respondent on August 18, 1954. However, the
hearing was reopened twice, once by the Service and once by.us, and
the evidence taken in the first hearing was ignored by • the special
inquiry officer and all documentary evidence introduced there has
been reintroduced, over objections of counsel.
Counsel appeals on the ground that the warrant of arrest was
not served upon the warden of the penitentiary. The warrant of
arrest shows service upon respondent and the record will not necessarily indicate service upon the warden. Service upon the warden
is for the convenience of the Immigration Service, to alert the
warden to the interest of the Immigration Service in the case, and
to assure that the prisoner will be turned over to the Service upon
release from the institution. Respondent is not "incompetent" to
understand the nature of the proceedings against him in the sense
that mentally deficient or insane persons are considered to be incompetent and in 'need of protection. The warrant shows service
upon respondent, and respondent's rights were protected, at least
from September 1, 1959, through the present time.
Counsel appeals on the ground that .respnndent was illegally

detained throughout the hearings of September 1, and September 16,
1959, under 8 CFR 242.3 (b). 2 Counsel states that there was no
valid order of deportation outstanding at the time of appellant's
release from the United states Penitentiary, for "the existing order
8 CFR 242.3(b) provides: An alien confined in an institution or hospital
not he aeoppted into physical custody by the Service until an order of
deportation has been made and the Service is ready to deport the alien.
011111

227

had been vacated by the order of August. 19, 1959, reopening the
hearing." The validity of the detention sterns from the warrant of
arrest, as we point out below.
Counsel appeals on the ground that the alien was illegally detained, in that• the warrant of arrest had terminated insofar as the
Service was concerned by the issuance of the order of deportation

of September 16, 1954, and that the Service could not restore validity
to the warrant simply by withdrawing the order of deportation and
ordering proceedIngs reopened. Counsel overlooks the fact that the
United States District Court for the Western District of Washington, Northern Division, 0.71. counsel's appeal stated, "As to the
illegality of detention, it is my opinion that under the provisions of
section 242(a) of the Immigration and Nationality Act of 1952,

the warrant of arrest remains effective as authority for petitioner's
detention even though the original order of deport- tion has been set
aside and proceedings reopened" (United States ex rel. Chung
Young Chew v. Royd, District Director, Immigration, and Naturalization Service, unreported, Civ. No. 4912 (N.D. Wash., September 28,

1959) ). A copy of this decision is in the record. Therefore, the
detention was lawful, found the court, even though there was
"an abuse of discretion by the Attorney General in refusing to
admit petitioner to reasonable bail pending the completion of deportation proceedings_" There has been no move at any time precipitately to deport respondent. All procedures since the reopening
on August 20, 1959, have been in his behalf and to assure him a
fair hearing. 8 CFR 242.2 (b) authorizes the District Director to
detain an alien or to continue his custody.
Counsel appeals on the ground that there is an "insufficiency of
evidence to support the findings of fact." He has protested admission in evidence of the records of the Immigration and Naturalization Service, the records of the Federal Penitentiary at McNeil
Island, and exhibit 2, copy of the judgment, sentence and record of
respondent's conviction (United States v. Chung Young Chew, Civ.
No. 34041 (N.D. Calif., May 20, 1954)). This exhibit was made part
of the record in the original hearing on September 15, 1954. We
believed that this necessary and pertinent document, by oversight,
had not finally been made a part of the record at the time of the
reopened hearing in September 1959. This record was identified
by Mrs. C—C—, the Camp Records Control Clerk, Federal Prison
Camp, McNeil Island, who was the proper custodian of respondent's
records. However, the record of hearing shows that exhibit 2 was
handed to counsel at his request for his examination, and the special
inquiry officer did not thereafter return to the matter of putting exhibit 2 in the record. It was made a part of the record on July 26,
1960.
228

