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Matter of Sanny Montefar NEMIS, Respondent
Decided March 8, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Applying the categorical approach, the conspiracy statute, 18 U.S.C. § 371 (2012), is
overbroad relative to the generic definition of a crime involving moral turpitude, and
divisible between the offense clause, which may or may not involve moral turpitude,
and the defraud clause of the statute, which is categorically a crime involving moral
turpitude.
(2) To determine whether a conspiracy conviction under the offense clause of 18 U.S.C.
§ 371 constitutes a crime involving moral turpitude, the underlying statute of conviction
should be examined under the categorical, and if applicable, modified categorical
approach.
(3) The respondent’s conviction under 18 U.S.C. § 1546(a) (2012), punishing fraud and
misuse of visas, permits, and other documents, is overbroad and divisible such that the
modified categorical approach is applicable and it was proper to consider the conviction
records. Matter of Serna, 20 I&N Dec. 579 (BIA 1992), clarified.
(4) The respondent’s conviction for conspiracy to commit visa fraud in violation of
18 U.S.C. §§ 371 and 1546(a) is a conviction for a crime involving moral turpitude
under the modified categorical approach.
FOR RESPONDENT: David K. Kim, Esquire, Flushing, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Seth Goldman, Assistant
Chief Counsel
BEFORE: Board Panel: WILSON, GOODWIN, and GORMAN, Appellate Immigration
Judges.
GOODWIN, Appellate Immigration Judge:

In a decision dated July 9, 2019, an Immigration Judge found the
respondent was inadmissible under section 212(a)(2)(A)(i)(I) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2018), as
an alien convicted of a crime involving moral turpitude, and denied his
application for cancellation of removal under section 240A(a) of the Act,
8 U.S.C. § 1229b(a) (2018). The respondent has appealed from this decision.
The appeal will be dismissed.
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The respondent is a native and citizen of the Philippines who was
accorded lawful permanent resident status in 2010. On November 29, 2016,
he was convicted of conspiracy to commit visa fraud in violation of 18 U.S.C.
§§ 371 and 1546(a) (2012). Thereafter, he traveled abroad and sought to
reenter this country. Based on his conviction, the Department of Homeland
Security (“DHS”) deemed him to be seeking an admission into the United
States and placed him in removal proceedings, charging him with
inadmissibility under section 212(a)(2)(A)(i)(I) of the Act. 1
The Immigration Judge determined the respondent’s offense constitutes
a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act,
rendering him inadmissible as charged. The Immigration Judge further
found the respondent statutorily ineligible for cancellation of removal and
alternatively denied that application in the exercise of discretion. The
respondent challenges these determinations on appeal. 2 We review the
Immigration Judge’s findings of fact for clear error, but we review questions
of law, discretion, and judgment, and all other issues de novo. 8 C.F.R.
§ 1003.1(d)(3)(i), (ii) (2020).

I. INADMISSIBILITY
A. Legal Framework
Generally, lawful permanent residents, like the respondent, who are
returning to the United States from traveling abroad, “shall not be regarded
as seeking an admission into the United States . . . unless the alien . . . has
committed an offense identified in section 212(a)(2).”
Section
101(a)(13)(C)(v) of the Act, 8 U.S.C. § 1101(a)(13)(C)(v) (2018). The DHS
has the burden of proving by clear and convincing evidence that this
exception to the general rule for lawful permanent residents applies. Matter
of Rivens, 25 I&N Dec. 623, 625 (BIA 2011). In this case, the DHS was
required to establish that the respondent committed a crime involving moral
turpitude under 212(a)(2)(A)(i)(I) of the Act, rendering him inadmissible.
Section 101(a)(13)(C)(v) of the Act.
In determining whether the respondent’s conviction is a crime involving
moral turpitude, we first apply the categorical approach, in which we look
1

The notice to appear originally contained three charges; however, the DHS withdrew
the other two charges.
2
We note that neither party argues the respondent’s conviction is subject to the petty
offense exception under section 212(a)(2)(A)(ii)(II) of the Act. The object of the
conspiracy, namely, a conviction under 18 U.S.C. § 1546(a), is not punishable as a
misdemeanor. Therefore, the maximum penalty possible under 18 U.S.C. § 371 exceeds
one year, such that the petty offense exception does not apply.

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solely to the minimum criminal conduct necessary to satisfy the essential
elements of the crime, not the particular circumstances of the respondent’s
conduct. See Mota v. Barr, 971 F.3d 96, 99 (2d Cir. 2020). If the statute is
overbroad, meaning that it criminalizes some conduct that involves moral
turpitude, and some that does not, we next consider whether the statute is
divisible. Obeya v. Sessions, 884 F.3d 442, 447 n.4 (2d Cir. 2018). A statute
is “divisible” if it “comprises multiple, alternative versions of the crime.” Id.
(quoting Descamps v. United States, 570 U.S. 254, 262 (2013)). If the statute
of conviction is divisible, we apply the modified categorical approach and
examine permissible documents from the respondent’s record of conviction
to determine “what crime, with what elements [the respondent] was
convicted of.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (citing
Shepard v. United States, 544 U.S. 13, 26 (2005)) (identifying documents
that are permissible for courts to examine in determining the elements of a
conviction under the modified categorical approach, including, inter alia,
charging documents, jury instructions, and plea agreements).
B. Conspiracy under 18 U.S.C. § 371
1. The Statute is Overbroad and Divisible
The relevant statute, 18 U.S.C. § 371, criminalizes “two or more persons
[who] conspire either to commit any offense against the United States, or to
defraud the United States, or any agency thereof in any manner or for any
purpose, and one or more of such persons do any act to effect the object of
the conspiracy.” Applying the categorical approach, we conclude that
18 U.S.C. § 371 is facially overbroad, since it punishes both crimes involving
moral turpitude and crimes which may not involve moral turpitude within the
meaning of section 212(a)(2)(A)(i)(I) of the Act, because it covers not only
conspiracy to defraud, but also “to commit any offense.” Cf. Matthews
v. Barr, 927 F.3d 606, 620 (2d Cir. 2019) (“Where a statute is not facially
overbroad, the realistic probability approach requires a noncitizen to
demonstrate ‘that the State actually prosecutes the relevant offense in cases’
that fall outside the federal definition.” (citation omitted)).
The United States Court of Appeals for the Second Circuit, in whose
jurisdiction this case arises, has found that 18 U.S.C. § 371 can be violated
in two different ways: either by “conspiring to commit ‘offenses’ that are
specifically delineated in other federal statutes,” or by “conspiring to
‘defraud the United States.’” United States v. Helmsley, 941 F.2d 71, 90
(2d Cir. 1991); see also United States v. Rosenblatt, 554 F.2d 36, 40 (2d Cir.
1977) (explaining that 18 U.S.C. § 371 is the “general federal conspiracy
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statute,” which may be prosecuted under the “offense” clause or the
“defraud” clause). Thus, whether the respondent’s statute of conviction is
divisible depends upon whether the offense clause and the defraud clause are
simply separate means of committing the conspiracy offense, or whether the
offense clause and the defraud clause each have unique elements that must
be proven for a conviction under the respective clause of 18 U.S.C. § 371.
See Mathis, 136 S. Ct. at 2249.
In undertaking this inquiry, we note “[w]ithout question, the object of a
conspiracy constitutes an essential element of the conspiracy offense.”
United States v. Roshko, 969 F.2d 1, 5 (2d Cir. 1992). Notably, to be
convicted under the offense clause of 18 U.S.C. § 371, not only must the
conspirators have agreed to commit an offense, they also “must have agreed
to commit the same offense to satisfy the rule that they have agreed on the
essential nature of the plan.” United States v. Stavroulakis, 952 F.2d 686,
691 (2d Cir. 1992) (emphasis added) (citing Rosenblatt, 554 F.2d at 41).
Conversely, when the Government charges a defendant under the defraud
clause of 18 U.S.C. § 371, it must prove an agreement on the essential nature
of the alleged fraud. Rosenblatt, 554 F.2d at 42. As the object of the
conspiracy is an essential element of 18 U.S.C. § 371, and the offense clause
and defraud clause each has a distinct object, each clause has its own unique
element that must be proven for a conviction under that clause. 3 See Roshko,
969 F.2d at 2; Stavroulakis, 952 F.2d at 691; Rosenblatt, 554 F.2d at 41–42;
see also United States v. Alston, 77 F.3d 713, 718 (3d Cir. 1996) (“While the
‘offense’ clause requires reference to another part of the criminal code, the
‘defraud’ clause does not, simply because the substantive offense (fraud) is
contained in the statute itself.”).
Additionally, we find the Second Circuit’s discussion in Helmsley, 941
F.2d at 91, relating to 18 U.S.C. § 371 to be instructive in determining
whether the statute’s offense clause and defraud clause each contain separate
elements that must be proven in order for a defendant to be convicted under
each specific clause. In that case, a defendant was charged under both the
offense clause and the defraud clause of 18 U.S.C. § 371. The indictment
alleged that the defendant conspired to accomplish five possible illegal
objectives, one of which was to defraud the United States, and the other four
each involved an agreement to violate a specific law. The jury was instructed
it must be unanimous as to which of the five alleged illegal objectives the
defendant conspired to accomplish. Given the jury had to decide
unanimously whether the defendant in that case either conspired to defraud
3

