Interim Decision #2530

MATTES, OP LEUNG
In Section 246 Proceedings
A-50078143
Decided byDistrict Director September 8,1978
(1) Applicant entered the United States as a nonimmigrant visitor for pleasure on Sep*
tember 7,1970,
and was authorized to remainMay
until
3,1971,but did not depart.
In
August1971 he accepted employment
as aChinese specialtycook,andalabor
obtained
certification pursuant
to section212{a)(14)of the Immigration
andNationality Act based
on experience gained in that employment Subsequently, a sixlh-preference visa petition was approved his
in behalf pursuant
tosection208(a)(6)
the Act.
of OnIS,
October
1973 the instant section
245 application was filed.
(2) Under8 O.F.K.214.1(c),an alien temporary visitor for pleasure as defined in section
10l(a)(lSKB) of
the Actmay notaccept
anyemployment Applicant
was
inviolation
thus
of United States immigration laws and the total work experience uponwhich
the labor
certificationand adjustment applicationwerewas
based
obtainedwhileapplicant
was In
the United States unlawfully.
(S) Even though theapplicant isstatutorily eligible,
thegrant
of an
application
adjustment of status is a matter of discretion and administrative grace, and the applicant hasthe burden
to showthat discretion should
heexerdsedin his behalf.See Matter
ofAral,33 I. &N. Dec. 494;Matter of OrHz-Pneto,
111.
N. Dee.
& 317.lit the absence
of unusual or outstandingequities,
anapplication for adjustment of status under section
246 of theAct whichis supported by a labor certification predicated upon employment
experience gained whileapplicant
was inthe UnitedStatesunlawfully
bedenied
willas
a matter of discretion.
ON BEHALF OF
APPLICANT:

AustinT.

for

Fragomen, Esquire

615 Madison Avenue
New York, New York 10022
The applicant, a47-year-old married, native
andcitizen
of
China,
was
admitted to theUnited States as anonimmigrant visitor
for
pleasure
on
September 7, 1970,with extensions ofstay authorized through May 3,
1971. His wife, a native andcitizen
ofChina, resides with their three
alien children in Hong Kong, B.C.C.
H e hasremained
in theUnited
States since May 3, 1971, without authorization
bythis Service
and
accepted employment during August 1971 atthe Dynasty Restaurant
in
Rego Park, New York, as aChinese food cook. The Dynasty Restaurant
was sold in April 1972 and itsname was changed
toMoon
Lee
Restaura n t The applicant worked at that restaurant until April 1973, Since that

12

Interim Decision #2630
late he has been employed as a Chinese specialty cook by the Chi-Lin
p
ood, Inc.
On December 11,1972, a visa petition for sixth-preference immigrant
lassification as a "Chinese Specialty Cook" was submitted in the appli:ant*s behalf by Moon Lee, inc. The petition was supported by a labor
:ertiflcation issued pursuant to the provisions of section 212(a)(14)of the
immigration and Nationality Act. The petitioner stated on the applicaion for alien employment certification (Form MA 7-BOB)that three
rears of experience was the minimum requirement for a worker to
lerform satisfactorily the duties the position offered. The .petition was
ilso supported by a Form MA 7-50Aexecuted by the applicant refiecttig employment as a Chinese cook fromJanuary 1,1961, until December
.963 in the Sun Sang Tea House in Hong Kong,B.C.C,;
fromDecember
.970 until April 1972 at the Dynasty Restaurant in Rego Park, New
fork; and fromApril 1972 until August 16,1972,by the Moontee, Inc.,
n Rego Park. As evidence in support of the petition, the petitioner
ubraitted a "Statutory Declaration" dated AugustSO,1972, executed
•y Law, Chi, the owner of the Sun Sang Tea House, stating that the
pplicant had been employed from January 1, 1961, to December SO,
963, at that restaurant.
On December 26,1972, the Officer in Charge in HongKong,B.C.C,
vs& requested to conduct an investigation to verify the applicant's
laimed employment at the Sun Sang Tea House. On April2,1973,the
Jfficer in Charge submitted his report indicating that the applicant had
ever been employed at the Sun Sang Tea House as a Chinese specialty
ook and famished an affidavit dated March15,197S,made by Law, Chi
tating that the statutory declaration executed by him on August 30,
972, in behalf of the applicant was fraudulent. The visa petition wasenied on June 12, 1973, after the petitioner had been afforded an
pportunity to review the record and submit evidence insupport of the
etition or in opposition to the adverse information furnished by the
tfficer in Charge in Hong Kong. An appeal to the Regional Commisioner from the District Director's decision denying the petition was
led on June 27, 1973, alleging that the owner of the Sun Sang Tea
louse was coerced into signing a statement which was untrue; howver, the appeal was subsequently withdrawn bythe petitioner's attorey.
On October 12,1973, a visa petition was filedin the applicant's behalf
y Chin-Lin, Inc., seeking to accord the applicant sixth-preferenceimmirant classification. Such visa petition was supported by a labor eertifiition issued on the basis of a job offer on Form MA 7-50Breflecting the
linimum requirement for the position of Chinese food cook wasat least
tie year of experience, A statement of qualifications on Form MA
-50A was executed by the applicant on May 8,1973.It was submitted
13

Interim Decision #2530
in support of the application for the labor certification and filed with the
visa petition and listed only the experience gained by the applicant
while he had been unlawfully in the United States. The visa petition was
approved on January 22, 1976.
An application on Form 1-485 was filed by the applicant on October
12, 1973. He is seeking adjustment of his status to that of a lawful
permanent resident under the provisions of section 245 of the Act.
Section 245 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 suck
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) the
immigrant visa is immediately available to him at the time his application is approved." (Emphasis supplied).
Even though the applicant has established that he is statutorily
eligible for the benefits sought, be also bears the burden to establish
that discretion should be executed in his behalf.Matter of Aral, 131. &
N. Dec. 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 ofOrtiz-Prieto, 11 L
& N. Dee. 317, (1965).
The applicant was issued a labor certification as required by section
2l2(a)(14) and accorded sixth-preference immigrant classification onthe
basis of his experience as a specialty cook which he acquired In the
United States after admission as a nonimmigrant in a class defined
under 101(a)(15)(B) of the Act as a temporary visitor for pleasure. Such
an alien may not engage in any employment in the United States. 8 CFR .
214.1(c). The applicant has been employed in the United States since
August 1971. Such employment is illegal. Wei v.Robinson, 246 F.2d 739
(G. A. 7,1957), eert. den. 365U.S. 879(1957); Matter
81.
ofS,
& N. Dec.
574 (1960); Matter of Wong, 11 I. & N. Dec. 704 (1966); Matter of
Martmez and Londmo, 131. & N. Dec. 483 (1970); S. Rep. 1137, 82nd
Cong.,2dSess. (1962).
The applicant claimed on May 20,1976, in an affidavit executed before
an immigration examiner in conjunction with the instant application
that he worked part-time as a Chinese cook from January 1961 until
December 1963 at the Sun Sang Tea House in Hong Kong. Such employment was not, however, listed by the petitioner or the applicant
when the labor certification was obtained or when the visa petition was
filed. After carefully considering the entire record in this case, it is
14

Interim Decision #2530
determined that the applicant's testimony concerning such employment
is not credible. In any event, the instant application is not predicated
upon such employment.
Section 212(a) of the Immigration and Nationality 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, 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 lawfiilly present in the United States. H. Rep. 746, 89fch Congress, 1st Sess. (1965).
The applicant has been in violation of the Immigration laws of the
United States since August 1971. His disobedience of our laws commenced one year after he arrived in this country as a visitor for pleasure. The total work experience upon which his application is based 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.
In the absence of unusual or outstanding equities, an alien will not as a
matter of administrative discretion be accorded permanent resident
status on the basis of a labor certification issued under section 212(a)(14)
of the Immigration and Nationality Act, where the labor certification is
predicated upon employment while unlawfully in the United States.
IT IS ORDERED that the application for status as a lawful permanent resident be and the same is hereby denied.

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Interim Decision #3933

Matter of L-A-B-R- et al., Respondents
Decided on August 16, 2018
U.S. Department of Justice
Office of the Attorney General
(1) An immigration judge may grant a motion for a continuance of removal proceedings
only “for good cause shown.” 8 C.F.R. § 1003.29.
(2) The good-cause standard is a substantive requirement that limits the discretion of
immigration judges and prohibits them from granting continuances for any reason or no
reason at all.
(3) The good-cause standard requires consideration and balancing of multiple relevant
factors when a respondent alien requests a continuance to pursue collateral relief from
another authority—for example, a visa from the Department of Homeland Security. See
Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009).
(4) When a respondent requests a continuance to pursue collateral relief, the immigration
judge must consider primarily the likelihood that the collateral relief will be granted and
will materially affect the outcome of the removal proceedings.
(5) The immigration judge should also consider relevant secondary factors, which may
include the respondent’s diligence in seeking collateral relief, DHS’s position on the
motion for continuance, concerns of administrative efficiency, the length of the
continuance requested, the number of hearings held and continuances granted previously,
and the timing of the continuance motion.

