Interim Decision #2842

MATTER OF PATEL

In Deportation Proceedings
A-20549643

Decided by Board December 11, 1980
(1) In the Ninth Circuit, to establish an exemption from the labor certification requirement of section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C.
1182(a)(14), as an "investor" within the meaning of 8 C.F.R. 212.8(b)(4) prior to its
amendment of October 7, 1976, it is not necessary for the alien to establish that his
investment expands job opportunities in the United States or that it is of an amount
adequate to Insure that his primal y function with respect to the investment will notbe
as a skilled or unskilled laborer. Patel v. INS, 638 F.2d 1199 (9 Cir. 1980) followed.
(2) The respondent established eligibility for an exemption from the labor certification
requirement as an "investor" within the meaning of 8 C.F.R. 212.8(b)(4) by establishing that he had invested capital totaling at least $10,000 In a motel and that he had had
at least 1 year's experience qualifying him to engage in such an enterprise.
(3) Notwithstanding eligibility for adjustment of status under section 245 of the Act, 8
U.S.C. 1255, the respondent's application for such relief was denied as a matter of
discretion where he had worked without authorization during the 3-year period in
which he was classified as a nonimmigrant student, knowing that his employment was
unlawful, and on three separate occasions he had deliberately made false statements
afloat that employment in applications for benefits under the Act.
.
CHARGE
Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Student remained longer
than permitted
ON BEHALF OF SERVICE:
Jane Gersbacher
Trial Attorney

ON BEHALF OF RESPONDENT:
Michael D. Ullman, Esquire
8484 Wilshire Boulevard
Suite 730

Beverly Hills, California 90211

Milhollan, Chairman; Maniatis, Appleman, and Maguire,

Board Members

In a decision dated March 8, 1977, an immigration judge found the
respondent deportable as charged, denied an application from the
respondent for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, denied an application from the
respondent for the privilege of voluntary departure in lieu of deporta597

Interim Decision #2842
tion, and ordered him deported to India. The respondent has appealed.
The appeal will be dismissed in part and sustained in part.
The respondent is a 34-year-old native and citizen of India who was
admitted to the United States on June 11, 1971, as a nonimmigrant
student authorized to remain in the United States until June 11, 1972.
He subsequently obtained extensions of his stay which authorized him
to remain until June 11, 1975.
On July 8, 1974, the respondent filed an application for adjustment of
status to that of a permanent resident under section 245 of the Act at
the office of an Immigration and Naturalization Service District
Director. To avoid the labor certification requirement that would
otherwise have been applicable to him under section 212(a)(14) of the
Act, 8 U.S.C. 1182(a)(14), he claimed that he was entitled to an exemption from that requirement as an investor pursuant to 8 C.F.R.
212.8(b)(4). In support of the application, he submitted documents to
show, inter edict, that he had invested $11,000 in a motel. The District
Director denied the respondent's application in a decision dated May
22, 1975, on the ground that the respondent had only leased the motel
and, therefore, he was not entitled to an exemption from the labor

certification requirement as an investor. The respondent then
purchased the motel on August 25, 1975, and filed a motion with the
District Director for reconsideration of the application for permanent
residence.
On February 12, 1976, the District Director issued an Order to Show
Cause which alleges that the respondent is deportable under section
241(a)(2) of the Act, 8 U.S.C. 1251(a)(2), on the ground that he has
remained in the United States beyond June 11, 1975, without
permission.
On March 8, 1977, the respondent appeared before the immigration

judge at a deportation hearing, and, with the assistance of an attorney,
he admitted that he was deportable as charged in the Order to Show
Cause. Accordingly, we are satisfied that the respondent's deportabil-

ity has been established by evidence that is clear, convincing, and
unequivocal.
The respondent also renewed his application for adjustment of
status under section 245 of the Act to that of a permanent resident,
claiming again that he was exempt from the labor certification requirement as an investor.
The provisions of 8 C.F.R. 212.8(b)(4) were amended, effective
October 7, 1976, but we shall consider this case under the prior version
of the regulation, the one which was in effect when the respondent first
applied for classification as an investor. The applicable version of this
regulation provides that
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Interim Decision #2842
The following persons are not considered to be within the purview of section 212(a)(14)
of the. Act and do not require a labor certification: ... (4) an alien who establishes on
Form I-526 that he is seeking to enter the United States for the purpose of engaging in
a commercial or agricultural enterprise in which he has invested, or is actively in the
process of investing. =Fitzl totaling at least $10,000. and who establishes that he has
had at least 1 year's experience or training qualifying him to engage in such
enterprise.

The respondent submitted documents at the deportation hearing
which establish that he leased a motel on June 25, 1974, for a period of 3
years, with an option to purchase it, and that on August 25, 1975, he
purchased the motel making a $12,000 cash down payment towards a
purchase price of $49,300. The down payment included $11,000 that he
had submitted as a deposit when he leased the motel.
With regard to his experience as a manager, the respondent testified
that he had been an assistant manager at a hotel in. India from the
middle of 1969, until the end of 1970, and that he had managed his
motel since June of 1974, when he acquired possession of it through the
lease agreement.
The respondent testified further that he had not employed anyone at
the motel until January of 1977, when he hired a part time maid (Tr.
12, 40).
The Service trial attorney introduced two applications that the
respondent had submitted to the Service, for extensions of his stay in
the United States as a student, and a biographical form that he had
submitted with his first application for permanent resident status on
July 8, 1974. The respondent verified that his signature was on these
documents and admitted that statements in them about his employment in the United States were false. The extension applications state
in that regard that he had not worked in the United States, and the
other document states that he had not worked in the United States
until June of 1974, when he became the manager of his motel. The
respondent explained that he had worked in the United States since
August of 1971, and that he had denied that employment because it
was illegal and he thought that his applications would not be granted if
he revealed the truth (Tr. 29 31).
The immigration judge found that the respondent had invested
capital totaling at least $10,000 in a motel business and that he had
had at least 1 year's experience qualifying him to engage in such an
enterprise. He found further, however, that the respondent's business
was an owner-operated, one-person enterprise that did not tend to
expand employment opportunities in this country, and that the respondent was probably displacing an American worker who might
otherwise be managing the motel. The immigration judge concluded
that the respondent had not established eligibility for investor classifi-