We acknowledge, on occasion, the offenses will “overlap when the object of a
conspiracy is a fraud on the United States that also violates a specific federal statute.”
Helmsley, 941 F.2d at 90.

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the United States, or conspired to commit a specific offense (one of the four
possible offenses enumerated in the indictment), we conclude the defraud
clause and the offense clause each have unique elements that must be proven
for a conviction under 18 U.S.C. § 371. See Mathis, 136 S. Ct. at 2248–50
(explaining that the elements of an offense must be agreed upon by a jury).
We further conclude that 18 U.S.C. § 371 defines multiple crimes and is
therefore divisible. See id. at 2249.
2. The Respondent was Convicted under the Offense Clause
As we have determined the respondent’s offense of conviction is divisible,
we apply the modified categorical approach and examine the permissible
Shepard documents from the respondent’s record of conviction to determine
“what crime, with what elements [the respondent] was convicted of.” Id.
Here, the record of conviction includes a single-count criminal indictment,
a plea transcript, and a judgment of conviction. The single count in the
indictment—Count One—provides the respondent conspired to “commit an
offense against the United States, to wit, immigration fraud.” The judgment
of conviction makes clear the respondent pleaded guilty to this single-count
criminal indictment. Thus, given our examination of the charging document
and the judgment of conviction—both of which are proper Shepard
documents—we are satisfied the respondent was convicted of conspiracy to
commit an offense against the United States under the offense clause of
18 U.S.C. § 371.
When an alien is convicted of general Federal conspiracy under 18 U.S.C.
§ 371, the first determination is whether the alien was convicted under the
offense clause or the defraud clause of the statute. Where an alien is
convicted under the defraud clause, the inquiry ends, because this clause
categorically constitutes a crime involving moral turpitude. Fraud
convictions have long been held to constitute crimes involving moral
turpitude. See Mendez v. Mukasey, 547 F.3d 345, 347 (2d Cir. 2008).
However, where, as here, an alien is convicted under the offense clause, we
conduct categorical, and, if applicable, modified categorical analyses of the
underlying statute of conviction to determine if the underlying offense
involves moral turpitude. See Matter of Vo, 25 I&N Dec. 426, 429 (BIA
2011) (concluding that it is necessary to examine the underlying substantive
crime in determining whether a conviction for an inchoate offense renders
and alien removable). 4
4

Whether a general Federal conspiracy under 18 U.S.C. § 371 under the offense clause
may also constitute a crime involving moral turpitude, where the underlying substantive

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C. Fraud and Misuse of Visas, Permits, and Other Documents
18 U.S.C. §1546(a)
1. The Statute is Overbroad
Having determined that the respondent was convicted under the offense
clause of 18 U.S.C. § 371, which includes offenses that may or may not
involve moral turpitude, we analyze under the categorical approach whether
the underlying crime of fraud and misuse of visas, permits, and other
documents under 18 U.S.C. §1546(a) constitutes a crime involving moral
turpitude. See id. at 428–30.
At the time of the respondent’s conviction, 18 U.S.C. § 1546(a) punished
by fine or imprisonment, the following:
Whoever knowingly forges, counterfeits, alters or falsely makes any immigrant or
nonimmigrant visa, permit, border crossing card, alien registration receipt card, or
other document prescribed by statute or regulation for entry into or as evidence of
authorized stay or employment in the United States, or utters, uses, attempts to use,
possesses, obtains, accepts, or receives any such visa, permit, border crossing card,
alien registration receipt card, or other document prescribed by statute or regulation
for entry into or as evidence of authorized stay or employment in the United States,
knowing it to be forged, counterfeited, altered, or falsely made, or to have been
procured by means of any false claim or statement, or to have been otherwise
procured by fraud or unlawfully obtained; or
Whoever, except under the direction of the Attorney General or the Commissioner
of the Immigration and Naturalization Service, or other proper officer, knowingly
possesses any blank permit, or engraves, sells, brings into the United States, or has
in his control or possession any plate in the likeness of a plate designed for the
printing of permits, or makes any print, photograph, or impression in the likeness of
any immigrant or nonimmigrant visa, permit or other document required for entry
into the United States, or has in his possession a distinctive paper which has been
adopted by the Attorney General or the Commissioner of the Immigration and
Naturalization Service for the printing of such visas, permits or documents; or
Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other
document required for entry into the United States, or for admission to the United
States personates another, or falsely appears in the name of a deceased individual, or
evades or attempts to evade the immigration laws by appearing under an assumed or
fictitious name without disclosing his true identity, or sells or otherwise disposes of,
offense has only a general mens rea, is not addressed here as the underlying substantive
offense in this case (fraud and misuse of visas, permits, and other documents under
18 U.S.C. §1546(a)) involves a specific intent. Cf. Matter of Cervantes Nunez, 27 I&N
Dec. 238, 243 (BIA 2016) (holding that attempted voluntary manslaughter under California
law is categorically a crime of violence because the crime of attempt requires specific intent,
even though the underlying crime of voluntary manslaughter encompasses reckless
conduct and is not categorically a crime of violence).

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or offers to sell or otherwise dispose of, or utters, such visa, permit, or other
document, to any person not authorized by law to receive such document; or
Whoever knowingly makes under oath, or as permitted under penalty of perjury
under section 1746 of title 28, United States Code, knowingly subscribes as true, any
false statement with respect to a material fact in any application, affidavit, or other
document required by the immigration laws or regulations prescribed thereunder, or
knowingly presents any such application, affidavit, or other document which
contains any such false statement or which fails to contain any reasonable basis in
law or fact . . . .