BEFORE THE ATTORNEY GENERAL
The Immigration and Nationality Act (“INA”) authorizes immigration
judges to conduct proceedings to determine the removability of aliens. INA
§ 240(a)(1), 8 U.S.C. § 1229a(a)(1). Immigration judges have the authority
to “grant a motion for continuance for good cause shown.” 8 C.F.R.
§ 1003.29. Respondents often request continuances because they are
pursuing collateral relief in other forums that may affect the outcome of their
removal proceedings. For example, an alien may move for a continuance
because he is the subject of a family- or employment-based visa petition that,
if approved by United States Citizenship and Immigration Services
(“USCIS”), would enable him to apply for adjustment of status in the
immigration court and become a lawful permanent resident.
Lacking any guidance in the INA’s implementing regulations, the Board
developed a multifactor balancing test to determine whether good cause
exists to support a continuance in light of certain pending collateral
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Interim Decision #3933

proceedings. See Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009).
Although the Board’s Hashmi framework clarified immigration judges’
discretion to issue some continuances, it has not been extended to the
consideration of continuances for all types of collateral proceedings.
Meanwhile, the number of continuances granted by immigration judges has
increased dramatically over the past decade, and the Board has declined to
hear numerous interlocutory appeals recently filed by the Department of
Homeland Security (“DHS”) challenging orders granting continuances.
I took up these cases and invited briefing about the proper application of
the good-cause standard to a motion for continuance to accommodate
collateral proceedings. 27 I&N Dec. 245 (A.G. 2018). For the reasons set
forth below, I hold that an immigration judge should assess whether good
cause supports such a continuance by applying a multifactor analysis, which
requires that the immigration judge’s principal focus be on the likelihood that
the collateral relief will be granted and will materially affect the outcome of
the removal proceedings.
As I recently explained in Matter of Castro-Tum, continuances are a
“legitimate[]” and “appropriate” case-management tool for immigration
judges. 27 I&N Dec. 271, 293 (A.G. 2018). Yet the regulation authorizing
continuances, 8 C.F.R. § 1003.29, limits their use by imposing a good-cause
standard. The good-cause standard is not a mere formality that permits
immigration judges to grant continuances for any reason or no reason at all.
Rather, the good-cause requirement is an important check on immigration
judges’ authority that reflects the public interest in expeditious enforcement
of the immigration laws, as well as the tendency of unjustified continuances
to undermine the proper functioning of our immigration system.

I.
A.
The United States has a “strong interest in the orderly and expeditious
management of immigration cases.” Alsamhouri v. Gonzales, 484 F.3d 117,
123 (1st Cir. 2007); accord Castro-Tum, 27 I&N Dec. at 289–90. This
interest in efficiency pervades the INA, reflecting Congress’s intent to
streamline the deportation process. Stone v. INS, 514 U.S. 386, 399–400
(1995); see, e.g., INA § 241(a)(1)(A), 8 U.S.C. § 1231(a)(1)(A) (generally
requiring execution of removal orders within ninety days). Efficiency is also
a common theme in the immigration courts’ procedural regulations, which
promote the “timely” and “expeditious” resolution of removal proceedings.
8 C.F.R. §§ 1003.10(b), 1003.12. As I recently stated, “[o]nce DHS initiates
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Interim Decision #3933

proceedings, immigration judges and the Board must proceed
‘expeditious[ly]’ to resolve the case.” Castro-Tum, 27 I&N Dec. at 289.
There are times when the prudent use of continuances may advance the
efficient enforcement of the immigration laws. Continuances can serve as an
important management tool for adjudicators and “promote efficient case
management.” United States v. Tanner, 544 F.3d 793, 795 (7th Cir. 2008).
When a key participant in a hearing falls ill, for instance, or an impending
factual development will alter the course of the case, it can be wasteful and
inefficient to plow ahead immediately. But continuances are also “readily
susceptible to use as a delaying tactic.” Lee v. Kemna, 534 U.S. 362, 366
(2002). Convening additional hearings imposes no small burden on the
immigration court—a burden that, as in ordinary litigation, “counsels against
continuances except for compelling reasons.” Morris v. Slappy, 461 U.S. 1,
11 (1983). And the use of continuances as a dilatory tactic is particularly
pernicious in the immigration context. As the Supreme Court has recognized,
“[o]ne illegally present in the United States who wishes to remain . . . has a
substantial incentive to prolong litigation in order to delay physical
deportation for as long as possible.” INS v. Rios-Pineda, 471 U.S. 444, 450
(1985).
The regulation governing continuances authorizes an immigration judge
to grant a motion for continuance only “for good cause shown.” 8 C.F.R.
§ 1003.29. 1 Although the regulations do not define “good cause,” the
standard plainly confines the discretion of immigration judges to grant
continuances. Rather than giving “unfettered discretion to grant or deny a
continuance,” section 1003.29 “require[s] an [immigration judge] to make
some inquiry into whether good cause exists in a given individual case.”
Ahmed v. Holder, 569 F.3d 1009, 1014 (9th Cir. 2009). “Good cause,” in
other words, does not mean “no cause” or “any cause.” See, e.g.,
Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964) (procedural rule’s “goodcause requirement is not a mere formality, but is a plainly expressed
limitation on the use of [the rule]”); Parker v. Columbia Pictures Indus., 204
F.3d 326, 339–40 (2d Cir. 2000) (Sotomayor, J.) (contrasting a good-cause
standard with a “more liberal” rule directing courts to grant relief “freely . . .
when justice so requires”).
1

As I noted in my order directing the Board to refer these cases to me, 8 C.F.R. § 1240.6
also authorizes immigration judges to pause proceedings. “After the commencement of
the hearing, the immigration judge may grant a reasonable adjournment either at his or her
own instance or, for good cause shown, upon application by the respondent or [DHS].” Id.
(emphasis added). Sections 1003.29 and 1240.6 were both derived from 8 C.F.R. § 242.13
(1958). The Board and the parties agree that the same good-cause standard governs
continuances under section 1003.29 and adjournments under section 1240.6. I operate on
the same understanding and, for simplicity’s sake, refer exclusively to section 1003.29 in
this opinion.
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B.
The Board’s current framework for assessing a motion for continuance to
allow time for collateral visa petition proceedings emerged about a decade
ago. In 2008, the Third Circuit vacated a decision of the Board affirming an
order denying a continuance that rested “solely on [the immigration judge’s]
case-completion goals.” Hashmi v. Att’y Gen., 531 F.3d 256, 261 (3d Cir.
2008). The respondent had requested a continuance because he was the
subject of a pending family-based visa petition that, if approved by USCIS,
would have opened the door to adjustment of status, but the immigration
judge refused to delay the removal proceedings in light of “his obligation to
complete cases ‘within a reasonable period of time.’” Id. at 258–59.
On remand from the court of appeals, the Board held that an immigration
judge should consider and balance various factors in assessing a motion for
continuance to allow the respondent to pursue a family-based visa petition.
The Board listed the following factors: “(1) the DHS response to the motion;
(2) whether the underlying visa petition is prima facie approvable; (3) the
respondent’s statutory eligibility for adjustment of status; (4) whether the
respondent’s application for adjustment merits a favorable exercise of
discretion; and (5) the reason for the continuance and other procedural
factors.” Hashmi, 24 I&N Dec. at 790. The Board explained that this list
was “illustrative, not exhaustive,” and that “the focus of the inquiry is the
apparent ultimate likelihood of success on the adjustment application.” Id.
at 790. The Board remanded the case for the immigration judge to apply the
multifactor balancing test. Id. at 794.
The Board has since extended the Hashmi framework to continuance
requests related to other types of collateral proceedings. It applied Hashmi
in the employment-based visa context in Matter of Rajah, 25 I&N Dec. 127
(BIA 2009). There, the Second Circuit had remanded the case for the Board
“to identify the boundaries of the discretion that [immigration] judges may
exercise” in deciding whether to grant a continuance in light of a labor
certification pending before the Department of Labor. 2 Rajah v. Mukasey,
544 F.3d 449, 456 (2d Cir. 2008). On remand, the Board held that
the framework adopted in Hashmi also applies to respondents
seeking employment-based visas and related relief. Rajah, 25 I&N Dec. at
130, 135–36, 137–38. In Matter of Sanchez Sosa, 25 I&N Dec. 807
(BIA 2012), the Board extended Hashmi (with some tweaks for procedural
reasons) to aliens who are petitioning USCIS for U visas, which are available
to certain crime victims who may provide assistance to law enforcement.
2
Approval of a labor certification by the Department of Labor is a prerequisite to
petitioning USCIS for an employment-based visa, which can serve as a basis for adjustment
of status. See, e.g., Lendo v. Gonzales, 493 F.3d 439, 441–42 (4th Cir. 2007).

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Interim Decision #3933

The Board’s development and extension of Hashmi has coincided with a
significant rise in the total number of continuances granted by the
immigration courts. In 2012, the Department of Justice’s Office of the
Inspector General concluded that “frequent and lengthy continuances” were
a “primary factor” contributing to delays in the immigration courts.
I-2013-001, Management of Immigration Cases and Appeals by the
Executive Office for Immigration Review 29 (Oct. 2012). The Inspector
General attributed a substantial share of these continuances to aliens who
were seeking time to apply for relief from DHS or the immigration court.
See id. at 30–31. In a 2017 report, the Government Accountability Office
documented a 23-percent increase in continuances between 2006 and 2015,
including an 18-percent increase in “respondent-related” continuances.
GAO-17-438, Immigration Courts—Actions Needed to Reduce Case
Backlog and Address Longstanding Management and Operational
Challenges app. III, tbl. 12 (June 2017). Among the leading causes of the
respondent-related continuances during this time period was the pendency of
a petition or application presented to DHS. See id. tbl. 13.

II.
A.
In each of these three cases, the immigration judge granted a continuance
over DHS’s objection to give the respondent time to pursue collateral relief
from another authority.
Respondent L-A-B-R- entered the United States without authorization in
2015, and DHS initiated removal proceedings. At an initial hearing in
November 2015, L-A-B-R- conceded removability and stated his intention
to apply for asylum and other relief from the immigration court. He appeared
at two more hearings in March and May 2016, and the immigration judge
granted continuances to give him time to find counsel and complete an
asylum application. At a fourth hearing, in June 2016, L-A-B-R- submitted
his application but also stated that he intended to marry a U.S. citizen, who
would then submit a visa petition to USCIS on his behalf. In an August 2017
hearing, L-A-B-R- confirmed his marriage to a U.S. citizen and proffered an
incomplete visa petition that his wife intended to file. L-A-B-R- indicated
that he would leave the United States and seek admission through consular
processing if USCIS approved the visa petition. 3
3
An alien, like L-A-B-R-, who was not “inspected and admitted or paroled into the United
States” is generally not eligible to adjust status within the United States. INA § 245(a),
8 U.S.C. § 1255(a).