Counsel appeals on the ground that exhibit. 2 and other exhibits
offered herein, do not comply with Rule 44 of the Federal Rules
of Civil Procedure. 3 The. Service stands upon the ground that an
administrative hearing is not bound by the strict rules of evidence
and is not unfair merely because such rules and procedures are
not followed. We prefer, however, to point out that exhibit 2
is properly in evidence and complies with the requirements of a
properly authenticated copy. First, the certificate is adequate under Rule 44. Second, Rule 44 is not the exclusive method of proving documents. United States v. Aluminum Company of America
(D.C., N.Y., 1939), 1 F.R.D. 71, wherein the court stated that
Rule 44 does not interfere with any other accepted methods for
admitting in evidence a document when it is certified by a designated official. The court said, "I take it further that the purpose
of the rule was to reduce delay and to reduce expense in obtaining
from Government departments documents intended to be offered in
evidence." Rule 44 merely adds another method for authenticating
departmental documents. See aisti Bantu() de L.:6pccitu v. Federal
Reserve Bank of New York, 114 F.2d 438 (C.C.A. 2, 1940), and
Notes of Advisory Committee on Rules, 28 U.S.C.A. Rule 44.
Third, exhibit 2, the court record, is adequate also under 28 U.S.C.
1733.4 There is a seal on this copy, faint to be sure, but readable,
stating "Seal . . . United States District Court, Northern District
of California," the same as the seal. on Government exhibit 13,
whereon the seal is legible and clear. It is our opinion that the
Rule 4-4, Federal Rules of Civil Procedure, provides:
a. Authentication of Copy. An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof
or by a copy attested by the officer having the legal custody of the record,
or by his deputy, and accompanied with a certificate that such officer has the
custody. If the office in which the record Is kept is within the United States
or within a territory or inaular possession subject to the dominion of the
United States, the certificate may be made by a judge of a court of record
of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a
seal of office and having official duties in the district or political subdivision
in which the record is kept, authenticated by the seal of his office. If the
office in which the record is kept is in a foreign state or country, the certificate may he made by a secretary of embassy or legation, consul general,
cs.nelui, Tice consul, or eonenlar agent or by any otiiper in the foreign service
of the United States stationed in the foreign state or country in which the
record is kept, and authenticated by the seal of his office.
9 28 U.S.C. 1733 provides: (a) Books or records of account or minutes of
P•0000dinge of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of
which the same were made or kept. (b) Properly authenticated copies or
transcripts of any books, records, papers or documents of any department or
agency of the 'United States shall be admitted In evidence equally with the
originals thereof.

229

words, "A true copy, certified this 28th day of May, 1954 (signed)•
C. W. Ca'breath, clerk, by Marguerite Ellis, Deputy Clerk," with
the seal of the court, are sufficient guarantee of the authenticity of
the copy.
Exhibit 2 discloses that respondent appeared with counsel on
May 20, 1954, in the 'United States District Court for the Northern
District of California and was convicted on a plea of guilty of
violation of the Harrison Narcotic Act, 26 U.S.C. 2553 and 2557, in
that, count one, he did unlawfull:y, sell, dispense and distribute, not
in or from the original stamped package, a certain quantity of a:
narcotic drug, to wit, approximately one pound of heroin; and count
two, violation of Jones-Miller Act, 21 U,S.C. 174, concealment of
.
heroin, which `11,ad been imported into the United States .
contrary to a
as said defendant •. . . knew." Respondent was
sentenced or these two counts to a total of eight years' imprison -meat and a total fine of three thousand dollars. Five additional*
counts q..s Lu defendant were ordered dismissed. Exhibit 2 discloses
fiii . tihrir that the court stated at time of sentencing that it would'
not recommend against deportation of responclent.'s
Counsel appeals on the ground that, the Immigration Service
failed to produce any witness to identify respondent as the same
person as the defendant in the San Francisco narcotic case, declaring the evidence is inadequate to establish that respondent is, in fact,
C—Y—C , the person named in the judgment, sentence and commitment,. Counsel cites cases holding that identity of names alone
is not sadTicient proof of identity to warrant a trial court in submitting to a jury the question whether the person before the court
is the. same as the defendant in other proceedings. The Service did.
not rely on the often-used rule that identity of names raises a rebuttable presumption or inference of identity of persons. On the
contrary, the record contains ample proof of respondent's identity
in the form of records and the testimony of witnesses. Exhibit 10'
consists of respondent's 1926 visa and other entry documents issued
at Hong Kong by Department, of State officials. Exhibit 11 is
respondent's application for preinvestigation prior to departure
from the United States, issued by Immigration officials in San
Francisco in 1922. Each carries an identifying photograph of re-