For clarity of our analysis, we will treat the four phrases of the statute as
numbered one through four. Phrase one outlines, at minimum, conduct such
as possessing with no illegal use or intent to illegally use, an altered or
counterfeit immigration document. We conclude that such conduct is not a
crime involving moral turpitude. Matter of Serna, 20 I&N Dec. 579, 584
(BIA 1992) (holding that this offense is not a crime involving moral
turpitude). We therefore conclude the statute is overbroad, encompassing
some nonturpitudinous conduct, such that it is not categorically a crime
involving moral turpitude. Obeya, 884 F.3d at 447 n.4. Phrase four outlines
acts of fraud, containing the requisite mens rea and conduct which define
crimes involving moral turpitude. See, e.g., Lateef v. Dep’t of Homeland Sec.,
592 F.3d 926, 929 (8th Cir. 2010) (“Since intent to deceive for the purpose
of wrongfully obtaining a benefit is essential to a conviction [for identity
theft] the [Board’s] interpretation of that crime as one involving moral
turpitude is reasonable.”); see also Jordan v. De George, 341 U.S. 223, 228
(1951) (“[C]rimes involving fraud have universally been held to involve
moral turpitude.”). Therefore, we next consider whether the statute is
divisible, such that the modified categorical approach can be employed.
2. The Statute is Divisible
Because 18 U.S.C. § 1546(a) contains four distinct phrases, we must
consider whether the statute lists multiple, alternative elements defining
different crimes, or whether the statute defines a single crime, with one set
of elements listing alternative factual means by which that set of elements is
satisfied. Mathis, 136 S. Ct. at 2249. If we determine the different phrases
within the statute contain different elements, we must proceed to the
modified categorical analysis. Id. at 2256. However, if the distinct phrases
are simply alternative means of committing a single crime, the statute is not
divisible, and the modified categorical approach cannot be used. Id.
We conclude each of the four alternative phrases of § 1546(a) contain
unique elements, which the Government must prove to establish a conviction.
Compare United States v. Archer, 671 F.3d 149, 154 (2d Cir. 2011) (setting
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out the elements for the fourth phrase, which criminalizes “Visa fraud,” as
“(1) knowingly (2) presented (3) an application or ‘document required by the
immigration laws’ (4) that contained a false statement (5) as to a material
fact” (quoting 18 U.S.C. § 1546(a))), with Fed. Crim. Jury Instr. 7th Cir.
1546(a)[1] (2020 ed.) (outlining the elements for phrase one, which
criminalizes the “Use, or Possession of Immigration Document Procured by
Fraud,” as (1) knowingly used, attempted to use, possessed, obtained,
accepted, or received (2) a document prescribed by statute for entry into or
as evidence of authorized stay or employment in the United States (3) which
the defendant knew was forged, counterfeited, altered, or falsely made). See
generally Model Crim. Jury Instr. 9th Cir. 8.132–8.134 (2021) (setting forth
distinct elements for phrases one, two, and four of § 1546(a)).
As such, § 1546(a) falls neatly within the sorts of divisible statutes
described by the Supreme Court in both Mathis, 136 S. Ct. at 2249 (stating
that a divisible statute has “a more complicated . . . structure, . . . list[ing]
elements in the alternative, and thereby defin[ing] multiple crimes”), and
Descamps, 570 U.S. at 262–63 (explaining that a divisible statute “comprises
multiple, alternative versions of the crime,” or “refer[s] to several different
crimes” (alteration in original) (citation omitted)).
We conclude that the four phrases of 18 U.S.C. § 1546(a) are alternative
elements setting forth separate crimes, and therefore the statute is divisible.
Although not binding in this case, which arises in the Second Circuit, we are
further persuaded by the Seventh Circuit’s decision finding that the Board
correctly analyzed § 1546(a) using the modified categorical analysis. See
Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013). Because the
statute is divisible, we look to the record of conviction to identify the
statutory provision the respondent was convicted of violating. Mathis, 136
S. Ct. at 2249.
3. The Respondent was Convicted under Phrase Four
The respondent was convicted of the count contained within his criminal
indictment, which provides that he
knowingly ma[de] under oath . . . [and] knowingly subscribe[d] as true, false
statements with respect to material facts in applications, affidavits, and other
documents required by the immigration laws and regulations prescribed thereunder,
and knowingly presented such applications, affidavits and other documents required
by the immigration laws and regulations prescribed thereunder, and knowingly
presented such applications, affidavits, and other documents which contained such
false statements and which failed to contain any reasonable basis in law and fact, to
wit, [the respondent] and others prepared and submitted fraudulent applications in

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support of H-1B visa applications, in violation of Title 18, United States Code,
Section 1546(a).

The criminal indictment establishes that the respondent was convicted
under phrase four of 18 U.S.C. § 1546(a). Since the respondent knowingly
committed fraud undermining the immigration system, we conclude that his
conviction involves moral turpitude. See Matter of Kochlani, 24 I&N Dec.
128, 130 (BIA 2007) (stating that “crimes that have a specific intent to
defraud as an element have always been found to involve moral turpitude”).
See generally Flores-Molina v. Sessions, 850 F.3d 1150, 1160–64 (10th Cir.
2017) (giving a general overview of the Board’s precedential decisions on
crimes involving moral turpitude involving fraud and deception).
The respondent pled guilty to knowingly preparing and submitting
fraudulent visa applications. He prepared and submitted applications so that
others would receive nonimmigrant visas for which they were ineligible.
Such conduct is inherently dishonest and fraudulent. The respondent was
convicted of phrase four, involving the use of fraudulent documents, and not
mere possession of an altered document.
4. Matter of Serna Clarified
The respondent argues he is not inadmissible because the offense
underlying his conviction (visa fraud under 18 U.S.C. § 1546(a)) is not
categorically a crime involving moral turpitude, citing to our precedent
decision in Matter of Serna, 20 I&N Dec. 579. In that case, we held that a
conviction under 18 U.S.C. § 1546 is not categorically a crime involving
moral turpitude, since it may include possession, without the use or intent to
use, an altered document. However, in Matter of Serna, we analyzed the
statute, as it existed in 1982, without considering the modified categorical
analysis. That version of the statute, which is different from the version
under which the respondent was convicted, read in relevant part:
Whoever knowingly forges, counterfeits, alters or falsely makes any immigrant or
nonimmigrant visa, permit, or other document required for entry into the United
States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any
such visa, permit, or document, knowing it to be forged, counterfeited, altered, or
falsely made, or to have been procured by means of any false claim or statement, or
to have been otherwise procured by fraud or unlawfully obtained . . . .
....
Shall be fined not more than $2,000 or imprisoned not more than five years, or
both.

18 U.S.C. § 1546 (1982).
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We find here, as we did in Matter of Serna, that possessing with no illegal
use or intent to illegally use an altered or counterfeit immigration document
is not morally turpitudinous. However, we find the version of the statute
under which the respondent was convicted to be divisible, such that the
modified categorical analysis must be employed to determine under which
statutory phrase he was convicted. 5 We hold that a conviction for visa fraud
under phrase four of 18 U.S.C. § 1546(a) is a conviction for a crime involving
moral turpitude. 6 Consequently, we decline to disturb the Immigration
Judge’s conclusion that the respondent is inadmissible under section
212(a)(2)(A)(i)(I) of the Act.

II. CANCELLATION OF REMOVAL
Having determined the respondent is removable, we now turn to the
respondent’s application for relief from removal. It is the respondent’s
burden to establish eligibility for relief from removal in all respects,
including that he merits such relief in the exercise of discretion. Sections
240(c)(4)(A)(i), (ii) of the Act, 8 U.S.C. § 1229a(c)(4)(A)(i), (ii) (2018). In
our de novo review of discretion, our consideration of the respondent’s
criminal activity is not limited by the categorical or modified analyses of the
criminal statute. We may consider all record evidence, including but not
limited to, records of convictions, police reports, and the respondent’s
testimony. See Matter of Thomas, 21 I&N Dec. 20, 23–24 (BIA 1995)
(holding that for discretionary relief the evidence of unfavorable conduct
may be considered).
The respondent argues his application for cancellation of removal should
be granted. 7 Presuming the respondent credible, without deciding the issue,
we would nonetheless deny his application for cancellation of removal as a
matter of discretion. In exercising discretion under our de novo authority,
we “must balance the adverse factors evidencing the alien’s undesirability as
5

We need not reach, and leave open the question whether the 1982 version of the statute
was divisible.
6
We need not address whether phrases one, two, and three may themselves be further
divisible.
7
The Immigration Judge concluded the respondent was ineligible for cancellation of
removal because he had obtained his lawful permanent resident status through fraud, and
therefore pretermitted the respondent’s application under Matter of Koloamatangi, 23 I&N
Dec. 548, 552 (BIA 2003). Despite the Immigration Judge’s pretermission determination,
he reviewed the claim in its entirety, alternatively denying the application as a matter of
discretion. Since our decision rests on the alternative discretionary denial under section
240A(a) of the Act, we need not reach the issue of the respondent’s possible fraudulent
acquisition of status.