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Interim Decision #3933

The immigration judge continued the August 2017 hearing, apparently to
provide time for USCIS to adjudicate the prospective visa petition, and
scheduled a new hearing for October 2018. DHS objected to the continuance
on the ground that L-A-B-R- “is not prima facie eligible for adjustment of
status before the Immigration Judge or any other agency within the United
States,” but the immigration judge overruled the objection. Brief for DHS at
6. DHS appealed to the Board.
Respondent Somphet was paroled into the United States in 2005. After
marrying a U.S. citizen, she concurrently applied for a visa and adjustment
of status with USCIS in 2010. USCIS determined that Somphet’s original
parole documents were invalid, however, making her inadmissible under the
INA. See INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i) (“Any alien
who, by fraud or willfully misrepresenting a material fact, seeks to procure
(or has sought to procure or has procured) a visa, other documentation, or
admission into the United States . . . is inadmissible.”). Somphet sought a
waiver of inadmissibility in 2013, but USCIS denied it, along with her
application for adjustment of status, because she could not show the “extreme
hardship” required for such a waiver. INA § 212(i)(1), 8 U.S.C. § 1182(i)(1).
DHS then initiated removal proceedings. The immigration judge granted
two continuances related to Somphet’s retention of counsel. At a third
hearing, in December 2015, Somphet filed new applications for waiver of
inadmissibility and adjustment of status and the immigration judge scheduled
a merits hearing for April 2017. There, DHS argued that the immigration
judge lacked jurisdiction over Somphet’s adjustment application. The
immigration judge continued the proceedings twice more before concluding
at a July 2017 hearing that she did indeed lack jurisdiction over the
application. Over DHS’s objection, the immigration judge granted yet
another continuance to March 2018 to allow Somphet to reapply for waiver
of inadmissibility and adjustment of status with USCIS. DHS appealed to
the Board.
Respondent McCalla entered the country in 1990, overstayed his visa,
and was placed in removal proceedings in 2005 after an arrest. McCalla’s
case has been continued over thirty times—despite multiple objections by
DHS—including for reasons related to his marriage to a U.S. citizen,
additional arrests and criminal convictions, and efforts to collaterally attack
those convictions. Brief for DHS at 8–9. In October 2017, the immigration
judge again continued the proceedings to allow McCalla to pursue a pardon
of a 2006 conviction from the governor of Pennsylvania, over DHS’s
objection that the pardon, even if granted, would not render McCalla prima
facie eligible for an adjustment of status. DHS appealed.

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B.
In three nearly identical orders issued in late 2017 and early 2018, the
Board denied DHS’s requests for interlocutory review of the continuances
granted in these cases. The Board noted that it occasionally entertains
interlocutory appeals presenting “significant jurisdictional questions about
the administration of the immigration laws, or to correct recurring problems
in the handling of cases by Immigration Judges.” But the Board concluded
that none of these appeals fell within the “limited ambit of cases” meriting
interlocutory review, and therefore directed that they be returned to the
immigration courts without further action. The Board has recently denied
review in more than a dozen similar appeals on the same basis. Brief for
DHS at 9–10.
In March 2018, I directed the Board to refer these cases to me pursuant
to 8 C.F.R. § 1003.1(h)(1)(i). I invited briefing from the parties and
interested amici about the proper application of the good-cause standard in 8
C.F.R. § 1003.29 to a request for a continuance to accommodate a collateral
matter. Each of the parties and eight amici submitted briefs, which have
assisted me in my consideration of the issues presented.