-

Interim Decision #2842
cation, citing this Board's decision in Matter of Ruangswang, 16 I&N
Dec. 76 (BIA 1976). He also found that the respondent was not entitled
to a favorable exercise of discretion in any event inasmuch as he had
worked in violation of the Act from the beginning of his stay in the
United States, he had filed applicationsr for extensions of his stay
stating falsely that he had not worked in the United States, and he had
obtained extensions of his stay on the basis of these false statements.
Accordingly, the immigration judge denied the respondent's application for adjustment of status. The immigration judge then denied the
respondent's application for voluntary departure as a matter of discretion in view of these adverse factors.
On appeal, the respondent contends that he has satisfied all of the
criteria set forth in 8 C.F.R. 212.8(b)(4), and, therefore, that he has
established eligibility for investor classification. Secondly, he contends
that the circumstances in his case warrant a favorable exercise of
discretion on his application for adjustment of status or, in the alternative, on his application for voluntary departure in lieu of
deportation.
Pursuant to section 245 of the Act, the status of a deportable alien
may be adjusted to that of an alien lawfully admitted for permanent
residence. To be eligible for such relief from deportation, however, the
alien must be admissible to the United States for permanent residence.
Section 245(a)(2). Since the respondent would have to enter as a
nonpreference immigrant who intends to perform skilled or unskilled
labor, he would be excludable under section 212(a)(14) of the Act unless
he were to establish an exemption from those requirements as an
investor pursuant to 8 C.F.R. 212.8(b)(4). Consequently, his application
for adjustment of status must be denied if he has not established
eligibility for classification as an investor under 8 C.F.R. 212.8(b)(4).
In interpreting a version of 8 C.F.R. 212.8(b)(4) that preceded the
version quoted above, we held in Matter of Heitland, 14 I&N Dec. 563
(BIA 1974), that in addition to satisfying the requirements specifically

set forth in the regulation, an alien had to show also that his investment tended to expand job opportunities in the United States, or that
it was of a nature which insured that his primary function with respect
to the investment would not be as a skilled or unskilled laborer. Then,
in Matter of Ruangswang, supra, we held that those additional requirements also applied to aliens seeking investor classification under the
version before us in this case. Our decision in Matter of Ruangswang
was reversed by the Ninth Circuit in Ruangswang v. INS, 591 F.2d 39 (9
Cir. 1978). The Ninth Circuit's reversal, however, was based on lack of
notice. The Court held that because the Ruangswangs had made their

investment prior to the Heitland decision, supra, they had not had
proper notice of the Heitland requirements, and the requirements,
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Interim Decision 112842
therefore, should not have been applied to them. Subsequently, in
Wang, 16 I&N Dec. 711 (BIA 1979), another case arising in
the Ninth Circuit, we distinguished the Ninth Circuit's Ruangstvang
opinion holding that an alien who had made an investment more than
a year after Heitland was decided had had adequate notice of its
requirements and had to comply with them. However, the Ninth
Circuit has recently rendered another decision which holds that the
Heitland requirements cannot be added to the terms of the regulation
even where there has been ample notice. Patel v. INS, 638 F.2d 1199 (9
Cir. 1980).
Matter of

Accordingly, since the present case arose in the Ninth Circuit, the

requirements will not be applied in determining whether the
respondent has established eligibility for classification as an investor.
Consequently, on the basis of the immigration judge's finding that the
respondent bas satisfied the specific criteria set forth in 8 C.F.R.
212.8(b)(4), we conclude that the respondent is eligible for investor
classification.
Nevertheless, although the immigration judge's basis for finding
that the respondent was not eligible for adjustment of status has now
been removed, it does not follow that his application must be granted.
The grant of an application for adjustment of status under section 245
is a matter ©f administrative grace. An applicant has the burden of
showing that discretion should be exercised in his favor. Matter of
Marques, 16 I&N Dec. 314 (BIA 1977); Matter of Leung, 16 I&N Dec. 12
(BIA 1976); Matter ofArai, 13 I&N Dec. 494 (BIA 1970); Matter of OrtizPrieto, 11 I&N Dec. 317 (BIA 1965). Moreover, where adverse factors
are present, it may be necessary for the applicant to offset those
Heitland

factors by a showing of unusual of even outstanding equities_

Matter of

Arai, supra.

In this case, the respondent worked without authorization during
period in which he was classified as a nonimmigrant
student, knowing that his employment was unlawful, and on three
separate occasions he deliberately made false statements about that
employment in applications for benefits under the Act. We find that
the respondent has not presented any equities which are sufficient to
warrant relief from deportation under section 245 of the Act in view of
those adverse factors and conclude, therefore, that the immigration
judge's denial of the respondent's application for adjustment of status
as a matter of discretion was correct. Accordingly, the respondent's
appeal will be dismissed to the, extent that it relates to the immigration judge's denial of the adjustment application.
We find further, however, that the limited privilege of voluntary
departure is warranted in the circumstances of this case. Consequently, to the extent that the respondent's appeal addresses the
the entire 2 year
—

n1

Interim Decision #2842
immigration judge's denial of voluntary departure, it will be sustained.
Accordingly, the following order will be entered.
ORDER: The respondent's appeal from the immigration judge's
denial of relief under section 245 of the Act is dismissed.
FURTHER ORDER: The respondent's appeal from the immigration judge's denial of voluntary departure is sustained.
FURTHER ORDER: The respondent is permitted to depart from
the United States voluntarily within 30 days from the date of this
order or any extension beyond that time as may be granted by the
District Director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order.

602


Interim Decision #1563

MATTER

or

HALL

In Visa Petition Proceedings
A-11594745
Decided by Board Mara& 8,

1986

Since under the law of New York, section 6, Domestic Relations Law, and the
judicial decisions relating thereto, "a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living"
and it is void from its inception without any decree of the court and for
all purposes, there is no necessity of the presentation in visa petition proceedings of evidence of the termination of beneficiary's second marriage,
contracted in 1956 while his wife by a prior undissolved marriage (1941)
was still living; and as his first marriage was terminated by the death of
his first wife in 1963, his third marriage in New York State in 1965 to
petitioner, a United States citizen, is valid for immigration purposes and
will sustain petition of the litter to accord him immediate relative status.

The case comes forward on appeal from the caer of the District
Director, New York District, dated November 18, 1965 denying the
visa petition for the following reasons: it has been established that
the •beneficiary married Mae Agnes Lawrence July 26, 1941, Hazel
D. White December 29, 1956 and the petitioner, Thelma Dtvins,
February 7, 1965; the first marriage was terminated by the death
of the first wife in January 1963; however, there is no evidence that
the marriage to the second wife was in any way terminated; in view
of this, the marriage to the beneficiary is not recognized for immigration purposes; the beneficiary is not entitled to any benefit under
the Immigration and Nationality Act.
The petitioner, a native-born citizen of the United States, 31
yeais old, female, filed a visa petition on February 25, 1965 seeking
nonquota status as a spouse on behalf of the beneficiary, a native
and citizen of jalnaica, West Indies, 55 years old, male. The
parties were .married on February 7, 1965 at Corona, New York.
The visa petition indicates that this marriage is the first for the

petitioner. The beneficiary stated to have been married onec
previously and the death certificate of his first wife on January 28.
1963 has been submitted.
.

526

Interim Decision #1563
The file contains a decision of a special inquiry officer entered
November 9, 1964 relating to deportation proceedings against the
alien. The respondent (beneficiary) was admitted to the United
States on May 8, 1959 as a nonquota, immigrant based upon his
marriage on December 29, 1956 in Jamaica, West Indies to Hazel
Daphne White, a United States citizen. However, at the time of
that marriage the respondent's prior marriage to Mae Agnes Lawrence in Jamaica, West Indies on July 26, 1941 had not been
legally terminated either when he married the second wife or when
he obtained a nonquota visa as the spouse of the second wife. Ac.cordingly, the respondent was found deportable under section 241
(a) (1) on the ground that he was excludable at the ,time of entry
for the reason that he was not nonquota as specified in his immigrant
visa,.