5 Immigration and Nationality Act, section 241(b), 8 U.S.C. 1251(b), provides: The provisions of subsection (a) (4) respecting the deportation of are

alien convicted of a crime or crimes Shall not apply
(2) If the court
sentencing such alien for such crime shall make, at the time of first imposing

judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice
having been given prior to making such recommendation to representatives of
the interested State, the Service, and prosecution authorities, who shall be
granted an opportunity to make representations in the matter. * • *
230

spondent. Counsel complains that these are not documents shown
to be properly in the custody of the Immigration and Naturalization Service since they are records of the Departments of State and
Labor. In 1922 the Immigration Service was, of course, part of the
Department of Labor. Counsel declares that exhibits 10 and 11
are "not admissible as certified copies of Government records under
28 U.S.C. 1722." They are not certified copies, because they are
originals of respondent's departure and reentry documents and
clearly admissible under 28 U.S.C. 1733(a). They are signed by
tee proper officials and carry the seals of those Departments.
Exhibit 13 is a photostatic. copy of a Declaration of Intention to
become a citizen. The name. C. W. Calbreath, Clerk of the United
States District Court at San Francisco, California, is stamped thereon and it beam the. imprinted seal of that court, and an attached
ramification: "I. C. W. Calbreath, Clack of the United States Dist:ict Court for the Northern District of California. do hereby certify

that the annexed and foregoing is a true a.nd full copy of the
original Declaration cf inttntion filed November 1st, 1945, by
C---Y—C— * * * No. 121204." This exhibit i admissible under
28 U.S.C. 17:33, and under the regulations. Ilar-isvn v. Metropolitan Life Insurance Co., 168 Pa. Super. 474, 72 A.2d 115 (K51).
held that photostatic copies of original records of Immigration and
Naturalization Service of the Department of Justice in naturalization proceedings, properly authenticated under the seal of the
Department, were admissible to establish the date of birth of a person naturalized.

Exhibit. No. 14 was the record of respondent's signed, sworn
preliminary statement of May 13, 1954. The special inquiry officer
sustained counsel's objection to exhibit 14 and excluded it from
consideration. Respondent signed both his English and Chinese
names to exhibit 14 and testified through an official interpreter. He
stated his name, with aliases, place of birth, Chinese citizenship,
and the fact that he had pleaded guilty to two counts under the
Harrison Narcotic Act and was to be sentenced May 20, 1954. This
preliminary statement carries, as usual, the warning that any statements he makes must be voluntary and may be used by the Government as evidence in any deportation or criminal proceedings,
and he vvas asked, "Arc you willing to make such a statement clearly
-

and voluntarily under oath?" The preliminary statement shows
that he answered "yes." The present regulations provide that the
preliminary statement is admissible in evidence, 6 and many judicial
(c) use of prior statements. The special
6 8 CFR 242.14 Evidence— * * *
inquiry officer may receive in evidence any oral or written statement which is
material and relevant to any issue in the case previo4ly made by the responclent or any other person during any Inve,,tigation, exiwaination, hearing,
or trial.