III.
The overuse of continuances in the immigration courts is a significant and
recurring problem. Unjustified continuances provide an illegitimate form of
de facto relief from removal. “It is well established” that neither an
immigration court nor the Board has “authority to create relief beyond what
has been provided by the [INA] or the regulations.” Matter of G-K-, 26 I&N
Dec. 88, 93 (BIA 2013). Yet “a continuance, in effect, allows an alien to
remain in the United States for a period of time without any defined legal
immigration status.” Ukpabi v. Mukasey, 525 F.3d 403, 407–08 (6th Cir.
2008). “Finding ‘good cause’ is crucial” because “[a]n unreasonable
continuance would thwart the operation of statutes providing for removal of
inadmissible and deportable aliens.” Id. (citations omitted); see, e.g., Matter
of Silva-Rodriguez, 20 I&N Dec. 448, 450 (BIA 1992) (reversing an
immigration judge’s order granting a one-year continuance that “in
essence . . . conditionally granted” the respondent a waiver of
inadmissibility); see also INS v. Doherty, 502 U.S. 314, 323 (1992) (“as a
general matter, every delay works to the advantage of the deportable alien
who wishes merely to remain in the United States”).
Far from being minor procedural matters, unnecessary continuances
undermine the detailed statutory and regulatory scheme established under the
INA. The frequency of continuances and the impact that these motions have
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upon the administration of the immigration-court system call for additional
guidance to protect against abuse. I conclude that under 8 C.F.R. § 1003.29,
immigration courts should continue to apply a multifactor test to assess
whether good cause exists for a continuance for a collateral proceeding, but
that the decision should turn primarily on the likelihood that the collateral
relief will be granted and will materially affect the outcome of the removal
proceedings. Good cause also may not exist when the alien has not
demonstrated reasonable diligence in pursuing the collateral adjudication,
DHS justifiably opposes the motion, or the requested continuance is
unreasonably long, among other possibilities.
A.
“Good cause” has long been a common standard for granting a
continuance. See Rice v. Ames, 180 U.S. 371, 376 (1901) (discussing an
Illinois statute that authorized justices of the peace and examining
magistrates to grant continuances “on consent of the parties or on any good
cause shown”). Despite its history and frequent usage, however, the term
“good cause” has no settled meaning in law. Compare Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (“extraordinary
circumstances [are] a close correlate of good cause”), with Hall v. Sec’y of
Health, Educ. & Welfare, 602 F.2d 1372, 1377 (9th Cir. 1979) (“Good cause
is . . . not a difficult standard to meet.”). Definitions of the term tend to be
“nebulous and elusive,” Summit Cty. Children Servs. Bd. v. Commc’n
Workers of Am., Local 4546, 865 N.E.2d 31, 35 (Ohio 2007), or tautological,
see Black’s Law Dictionary 266 (10th ed. 2014) (defining “good cause” as
“[a] legally sufficient reason”).
Tribunals confronting good-cause provisions thus have elaborated
context-specific multifactor balancing tests, rather than attempting to craft
bright-line, one-size-fits-all definitions. E.g., United States v. McCoy, 313
F.3d 561, 565–66 (D.C. Cir. 2002) (en banc); Conetta v. Nat’l Hair Care
Ctrs., Inc., 236 F.3d 67, 75 (1st Cir. 2001). Indeed, the Board has taken the
same approach with the good-cause standard in another regulation governing
the immigration courts, 8 C.F.R. § 1003.20(b), which authorizes changes of
venue “for good cause.” See Matter of Rahman, 20 I&N Dec. 480, 482–83
(BIA 1992) (“Good cause is determined by balancing the factors we have
found relevant to the venue issue.”).
Congress indicated in the INA that a good-cause standard invites
consideration of multiple relevant factors. Under section 243(a)(3), a district
court “may for good cause suspend the sentence of an alien” for failing to
comply with a removal order and “order the alien’s release.” 8 U.S.C.
§ 1253(a)(3). The statute directs the court to consider, “[i]n determining
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whether good cause has been shown,” a list of factors including “the age,
health, and period of detention of the alien,” “the effect of the alien’s release
upon the national security and public peace or safety,” and “the eligibility of
the alien for discretionary relief under the immigration laws.” Id.
Immigration judges and the Board should take a similar approach when a
provision uses the term “good cause” but does not define it. The good-cause
standard in section 1003.29 requires consideration and balancing of all
relevant factors in assessing a motion for continuance to accommodate a
collateral matter. See Hashmi, 24 I&N Dec. at 790, 794; Rajah, 25 I&N Dec.
at 135–36; Sanchez Sosa, 25 I&N Dec. at 812–13. This standard comports
with both the INA and the prevailing treatment of good-cause standards, and
has received the approval of several federal courts of appeals. See, e.g.,
Cadavedo v. Lynch, 835 F.3d 779, 784 (7th Cir. 2016) (describing Hashmi
as “the correct legal standard for the Board to apply”); Malilia v. Holder, 632
F.3d 598, 606 (9th Cir. 2011) (Hashmi factors are “commonsense standards”).
B.
The factors relevant to the good-cause assessment under 8 C.F.R.
§ 1003.29 are not all of equal importance. An immigration judge considering
a motion for continuance to await the resolution of a collateral matter must
focus principally on two factors: (1) the likelihood that the alien will receive
the collateral relief, and (2) whether the relief will materially affect the
outcome of the removal proceedings. The immigration judge should also
consider whether the alien has exercised reasonable diligence in pursuing
that relief, DHS’s position on the motion, the length of the
requested continuance, and the procedural history of the case. In assessing
these factors, the immigration judge should also remain mindful that as the
party seeking the continuance, the alien bears the burden of establishing good
cause.
1.
Section 1003.29 focuses on the sufficiency of the “cause” or reason
proffered for the continuance. When a respondent requests a continuance to
accommodate a collateral proceeding, the good-cause inquiry thus must
focus on whether the collateral matter will make a difference in the removal
proceedings—that is, “whether a continuance is likely to do any good.”
United States v. Swanson, 572 F.2d 523, 526 (5th Cir. 1978). This will turn
out to be true only if the respondent receives the collateral relief and that
relief materially affects the outcome of respondent’s removal proceedings.
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The likelihood of these two contingencies must therefore be the primary
consideration.
This principle is consistent with the Board’s precedent. In Hashmi and
Rajah, the respondents sought continuances to pursue visa petitions (the
collateral matter at issue) that, if approved by USCIS, would have enabled
them to apply for adjustment of status in the immigration court and thereby
potentially avoid removal. Hashmi, 24 I&N Dec. at 786; Rajah, 25 I&N Dec.
at 128, 138. Three of the five main good-cause factors enumerated in Hashmi
and Rajah pertained to the likelihood of these efforts’ success: “whether the
underlying visa petition is prima facie approvable”; “the respondent’s
statutory eligibility for adjustment of status”; and “whether the respondent’s
application for adjustment merits a favorable exercise of discretion.” Hashmi,
24 I&N Dec. at 790; Rajah, 25 I&N Dec. at 130. Recognizing the importance
of these factors, Hashmi held that “the focus of the inquiry is the apparent
ultimate likelihood of success on the adjustment application.” 24 I&N Dec.
at 790; accord Rajah, 25 I&N Dec. at 130, 136.
The Board, in reviewing orders on motions for continuance, has also long
held that continuances should not be granted when a respondent’s collateral
pursuits are merely speculative. In Matter of M-, 5 I&N Dec. 622, 624 (BIA
1954), the Board affirmed the denial of a continuance requested by the alien
to provide time for adjudication of a collateral application for adjustment of
status. The Board explained that “[t]o hold that an alien by filing such an
application, no matter how frivolous or unfounded his claim to relief may be,
may automatically stay a deportation proceeding already pending would be
to read into the law a provision which does not exist.” Id.; see also Matter
of Kotte, 16 I&N Dec. 449, 452 (BIA 1978) (affirming the denial of a
continuance to an alien who was “statutorily ineligible for adjustment of
status”). The Board has applied similar reasoning to other kinds of
continuances as well. In Matter of Sibrun, 18 I&N Dec. 354, 356 (BIA 1983),
the Board held that an alien seeking a continuance in order to “obtain and
present additional evidence” must show that the evidence sought “is
probative, noncumulative, and significantly favorable.” The Board further
held that the denial of such a continuance “will not be reversed unless the
alien establishes that that denial . . . materially affected the outcome of his
case.” Id. at 356–57; see also Matter of P-, 4 I&N Dec. 684, 687 (BIA 1952)
(affirming the denial of a continuance sought to secure additional evidence
because “we fail to perceive how such evidence could possibly assist the
respondent in establishing that he is not amenable to deportation”).
This line of precedent forecloses the argument that any filing of a
collateral petition that could conceivably provide relief from removal
supplies good cause for a continuance. Reply Brief for Somphet at 14. That
argument is also inconsistent with a large body of case law in the federal
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courts affirming denials of continuances in light of the speculative nature of
the collateral relief sought. E.g., Cadavedo, 835 F.3d at 783 (alien’s chance
of success in his collateral proceeding was “at best speculative”); Oluyemi
v. INS, 902 F.2d 1032, 1034 (1st Cir. 1990) (Breyer, C.J.) (immigration judge
did not abuse his discretion “in refusing to delay the hearing because he
believed that the adjustment petition eventually would be denied”); see also
Rajah, 25 I&N Dec. at 136–37 (collecting cases). The probability that a
respondent’s collateral proceeding will succeed and materially affect the
outcome of the respondent’s removal proceedings should therefore be the
most important consideration in the good-cause analysis.
2.
While the likelihood that the alien will receive the pursued collateral
relief and that such relief will materially affect the outcome of the removal
proceedings is the primary consideration in this context, immigration judges
must also consider any other relevant factors. It is impossible to identify
every factor that might bear on whether section 1003.29’s good-cause
standard is satisfied. But germane secondary factors may include, as detailed
below, the respondent’s diligence in seeking collateral relief, DHS’s position
on the motion for continuance, and concerns of administrative efficiency.
See Hashmi, 24 I&N Dec. at 790, 793. It may also be appropriate to consider
the length of the continuance requested, the number of hearings held and
continuances granted previously, and the timing of the continuance motion.
Respondent’s Diligence. A respondent bears the burden of establishing
good cause for a continuance. See, e.g., Ramchandani v. Gonzales, 434 F.3d
337, 338 (5th Cir. 2005). The grant of a continuance requires the
immigration judge to notice another hearing date, and that, in turn, adds yet
another hearing to an already overtaxed system. Because a delay in an
immigration proceeding imposes a burden on the immigration judge, DHS,
and other aliens pursuing prompt hearings, the respondent seeking to avoid
a disposition must demonstrate that he has a well-founded justification for
such relief. The immigration judge should not grant a continuance where the
respondent appears to be seeking interim relief as a way of delaying the
ultimate disposition of the case. To that end, it is reasonable to require the
respondent to have “exercise[d] due diligence” in pursuing collateral relief
in advance of the noticed hearing date. Mazariegos-Paiz v. Holder, 734 F.3d
57, 66 (1st Cir. 2013); see also, e.g., Sibrun, 18 I&N Dec. at 356 (continuance
motion “based upon an asserted lack of preparation and a request for
opportunity to obtain and present additional evidence” must be supported by
a “showing that the lack of preparation occurred despite a diligent good faith
effort to be ready to proceed”). The immigration judge should not grant a
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continuance merely because the respondent expresses the intention to file for
collateral relief at some future date or where the respondent appears to have
unreasonably delayed filing for collateral relief until shortly before the
noticed hearing.
Position of DHS. The view of the opposing party is often relevant to the
disposition of a motion for procedural relief, and DHS’s views on a motion
for continuance will often assist the immigration judge’s good-cause analysis.
Hashmi, 24 I&N Dec. at 791. But immigration judges need not treat as
controlling DHS’s consent to, opposition to, or failure to take a position on a
motion for continuance. Section 1003.29 imposes a good-cause requirement
that must be satisfied for each and every continuance requested, see Ahmed,
569 F.3d at 1014, and the regulation does not include an exception for
unopposed motions or those filed on consent. Conversely, immigration
judges must also avoid improperly shifting the burden to DHS to demonstrate
the absence of good cause.
Administrative Efficiency. An immigration judge should also consider
administrative efficiency in deciding whether to grant a continuance, since at
bottom, continuances are themselves intended to promote efficient case
management. Tanner, 544 F.3d at 795. The most recent guidance to
immigration judges from the Executive Office for Immigration Review on
the use of continuances appropriately recognizes efficiency as a relevant
factor in the good-cause analysis. Memorandum for All Immigration Judges,
from MaryBeth Keller, Chief Immigration Judge, Re: Operating Policies and
Procedures Memorandum 17-01: Continuances at 3 (July 31, 2017),
supplementing and amending Memorandum for All Immigration Judges,
from Brian M. O’Leary, Chief Immigration Judge, Re: Operating Policies
and Procedures Memorandum 13-01: Continuances and Administrative
Closure at 2 (Mar. 7, 2013).
In Hashmi, the Board sent conflicting signals on this point. The Board
accepted that “a history of continuances being granted by the Immigration
Judge” in the case (including their “number and length”) is an appropriate
consideration. 24 I&N Dec. at 794. But the Board also stated that
“[c]ompliance with an Immigration Judge’s case completion goals . . . is not
a proper factor in deciding a continuance request, and Immigration Judges
should not cite such goals in decisions relating to continuances.” Id. at 793–
94; accord Rajah, 25 I&N Dec. at 136. The Board cited the Third Circuit’s
opinion in Hashmi for the latter proposition, but the Board overread that
decision. The Third Circuit correctly held that it is “impermissibly arbitrary”
“[t]o reach a decision about whether to grant or deny a motion for a
continuance based solely on case-completion goals, with no regard for the
circumstances of the case itself.” 531 F.3d at 261 (emphasis added); see also
Perez Muniz v. Att’y Gen., 363 F. App’x 973, 981 n.6 (3d Cir. 2010)
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(explaining the court’s prior decision in Hashmi). But the Third Circuit did
not hold that the immigration judge may not consider the number of
continuances previously requested or the continuance’s impact on the
efficient determination of the case, among other case-specific factors.
Statements by the Board to the contrary in Hashmi and Rajah are incorrect.
C.
As with any balancing analysis requiring consideration of multiple factors,
a respondent’s strength on certain factors may compensate for a weaker
showing on others. Cf. Illinois v. Gates, 462 U.S. 213, 233 (1983) (“a
deficiency in one” factor relevant to probable cause “may be compensated
for . . . by a strong showing” on another); CityFed Fin. Corp. v. Office of
Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995) (“If the arguments for
one factor are particularly strong, an injunction may issue even if the
arguments in other areas are rather weak.”). A respondent who makes a
compelling case that he will receive collateral relief and successfully adjust
status may receive a continuance even if, for instance, he has already received
previous continuances. See, e.g., Merchant v. U.S. Att’y Gen., 461 F.3d 1375,
1378 (11th Cir. 2006) (vacating the denial of a continuance to an alien who
had “successfully completed all actions required by [the INA] to be
performed by him” to adjust status with an employment-based visa).
But because the respondent’s likelihood of success in the collateral matter
is paramount, a truly weak showing on that front may be dispositive. In some
cases, it will be impossible or too uncertain that the respondent will succeed
in the collateral proceeding itself. For example, an alien in removal
proceedings seeking a continuance to apply for a provisional unlawful
presence waiver from USCIS is ineligible for such a waiver while the
proceedings are pending; thus, there would not be good cause for such a
continuance. See 8 C.F.R. § 212.7(e)(4)(iii). Courts have also recognized
that an alien’s pending collateral attack on a criminal conviction is too
“tentative” and “speculative” to support a continuance of removal
proceedings. Palma-Martinez v. Lynch, 785 F.3d 1147, 1150 (7th Cir. 2015);
see also Jimenez-Guzman v. Holder, 642 F.3d 1294, 1297 (10th Cir. 2011)
(denial of a motion for continuance was “eminently rational” because
“[p]ending post-conviction motions or other collateral attacks do not negate
the finality of a conviction for immigration purposes unless and until the
conviction is overturned”). An immigration judge should also deny a
continuance when the respondent’s collateral submission has already been
denied and there are no relevant changed circumstances. See, e.g., Garcia
v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015) (respondent “claimed that he
would have used the additional time to seek postconviction relief, but he had
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previously sought such relief to no avail”); Morgan v. Gonzales, 445 F.3d
549, 552 (2d Cir. 2006) (“Despite [petitioner’s] argument to the contrary, he
had no right to the adjudication of a second I-130 petition stemming from a
marriage that had already been determined to lack bona fides.”).
Even if the respondent’s collateral proceeding has clear promise, it will
sometimes be impossible or too uncertain that the collateral relief will affect
the disposition of the removal proceedings. For example, the immigration
judge must deny a continuance if he concludes that, even if USCIS approved
the respondent’s visa petition, he would deny adjustment of status as a
discretionary matter or because the respondent is statutorily ineligible
for adjustment. See, e.g., Malik v. Mukasey, 546 F.3d 890, 892–93 (7th Cir.
2008) (“An alien is only entitled to adjust his status if he meets all the
statutory eligibility requirements and he merits a favorable exercise of
discretion.”). Similarly, because adjustment of status typically requires an
immediately available visa, INA § 245(a), 8 U.S.C. § 1255(a), good cause
does not exist if the alien’s visa priority date is too remote to raise the
prospect of adjustment of status above the speculative level. See, e.g., Matter
of Quintero, 18 I&N Dec. 348, 350 (BIA 1982) (“the fact that the respondent
has an approved visa petition does not entitle him to delay the completion of
deportation proceedings pending availability of a visa number”).
To assess the speculativeness of a respondent’s collateral matter, an
immigration judge will generally need an evidentiary submission by the
respondent, which should include copies of relevant submissions in the
collateral proceeding, supporting affidavits, and the like. This is consistent
with Board precedents, which have repeatedly acknowledged the importance
of such documentary evidence. See Hashmi, 24 I&N Dec. at 791–92; Rajah,
25 I&N Dec. at 136; Sanchez Sosa, 25 I&N Dec. at 813–14. Absent such
evidence, the respondent generally will not carry his burden of showing that
a collateral matter is actually likely to bear on the outcome of the removal
proceedings. See Giri v. Lynch, 793 F.3d 797, 801 (7th Cir. 2015)
(respondent failed to present evidence supporting a good-cause finding);
Ilic-Lee v. Mukasey, 507 F.3d 1044, 1048 (6th Cir. 2007) (same). If the
respondent is going to establish good cause for a continuance, and impose
upon the system the resulting burdens of such a delay, it is hardly too much
to ask to have him substantiate that good cause would require such a result.
The immigration judge should also state his reasons for granting a
continuance on the record or in a written decision. A record of the
immigration judge’s evaluation and balancing of the relevant good-cause
factors does not bind the Board, of course, but it does aid the Board’s review
of a continuance order. See Matter of Garcia-Reyes, 19 I&N Dec. 830, 832
(BIA 1988). The absence of any reasoned explanation for the grant of a
continuance may, were the Board to entertain an interlocutory appeal, leave
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the Board no choice but to vacate the order granting the continuance if
evidence supporting good cause is not clear from the record.
IV.
Although the determination of good cause remains within the
immigration judge’s discretion, when a respondent seeks a continuance to
pursue collateral relief, section 1003.29 requires scrutiny of whether the
respondent’s collateral proceeding is likely to make a difference. I therefore
conclude that an immigration judge must assess whether good cause supports
a continuance to accommodate a collateral proceeding by considering
primarily the likelihood that the collateral relief will be granted and will
materially affect the outcome of the removal proceedings, and any other
relevant secondary factors. See Hashmi, 24 I&N Dec. at 790.
I hereby vacate the Board’s orders declining to entertain these appeals
and remand these cases to the Board for further proceedings consistent with
this opinion.