•

In his decision the special inquiry officer observed that the marriage to the second wife was not a lawful marriage because he then
had a spouse living and he did not diselose his prior marriage to
the American Consul because he felt he would not be able to obtain
a visa with which to enter the United States at that .time. The
special inquiry officer noted that after respondent came to Uri United
States in 1959 he learned his first wife was anvil and after separating from his second wife in November 1960, he commenced again
living with his first wife. - She filed a visa petition on 'his behalf
to accord him nonquota status which was approved June 6, 1962 but
the attorney to whom the notice was sent was advised not only of
the fact that the petition was approved but that no notice to a
United States Consulate or port of entry was required, in spite of
the indication on the visa petition that application for a visa would
be made at the American Consulate at Montreal, Canada. The
respondent testified in this connection that he was told by employees
of the Immigration and Naturalization Service that it would not
be necessary for him to depart from the 'United States even though
he was, willing and ready to do so at that time. As an appropriate
disposition of the case, the first wife having died, the respondent
was granted voluntary departure together with the automatic order
of deportation if departure Was not effected as required.
Counsel has filed a brief in which he takes issue with the holding
that evidence of the termination of the marriage to the second wife
is required, citing section 6 of the New York Domestic Relations.Law which provides: "A marriage is absolutely void if contracted ,
by a. person whose husband or wife by a former marriage is living."
Counsel cites New 'York decisional law which holds that if a spouse
at the time of a marriage had another prior spOuse living the mar,
527.

Interim Decision *1568
riage is void, even. though no judgment declaring its nullity is entered as well as other decisions holding that a marriage is absolutely
void if contracted by a person whose husband or wife by a former
undissolved marriage is living; that .where a party to a ceremonial
marriage his an undivorced living spouse, the relationship is illegal;
and a marriage by one who has a living spouse is void as distinguished from voidable; where a marriage is void,' although the legislature has authorized the court in.the interest of the public-to enter
a decree declaring it to be such, it is void from its inception .without
any decree of tlai court for all.purposes? ' •
We have (+Raked the question involved here atni in view- of the
provisions of New York Domestic Relations Law, section 6 and the ,
judicial decisions relating thereto, we are convinced that the position
of counsel for the petitioner is cornet. We note that the special inquiry officer in deportation proceedings against this sums 'beneficiary
came to the same conclusion. .The appeal will be sustained.
ORDER: It is ordered that the appeal be sustained and the visa
petition .approved.
1 Gonzales v. Sionzatea, 228 N.Y.S. 2d 4;Aloke V. Hoke, 142 N.Y.S. id 906;
Wenner v. Wehner, 66 N.Y.S. 2d 703, which cites New- York Domestic BelaDons Law, section 6; Stein v. Dunne, 103 N.Y:S. 894, ard 190 N.Y. 524,

83 N.E. 1132, 3/caution v. lito0ullen, 147 N.Y.S. 1069; Kaufman v. Kaufman,
163 N.Y.S. 566; Cave v. Cave, 137 N.Y.S. 2d 857; In re -Haffner's Estate,
172 N.E.- 489; Johnson N. Johnson, 59 N.T.S. 2d 698, appeal denied 66 N.D.
26 849, ard 68 N.D. 2d 499. 'N
,

528


Interim Decision #2275

MATTER OF KONG
In Visa Petition Proceedings
A-20282149
Decided by Board March 25, 1974
Under the law of Burma, a Kittima adoption, which is governed by statute and
which does not have retroactive effect, confers on the person adopted a status
very similar to that of a natural child, with intended full rights of inheritance.
An Appatittha adoption, which is a ceremonial adoption, establishes only a
casual relationship with very limited rights and obligations between parent
and child, and cannot be considered an adoption for immigration purposes.
ON BEHALF OF PETITIONER: Jack Stedman, Esquire

250 Columbus Avenue, Suite 200
San Francisco, California 94133

The lawful permanent resident petitioner applied for preference
status for the beneficiary as her adopted son under section
203(aX2) of the Immigration and Nationality Act. In a decision
dated March 16, 1973, the District Director denied the petition on
the ground that the beneficiary had not been adopted in conformity with the age requirement of section 101(bX1XE) of the Act. The
petitioner has appealed from that denial. The appeal will be
dismissed.
In order to qualify as an adopted son under section 203(aX2) of
the Act, the beneficiary must have been adopted by the petitioner
in accordance with the requirements of section 101(bX1XE). Matter
of Ng, Interim Decision No. 2147 (BIA 1972); Matter of Yue, 12 L &
N. Dec. 747 (BIA 1968); Matter of Caramanzana, 12 I. & N. Dec. 47
(B IA 1967). An adopted child is defined in section 101(bX1XE) as "a
child adopted while under the age of fourteen years if the child has
thereafter been in the legal custody of, and has resided with, the
adopting parent or parents for at least two years ...."
The beneficiary is a native and citizen of Burma who was born
in 1955. The petitioner and her husband purportedly adopted the
beneficiary in 1960 in accordance with Burmese Buddhist law and
custom. Counsel has submitted a memorandum of Burmese law
prepared by the Far Eastern Law Division of the Library of

Congress. According to that memorandum, a ceremonial adoption
649

Interim Decision #2275
is known as an Appatittha adoption and establishes only a casual
relationship with very limited rights of inheritance.
In 1970, when the beneficiary was nearly 15 years old, the
petitioner and her husband effected a Kittima adoption under the
law of Burma. A Kittima, adoption is governed by statute and
confers on the person adopted a status very similar to that of a
natural child. A Kittima son or daughter is adopted with the
intention that he or she will have full rights of inheritance in the
adoptive parents' estate. Since April 1, 1941, a Kittima adoption
must be effected by means of an instrument of adoption executed
in accordance with Section 5 of the Registration of Kittima
Adoptions Act.
Counsel contends that we should recognize an Appatittha adoption as creating an adoptive relationship within the meaning of

section 101(bX1)(E), or alternatively, that the Kittima adoption has
retroactive effect to the date of the Appatittha adoption. According
to the Library of Congress memorandum, Kittima adoption is
much closer to the concept of adoption in the United States than is
Appatittha adoption. The latter is merely an informal relationship
which does not create substantial legal rights and obligations
between parent and child, and cannot be considered an adoption
for immigration purposes.
Registration is a necessary prerequisite for the legal validity of
a Kittima adoption effected after April 1, 1041. The memorandum
of Burmese law expressly refutes counsel's contention that a
Kittima adoption has retoratctive effect. Since the beneficiary was
over the age of 14 when his Kittima adoption was registered, he
did not meet the age requirement of section 101(b)(1)(E). Therefore,
he cannot qualify as an adopted son of the petitioner under section
203(aX2) of the Act.
The District Director's decision was correct. The appeal will be
dismissed.
ORDER: The appeal is dismissed.