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a permanent resident with the social and humane considerations presented in
his [or her] behalf to determine whether the granting of . . . relief appears in
the best interest of this country.” Matter of C-V-T-, 22 I&N Dec. 7, 11 (BIA
1998) (alteration in original) (quoting Matter of Marin, 16 I&N Dec. 581,
584–85 (BIA 1978)) (holding that the general standards developed for the
exercise of discretion under former section 212(c) of the Act, 8 U.S.C.
§ 1182(c) (1994), are applicable to the exercise of discretion under section
240A(a) of the Act).
Favorable considerations include family ties within the United States,
residence of long duration in this country (particularly when the inception of
residence occurred at a young age), evidence of hardship to the respondent
and his family if removal occurs, service in this country’s armed forces, a
history of employment, the existence of property or business ties, evidence
of value and service to the community, proof of genuine rehabilitation if a
criminal record exists, and other evidence attesting to a respondent’s good
character. Id. Adverse factors include the nature and underlying
circumstances of the grounds of removal that are at issue, the presence of
additional significant violations of this country’s immigration laws, the
existence of a criminal record and, if so, its nature, recency, and seriousness,
and the presence of other evidence indicative of a respondent’s bad character
or undesirability as a permanent resident of this country. Id.
The Immigration Judge appropriately considered the respondent’s
significant positive factors, placing emphasis on his difficult family situation.
We have considered the factors raised by the respondent on appeal, including:
a lengthy residence in the United States, significant family ties in the United
States, the hardship his family would suffer upon his removal, employment,
contributions to the community, and the respondent’s remorse for his
criminal conduct. The respondent argues on appeal that the Immigration
Judge did not consider his rehabilitation. We disagree. Though the
Immigration Judge did not specifically employ the term “rehabilitation,” the
Immigration Judge’s decision reflects consideration of the evidence
presented, including the respondent’s efforts to rehabilitate. Regardless,
under our de novo authority to review discretionary findings, we have
considered the respondent’s rehabilitation argument.
8 C.F.R.
§ 1003.1(d)(3)(ii).
The Immigration Judge further considered the respondent’s negative
factors, namely, the events that led to his conviction of conspiracy to commit
visa fraud. As noted by the Immigration Judge, the respondent conspired to
commit fraud by submitting immigration documents that he knew were false
and misleading. He also coached an individual on how to pass the consular
interview. The respondent committed these acts over a period of several
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years. The respondent’s repeated efforts to knowingly violate immigration
laws reflect a lack of contrition and accountability for misconduct that
undermines the integrity of our nation’s laws. The respondent’s many
equities and later attempts at rehabilitation do not overcome his ongoing
fraudulent scheme. See generally INS v. Yueh-Shaio Yang, 519 U.S. 26, 32
(1996) (“It is assuredly rational, and therefore lawful, for [the Attorney
General] to distinguish aliens such as the respondent who engage in a pattern
of immigration fraud from aliens who commit a single, isolated act of
misrepresentation.”).
Upon consideration of the equities before us on de novo review, we agree
with the Immigration Judge’s conclusion that the weight to be attributed to
the respondent’s positive equities is undercut by his criminal record in this
country. As such, we affirm the Immigration Judge’s discretionary denial of
the respondent’s application for cancellation of removal under section
240A(a) of the Act. The appeal is dismissed.
ORDER: The respondent’s appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the order,
to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See section
274D of the Act, 8 U.S.C. § 1324d; 8 C.F.R. § 280.53(b)(14).

261


Interim Decision #1786

MATTER OF CITLITO

In Visa, Petition Proceedings
A-17754878
Deoided by Board September 1, 1967
A visa petition filed by a United States citizen to accord her stepmother, the

beneficiary, immediate relative status is approved where the petitioner, although married, had not reached the age of 18 years at the time of her father's
marriage to beneficiary in 1649 creating the stepchild relationship.
On DEXIALII or Itzrrzoton ; Angelo 0. Provenzano, Esquire

80 West Washington Street
Chicago, Illinois 60802

The case is before us upon our own motion to reconsider the prior
decision which was rendered July 17,1967. 1
The case involves a visa petition filed by a native of Italy, a naturalized citizen of the United States, 33 years old, female, to .classify the
status of the beneficiary as her stepmother. The beneficiary is a native
and citizen of Italy, 51 years old. The documents submitted established
that the beneficiary became the stepmother of the petitioner by marriage to the widowed father of the petitioner on January 1, 1950. Prior
to that marriage creating the steprelationship, the petitioner had been
married on September 11, 1949. In view of the fact that section 101
(b) (2) defines the term "parent" to mean a parent only where the
relationship exists by reason of one of the circumstances set forth in
section 101(b) (1) , and that the latter section in pertinent part defines
'the term "child" to mean an unmarried person under 21 years of age,
in our order of July 17, 1967 we dismissed the appeal from the order
of the District Director, Chicago District, dated April 13, 1967 denying the visa petition because the petitioner was not unmarried. Upon
reconsideration, we believe our decision was erroneous.
Our guiding precedent is Matter of G—, 8 L & N. Dec. 355. In that
case the question was Whether the alien could qualify for relief under

the last clause of section 7 of the Act of September 11, 1957 ( P.L. 85–
1

8 OFIt 8.2.

427
821-4354-09---28

Interim Decision #1786
316) as a parent of a United States citizen who was over 21 years of
age. The definitions contained in section 101(b) (1) and (2) of the
Immigration and Nationality Act were deemed applicable. Under section 101(b) (2) the term "parent" means a parent only where the relationship exists by reason of any of the circumstances set forth in
subparagraph (1) of section 101(b). We agreed with the Department
of State that the words "circumstances" as used in section 101(b) (2)
does not relate to the words "unmarried" or "under 21 years of age"
as used in section 101(b) (1) of the Act but that the crucial word in
the definition of "parent" was relation skip as defined in sections 101(b)
(1) (A) to (E). It was apparent from the legislative history that Congress had in mind the family unit as such, that is, close relatives of
United States citizens and permanent resident aliens, which it decided
to keep together in order to alleviate the hardship of enforced separations. We concluded that the parent, once the required relationship
has been established, always remains a parent.
In the instant case the "circumstances" have been met, that is, the
steprelationship was created before the child had reached the age of
18 years at the time the marriage creating the relationship occurred.
Inasmuch as the "circumstances" as set forth in seotion. 101(b) (1) (B)

of the definition have been met, that is, the marriage creating the
status of stepchild occurred when the stepchild was under 18, the circumstances and the relationship existed under the immigration law.
The fact that the child was over 21 or is unmarried is not pertinent to
the "circumstances." The relationship of stepparent having been
validly created pursuant to law because the marriage creating the
steprelationship occurred when the citizen child was under 18 years
of age, the stepparent remains a stepparent.
Our decision in Matter of b—, 8 I. & N. Dec. 355, was reaffirmed
in Matter of C , 8 I. & N. Dec. 592, where -we repeated that the parent
or the stepparent always remains a parent or stepparent, once the
original conditions of the definition have been met. Accordingly, the
visa petition will be approved for immediate relative status on behalf
of the beneficiary.
ORDER: It is ordered that the visa petition be approved for immediate relative status on behalf of the beneficiary.
—

428


Interim Decision #2473

MATTER OF AVILES
In Visa Petition Proceedings
A-19500272

Decided by Board January 16, 1976
Since a District Director loses jurisdiction over a case once an appeal from his decision has
been filed, and thereafter any motions must be directed to the Board of Immigration
Appeals, the reopening of the instant proceedings by the District Director subsequent
to the filing of petitioner's appeal from the January 21, 1975 order of denial of the visa
petition for lack of prosecution, was improper, and the District Director's second order
subsequently eatered on May 9, 1975, was of no effect.
ON BEHALF OF :PETITIONER: Pro se