419


Interim Decision #1909

MATTER OF GENERAL DYNAMICS CORP.

In Visa Petition Proceedings
BIM—N-3448
Decided by Regional Commissioner August 28, 1968
Notwithstanding the petitioning corporation employs and has a continuing
need for the services of electronic design engineers, petition is approved to
accord 14 • electronic design engineers nonimmigrant classification under
section 101 (a) (15) (H) (ii), Immigration and Nationality Act, since they
are coming to perform "temporary services" within the meaning of that
section where their activity in the field of electronic design engineering
will be limited to design work on special testing equipment during a
critical peak production situation of not more than 6 months duration.
ON BEHALF OF PETITIONER:

Joseph F. Shramek, Esquire
General Dynamics Corp.
Electronics Division
1400 North Goodman Street
Rochester, New York 14601

This matter is before the Regional Commissioner on appeal

from the decision of the District Director at Buffalo, New York
denying, the petitioner's request for the services of fourteen electronic design engineers.
The petitioning organization is one of the operating units of
General Dynamics and is engaged in the manufacture of military
electronics communications equipment. It desires to employ fourteen electronic design engineers of various nationalities for a period of six months. These prospective beneficiaries are presently
residing in the Montreal area and are, or have been until recently, employed by Canadair, a Canadian subsidiary of the parent concern of the petitioning organization. The remuneration offered is $98.00 per forty-hour workweek, plus a per diem
allowance for living expenses of $14.00. No provision is made in
the petition or labor certification for overtime employment. The
certification of the Bureau of Employment Security provides for
thirty positions for the period of time between June 17, 1968 and
December 17, 1968. It identifies the work on which the beneficiar23

Interim Decision #1909
ies' services will be employed as the design of automatic electronic test equipment.
In the appeal brief and the oral argument offered in support of
this appeal the petitioning organization, through counsel, has furnished supplemental information which discloses that the
prospective beneficiaries have no interest in immigrating to this
country and that the services of the beneficiaries will be temporarily utilized by the petitioner in the design of special equipment
which is called for under two of the several contracts entered into
by the Air Force for the development of the F-111 military
plane. The beneficiaries of this petition, according to the supplemental information furnished by counsel, will be employees of
Canadair and will be paid in Canadian funds at their usual rate
of pay under their agreement with Canadair. It is counsel's belief
that there will be a monthly inter-divisional accounting for the
dollars expended by Canadair and that Canadair will be reimbursed by the Electronics Division of General Dynamics in Rochester, New York. These employees will be, according to counsel's
statement, working on the maintenance and support systems
which are prime units for the production of ground support systems which are prime units for the production of ground support
equipment, test stations, etc. for this plane. Counsel further contended that a peak production situation exists which involves
critical military procurement related to the F-111 program.
The pertinent portions of the Immigration and Nationality Act
which provide for petitions of this type are as follows:
Section 101. (a) As used in this Act*
*
*
a
*
(15) The term "immigrant" means every alien except an alien who is
within ono of the following classes of nonimmigrant aliens*
a
a
a
*

(H) an alien having a residence in a foreign country which he has
no intention of abandoning*
*
*
*
*
(ii) who is coming temporarily to the United States to perform
other temporary services or labor, if unemployed persons capable
of performing such service or labor cannot be found in this country;
In determining whether or not the positions for which the beneficiaries' services are desired are of a temporary or permanent
nature certain guidelines have been developed. (Matter of
M—S—H—, 8 I. & N. Dec. 460, Matter of Contopoulos, 10 L & N.
Dec. 654, and Matter of Kowarski, 12 I. & N. Dec. 571).
While it is important to know whether the positions are included within the petitioner's regular business operations, it is
24

Interim Decision #1909
more important to ascertain whether the specific services which
the beneficiaries will provide are needed for a temporary period
or on a continuing basis. In the instant proceeding, the petitioner
employs a number of electronic design engineers. He has a; continuing need for the services of these engineers but the need for
the beneficiaries covered by this petition is of a different nature
and is for the very limited period of time of not more than six
months. While they will be working in the same field of activity,
their work will be limited to design work on special testing equipment during a critical peak production situation. The duration of
their employment and the work which will be assigned to them
will be on a phase of the project which, by necessity, must be
completed within the duration of their stay in the United States.
Their services are wanted for a temporary period of time and not
on a continuing basis.
From the evidence of record, including the supplemental information furnished by counsel in his brief and during oral argument, it is concluded that the beneficiaries of this petition have
residences in a foreign country which they have no intention of
abandoning; that they will be coming to the United States temporarily to perform temporary services as electronic design engineers; and, that unemployed persons capable of performing such
services cannot be found in this country.
It is ordered that this appeal be and the same is hereby sustained.
/1 is further ordered that the petition be and the same is
hereby granted.