650


Cite as 28 I&N Dec. 74 (BIA 2020)

Interim Decision #3994

Matter of R-C-R-, Respondent
Decided August 31, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) After an Immigration Judge has set a firm deadline for filing an application for relief,
the respondent’s opportunity to file the application may be deemed waived, prior to a
scheduled hearing, if the deadline passes without submission of the application and no good
cause for noncompliance has been shown.
(2) The respondent failed to meet his burden of establishing that he was deprived of a full
and fair hearing where he has not shown that conducting the hearing by video conference
interfered with his communication with the Immigration Judge or otherwise prejudiced him
as a result of technical problems with the video equipment.
FOR RESPONDENT: David J. Rozas, Baton Rouge, Louisiana
FOR THE DEPARTMENT OF HOMELAND SECURITY: Dawn M. Carter, Assistant
Chief Counsel
BEFORE: Board Panel: MULLANE, KELLY, and GORMAN, Appellate Immigration
Judges.
GORMAN, Appellate Immigration Judge:

In a decision dated December 13, 2019, an Immigration Judge found the
respondent removable and ordered him removed after determining that he
failed to timely submit an application for asylum, withholding of removal,
and protection under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for
signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture”). 1 The
respondent has appealed from that decision. The appeal will be dismissed.
1

Removal proceedings before the Immigration Judge in this matter were completed in
Richwood, Louisiana, where the respondent was located and the hearing was docketed.
The Immigration Judge conducted the hearing remotely from the administrative control
Immigration Court in Batavia, New York, via video conference pursuant to section
240(b)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(2)(A)(iii)
(2018). An administrative control court creates and maintains records of proceedings for

74

Cite as 28 I&N Dec. 74 (BIA 2020)

Interim Decision #3994

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala, who entered the
United States on March 13, 2019. The Department of Homeland Security
(“DHS”) detained the respondent and charged him with removability under
sections 212(a)(6)(A)(i) and (7)(A)(i)(I) of the Immigration and Nationality
Act, 8 U.S.C. §§ 1182(a)(6)(A)(i) and (7)(A)(i)(I) (2018), as an alien who is
present in the United States without being admitted or paroled and as one
who had no valid entry document at the time he applied for admission.
At a video conference hearing held on November 6, 2019, the respondent,
who remained detained, appeared without counsel and admitted the factual
allegations and charges of removal against him. 2 Through an interpreter, he
indicated that he understood “more Spanish than Mam,” and his proceedings
continued with interpretation in the Spanish language. The respondent
indicated his desire to apply for asylum, withholding of removal, and relief
under the Convention Against Torture and was given an Application for
Asylum and for Withholding of Removal (Form I-589) to complete. 3 The
Immigration Courts within an assigned geographical area. See 8 C.F.R. § 1003.11 (2020).
The circuit law applied to proceedings conducted via video conference is the law governing
the docketed hearing location, as opposed to the location of the administrative control court.
The docketed hearing location in Richwood, Louisiana, is within the geographic area of
the United States Court of Appeals for the Fifth Circuit. Therefore, like the Immigration
Judge, we apply the law of that circuit. See, e.g., Luziga v. Att’y Gen. of U.S., 937 F.3d
244, 250 (3d Cir. 2019) (applying Third Circuit law where the Immigration Judge appeared
by video conference from Arlington, Virginia, (outside the circuit) to preside over
proceedings in York, Pennsylvania (within the circuit)); Medina-Rosales v. Holder, 778
F.3d 1140, 1143 (10th Cir. 2015) (stating that “the law of the circuit where the video
conference hearing is held is the applicable law” and holding that the docketed hearing
location does not change merely because an Immigration Judge appears by video
conference from a different location). But see Chavez-Vasquez v. Mukasey, 548 F.3d 1115,
1118 n.1 (7th Cir. 2008) (“Venue is determined by the location of the immigration court
rather than the by location from which witnesses appear via teleconference.”); Ramos
v. Ashcroft, 371 F.3d 948, 949 (7th Cir. 2004) (denying the Government’s request to
transfer the proceedings to a different circuit because “the alien may petition for review in
the circuit where the immigration court is located”).
2
The Immigration Judge gave the respondent the procedural advisals required by the
regulations, explained the removal charges against him, took pleadings, and found the
respondent removable as charged. See 8 C.F.R. § 1240.10(a)(1)–(6), (c) (2020). The
respondent has not challenged the Immigration Judge’s finding of removability on appeal,
so that issue is not before us. See, e.g., Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec.
496, 496 n.1, 498 n.3 (BIA 2018) (noting that an issue addressed in an Immigration Judge’s
decision is waived when a party does not challenge it on appeal).
3
The Immigration Judge gave the following explanation to the respondent: “You must
fill out that application in the English language, you must answer all the questions truthfully,

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Cite as 28 I&N Dec. 74 (BIA 2020)

Interim Decision #3994

Immigration Judge explicitly instructed the respondent to submit the
completed application to the Immigration Court no later than December 6,
2019, and advised him that his opportunity to file the application would be
deemed waived if he failed to comply with the deadline. 4 She also notified
the respondent that his next hearing would be scheduled for January 14,
2020.
Despite the Immigration Judge’s explicit instructions, the respondent did
not file an application for relief from removal by the December 6, 2019,
deadline. After an additional week had passed, the Immigration Judge issued
a written order on December 13, 2019, finding that the respondent had
waived his opportunity to file the application and ordering him removed.
On appeal, the respondent argues that the Immigration Judge erred in
finding that he had waived his right to apply for relief and in ordering his
removal prior to the hearing scheduled for January 14, 2020. The respondent
claims that the Immigration Judge violated his right to due process by
requiring him to file the application a month before the next hearing, not
allowing him to file an application at that hearing, and not letting him explain
the reasons for missing the deadline. The respondent further contends that
because he was not given an opportunity to appear at the next scheduled
hearing, the record is incomplete and not subject to meaningful review.
Additionally, the respondent argues that he was denied a full and fair
hearing because his removal proceedings were conducted via a video
conference at which he was unrepresented, detained, and had a Spanish
translator. According to the respondent, he “might easily have been
confused” about the nature and purpose of the second hearing as a result of
these conditions. We review these questions of law de novo. See 8 C.F.R.
§ 1003.1(d)(3)(ii) (2020).
and if there’s any papers or documents that you’d like to attach to that asylum application,
regarding your fear of return to Guatemala, if those papers or documents are in the Spanish
language, they must be translated to the English language and there must be a certificate of
translation which establishes that the person who performed the translation was qualified
to do so. Do you understand?” The respondent indicated that he understood.
4
The Immigration Judge specifically advised the respondent as follows: “I’m going to
reset your case to another date to give you time to prepare that application and submit it to
the Court. My next date is going to be January 14th, 2020 at 10:00 a.m. I’m going to
require that you submit the asylum application to the Court on or before December 6th,
2019. If the Court does not and has not received your application on or before that date,
I am going to find that you have abandoned your request for relief. So, it’s very, very
important that you submit the asylum application to the Court as well as a copy to the
Government no later than December 6th, 2019. Do you understand?” The respondent
replied, “Yes.” The Immigration Judge then suggested that he get a lawyer for his removal
proceedings to help him fill out the application. When asked again if he understood, the
respondent said, “Yes.”