The United States citizen petitioner applied for immediate relative
status for the beneficiary as his spouse under section 201(b) of the
Immigration and Nationality Act. In a decision dated January 21, 1975,

the district director denied the petition for lack of prosecution. On
January 31, 1975, the petitioner appealed. On March 21, 1975, the
petitioner and the beneficiary were interviewed by a Service officer. The
district director issued a second order on May 9, 1975 which "reaffirmed"
the decision dated January 21, 1975, and certified this case to us for
review and final decision. To avoid any questions as to our jurisdiction, we
have decided to certify the entire record file to ourselves.
Once an appeal has been filed, the district director loses his jurisdiction
over the case. Thereafter, any motions must be directed to this Board.
The pertinent regulation, 8 CFR 3.5, provides that when an appeal is

taken, the record is to be forwarded to the Board. The only exception
arises in the instance of a withdrawal of an appeal, a situation not present
in this case. Tae reopening of these proceedings by the district director
subsequent to the filing of the petitioner's appeal was not proper, and his
order of May 9, 1975 was of no effect.
The petitioner is a 25-year-old male who resides in Amityville, New
York. The beneficiary is a 44-year-old female alien, native and citizen of
Columbia. A copy of a marriage certificate is on record which shows that
the petitioner and the beneficiary went through a marriage ceremony on
March 28, 1972 in Amityville, New York.

On May 2, 1974, the petitioner and the beneficiary were separately
588

Interim Decision #2473
interviewed by a Service officer. Their statements disclosed discrepancies with respect to their residence and their whereabouts on the night
before the interview. A thorough investigation conducted by the Service
following the interview revealed that the petitioner and the beneficiary
were not living together and maintained separate residences. The petitioner failed to appear for a scheduled Service interview on October 8,
1974.
In visa petition proceedings, the petitioner has the burden of establishing eligiblity for the benefit sought under the immigration laws, Matter of

Brantigan, Ll I. & N. Dec. 493 (BIA 1966). The petitioner has not shown
that his marriage to the beneficiary was not entered into for the primary
purpose of evading the immigration laws. We consequently agree with
the District Director's decision that the beneficiary should not be accorded immediate relative status as the spouse of the petitioner. See
Matter of Phillis, 15 L & N. Dec. 385 (BIA 1975). Accordingly, the
decision of the district director will be affirmed.
ORDER: The district director's decision of January 21, 1975 is
affirmed.

589


Interim Decision #1707

MAr.iBrt OF MOY

Application for Classification as Refugee
A-11551885

Decided by Regional Commissioner February 2, 1967
Since an alien who had been firmly resettled in another country is ineligible for
refugee classification under the proviso to section 203 (a) (7) of the Immigration
and Nationality Act, as amended, such classification is denied applicant. a
native of China, who, after fleeing the mainland in 1949 thereafter had been
firmly resettled in Colombia, South America, having acquired permanent residence and substantial assets in that country, including a partnership interest
in a farm and cash savings amounting to $6,000 in a bank.
ON BEHALF OF APPLICANT: Samuel B. Waterman, Esquire
111 Broadway
New York, New York 10006

This matter is before the Regional Commissioner on certification of
the decision of the District Director denying the application for
refugee classification under the proviso to section 203(a) (7) of the
Immigration and Nationality Act, as amended.

The applicant is a citizen of China, single, born September 12, 1932,
in Toy Sun, Kwangtung, China. He fled from China to Hong Kong
about 1949 because of his fear of persecution on account of -political
opinion. He states he is unwilling to return to China because he is
opposed to Communism and the Communistic form of government. He
remained in Hong Kong from about 1949 until May 26, 1956, during
which time he was attending school and was supported by money
received from his father who had remained on the Chinese Mainland.
In 1956 the applicant went to Colombia, South America for employment. He was admitted to the United States on April 22, 1958, as a
visitor for pleasure for four months. Thereafter he was granted a
change of status to that of a nonimmigrant student
extensions of
stay until January 30, 1963. He has since remained in the United States.

Upon his admission to the•United States, the applicant presented a
passport issued by the Republic of China valid to February 3, 1960, and
a reentry permit for his return to Colombia to expire in January 1960.
117

Interim Decision #1707
His Chinese passport was revalidated until February 3, 1963, and his
reentry permit for Colombia until March 1, 1961. When interviewed by
an officer of this Service on September 11, 1958, the applicant stated

be had resided in Colombia since May 1956; that he was engaged there
in farming with a partner; that he and his partner owned land in
Colombia; and that he had approximately $8,000 in a bank in Barranquilla, Colombia. In an application for an extension of stay submitted
in October 1959, the applicant stated he. had a yearly income of $2,700
from his personal savings in Colombia, South America.
Section 203 (a) (7) of the Immigration and Nationality Act, as
amended, reads as follows:
(7) Conditional entries shall next be made available by the Attorney General,
pursuant to such regulations as be may prescribe and in a number not to exceed
6 per centam of the number specified in section 201(a) (ii). to aliens who satisfy
an Immigration and Naturalization Service officer at an evemluation in any
non-Communist or non-Communist-dominated country, (A) that (I) because of
persecution or fear of persecution on account of race, religion, or political
opinion they have fled (I) from any Communist or Comnumist-dominated country or area, or (II) from any country within the general area of the Middle
East, and (ii) are unable or unwilling to return to such country or area on account of race, religion, or political opinion, and (iii) are not nationals of the
countries or areas in which their application for conditional entry is made; or
(B) that they are persons uprooted by catastrophic natural calamity as defined
by the President who are unable to return to their usual place of abode. For the
purpose of the foregoing the term "general area of the Middle East" means the
area between and including (1) Libya on the west, (2) Turkey on the north, (8)
Pakistan on the east, and (4) Saudi Arabia and Ethiopia on the south PROVIDED, That immigrant visas in a number not exceeding one-half the number
specified in this paragraph may be made available, in lieu of conditional entries
of a like number, to such aliens who have been continuously physically present
in the United States for a period of at least two years prior to application for
adjustment of status.

We will concede for the purpose of this order that the applicant
fled from Communist China because of fear of persecution on account
of his political opinion and that he is unwilling to return thereto on
account of political opinion. The issue to be decided here is whether by
reason of having become resettled in a third country, Colombia, South
America, he is ineligible for the requested refugee status. The statute
does not specifically mention resettlement in another country after an
alien has fled from his homeland. Reference will be made therefore to
the legislative history of Public Law 89-236 which added section
203(a) (7) in its present form to the Immigration and Nationality
Act. The Senate Committee on the JudiCiary when considering H.R.
2580 (which became Public Law 89-236) states in its Report #748,
p. 16:
118

Interim Decision #1707
As passed by the House, the bill in section 203(a) (7) provides that not to
exceed 10,200 refugees from communism and an area of the Middle East may
be granted conditional entries each year. As amended by the committee, this
category of refugees is enlarged to include aliens who have been uprooted from
their place of usual abode by a catastrophic natural calamity. It is the purpose
of the committee in adding this group of persons to the refugee category to provide relief in those cases where aliens have been forced to flee their homes as a
result of serious natural disasters, such as earthquakes, volcanic eruptions,
tidal waves, and in any similar natural catastrophes. The Congress, in a prior
case granted relief to such persons through the enactment of the Refugee Relief
Act of 1953, where the term "refugee" was defined as follows :
Sec. 2. (a) "Refugee" means any person in a country or area which is neither
Communist nor Communist-dominated who because of persecution, fear of persecution, natural calamity, or military operations is out of his usual place of abode
and unable to return thereto, who has not been firmly resettled, and who is in
urgent need of assistance for the essentiale of life or for transportation.