231

and administrative decisions have held such statements to be admissible. &lumps v. Carmichael, 177 F.2d 391 (C.C.A. 9, 1949) ; ReyF.'2,d 39 (CA. 7, 1934) ;
nolds v. United States ex rel. Ko
United States ex rel. Bi1°km-risky v. Tod, 263 U.S 149 (1923) ;
Ungar v. Seaman, 4 F.20,1 SO (C.C.A. 8, 1924) ; United States ex rel.
Catalano v. Shaughnessy, 197 F.2d 65 (C.A. 2, 195'2,): When the
special inquiry officer propounded to respondent these same questions at the 1959 hearings, counsel objected to each in turn, on the
ground that it was violative of respondent's Constitutional privileges.
Schoeps, supra, declared that the privilege against incriminating
himself was waived by the statement an alien had voluntarily made
to an investigating inspector after having been adequately warned.
See also Matter of F—, 4--475 (1951), footnotes 1 and 2; Hatirr of
P , 5 306 (1953), citing cases, wherein we stated that when a witness has once given testimony voluntarily it may afterward be used
against him in the same deportation proceedings, and he may not
claim the privilege of self incrimination as to such testimony. Exhibit 14 is clearly admissible under these decisions and under the
usual immigration practice and the regulations, but its exclusion from
the record by the special inquiry officer did respondent no harm.
Respondent has offered no evidence to contradict the Government's showing by reasonable, substantial and probative evidence
that respondent is the person he is alleged to he. On the other
hand, the Service offered three witnesses who identified respondent
as the person known as C Y—C— at McNeil Island Penitentiary
and who identified the prison record relating to him. R L J ,
Detention Officer, immigration and Naturalization Service, Seattle,
testified that it is among his duties to pick up prisoners at the United
States Penitentiary at McNeil Island, Washington, to escort them to
the Detention Facilities at Seattle, Washington; that on August 31,
1959, he picked up a person named C—Y—G— (or C C Y 1;
that the respondent, sitting across the table from the witness, was
that person; that he also picked up documents and papers given him
by the prison in connection with the transfer of respondent from
their custody to the custody of the Service. Among the papers identified by Mr. J is exhibit 2, Certificate of Conditional Release,
and exhibit 4, a copy of certain provisions of the Narcotic Control
Act of 1956, dated August 31, 1959, signed by the Supervisor,
Classification and Parole, and signed by C Y C . Exhibit 5 is
a certificate entitling prisoner to gratuity, signed by Mrs. C—,
`Camp Records Control Clerk, who also testified that she had a
recollection of C—C—Y—, and identified him as the respondent
present at the hearing. Exhibit 3 is signed by one C—K—McD--,
Parole Executive, and also by Cie Superintendent of the Peniten—

-

-

—

—

—

—

tiary. These routine prison documents were ii , ro_pted in evidence

by the special inquiry officer over counsel's objections for the purpose of establishing identity. We think they are records kept, in
the regular order of business and admissible as such under 28 U.S.C.
1732 and 1733.
P—J—J—, Jr., United States Parole Officer, United States Penitentiary, McNeil Island, Washington, stated that he knew respondent very well, had known him through the years he was in the
institution, and had talked with him on many occasions. Mr. J—
also testified to respondent's limited knowledge of English, but
stated that he had never used an interpreter to communicate with
respondent.
Counsel offered E L--B , construction lead foreman at the
McNeil Camp, as a witness, and Mr. B— identified respondent as
the person he had known in the McNeil Island Prison Camp since
January 1959 (approximately eight months). He also testified to
respondent's limited knowledge of English.
It is the opinion of the Board that the testimony of the abovedescribed witnesses, in addition to the admissible documents and
exhibits, is competent and adequate to connect respondent with the
person who was convicted on May 20, 1954, upon his plea of guilty
of violations of the Harrison Narcotic Act in the United States
District Court for the Southern District of California and who
served a term in the McNeil Island Penitentiary on that judgment,
conviction and sentence.
Counsel attempts to draw an analogy between this case and the
evidence which was ruled insufficient in Bridges v. Wixon, 326 U.S.
135 (1945). The evidence there concerned was an unsigned, unsworn statement which the Supreme Court ruled was insufficient to
form the basis for the decree of depOrtability. That statement bears
no relation to the exhibits in the instant matter which we have described above in detail. This argument need not be dignified by
further discussion.
At the reopened hearing on September 1, 1959, respondent had
two attorneys and one interpreter. At the reopened hearing on
July 26, 1960, he had two attorneys and two interpreters. On both
occasions he refused to testify, even to state his name. Counsel
have stated on numernlic nctrasinns at, the hearings and in their briefs
their reasons for advising respondent to stand mute. Even in
criminal proceedings there should be some rational connection between pleading the 5th Amendment and the actual facts of the case.
Without going into the merits of counsel's grounds for so advising
respondent, it is clear that there could be no possible reason for
another reopening of this record. The respondent is entitled only
to "procedural due process." That is, lie must be givers notice of
—

—

233

-

the hearing and opportunity to show that he does not come within
the classification of aliens whose deportation Congress has directed.
The respondent did not take advantage of the hearings, legally
constituted and conducted, which were ()axed and that is not the
fault of the Immigration and Naturalization Service. United States
Harisiades v. Shaugh-iwsay, 187 F24 137, 141 (C.A.5.,', 1951),
and cases cited, footnote 12; aff'd 324 U.S. 580 (1952), reh. - den.
348 U.S. 936 (1952).
This record establishes by competent., adequate and probative evidence: (1) that respondent is an alien; (2) that he was convicted
of a narcotic violation; (3) that he has had due process and fair
hearing; (4) that his depot-Lability is established by the conviction
record and other documents; and (0) that respondent is ineligible
for any form of discretionary relief. The appeal will be dismissed.
ORDER: It is ordered that the order of deportation be and hereby

is afirmeti.