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II. ANALYSIS
An alien who faces removal is entitled to a full and fair removal hearing
under both the Act and the Due Process Clause of the Fifth Amendment.
See Santos-Alvarado v. Barr, 967 F.3d 428, 439 (5th Cir. 2020) (“The
Fifth Amendment’s Due Process Clause protects individuals in removal
proceedings.” (citation omitted)); Vetcher v. Barr, 953 F.3d 361, 370 (5th
Cir. 2020) (stating that “removal proceedings must be conducted according
to standards of fundamental fairness”), petition for cert. filed (U.S. June 26,
2020) (No. 19-1437); Matter of M-A-M-, 25 I&N Dec. 474, 479 (BIA 2011)
(“Included in the rights that the Due Process Clause requires in removal
proceedings is the right to a full and fair hearing.”); see also section
240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b)(4)(B) (2020) (providing that
“the alien shall have a reasonable opportunity to examine the evidence
against the alien, to present evidence on the alien’s own behalf, and to
cross-examine witnesses presented by the Government”).
To establish that his due process rights were violated, the respondent must
prove that there was a deficiency or violation and that he was prejudiced by
it. See Okpala v. Whitaker, 908 F.3d 965, 971 (5th Cir. 2018) (“To prevail
on a claim regarding an alleged denial of due process rights, an alien must
make an initial showing of substantial prejudice.”); Matter of D-, 20 I&N
Dec. 827, 831 (BIA 1994) (per curiam) (noting that an alien has been denied
a fair hearing “only if he has been prejudiced by some deficiency so as to
deprive him of due process”); Matter of Santos, 19 I&N Dec. 105, 107 (BIA
1984) (stating that “an alien must demonstrate that he has been prejudiced by
a violation of a procedural rule or regulation before his deportation
proceeding will be invalidated”). The respondent has not shown that his
rights were violated or that he suffered prejudice in his removal proceedings.
A. Waiver of an Application for Relief From Removal
The Immigration Judge did not err in requiring the respondent to file an
application a month prior to his next scheduled hearing, rather than allowing
him to submit it at that hearing. “Immigration Judges have broad discretion
to conduct and control immigration proceedings and to admit and consider
relevant and probative evidence.” Matter of Interiano-Rosa, 25 I&N Dec.
264, 265 (BIA 2010); see also section 240(b)(1) of the Act; 8 C.F.R.
§§ 1003.36, 1240.1(c), 1240.7(a) (2020). Immigration Judges also “have
authority to set filing deadlines for applications and related documents.”
Matter of Interiano-Rosa, 25 I&N Dec. at 265; see also 8 C.F.R. § 1003.31(c)
(2020) (providing authority for Immigration Judges to “set and extend
time limits for the filing of applications and related documents”). The
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Immigration Judge gave the respondent explicit instructions regarding the
filing date and clearly warned him that his application for relief would be
deemed waived if it was not timely filed.
According to 8 C.F.R. § 1003.31(c), if an application “is not filed within
the time set by the Immigration Judge, the opportunity to file that application
. . . shall be deemed waived.” See also Choge v. Lynch, 806 F.3d 438,
440 (8th Cir. 2015) (holding that 8 C.F.R. § 1003.31(c) “clearly states
the [Immigration Judge] has the authority to deem applications waived
when submitted after the set deadlines” (citation omitted)); Matter of
Interiano-Rosa, 25 I&N Dec. at 265) (“An application or document that is
not filed within the time established by the Immigration Judge may be
deemed waived.”). The United States Court of Appeals for the Fifth Circuit,
in whose jurisdiction this case arises, found in an unpublished decision that
an Immigration Judge properly determined that an alien’s application for
relief was deemed waived because it was not presented within the set
deadline. Mathita v. Lynch, 631 F. App’x 251, 252 (5th Cir. 2016) (per
curiam).
The respondent has not explained his failure to comply with the
Immigration Judge’s application deadline or identified any difficulties he
may have encountered that prevented his compliance. If the respondent
required more than the allotted month to complete his application prior to the
December 6, 2019, deadline, he could have filed a motion requesting that the
Immigration Judge extend the deadline for submitting his application.
See 8 C.F.R. §§ 1003.23(a), 1003.31(c) (2020). See generally 8 C.F.R.
§§ 1003.29, 1240.6 (2020) (stating that an Immigration Judge may grant a
motion or application for continuance where good cause is shown). Had the
respondent established good cause for extending the application deadline,
approval of that request would likely have been appropriate. Cf. Matter of
L-A-B-R-, 27 I&N Dec. 405, 413 (A.G. 2018) (stating that “the good-cause
standard . . . requires consideration and balancing of all relevant factors in
assessing a motion for continuance to accommodate a collateral matter”).
However, the respondent made no such request.
Once the application deadline had passed and the Immigration Judge
issued her decision, the respondent could have filed a motion asking her to
reconsider the pretermission of his application and submitted a completed
application with an explanation for his untimely filing. See 8 C.F.R.
§ 1003.23(b)(1)–(2). Alternatively, he could have filed a motion to reopen,
along with his completed application, and requested that it be considered by
the Immigration Judge. See 8 C.F.R. §§ 1003.23(b)(1), (3), 1208.4(b)(3)(ii)
(2020). Had the respondent filed either type of motion and provided good
cause for missing the deadline, reconsideration or reopening by the
Immigration Judge would likely have been appropriate. However, the
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respondent made no attempt to file such a motion with a completed
application at any time after the deadline had passed.
The respondent is also required to explain on appeal why he missed the
application deadline. See 8 C.F.R. § 1003.3(b) (2020). He contends that he
“never had the opportunity to present evidence or show cause for the missed
deadline.” However, he has not provided any explanation or a good cause
justification for missing the application deadline, despite being represented
by counsel on appeal. 5 Moreover, the respondent has not submitted a motion
to remand, along with a completed application, at any time during the
pendency of his appeal. See 8 C.F.R. §§ 1003.2(b)(1), (c)(4), 1208.4(b)(4)
(2020). Nor has he alleged facts on appeal that would constitute a prima
facie claim for any form of relief. Had the respondent done so and shown
good cause for missing the deadline, a remand may have been appropriate.
The respondent was clearly warned that his application for relief could be
deemed waived if he failed to meet the filing deadline set by the Immigration
Judge. He has presented no reasonable explanation to the Immigration
Judge, or to this Board, to excuse his failure to file the application within the
month allotted by the Immigration Judge. Because the respondent did not
timely file a completed application for asylum, withholding of removal, and
protection under the Convention Against Torture as instructed, we agree with
the Immigration Judge that he waived the right to apply for that relief and
protection from removal. See Matter of R-R-, 20 I&N Dec. 547, 549 (BIA
1992) (stating that “applications for benefits under the Act are properly
denied as abandoned when the alien fails to timely file them”); 8 C.F.R.
§ 1003.31(c).
B. Full and Fair Hearing
We are unpersuaded by the respondent’s argument that his video
conference hearing, at which he was unrepresented, detained, and had a
Spanish translator, denied him of his due process right to a full and fair
hearing.
The respondent has not explained how he was prejudiced as a result of
the conditions of his hearing. He indicated that he understood the Spanish
5

The respondent has not claimed that he was prevented from timely filing an application
because he was unrepresented. He was advised of his privilege to be represented in
removal proceedings and was given a list of free and low-cost attorneys and legal service
organizations. See 8 C.F.R. § 1240.10(a)(1)–(2) (2020). The respondent hired an attorney
to represent him in bond proceedings, and there is no indication that he was deprived of
the privilege of being represented by an attorney in removal proceedings or in helping him
complete an application for relief.