Refugees have been admitted to the United States through the sponsorship of
voluntary agencies and private citizens. The Committee anticipates that such
practice will continue so that each refugee will have an opportunity to adjust
and develop in this country without fear of abandonment and without the

possibility of becoming a public charge.
The conditional entry of refugees as proposed in this bill is not unlike the
parole procedure utilized during the existence of the so-called Fair Share Act
(sec. 212(d) (0) ) and it is Intended that the procedures remain the same.

In House of Representatives Report #745, August 6, 1965, Page 15
the following statement appears :
The conditional entry of refugees as proposed in this bill Is not unlike the
parole procedure utilized during the existence of the so-called Pair Share Act
(sec. 212(d) (5) ) end it is intended that the procedure remain the same. Since
the use of the term "parole" conveys a connotation unfavorable to the alien, the
substitute term "conditional entry" am been used to avoid any such implication.
The so-called Fair Share Refuge Act (the act of July 14, 1960), with the
exception of the sections which permit adjustment of status of refugees already
admitted to the United States under its provisions, is repealed. The repeal of
this legislation will again permit the United States to determine who is or who
is not a refugee.

A further indication of the congressional intent is found in the following 4tatement of Senator Edward M. Kennedy concerning H.R.
2580, which appears on page 23351 of the Congressional Record of
September 17, 1966 :
The plight of refugees has been of special concern to us since the end of World
War II. Every outbreak of violence between nations leaves its toll in the homeless and dispossessed. Our concern for refugees was capped in 1960 by the passage of the fair share law, under which we agreed to accept up to 25 percent of
persons displaced to other lands in a prior 6-month period, if these persons fell
under the mandate of the United Nations High Commissioner for refugees. This
law was passed in keeping with World Refugee Year. By placing refugees under
our general immigration law for the Bret time, the bill before us will do away

119

Interim Decision #1707
with the main provisions of the fair share law, thus allowing the United Sister
to make its own determination of who is or is not a refugee.

In the past we have accepted as refugees only those persons otherwise qualified who have not firmly resettled in another country. Those
persons who after fleeing from their homeland have proceeded to another country where they have been accepted as permanent residents
and have established themselves firmly can no longer be considered to
be fleeing from persecution. The Congress obviously did not intend
that the fact that an individual had fled from a country because of
persecution or fear of persecution should without regard to intervening circumstances qualify him forever'ss a refugee.
The applicant, to quote from a brief submitted by his former counsel on October 28, 1958 :
. . . . established that at his domicile in Barranquilla, Colombia, he has a partnership interest in a farm valued at $1,500.00 and has cash caving° amounting
to $5,000.00 In a Barranquilla bank. He also established that he has no intention
of abandoning his Colombia residence to which he is able to return (See permit
to reenter Colombia which expires January, 1960).

We conclude that the applicant became firmly resettled in Colombia
and that he does not qualify as a refugee within the scope of section
203(a) (7) of the Immigration and Nationality Act, as amended. The
decision of the District Director will be affirmed.
It is ordered that the application for refugee classification under the
proviso to section 203(a) (7) of the Immigration and Nationality Act,
as amended, be and hereby is denied.

120


Interim Decision #1253

MATTER OF SitREISMAN.

In DEPORTATION Proceedings
A-11069398
Deckled by Board September 27, 190
(1) Whene respondent, a native and citizen of Syria, obtained, in an assumed
name, a birth certificate with which he secured a passport from the Republic
of Lebanon, a "no valid passport" charge under section 212(a) (26) of the
Immigration and Nationality Act is sustained since said passport did not show
his identity and correct nationality.
(2) Respondent's willful misrepresentation to be the individual named in the
Lebanese passport he presented in procuring his nonimmigrant visa is material
under section 212(a) (19), since he would have been excludable at time of entry
had he disclosed his true name. cf. Matter of Ron, Int. Dec. No_ 1247..
(3) In light of the contradiction inherent in counsel's request that respondent be
permitted to complete his schooling after which the Government could "send
him back at that time" and since respondent has presented no evidence, other
than his own unconvincing testimony, to corroborate his, claim, he has failed
to establish that because of his Armenian origin and his religious beliefs he
would be subject to physical persecution under section 243(h) if deported
to Syria.
(4) where, ronowing nearing in November 1901 on respondent's section 243(h)
application, there had been no decision by, nor even a recommendation to, the
Regional Commissioner prior to the amendment of the regulations effective
January 22, 1962 (Title 8, CFR, 26 F.R. 12110, Dec. 19, 1961), the reopening of
the hearing alter that date for determination of the application in accordance
with the amended regulations was the proper procedure.
Gamins :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) 3—Excludable
at entry under 8 U.S.O. 1182 (a) (19)—Visa procured by fraud or misrepresentation.
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) 3—Excludable
at entry under 8 U.S.C. 1182(a) (26)—Nonimmigrant not in possession of valid passport.

This case is before us on appeal from a decision of a special inquiry
officer granting voluntary departure and directing that the respondent
be deported if he fails to depart voluntarily.
The respondent is a 28-year-old unmarried male, native and citizen
of Syria, whose only entry into the United States occurred on Septem109

Interim Decision 4t1253
ber 25, 1957, at which time he was admitted temporarily as a nonimmigrant student under the assumed name of Jirair Parkev Ananian,
having obtained a passport in that name from the Republic of Lebanon.
The special inquiry officer found that the visa was obtained by fraud
or misrepresentation and that the respondent did not have a valid
passport, and he concluded that both charges were sustained.
In the notice of appeal, counsel stated that deportability was contested, and that the appeal was also based on denial of applications
under sections 244(a) and 243 (h) of the Immigration and Nationality
Act [8 U.S.C. 1254(a) and 1253(h)]. No application was submitted
under 8 U.S.C. 1254(a), and the respondent does not meet the requirements of that statutory provision. The issues to be determined are,
therefore, whether deportability has been established and whether
deportation should be withheld under 8 U.S.C. 1253 (h) .
Counsel did not file a brief, but we have carefully considered the
statements in the notice of appeal. There is nothing to indicate in
what respect counsel claims there was a failure to accord the respondent
due process of law, and this contention is dismissed as being without
merit.
Insofar as concerns the contention that the two charges are not
sustained, the respondent admitted that he obtained a birth certificate
in the name of Jirair Ananian; that he represented himself ,to be this
individual in obtaining a passport from the Republic of Lebanon; and
that he made a similar representation and claimed to be a Lebanese
Citizen when he procured his nonimmigrant visa (hearing of February
8, 1960, p. 9). 8 U.S.C. 1101(a) (30) provides: "The term 'passport'
means any travel document issued by competent authority showing the
bearer's origin, identity, and nationality if any, which is valid for
the entry of the bearer into a foreign country." Since the Lebanese
passport did not show the respondent's identity and correct nationality, it was not a valid passport, and we hold that he was excludable at
the time of entry under 8 1182(a) (26). Accordingly, the
lodged charge is sustained.
With reference to the charge stated in the order to show cause,

the respondent was excludable under 8 U.S.C. 1182(a) (19) if he procured his visa in either of two ways—(A) by fraud or (B) "by willfully misrepresenting a material fact". The special inquiry officer
held (decision, p. 5) that the respondent was deportable because his
visa had been secured by one method or the other. However, there
was no particular discussion of whether he procured the visa by
fraud. The respondent obtained a birth certificate and a Lebanese
passport by fraud, and we are satisfied that fraud was necessarily
inherent in the procurement of the visa.