It is further ordered that the appeal be and is hereby dismissed.

234


Interim Decision #1905

1VLaTrEa or LA PIETRA.

In Deportation Proceedings
A-14286377
Decided by Board September 20, 1968
An alien admitted to the United States in possession of a Labor certification
for employment as a skilled hand tailor, who, after about 11 days, ceased
her employment with the prospective employer because she could not perform

all the duties as described in the request for certification made by

the prospective employer and as described in her own application for certification, and who thereafter obtained employment, first as a marker at a
department store, and later as a machine stitcher at a garment factory, is
deportable under section 241(a)(1) of the Immigration and Nationality

Act, as amended, as one excludable at entry for lack of a valid Labor certification as required by section 212(a) (14) of the Act.
CHARGE:

Order: Act of 1952--Section 241(a) (1) [3 U.S.C. 1251 (a) (1)3—Excludable at time of entry—No valid Labor certification.
ON BEHALF OF RESPONDENT!
ON BEHALF or Snitvzon:
Guy A. Scutell, Social Worker
R. A. Vielhaber
Mass. Department of Education
Appellate Trial Attorney
73 Tremont Street
Boston, Massachusetts 02102

The case has been certified to us by the Immigration and Naturalization Service for review and final decision of the special inquiry officer's decision of May 7, 1968, in which he found
respondent deportable as charged and granted voluntary departure with an alternate order of deportation to Italy if the respondent did not leave the United States as and when directed.
The respondent is a 29-year-old single female alien, a native
and citizen of Italy, who was admitted to the United States for
permanent residence on April 25, 1967. She entered the United
States to perform skilled labor as a hand tailor for Screnci's, Inc.,
a tailoring firm in Boston, Massachusetts. A labor certification
had been issued to her by the United States Deparznent of Labor

certifying her for employment as a skilled hand tailor.
11

Interim Decision #1905
In obtaining the labor certification respondent had filed with
the Department of Labor Form ES 575A, "Statement of Qualifications," which set forth her qualifications as a tailor. It stated
that she attended a tailoring school in Italy and also worked in
Italy as a tailor for a period of time. This statement of qualifications set forth that she was capable of doing various types of tailoring work, including making and finishing button holes by
hand. Screnci's, Inc. filed Form ES 575B, "Job Offer for Alien
Employment," and this form set forth the qualifications necessary
for the job that he offered, including the making of "Button holes
(by hand) ."
After being in the employ of Screnci's, Inc. for about 11 days,
a number of which she did not report for work, she ceased her
employment there. She was ostensibly coming to the United
States to do a skilled hand tailoring operation but she admitted
she could not perform the duties as described in the request for

certification made by the prospective employer and as described
in her own application for labor clearance. She states and admits
that she cannot make button. holes (Ex. 8, A. 2) and that her employer let her go principally for that reason (respondent's sworn
statement of May 15, 1968; also employer's statement of August
30, 1967 (Ex. 7) ). The record clearly shows that she could not
perform all the duties as described and that after leaving Screnci's she obtained employment first as a marker at a department
store and then later as a machine stitcher at a garment factory.
The record amply shows that she could not perform all the duties as set forth in her statement of qualifications and the job

offer by Screnci's, and thus we must hold, as did the special inquiry officer, that because of this she was excludable at the time
of entry because there was in effect no valid labor certification.
The labor certification was based upon a skill which respondent
did not possess. Also, the record shows that she has not obtained
any labor clearance for these other Jobs which she has held since

leaving Screnci's. Since she has not complied with section
212(a) (14), Immigration and Nationality Act, which requires
that she present a valid labor certification, she was excludable at
the time of entry.
We . will thus affirm the decison of the special inquiry officer in
which he held that respondent was deportable as charged. We
will not disturb his grant of voluntary departure.
ORDER: It is ordered that no change be made in the order of
the special inquiry officer.

12