25


Interim Decision #2777

MATTER OF KUMAR
In

Deportation Proceedings
A-21329561

Decided by Board February 20, 1980
(1) Mere fact that an investor filed an adjustment of status application prior to October
7, 1976, does not result in his being thereafter entitled to have all subsequent investments reviewed under the provisions of 8 C.F.R. 212.8(b)(4) in effect prior to that date.
(2) Where the original application for adjustment of status as an investor does not
evidence eligibility for investor status under the regulatory standards in effect prior to
October 7, 1976, one cannot claim any lingering entitlement to have en investment
made after that date reviewed under the pre-regulatory change standards.
(3) An alien, who had invested in a clothing business but who failed to establish that
that investment met the requirements for an investor labor certification exemption
under 8 C.F.R.212.8(b)(4) in effect prior to October 7,1976, held not entitled to have his
subsequent investment in a motel, made after that date, considered under the'earlier,
more lenient version of the regulation.
CHARGE:
Order: Act of 1952—Section 241(a)(2), I&N Act [8 U.S.C. 1251(a)(2)]—
Nonimmigrant visitor, remained longer than authorized
OH

Enum,r

OF RESPONDENT:

Jack I Kaiser, Require
115 Sansome Street

Suite 1111
San Francisco, California 94104
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members

In a decision dated October 10, 1979, the immigration judge found
the respondent deportable as charged, denied his application for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, but granted him the privilege of voluntary
departure. The respondent appeals from the denial of adjustment of
status. The appeal will be dismissed.
The respondent, a 27-year-old native and citizen of India, resided in
England from at least January 1973 until March 1976. On March 15,
1976, he entered the United States using a nonimmigrant visitor's visa.
Within the first 25 days after entry, however, the respondent made
315

Interim Decision #2777
arrangements to invest in a clothing business, contacted his father to
send money, received the requested funds (the first monies by check
dated March 30, 1976), made a deposit on a store lease, and started
ordering inventory for the store. By April 15, 1976, the respondent had
executed the formal lease for the store and four days later he signed
the documents necessary to apply for adjustment of status (Form I485, "Application for Status as Permanent Resident"; Form 1 526,
-

"Request for Determination that Prospective Immigrant is an

Investor").
The adjustment application was ultimately denied by the District
Director on January 16, 1979, because the respondent had liquidated

his interest in the clothing store in August 1977. Deportation proceedings were then instituted against the respondent after he failed to
voluntarily depart within the time allowed.
At hearings held in March and August 1979, the respondent conceded deportability, but sought to reapply for adjustment as an investor based on a motel he had acquired in June 1977.' The respondent
apparently contended that this second investment should be reviewed

under the requirements of 8 C.F.R. 212.8(b)(4) in effect prior to October
7, 1976. Under the earlier version of the regulation, an applicant had to
have invested, or be actively in the process of investing, capital totaling at least $10,000 in a business in which the applicant had had at

least one year of experience or training. As of October 7, 1976, however,
an applicant for investor status has had to demonstrate that he has
invested or is actively in the process of investing capital totaling at
least $40,000 in an enterprise in the United States of which he will be a
principal manager. That enterprise must also employ a person or
persons in the United States who are United States citizens or aliens

lawfully admitted for permanent residence, exclusive of the alien, his
spouse and children.
The immigration judge denied the adjustment application finding

that the respondent's investment in the motel failed to satisfy the
eligibility requirements set forth in Matter of Heitland, 14 I&N Dec.
563 (BIA 1974), gird, 551 F.2d 495 (2 Cir. 1977), cert. denied, 434 U.S. 819
(1977). The immigration judge further stated that the application
would be denied in the exercise of discretion based on his finding that
the respondent had entered the United States as a nonimmigrant
visitor with a preconceived intent to remain permanently.
The respondent appeals both from the finding of ineligibility for
adjustment of status and from the adverse exercise of discretion. As
' The respondent invested $20,000 in cash in the motel and signed a 25-year note for the
remaining $100,000 of purchase price. The District Director evidently was not advised of
this investment prior to January 1979.

316

Interim Decision #2777
we find that the respondent is not entitled to have his investment in the
motel tested under the provisions of 8 C.F.R. 212.8(b)(4) in effect prior
to October 7, 1976, and as this investment clearly does not satisfy the
$40,000 capital test required under the present regulatory provisions,
the appeal will be dismissed.
The mere fact that an "investor" may have filed an adjustment
application prior to October 7, 1976, does not result in his being
thereafter entitled to have all subsequent investments reviewed under
the provisions of 8 C.F.R. 212.8(b)(4) in effect prior to that date.' This is
particularly true where the original application does not evidence
eligibility for investor status under the earlier standards. One cannot
claim a lingering entitlement to have an investment made after the
regulatory change reviewed under pre-regulatory change standards
when the initial application never satisfied those earlier standards.
Here, the respondent's original investment in the clothing business
could not qualify him for an exemption from the labor certification
requirements even under the less restrictive standards of 8 C.F.R.
212.8(b)(4) in effect prior to October 7, 1976. The investment was not of
an amount adequate to insure that the respondent's primary function
was not as a worker, nor did it expand job opportunities so as to offset
any adverse impact of the respondent's employment. 3 See Matter of

Heitland, supra. See also Matter of Wang,16I&N Dec. 711 (BIA 1979).
Therefore, he cannot now claim any entitlement to have his present
investment tested under the provisions of 8 C.F.R. 212.8(b)(4) in effect
prior to October 7, 1976.
The respondent has accordingly failed to establish eligibility for
investor status and the appeal from the denial of his adjustment
application will be dismissed for that reason. We further concur,
however, in the immigration judge's finding that the respondent is not
deserving of such relief in the exercise of discretion as we are not
satisfied on this record that he did not enter the United States in 1976
with a preconceived intent to remain as a permanent resident. See Von
Pervieux v. INS, 572 F.2d 114, 118 (3 Cir. 1978), and the cases cited
therein.

ORDERS The appeal is dismissed.
1 1n fact, merely because the filing was made prior to October 7,1976, does not insure
that the initial investment underlying that application will be tested under the "$10,000"
standard. If the application was filed in time to meet the October 7, 1976, deadline, but
the evidence establishing the investment originated after that date, the investment will
be tested under the current standards. See Matter of Heidari, 16 I&N Dec. 203 (BIA
1977).
' The respondent's profit and loss statements for this business for the period from its
inception through November 1976 indicate that there were no employees other than the
respondent. The balance sheets reflect that there were no expenses for "wages."

317

Interim Decision #2777
FURTHER ORDER1 Pursuant to the immigration judge's order
the respondent is permitted to depart from the United States voluntarily within SO days from the date of this order or any extension beyond
that time as may be granted by the District Director; and in the event
of failure so to depart, the respondent shall be deported as provided in
the immigration judge's order.

318


Interim Decision #1681

MATTER or SAIM
In Visa Petition Proceedings
A-10588023
Decided by District Director December 14, 1986
Since a soil scientist is a member of the professions within the meaning of section 101(a) (32) of the Immigration and Nationality Act, as amended by P.L.
89-230, and beneficiary is a qualified soil scientist, having received a Ph.D.
degree in eon science from an accredited university and having approximately
5 years' experience as a soil scientist, be is eligible for preference classification
under section 203 (a) (3) of the Act, as amended.

The petition was filed to accord the beneficiary a third preference
classification as a member of the professions based upon his qualifications as a soil scientist. The beneficiary is a male, native and citizen
of India, age 42, presently residing in Fredericton, New Brunswick,
Canada, with his wife and child.
The beneficiary received a bachelor of science degree in 1945 from
Punjab University in India, a. master of science degree in soil science
in 1955 from Punjab University, and a doctor of philosophy degree
in soil science in August 1960 from Ohio State University, Columbus,
Ohio. He has been employed as a soil scientist from January 1962 to
date by the Canadian Department of Agriculture, Fredericton, New
Brunswick, Canada. The beneficiary intends to engage in his profession in the United States as a soil scientist, having accepted a position
in this field with W. It Grace and Company, Clarksville, Maryland.
A certification pursuant to section 212 (a) (14) of the Act, as
amended, has been issued by the Department of Labor.
Soil scientists are listed among professional occupations under code
0-35.03 in the Dictionary of Occupational Titles, Volume II, second
edition, prepared by the Department of Labor. In the third edition
of the above publication, soil scientists are listed under code 0-40.081
among occupations in the agricultural sciences group of professional,
technical, and managerial occupations. Soil scientists study the physical, chemical, and biological characteristics and behavior of soils.
From their research,' soil scientists can classify soils in terms of re20

Interim Decision #1681
sponse to management practices and capability for producing crops,
grasses, and trees as well as their utility as engineering materials.
The Occupational Outlook Handbook, 1966-67 edition, of the United
States Department of Labor, states that training in a college or university of recognized standing is important in obtaining employment
as a soil scientist and that a bachelor's degree in soil science is a minimum requirement for entrance into this field. It is further stated that
persons with graduate training, especially those with the doctor's degree, can be expected to advance rapidly into responsible positions
with good pay. Soil scientists are employed in a wide range of public
and private institutions, including fertilizer companies, private research laboratories, banks and other lending agencies, and real estate
firms. Earnings of well-qualified Federal soil scientists with several
years' experience range from about $9,000 to $14,000 per year. Numerous positions in the soil scientist field are vacant because of a shortage
of qualified persons.
It is concluded that a person who has a bachelor's degree in soil
science from an accredited college or university is a member of the
professions within the meaning of sections 101(a) (32) and 203 (a) (3)
of the Act, as amended. The applicant is entitled to classiftcation as a
member of the professions by virtue of his educational attainments.
ORDER: It is ordered that the petition be approved and the beneficiary accorded third preference under section 203 (a) (3) of the Immigration and Nationality Act, as amended.