110

Interim Decision #1253
In connection with the question of whether the respondent procured
his visa by willfully misrepresenting a material fact, there were cited
Matter of S— and B—C—, Int. Dec. 1168 (A.G., 1961), and Matter
of L—D—L----B--, Int. Dec. 1207 (1962). The special inquiry officer
held that the respondent had not borne the burden of establishing
that the misrepresentations did not cut off a line of inquiry which
might have resulted in the denial of the visa. Counsel contends that
the respondent met this burden of proof.
In Matter of S— and B—C—, supra, the Attorney General stated
(p. 7) that the application of the test of materiality would turn on the
answers to three questions. The second question was whether the
misrepresentation tended to shut off a line of inquiry which was relevant to the alien's eligibility, and it was stated that a misrepresentation as to identity would almost necessarily have shut off a relevant
investigation. However, before reaching this second question, the
first question stated by the Attorney General must be conside
red.
This is whether the alien was excludable on the true facts. As we
have concluded above, this respondent was excludable at the time of
entry under 8 U.S.C. 1182(a) (26) because he did not have a valid
passport. It was only the respondent's willful misrepresentation,
identifying himself with the person named in the passport, that
enabled him to procure the nonimmigrant visa, and it seems obvious
that he would have been excluded under 8 U.S.O. 1182(a) (26) when
he applied for admission to the United States if he had disclosed his
true name. The Attorney General specifically stated that if the alien
was excludable on the true facts, the misrepresentation was material.
It is only where the alien is not excludable on the true facts that the
second and third questions stated by the Attorney General are to be
considered. Hence, although we do not approve all of the special
inquiry officer's reasoning on this matter, we do concur in his conclusion that the respondent was excludable at the time of entry under
8 U.S.C. 1182(a) (10), and we conclude that he is deportable on the
charge stated in the order to show cause.
The remaining issue relates to the respondent's application under
8 U.S.C. 1253(h). The hearing on this application was completed
on November 15, 1961. The special inquiry officer stated (Tr. p. 14)
that the officer who questioned the respondent concerning this application had not made his recommendation to the Regional Commissioner
prior to the amendment of the regulations effective January 22, 1962
(26 F.R. 12110), and counsel contends that the procedure in the respondent's case was defective for that reason. Since there had been
no decision by the Regional Commissioner nor even a recommendation
to him, we believe the Service followed the proper procedure in reopening the hearing in order that the determination of this application
111

Interim Decision #1253
might be made in accordance with the regulations which had become
effective in the meantime. The respondent has not shown that this
resulted in any prejudice to his case. Accordingly, this contention is

43ismissed.
Under 8 CFR 242.17(c), the respondent has the burden of proving
that ho would be subject to physical persecution if deported to Syria_

No evidence whatever was offered to support this application during
the reopened hearing on May 16, 1962, and a statement by counsel
(Tr. p. 10), requesting that the respondent be permitted to complete
his schooling after which the Government could "send him back at
that time", seems to contradict the respondent's claim that he fears he
would be physically persecuted if deported to Syria. The only evidence in support of the application is Exhibit 3 which consists of the
respondent's affidavit of August 22, 1961 and his testimony on. September 12 and November 15, 1961.
We have carefully considered these statements of the respondent but

we believe they fall far short of establishing that the respondent would
be subject to physical persecution. In the affidavit of August 22, 1961,
he stated that he is a Christian and an Armenian ; that his father is an
active member of the political party that is "strongly against the
Communists"; that he received a letter from his brother stating that
many Armenians belonging to this party had been tortured and thrown
in jail; that he desired to obtain affidavits from experts and letters and
statements from relatives in Syria to support his application; and
that it would require until about September 15, 1961 to obtain this
evidence. At the hearing on September 12, 1961, a continuance

was

granted at the request of the respondent and he was instructed to bring
with him to the next hearing all of his witnesses and evidence. On
November 15, 1961 he was questioned fully by the special inquiry officer.
When he was asked why he believed he would be subject to physical
persecution, he made a vague statement but fondly said, "I can be
tortured, I can be thrown in jail, anything" (Ex. 3, p. 17). He
admitted that his family in Syria, who are also Christians, had not
been persecuted. Apparently his only basis for assuming that some
action may be taken against him is the fact that he had succeeded in
coming to the United States by using a Lebanese passport. The
respondent's testimony that he would be subject to physical persecution is unconvincing. At the conclusion of the hearing, he was asked
whether he had any evidence or witnesses to present and answered in
the negative. It is our conclusion that the respondent has not proved
that he would be subject to physical perseeution if deported to Syria.
In view of the foregoing, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
112


Interim Decision #1767

MArratt OF MAIICRENA

In Adjustment of Status Proceedings
A-12500020.
Decided by Regional Commissioner August 15, 1967
Where an alien's conviction under the second clause of 18 U.S.C. 1001 mar have
been for making a false statement, it cannot be assumed that her plea of guilty
concerned a fraudulent statement; therefore, the crime cannot be held to involve moral turpitude. Notwithstanding, her application for adjustment of
status to that of a lawful permanent resident pursuant to the provisions of
section 1 of the Act of November 2, 1968, is denied, as a matter of discretion,
where she remains on probation as a result of that conviction.

This matter is before the Regional Commissioner for review on
certification of the decision of the District Director denying the
application.
The applicant is a 81-year-old native and citizen of Cuba. She last
arrived in the United States at Miami, Florida on October 17, 1961
when she was paroled indefinitely under section 212(d) (5) of the
Immigration and Nationality Act. On: February 23, 1967, she applied

for permanent resident status as a Cuban refugee under the Act of
November 2, 1966 which provides, in part :
• • • That, notwithstanding the provisions of section 240(c) of the Immigra•
tion and Nationality Ad, the status of any alien who is a native or citizen of
Cuba and who has been inspected and admitted or paroled into the United States
subsequent to January 1, 1959 and has been physically present in the United
States for at least two years, may be adjusted by the Attorney General, in his
discretion and under such regulations as he may prescribe, to that of an alien
lawfully admitted for permanent residence if the alien makes an application for
such adjustment, and the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence . . .

The District Director found the applicant is inadmissible under
section 212(a) (9) of the Act as an alien who has been convicted of a
crime involving moral turpitude by reason of her conviction on Jan-

31, 1966 in the United States District Court for violation of
section 1001, Title 18, U.S. Code. This section includes three distinct

uary

offenses, namely ! (1) the offense of falsifying, concealing, or covering
355

Interim Decision #1767
up by any trick, scheme, or device, a material fact; or (2) the making
of any false, fictitious, or fraudulent statements or representations; or
(3) the making or using of "any false writing or document. . ."
The applicant was convicted upon her plea of guilty to count three
of the indictment which reads as follows :
That on or about January 7, 1968, in Dade County, in the Southern District of
Florida, the defendants,
RODOLFO MARCHENA and
CARMEN HERNANDEZ a/k/a CARMEN MARCHENA
in a matter within the jurisdiction of a department of the United States, to wit,
the Department of Health, Education and Welfare, did knowingly and wilfully
make and cause to be made a false, fictitious and fraudulent statement and
representation of a material fact, that is to say : In a statement entitled "Declaration of Resources" made and signed by the defendants and presented to an
employee of the Public Welfare Department of the State of Florida, winch
theretofore by law had been designated to administer the United States Cuban
Refugee Assistance Program, the defendants stated they were receiving only
314.00 to $20.00 a week, which statement was false, for in truth and in fact, as
the defendants well knew, the defendant RODODLFO MARCHENA was working
full time and receiving a salary as an employee of Riverside Laundry in Dade
County, Florida ; in violation of Title 18, United States Code, section 1001,
This count does not allege the use of any trick, scheme, or device,

and therefore is not under the first part of section 1001. A conviction
under the third part may not be held to involve moral turpitude
because of the conflicts in the various circuits as to whether materiality
is required. Hatter of Espinosa, decided by the Board of Immigration
Appeals, August 16, 1962, 10 I. & N. Dec. 98. Since the District DirecAor found that the conviction involved fraud against the United States,
he considered the conviction under the second clause of section 1001.
In Hatter of Espinosa, supra, the Board agreed with the special inquiry officer that the conviction was under the third clause but discussed the effect of a possible conviction under the second clause. The
Board stated, in pertinent part:
Even if . . . the crime consists of a violation of the second clause of section

1001 which concerns the making of false statements without reference to writings, it seems to us that a question as to materiality would still exist. Besides,
the simple answer lies in the fact that the record does not establish that there
was a conviction for fraud rather than for false misrepresentation. The second
clause of 18 IT.S.C. 1001 Lists the commission of several acts which can constitute
the crime. These acts are set forth in the disjunctive. Thus, it is a crime to make
a false writing knowing it to contain a 'false, fictitious or fraudulent statement"
(emphasis supplied). In an indictment the elements of the crime can be set

upon proof
of the commission of any one of the acts charged (United States v. Welk, 180
F. Stipp. 707 (Del 1959)). Under such circumstances, there is a question as to
whether the conviction was based upon the existence of one element rather than

forth in the conjunctive; however, a defendant can be found guilty

356

Interim Decision 4E1767
another. We cannot assume that the respondent pleaded guilty to fraudulent
conduct rather than false conduct.