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language best, so he was provided a Spanish interpreter. 6 Our review of the
transcript shows no lack of understanding or confusion on the respondent’s
part. He made no claim at any time during the hearing that he could not
understand the interpreter or the Immigration Judge and, on appeal, he has
not identified any portion of the hearing where he had such difficulty. See
Matter of K-L-, 20 I&N Dec. 654, 660 (BIA 1993) (rejecting a due process
claim where the alien showed no prejudice because he claimed to speak
English, did not request an interpreter, and “failed to specify any portion of
the hearing that he did not understand”). He was responsive to the questions
asked of him and was able to fully communicate with the Immigration Judge.
Consequently, we are not persuaded that the respondent was prejudiced as a
result of the Spanish interpretation. See Matter of D-, 20 I&N Dec. at 832
(finding there was no showing of “prejudice resulting from a deficiency” in
hearings that were conducted in English without an interpreter where the
alien indicated he spoke English, did not request an interpreter for himself,
and was able to meaningfully participate in the proceedings).
We also find no support for the respondent’s contention that his due
process rights were violated merely because the Immigration Judge
conducted his hearing by video conference. The Act and its implementing
regulations specifically provide for hearings via video conference. See
section 240(b)(2)(A)(iii) of the Act (providing that a removal “proceeding
may take place . . . through video conference”); 8 C.F.R. § 1003.25(c) (2020)
(“An Immigration may conduct hearings through video conference to the
same extent as he or she may conduct hearings in person.”). This authority
has been consistently recognized by the courts of appeals. See Vilchez
v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (recognizing that video
conference hearings are explicitly authorized by statute); Aslam v. Mukasey,
537 F.3d 110, 114 (2d Cir. 2008) (per curiam) (acknowledging that the
statutory authority accorded to Immigration Judges to conduct hearings via
video conference includes taking the testimony of witnesses); Rapheal
v. Mukasey, 533 F.3d 521, 531 (7th Cir. 2008) (stating that “Congress
specifically authorized proceedings by means of a video conference” and
rejecting the alien’s challenge to the constitutionality of the implementing
regulation).

6

An alien has a fundamental right to participate meaningfully in the removal proceedings
by having them competently interpreted into a language he or she can understand. See
Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994) (“The right of a person facing deportation
to participate meaningfully in the deportation proceedings by having them competently
translated into a language he or she can understand is fundamental.”); Matter of Tomas,
19 I&N Dec. 464, 465 (BIA 1987) (“The presence of a competent interpreter is important
to the fundamental fairness of a hearing if the alien cannot speak English fluently.”).

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Immigration Judges “must conduct immigration hearings in accord with
due process standards of fundamental fairness.” Bouchikhi v. Holder, 676
F.3d 173, 180 (5th Cir. 2012) (quoting Olabanji v. INS, 973 F.2d 1232, 1234
(5th Cir. 1992)). Due process requires that respondents in immigration
proceedings must be given an “opportunity to be heard at a meaningful time
and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (citation omitted); see also Aslam, 537 F.3d at 114 (recognizing the
applicability of the due process requirements set out by Mathews). However,
to prove a due process violation, an alien must demonstrate substantial
prejudice. See Okpala, 908 F.3d at 971.
Removal proceedings conducted by video conference do not per se
violate due process. See Vilchez, 682 F.3d at 1199 (stating that “a hearing
by video conference does not necessarily deny due process”). In fact, the
courts have generally found that such proceedings afford aliens a full and fair
hearing. See, e.g., Aslam, 537 F.3d at 115 (holding that the alien’s “due
process rights were not violated at the immigration hearing when a key
witness was permitted to provide testimony via videoconference”).
The Fifth Circuit has not yet published a decision on this issue. However,
in two unpublished decisions, the court has found the use of video conference
hearings to be fundamentally fair. See Jinquan Liu v. Holder, 566 F. App’x
333, 334 (5th Cir. 2014) (per curiam) (holding that the alien did not
demonstrate that he was prejudiced by the video conference hearing, which
was “fundamentally fair and did not result in a due process violation”); Deng
Ming Li v. Holder, 478 F. App’x 884, 887 (5th Cir. 2012) (per curiam)
(finding that the alien “failed to show that he was prejudiced by the use of
the video-conferencing format, because he did not establish that he was
precluded from meaningfully presenting his case”).
However, the potential for a video conference hearing to violate the right
to a full and fair hearing has been recognized in some circumstances. See
Vilchez, 682 F.3d at 1199 (acknowledging that “in a particular case video
conferencing may violate due process or the right to a fair hearing”); Rusu
v. INS, 296 F.3d 316, 321–24 (4th Cir. 2002) (explaining that an alien’s video
conference hearing on an asylum claim may be unfair if the fact-finder has
difficulty gauging demeanor for a credibility determination, counsel is
unable to privately confer with and advise the alien, or there are
insurmountable technological problems with the sound or video quality).
For example, a new hearing was required where the alien was unable to
review a document that was used to find her not credible and “the lack of a
fair hearing ‘actually had the potential for affecting the outcome’ of the
proceedings.” Rapheal, 533 F.3d at 531–33 (citation omitted). “Whether a
particular video-conference hearing violates due process must be determined
on a case-by-case basis, depending on the degree of interference with the full
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and fair presentation of [the alien’s] case caused by the video conference,
and on the degree of prejudice suffered by the [alien].” Vilchez, 682 F.3d at
1199–1200.
An alien who claims that removal proceedings conducted via video
conference violated due process has the burden to show that he or she was
prejudiced and denied a full and fair hearing. See id. at 1200 (holding that
the alien failed to establish that the outcome of his hearing was affected
where his claim that his credibility was compromised because of his
nervousness about testifying on video was undermined by the fact that the
Immigration Judge did not make an adverse credibility finding); Rusu, 296
F.3d at 324 (“To prevail on his contention that the video conferencing
procedures violated due process, [the alien] must show that better procedures
are likely to have made a difference in the outcome of his hearing.”). For
instance, a denial of due process has not been established where there is
insufficient evidence that the video conference equipment was unreliable or
defective. See Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir.
2007); see also Eke v. Mukasey, 512 F.3d 372, 382–83 (7th Cir. 2008)
(finding no prejudice where the alien did not explain how the video
conference format prevented the Immigration Judge from considering the
evidence in support of his claim, including his physical attributes).
The respondent has not clearly explained how having his hearing via
video conference interfered with his communication with the Immigration
Judge or otherwise prejudiced him. At the hearing, the respondent was
advised of his procedural rights. The Immigration Judge noted that he had a
lawyer for his bond hearing but told him that he also had a right to be
represented in his removal proceedings. The respondent indicated that he
understood and did not have any questions of the Immigration Judge. He
similarly acknowledged that he had a right to appeal any decision of the
Immigration Judge.
The Immigration Judge then explained the removal charges, and the
respondent indicated his understanding. Having explained each allegation in
the notice to appear, the Immigration Judge took pleadings from the
respondent. The respondent was responsive to each question, was asked
whether each allegation was true or false, and did not seek clarification or
otherwise indicate any confusion. Based on the respondent’s answers, the
Immigration Judge concluded that he was removable as charged in the notice
to appear.
There are no indicia in the transcript that the respondent and the
Immigration Judge were unable to hear or see one another. Moreover, the
respondent has not claimed that the video equipment was malfunctioning or
defective, and nothing in the transcript suggests that there were any technical
problems with the equipment. Absent technical deficiencies or other
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examples of error, we find no prejudice to the respondent. Consequently, we
conclude that the respondent has not met his burden of establishing that he
was denied a full and fair hearing as a result of the use of video conferencing.