21


Interim Decision *1366

MATTER OP SAUNDERS

In VISA PETITION Proceedings
SFR-N-3133

Decided by Regional Commissioner October 4,1968
Petititioner's program to train industrial trainees in agriculture—principally
in orcharding—is within the meaning of section 101(a) (15) (3) Immigration and Nationality Act, since he will provide an organized program of
training in all phases of orchard work, such as grafting, pruning, fertilizing,
planting, cultivating, thinning, harvesting, proper preparation and care of
trees, operation and use of a limited variety of mechanical equipment, such as
trucks, fruit grader, nut tree shaker, and small tractors, to be accomplished
through daily sessions of oral instruction with explanation and demonstration ;
they will be under constant observation of trainee performance with corrective
instruction, if needed ; they will partake of several sessions yearly on the farm
during which University of California sponsored county farm advisors will
lecture and demonstrate new methods, fertilizers, insecticides, and of at least
3 full-day sessions yearly with instructors of the University of California on
subjects and machinery pertinent to the training, and a training record will be
maintained for each trainee.

This case is before the Regional Commissioner pursuant to the District Director's certification of his order of September 3, 1963 denying
the petition on the grounds that the training program offered by the
petitioner does not provide instructions to the degree contemplated by
the statute. This conclusion is based on the District Director's finding
that the training offered is essentially on-the-job training without
organized instruction and the major share of the training is not adaptable to conditions or available equipment in the beneficiaries' homeland.
Petitioner is the owner and operator of extensive property in California. He is engaged on a large scale in both farming and orcharding and employs a regular work force of some 50-60 domestic workers
with a peak domestic force of 1000 during certain seasonal operations
of his business. The petitioner has trained foreign agricultural
workers in the past, is presently training such workers and seeks to
import the instant beneficiaries for training in agriculture, principally in orcharding. He states that the training received on his
property by other trainees has benefited them and their homeland.
The petitioner offers to train the beneficiaries in all phases of orchard

work such as : grafting, pruning, fertilizing, planting, cultivating,
thinning, harvesting, proper preparation and care of trees, and the
647

Interim Decision #1366
operation and use of a limited variety of mechanical equipment such as
trucks, fruit grader, nut tree shaker, and small tractors. Petitioner's
method of training consists of: daily sessions of oral instructions with
explanation and demonstration to each trainee either by the petitioner
or one of his fully experienced supervisors; constant observation of
the trainee in his performance of the assigned training work with corrective instructions when needed; several sessions each year on the farm
during which University of California sponsored county farm advisors
lecture and demonstrate to the trainees new methods, fertilizers, insecticides, etc.; at least three trips a, year to the University of Calif
fornia, Davis, California for full day sessions with instructors on subjects and machinery pertinent to their training; and a, trip to a cannery
where the latest after harvest handling, processing and canning of
fruits and nuts is observed in actual operation and on films. A record
is maintained on the training given to each trainee. In addition to
the agricultural training provided by the petitioner he arranges for
the enrollment, transportation and attendance of the trainees in an
adult evening class in English at the local junior college.
The petitioner states that his training program runs in yearly
voles beginning with the trainees' arrival on his farm and depending
on the individual, the training should be for three years to afford
maximum benefit to the trainee. He proposes to evaluate each trainee
at the end of the first and second years and to continue the training only
when it is indicated that the individual requires it. Petitioner
states that although the training is repetitious since the same operations are taught and demonstrated from one year to the next, it is his
opinion that such repetition results in a better trained man.
The beneficiaries are all natives and citizens of Japan and according
to the petitioner have an agricultural background and/or some agricultural school training. Petitioner states that although some of the
trainees' knowledge of English may be limited upon their arrival it
presents no problem since he has competent interpreters among his
regular employees.
After careful consideration, it is concluded that the petitioner will
provide training within the meaning of section 101(a) (15) (H) (iii)
of the Immigration and Nationality Act and that the other requirements of that section have been met. Accordingly, the petition may be
approved. However, in accordance with Service policy, the beneficiaries' training will be limited to an initial period of twelve months.
The question as to whether or not an additional period of training is
warranted will be decided in the light of the circumstances existing
at the time of receipt of anyapplication to extend the period of the
beneficiaries' temporary admission.
ORDER: It is ordered that the petition be and the same is hereby
approved.
646


Cite as 28 I&N Dec. 307 (A.G. 2021)

Interim Decision #4019

Matter of A-B-, Respondent
Decided by Attorney General June 16, 2021
U.S. Department of Justice
Office of the Attorney General
(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”), and Matter of A-B-, 28 I&N
Dec. 199 (A.G. 2021) (“A-B- II”), are vacated in their entirety.
(2) Immigration judges and the Board should no longer follow A-B- I or A-B- II when
adjudicating pending or future cases. Instead, pending forthcoming rulemaking,
immigration judges and the Board should follow pre-A-B- I precedent, including Matter
of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer this case to me for my review. With the case thus
referred, I hereby vacate Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)
(“A-B- I”), and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”).
Under the Immigration and Nationality Act (“INA”), the Attorney
General may grant asylum to individuals who meet several statutory
requirements, including that they have suffered or fear (1) “persecution,”
(2) “on account of,” (3) their “race, religion, nationality, membership in a
particular social group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C.
§ 1101(a)(42)(A); see INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). 1
Persecution is inflicted “on account of” a protected characteristic if that
characteristic is “at least one central reason” for the persecution. INA
§ 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i); see Matter of W-G-R-,
26 I&N Dec. 208, 223–24 (BIA 2014). The Board has long held that harm
may qualify as “persecution” if it is inflicted either by a government or by
non-governmental actors that the relevant government is “unable or
unwilling to control.” Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).
In A-B- I, Attorney General Sessions reviewed an unpublished decision
of the Board concerning the asylum eligibility of an applicant claiming
persecution based on her membership in a particular social group of
“‘El Salvadoran women who are unable to leave their domestic relationships
where they have children in common’ with their partners.” 27 I&N Dec.
The “membership in a particular social group” standard also appears in the statutory
provision that governs withholding of removal. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).

1

307

Cite as 28 I&N Dec. 307 (A.G. 2021)

Interim Decision #4019

at 321. The Board had found that this group was substantially similar to
“‘married women in Guatemala who are unable to leave their relationship,’”
which the Board had recognized as a particular social group in Matter of
A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). A-B- I, 27 I&N Dec. at 321
(quoting A-R-C-G-, 26 I&N Dec. at 390). In A-B- I, Attorney General
Sessions overruled A-R-C-G-. Id. at 346. Having done so, he vacated the
Board’s decision and remanded the case to the immigration judge. Id. In
A-B- II, Acting Attorney General Rosen reviewed a subsequent Board
decision in the same case “to provide additional guidance” on recurring
issues in asylum cases involving “applicants who claim persecution by
non-governmental actors on account of the applicant’s membership in a
particular social group.” A-B- II, 28 I&N Dec. at 200.
The President recently issued an executive order directing the Attorney
General and the Secretary of Homeland Security to promulgate regulations
“addressing the circumstances in which a person should be considered a
member of a ‘particular social group.’” Exec. Order No. 14010, § 4(c)(ii),
86 Fed. Reg. 8267, 8271 (Feb. 2, 2021). Rulemaking enables “thorough
consideration of the issues involved” in complex questions of immigration
law. Matter of Compean, 25 I&N Dec. 1, 2 (A.G. 2009). Among other things,
it “affords all interested parties a full and fair opportunity to participate and
ensures that the relevant facts and analysis are collected and evaluated.” Id.
at 2. My predecessors thus sometimes have vacated Attorney General or
Board opinions in light of pending or future rulemakings. Id.; see Matter of
R-A-, 22 I&N Dec. 906, 906 (BIA 1999, A.G. 2001). 2
I have concluded that the same approach is warranted here, and I vacate
A-B- I and A-B- II to leave open the questions that those opinions sought to
resolve and to ensure that the Departments have appropriate flexibility in the
forthcoming rulemaking. A-B- I attempted to set forth a comprehensive
statement of the requirements that must be met to establish that an applicant
has suffered persecution on account of membership in a particular social
group—the very questions that the recent Executive Order directs the
Department of Justice and the Department of Homeland Security to address
in the rulemaking. Portions of the discussion in A-B- I were framed as a
restatement and application of existing Board precedent. But the opinion
begins with a broad statement that “victims of private criminal activity” will
not qualify for asylum except perhaps in “exceptional circumstances.”
2
Of course, agencies also have discretion to “announc[e] new principles in an
adjudicative proceeding” rather than a rulemaking. NLRB v. Bell Aerospace Co., 416 U.S.
267, 294 (1974). This ability to set policy in a case-by-case fashion allows an agency to
“‘develop[]’” principles over time as it gains “‘experience with a particular problem,’” and
also for the agency to “‘adjust[]’” those principles “‘to meet particular, unforeseeable
situations.’” Id. at 293 (quoting SEC v. Chenery Corp., 332 U.S. 194, 202 (1947)).