In determining whether a crime involved moral turpitude, the definition of a crime must be taken at its minimum. United States ex rel.
Robkson v. Day, 51 F.2d 757 (C.C.A. 2, 1931). On this record the
conviction may have been for making a false statement, and we may
not assume that the plea of guilty concerned a fraudulent statement.
The crime cannot be held to involve moral turpitude. The record does
not establish therefore that the applicant is ineligible to receive an
immigrant visa or that she is not admissible to the United States for
permanent residence.
The remaining issue is whether in the exercise of the discretion
contained in the Act of November 2, 1966 the application should be

approved. The applicant has three children. Two were born in Cuba,
on November 12, 1955 and July 18, 1958, of her first marriage. That
marriage reportedly was terminated by divorce on March 15, 1962
at Miami, Florida. She was married on August 4, 1962 to her present
husband, a native and citizen of Cuba admitted to the United States
for permanent residence. Of the second marriage one child was born
hi the United States on January 11, 1963. As set forth above, she and
her present husband made false statements on or about December 20,
1962 and failed to disclose their marriage in connection with the
United States Cuban Refugee Assistance Program. The record of
conviction of January 31, 1966 shows she and her husband were each
placed on probation with the special condition imposed by the Court
that full restitution be made at such times and in such amounts as
the Probation Department may direct. The applicant remains on probation for the conviction of a felony punishable by a fine of not more
than $10,000 or imprisonment of not more than five years,. or both,
arising from an abuse of an assistance program set up by the United
States Government for the benefit of Cuban Refugees. No evidence
of restitution has been submitted.
After careful consideration of the entire record, it is found the facts
and circumstances do not warrant granting the applicant the benefits
of this immigration legislation for Cuban refugees. The application
will be denied for this reason.
ORDER : It is ordered that the application be and hereby is denied
as a matter of administrative discretion.

357


Interim Decision #2660

MATTER OF ARTHUR
In Exclusion Proceedings
A-15574761
Decided by Board August 23, 1978
(1) 'Where smuggled aliens gave applicant for admission $200 to "get papers," in addition to
money for gas, and applicant was making the trip for his own reasons in any event. finding
that the applicant was smuggling aliens for "gain" in violation of section 212(a)(31) 8
U.S.C. 1182(a)(31) was warranted [Ribeiro v. INS, 531 F.2d 179 (3 Cir. 1976) distinguished].
(2) Immigration judge properly found that the standard of proof formulated by the
Supreme Court of the United States in Woodbrli v. INS, 385 U.S. 276 (1966), does not
apply to exclusion proceedings.
EXCLUDABLE: Act

01

1952-6ection 2r2(a)(31), 1. & N. Act [8
Smuggling for gain

1182(a)(31)]--

ON BEHALF OF APPLICANT: Timothy S. Barker, Esquire
Legal Aid Society of San Diego, Inc.

1760 North Euclid Avenue
San Diego, California 92105
BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

This case presents an appeal from a decision of the immigration judge
021 June 26, 1978 ordering that the applicant be excluded and deported

from the United States. The appeal will be dismissed.
The applicant is a married native and citizen of Panama, age 27, who
was admitted to the United States in March, 1975 upon his knowingly
false representation that he was a crewman stationed aboard a ship
azehored off the coast of this country.. The applicant failed to depart
within his authorized period of time not to exceed 29 days, but rather
1'4m-twined here and married a United States citizen in August, 1975.

During a visit to Panama in early 1978, the applicant arranged to
illegally transport certain aliens into the United States in return for
their payment of travel expenses and certain other remuneration. The
applicant's clandestine efforts failed and he was apprehended and
paroled into the United States pursuant to section 212(d)(5) of the
Immigration and Nationality Act, 8 U.S.C. 1182(d)(5), as amended. On
June 2, 1.978, the applicant was convicted in the United States District
558

Interim Decision #2660
Court for the Southern District of California, upon his plea of guilty to
violations of 18 U.S.C. 371 and 8 U.S.C. 1325. At the applicant's
exclusion hearing, it was contended inter alia, that the Service had failed
to establish its standard of proof by clear, convincing, and unequivocal
evidence.
The immigration judge found that the amounts received by the applicant from the aliens, en route from Panama to the United States, did
constitute "gain" as that term is used in section 212(a)(31) of the Act.
The immigration judge further found that the applicant's reliance upon
the decision in Woodby v. INS, 385 U.S. 276 (196 6) was not well-placed
since, as the Board has pointed out in Matter of Moore, 13 I. & N. Dec.
711 (BIA 1971), the standard formulated in Woodby, supra, "applies
only to deportation proceedings."
We agree. Upon review of the record, including the contentions of the
applicant in his brief on appeal, we conclude that the decision of the
immigration judge was correct. Section 212(a)(31) of the Act specifically
includes among those classes of aliens who shall be ineligible to receive
visas and shall be excluded from admission into the United States "Any
alien who at any time shall have, knowingly and for gain, encouraged,
induced, assisted, abetted, or aided any other alien to enter or to try to
enter the United States in violation of law." The applicant clearly comes
within the purview of this provision of the statute.
In .Uibeiro v. INS, 531 F.2d 179 (3 Cir.. 1976), a case relied upon by
counsel, the court held that $50.00 of the total amount that the alien was to
be paid for transporting other aliens from Montreal into the United
States might have been reimbursement for expenses incurred over and
above his initial cash outlay of $100 and was not satisfactory evidence that
he had acted "for gain." The court stated that a common sense
interpretation of the phrase "for gain" requires the prospect of an excess
of tangible return over expenditure in a particular transaction. In the
instant case, we have testimony by passenger Granville PowellThompson that he gave the applicant approximately $200 in advance to
enable the latter to get his papers at the American Embassy in Panama
(Tr. pp. 47, 52, 58). Thompson's brother testified in a like manner (Tr.
pp. 62, 68, '73) and their testimony was found credible by the immigration judge_ Although counsel acknowledged the abOve testimony of the
brothers concerning their financial assistance in gaining the entry
documents (Brief p. 8), the applicant alleged that he received money
only for gas from the Thompson brothers in Panama (Tr. p. 112). The
immigration judge found that the applicant's memory was faulty.
This case is distinguishable from Ribeiro, where the alien went out of
his way to deliver his passengers to the destination of their selection..
Here, the applicant wanted to go to the United States from Panama for
his own reasons; an immigrant visa had been issued to him. Under such
559

Interim Decision #2660
circumstances said the court in Ribeiro, an expectation of "gain" from
the collection of money for gasoline could reasonably be found. 531 F.2d
at 180.

Under the provisions of section 291 of the Act, the burden of proof is
upon an applicant for admission to establish that he is not subject to
exclusion. We have held that this burden never shifts, but is always on
the applicant, Matter of Rive.ro-Diaz, 12 I. & N. Dec. 475 (BIA 1967). In
the circumstances of this case, exclusion proceedings were proper. We
conclude that the decision of the immigration judge should be affirmed.
ORDER: The appeal is dismissed.

560