III. CONCLUSION
After an Immigration Judge has set a firm deadline for filing an
application for relief, the respondent’s opportunity to file the application may
be deemed waived, prior to a scheduled hearing, if the deadline passes
without submission of the application and no good cause for noncompliance
has been shown. The respondent has not explained his failure to comply
with the Immigration Judge’s application deadline. Nor has he provided
good cause to justify his failure, so as to undermine the pretermission of
his application. Further, the respondent has not submitted a completed
application or alleged facts on appeal that would constitute a prima facie
claim for any form of relief. We therefore conclude that the respondent
waived the right to apply for relief from removal.
Although the respondent was detained, appeared pro se, and used a
Spanish interpreter at his video conference hearing, none of these factors,
standing alone or taken together, constitute a denial of due process. The
respondent failed to meet his burden of establishing that he was deprived of
a full and fair hearing where he has not shown that conducting the hearing
by video conference interfered with his communication with the Immigration
Judge or otherwise prejudiced him as a result of technical problems with the
video equipment. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See Section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

83


Interim Decision #2507

MATTER OF CARIAGA
In Visa Petition Proceedings
A-20950365

Decided by Board July 22, 1976
(1) Petitioner, the United States citizen adoptive father of beneficiary, filed petition to
accord beneficiary, who was born in 1956, the status of an immediate relative under
section 201(b) of the Immigration and Nationality Act. Beneficiary's natural father had
executed an affidavit giving his consent to the adoption of his son on April 8, 1963.
However, the actual adoption did not take place until October 20, 1975, when beneficiary was 19 years of age by a decree made retroactive to April 8, 1963, by the issuing
court.
(2) Section 101(b)(1)(E) of the Act respecting adoption of children for immigration purposes is to be construed strictly. In order for an adoption to be valid for immigration
purposes, the act of adoption must occur before the child attains the age of fourteen.
(3) Where the adoption did not take place until the beneficiary reached 19 years of age,
the adoption was not valid for immigration purposes notwithstanding the retroactive
effect given the adoption decree by the issuing court, and the visa petition to accord the
beneficiary immediate relative classification was denied.
ON BEHALF OF PETITIONER:

Roman de la Campa, Esquire
2219 Allan Street
Sioux City, Iowa 51103

The United States citizen petitioner applied for immediate relative
status for the beneficiary as his adopted child under section 201(b) of the
Immigration and Nationality Act. In a decision dated February 3, 1976,
the district director denied the petition. The petitioner has appealed.
The appeal will be dismissed.
The benef.ciary is a twenty-year old native and citizen of Mexico. It
appears that in 1958, at two years of age, he was brought from Mexico to
the United States by his father. It also appears that at that time, he
went to live with the petitioner and his wife and has remained since.
On April .3, 1963, a year before his death, the beneficiary's father
executed an affidavit giving his consent to the adoption of his son by the
petitioner. According to the petitioner, he did not adopt the beneficiary
at that time because of advice he was given by an attorney in Idaho. The
attorney told him that since the beneficiary's mother could not be
lasted and her consent secured, the beneficiary could not be adopted

until he reac:led eighteen. At that age, the beneficiary's own consent to
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Interim Decision #2507
the adoption would be sufficient. As a result of this advice, efforts to
proceed with the adoption were abandoned until 1975.
The record contains a Decree of Adoption issued by the District Court
of the State of Iowa in and for Woodbury County on October 30, 1975 in
which the beneficiary, at the age of nineteen, is declared adopted by the
petitioner and his wife, retroactive to April 8, 1968. The decree also
recites the fact that the beneficiary's father gave his consent to the
adoption on April 8, 1963 and that the child has lived with his adopting
parents from the time the consent was given.
The issue raised is whether the retroactive effect which the Iowa
Court has given the adoption should be considered by this Board in
applying the provisions of the Immigration and Nationality Act.
The legislative history of the Immigration and Nationality Act of 1952
clearly indicates that the Congress was concerned with the problem of
keeping the families of immigrants united. As part of that policy, Congress provided liberal treatment of children. Despite this concern, Congress did not extend immigration benefits to adopted children for fear
that fraudulent adoptions would provide a means of evading the quota
restrictions. See S. Rept. 1515, 81st Cong., 2d Sess. 468. In 1957,
however, Congress included within the definition of "child", "one
adopted while under the age of fourteen if the child has thereafter been
in the legal custody of, and has resided with, the adopting parent or
parents for at least two years . . ." See Immigration and Nationality
Act of September 11, 1957 (71 Stat. 639). Through the imposition of an
age restriction on the creation of the adoptive relationship, Congress
has attempted to distinguish between bona fide adoptions, in which a
child has been made a part of a family unit, and spurious adoptions,
effected in order to circumvent statutory restrictions. 1
In light of the history behind the age restriction in section 101(b)(1)(E), it appears clear that the provision should be given a literal
interpreation. The act of adoption must occur before the child attains
the age of fourteen. Therefore, despite the retroactive effect given the
beneficiary's adoption by the Iowa Court, an adoptive relationship was
not created within the meaning of the Immigration and Nationality Act,
when the beneficiary was adopted under Iowa law at age nineteen.
We are aware of the sympathetic aspects of this case. However, the
provisions of the Act do not permit recognition of this adoption for
immigration purposes. The petition must be denied.
ORDER: The appeal is dismissed.
1 For remarks by Congressman Walter on the "deliberate evasions of quota restrictions" which occurred under section 203(a) of the Act, by "permitting the preferential
entry of adult aliens adopted long after they reach their majority", see The Congressional

Record on July 0, 1959, pages 11578-60. See also, Matter of Caramanzana, 12 I. & N.
Dec. 47, 48 (BIA 1967).