308

Cite as 28 I&N Dec. 307 (A.G. 2021)

Interim Decision #4019

27 I&N Dec. at 317; see also, e.g., id. at 320 (“Generally, claims by aliens
pertaining to domestic violence or gang violence perpetrated by
non-governmental actors will not qualify for asylum.”). That broad language
could be read to create a strong presumption against asylum claims based on
private conduct. As a result, A-B- I threatens to create confusion and
discourage careful case-by-case adjudication of asylum claims. See, e.g.,
Orellana v. Att’y Gen., 806 F. App’x 119, 126 (3d Cir. 2020) (noting that
“the BIA seemed to lump [the asylum seeker]—almost automatically—into
a generic group of ‘victims of gang violence’ under the Attorney General’s
recent guidance in Matter of A‑B‑ [I]”); Matter of M-G-M-, slip op. at *2
(BIA Feb. 13, 2019) (“In Matter of A-B-, the Attorney General held that in
general a claim by an alien pertaining to domestic violence perpetrated by a
non-governmental actor will not qualify for asylum.”); Matter of O-E-R-C-,
slip op. at *1 (BIA Aug. 22, 2018) (stating without qualification that Matter
of A-B- “declined to extend asylum and withholding of removal relief to
victims of private criminal activity”).
Additionally, other portions of A-B- I have spawned confusion among
courts. For example, the courts of appeals have disagreed about whether
A-B- I changed the “unable or unwilling” standard the Board has long applied
to determine whether private violence qualifies as persecution. Compare
Grace v. Barr, 965 F.3d 883, 898–900 (D.C. Cir. 2020) (concluding that
A-B- I adopted a “new, more demanding standard” without acknowledging
or explaining the change), with, e.g., Scarlett v. Barr, 957 F.3d 316, 332–33
(2d Cir. 2020) (finding that A-B- I retained the “unwilling or unable”
standard); Gonzales-Veliz v. Barr, 938 F.3d 219, 232–34 (5th Cir. 2019)
(same).
A-B- II attempted to clarify some of the issues raised by A-B- I, including
whether A-B- I had changed the “unable or unwilling” standard, the proper
application of that standard, and the meaning of the statutory “one central
reason” test. A-B- II, 28 I&N Dec. at 200. But A-B- II sought to resolve
those complex and important questions without the benefit of additional
briefing or other public input. Because that process did not “result[] in a
thorough consideration of the issues involved,” Compean, 25 I&N Dec. at 2,
I have concluded that the issues should instead be left to the forthcoming
rulemaking, where they can be resolved with the benefit of a full record and
public comment.
For these reasons, I conclude that the decisions in A-B- I and A-B- II
should be vacated in their entirety. Accordingly, immigration judges and the
Board should no longer follow A-B- I or A-B- II when adjudicating pending
or future cases. Instead, pending rulemaking, immigration judges and the
Board should follow pre-A-B- I precedent, including Matter of A-R-C-G-.

309


MATTER or L—D—L—R-

In EXCLUSION Proceedings
A-11978268
Decided by Board April 10, 1962
Misrepresentation—Section 212(a)(19)—Materiality.
Willful concealment in visa application of two arrests in Mexico, following
which applicant was issued a police certificate of good conduct showing no
criminal record, held to be material misrepresentation within section
212(a) (10) of 1952 Act. Applicant has failed to meet burden of establishing that misrepresentations did not cut off inquiry which might have resulted in denial of visa, and hence he is excludable on ground his visa was
obtained by fraud. (Compare Matter of S — and B C , 9 26.)
EXCLUDABLE: Act of 1952---Section 212(a) (19) [8 U.S.C. 1182(a) (19)—Visa

obtained by fraud or by willful misrepresentation.

BEFORE THE BOARD

DISCUSSION: The special inquiry officer ordered the. applicant's
admission to the United States as a returning resident alien and
certified.the case to the Board for final decision.
The applicant, a 40-year-old married male, a native and citizen of
Mexico, was admitted to the United States for permanent residence
on May 16, 1960, upon surrender of a nonquota immigrant visa
issued on the same date. On August 10, 1960, he sought to return to
the United States after a visit to Mexico. He is in possession of an
alien registration receipt card (Form 1-151). The Service, being of
the belief that applicant obtained his visa by fraud because he misrepresented his arrest record when he obtained the visa, held him for
a hearing before the special inquiry officer. The special inquiry
officer entered a decision on September 21, 1960, finding that a misrepresentation had been made as to the respondent's arrest reeurd,
but that, the misrepresentation was not a material one. Applicant's
admission was ordered as a returning resident. The district director took an appeal. On October 27, 1961, the Board reopened proceedings for consideration of the case in light of the standards
concerning misrepresentation promulgated by the Attorney General
in Matter of S— and B—C—, 9 136. (Oct. 2, 1961). Reopened
hearing was held on November 21, 1961. On December 26, 1961, the
623

special inquiry officer entered the order now before us, permitting
the applicant to enter the United States as a returning resident.
The Acting District Director at El Paso, Texas, has furnished a
brief in opposition to admission of the applicant and the Service
representative has appeared at oral argument requesting that the
decision of the special inquiry officer be reversed. In connection with
the appeal from the special inquiry officer's first order, counsel for
the applicant submitted a brief which will be considered at this time
The applicant has admitted that he willfully concealed the fact
lie had been arrested in Mexico on two occasions. He denies he has
ever been convicted of any crimes.
Applicant's Mexican police record reveals that he was arrested in
Mexico on October 24, 1957, and in lawsuit 131/957 was charged with
tlleft from a bus line for taking money from collecting boxes (a
metal box containing $265.50 Mex. currency belonging to the bus
company was found in his possession). The record reveals that
applicant confessed having been involved in this kind of activity for
several months; it alsp reveals that on August 4, 1959, he was detained for investigation, and that on April 19, 1960, a certificate
of good conduct was given to him after he had presented an official
release from the cause of lawsuit 131/57 (Exh. 5).
A certification from the Third Penal Court of Bravos District,
Chihuahua, reveals that during lawsuit 131/957, in which the applicant was charged with abuse of confidence in prejudice of the bus
company, a ruling was made on November 1, 1959, which granted
pardon to the defendant (applicant) in accordance with Article 103
of the Code of Social Defense, and 303 of the Code of Procedures on
Matters of Social Defense, so that the penal action was decreed
annulled and dismissed, and that on April 19, 1960, a copy of the
ruling was given to the applicant. This copy was presented to the
police and on the same day applicant was given a certificate of
good conduct showing he had no criminal record (Exhs. 5 and 6).
He presented this certificate to the American consul when he applied for a visa.
On May 2, 1960, he executed an application for an immigration
visa showing that he had neither been convicted of crime nor that ha

admitted committing a crime involving moral turpitude, and answering in the negative the question as to whether he had been arrested,
charged, indicted, or convicted of crime and whether he had been
an inmate of a civilian or military prison (Exh. 4, items 7 and 32;
page 7, Hearing of August 17, 1960). His visa was issued on
May 16, 1960. The applicant has admitted that he had lied to the
consul concerning his arrest record because he feared that if he had
told the truth he would not be given a visa (Exh. 3, page 2).
624

At the hearing the applicant explained that he, along with two
others, had been tried on a charge of taking money from the bus
company but that no judgment had been entered, and that the charge
as to him was withdrawn on the understanding that he would pay
3000 pesos to the company and that he did make such a payment.
He said that one of the others charged had been convicted and was
released on bond and the third party also was required to pay a
certain amount of money as restitution. The applicant denied that
he had been guilty of the charge.
At the reopened hearing, he stated he did not know whether the
person he thought had been convicted had actually been convicted.
Applicant did know that the person had been released on bond.
Applicant stated that he was not guilty of the charges. He stated
that he had , paid the 3000 pesos despite his innocence because the
person who had actually stolen the money had been scared into
implicating the applicant and another, and the applicant being without representation and having been confined about 12 days thought
he could secure hie releaoc only by paying the money. Applicant

said that he had been working as a mechanic outside the, building
containing the offices of the bus company; that the person who had
committed the crime had been employed in the building; that the
person had approached him as they were about to leave for the
day and had secured the applicant's permission to take the applicant's tool box into the building, where, to applicant's knowledge,
he intended placing a small package into it; that the person had
returned with the applicant's tool box in which he had placed a
package; and that when the applicant was arrested, it was discovered that the small package contained money belonging to the
bus company. The applicant claims he was unaware of what was
in the package, or that the actual thief intended using the tool box
to steal from the company.
The special inquiry officer ruled that the record failed to establish that the applicant was ineligible to receive a visa because he
had not been convicted of a crime, because the arrests themselves do
not make the applicant excludable, and because the applicant had
not made an admission of the commission of crime or its essential
elements. The special inquiry officer held that the misrepresentation did 31,111- off inquiry concerning the applicant's criminal record
but that if an inquiry had been made it would not have resulted in
a determination that the applicant was ineligible for the issuance of
the visa, and the misrepresentation was, therefore, not material.
Counsel contends that since the criminal charges were dismissed
and the applicant does not admit that he committed a crime; he was
not ineligible for the issuance of a visa and could not have been
denied one, so that the misrepresentations were not material.
625
654377-(33---41

The acting assistant district director urges that the circumstances
reveal that the applicant was involved in a crime and it cannot be
said that the consul would nevertheless have issued a visa, and that
in any event the uncertainties created by the alien's obstruction of
the inquiry should be resolved against him On oral argument, the
Service representative contended that the test as to- materiality
used by the special inquiry officer was whether the actions of the
applicant created a ground of inadmissibility; whereas, the rule set
up by the Attorney General in Matter of 8— and B—C—, supra, is
that either a ground of inadmissibility must have existed or that
an inquiry might have resulted in a determination that a ground of
inadmissibility existed (in arriving at a determination in the matter, any uncertainty resulting from the alien's obstruction of the
:nquiry may be resolved against him). The Service representative
urges that had the true facts been in the consul's possession, the
inquiry he could have conducted might have resulted in a determination that a ground of inadmissibility el:dated, became evidence
might have been procured from the police or persons charged with
the crime which would have enabled the consul to confront the
applicant in such a manner that there was a reasonable possibility
that applicant might have admitted the offense or that he would have
failed to satisfy the consul that he was admissible.
We believe the misrepresentation was material. Applicant was
found in possession of stolen property; he was implicated in the
theft by a person who . had apparently stolen the property; he is
reported to have confessed to the crime; he agreed to make restitution; his account of the manner in which the property was taken
reveals, despite his present disclaimer, that he could well have been
involved. Under these circumstances, we do not believe that the
applicant has borne the burden of establishing that his misrepresentation did not cut off a line of inquiry which might have resulted
in the denial of the visa to him.
The applicant's visa was obtained by fraud and he is excludable.
The order of the special inquiry officer will be withdrawn.
ORDER: It is ordered that the order of the special inquiry officer
of December 26, 1961, be and the same is hereby withdrawn.
It i8 further ordered that the applicant be excluded from the
United States on the ground stated above.

626