117


Interim Decision #2663

MATTER OF MCNATJORTONT

In Deportation Proceedings
A-19811498

Decided by Board July 26, 1978
(1) A conviction for conspiring to affect the public market in securities with intent to
defraud in violation of section 338(2) of the Canadian Criminal Code, a section covering
substantially similar conduct to that made criminal in the United States by the Securities Act of 1933 and the Securities Exchange Act of 1934, is a conviction for a crime
involving moral turpitude.
(2) Once guilt has been adjudicated by foreign court and the adjudication has not been
overturned the Board of Immigration Appeals will not retry guilt.
(3) A foreign conviction, to be the bathe fora finding of inadmissibility, must be for oornitiot

which is deemed criminal by United States standards.
(4) Once it has been determined that a foreign conviction is for conduct vrhieh is deemed
criminal in the United States, prevailing United States standards will be applied to
determine whether the erhue luvulves moral turpitude.
(5) Where the conviction is one for conspiracy, moral turpitude is present if the substantive offense to be committed pursuant to the conspiracy involves moral turpitude.
(6) A crime, a necessary element of which is intent to defraud the investing public,
involves moral turpitude, and the motivation for the crime does not bear on the nature
of the offense.
CHARGE:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)] and 212()(9) 18 U.S. C.
1182(a)(9)]—Excludable at time of entry—convicted of a crime
involving moral turpitude
ON BEHALF OF RESPONDENT: Stephen Tornay, Esquire
1831 Fourth Avenue
San Diego, California 92101
RY: Milhollan, Chairman; Maniatis,

Appleman, Maguire, and Farb, Board Members

This is an appeal from the immigration judge's decision of October 13,
1S77, in which he found the respondent deportable as charged. The
appeal will be dismissed.
The record relates to a widowed male alien, a native and citizen of the
united Kingdom, who was last admitted to the United States on June 5,
1977, as a nonimmigrant visitor. He is charged with deportability under
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Interim Decision #2663
section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C.
1251(a)(1), on the basis that he was excludable at the time of entry under
section 212(a)(9) of the Immigration and Nationality Act, 8 U.S.C.
1182(a)(9), because of the conviction of a crime involving moral turpitude.
A copy of the respondent's record of conviction is in our record. It
indicates that the Quebec Court of Sessions for the District of Montreal
found him guilty of conspiracy to commit a violation of section 338(2) of
the Canadian Criminal Code, which provides as follows:
Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a
false pretense within the meaning of this Act, with intent to defraud, affects the public
market price of stocks, shares, merchandise car anything that is offered for sale to the
public, is guilty of an indictable offense and is liable to imprisonment for ten years.

The finding of guilt was affirmed by - the Court of Appeals for the
Province of Quebec, but that court substantially reduced the respondent's sentence.
Opinions were written in the respondent's case by each of the three
members of the Quebec Court of Appeals, as well as by the trial judge.
Copies of these opinions are before us. We learn from them that the
respondent's conviction arose out of his participation in a mining stock
deal. He agreed with certain other investors to operate what is known in
Quebec as a "box." An explanation of the use of the "box" may be found
in the following excerpt from the opinion of Judge Turgeon of the Court

of Appeals:
At the period which concerns us, let's say 1571, it was common practice in Montreal at
the Canadian Stock Exchange, for the promotion of new mining or industrial stock, to
have a means for assuring a well-regulated market in terms of its quoted worth at the
Exchange, for the purpose of preventing disorderly and excessive fluctuations to the
low or the high side. For this purpose, the promoters used, what was convenient to call
in the brokerage, a "box" which T will translate es "hoite" (box), for lack of a better
word. For this purpose, the operator of the box, who could be a broker or a mere
individual, had to have at his disposal a certai3l number of the company's shares and a
certain amount of money. When the price of the stock, or rather of the transferable
security, rose in an excessive manner due to a large demand, the operator of the box
would sell part of the shares he had in his possession on the market by means of the
Exchange. Conversely, when the quoted price of the shares fell in an unwarranted
manner because of too large a number of shares offered for sale, the operator of the box
would buy some of these shares at the Exchange in order to stabilize the market. One
should note here that, in terms of the common usage of the Exchange, the box should
xkot serve to enrich the person or people who op crate it: its role was essentially to assure
"au orderly market". This manner of operation was at least tolerated by the Canadian
Ztock Exchange which asked of its promoters of securities that they run an orderly
inarket for their shares.
-

It was found that the "box" involved in the respondent's case was
used to enrich its operators, rather than to assure an orderly market.
The respondent's co-conspirators, it was found, manipulated the "box"
570

Interim Decision #2663
for their own profit, with his knowledge, although the respondent did
not profit personally from the operation of the "box."
During the criminal proceedings the respondent maintained his innocence on the basis that he had had no knowledge that the "box" was
being operated other than to stabilize the market. However, the trial
judge and the Court of Appeals found that he must have known the
"box" was actually being operated to enrich some of its operators.
Alternatively, he argued that operation of the "box" for the profit of
its operators was not a violation of the Canadian statute, but was a
permissible practice. This defense likewise was rejected. Despite the
absence of precedent on the point, the Canadian courts found that the
practice was a violation of the law, and that the respondent should have
known it to be.
The respondent makes three arguments as to why the conviction
should not form the basis for his deportation. First, he argues that he
was not guilty of the offense of which he was convicted. Second, he
argues that the conduct which formed the basis of his conviction in
Canada would not constitute a criminal offense in the United States.
Third, he argues that the crime of which he was convicted in Canada is
not a crime of moral turpitude, a necessary element of the ground of
deportability with which he is charged.
As to the respondent's guilt or innocence of the offense of which he
was convicted, his guilt has been adjudicated by the courts in Canada

with criminal jurisdiction. It is not our place to retry that issue. Brice v.
Pickett, 515 F.2d 153 (9 Cir. 1975); Mytitts v. Uhl, 210 F. 860 (2 Cir.
1914); Matter of Fortis, 14 I. & N. Dec. 576 (BIA 1974); Matter of
Sirhan, 13 I. & N. Dec. 592, 594 (BIA 1970). The respondent must
address any attack on the merits of the conviction to the courts with
criminal jurisdiction. The respondent advises that he has uncovered
evidence that testimony against him at his trial was perjured, and that
he has requested an investigation by the Quebec authorities. To date,
however, so far as we are aware, the respondent's conviction remains in
farce.
The respondent next

argues that his conviction was for conduct which
would not constitute a crime in the United States. A description of the
eonduet found criminal is provided in the decisions of the trial and
appellate judges. It was found that the "box," through the use of dummy
corporations controlled by its operators, made sales to itself which
appeared on the Montreal Exchange as arm's-length transactions. These
sales were made when the price of the stock was increasing. Often the
sales by the "box" to itself were the last purchases of the day, at a price
higher than the next to last sale for the day. These sales had the effect of
creating an appearance that the price was rising. The trial court concluded that: "the box's sole aim was profit to the operators of the box

571

Interim Decision #2663
and to create an artificial volume of shares bought and sold on the
market." This manipulation of the "box" was contrary to the tolerated
use of the "box" for the promotion, of an orderly market.
It was noted in the decisions that the respondent's participation in the
"box" was limited. The actual manipulations were done by the respondent's co-conspirators, and as stated above, the respondent did not
profit personally. However, it was found that the respondent had
knowledge of the way in which the "box" was being operated inasmuch
as he had financial control of one of the companies through which the
"box" operated, because he was kept informed of all the transactions
involved, and because he must have noticed that the value of the shares
rose unceasingly for a certain period. The respondent was convicted on
the basis of the finding that he possessed knowledge of the operations of
the "box." His motives were described as arising from a desire to please
one of the investors, a Mr. Eckersley, who was president of a charitable
foundation which distributed funds for the purpose of medical research.
The respondent, who was himself president of a cancer research foundation, hoped to receive generous gifts from the latter's foundation for the
two foundations with which the respondent was associated. (Opinion of
Judge Turgeon, Court of Appeals of Quebec, pp. 14, 18.)
The respondent is correct in his argument that when a foreign conviction is the basis for a finding of inadmissibility, the conviction must be
far conduct which is deemed criminal by United States standards. It is a
necessary element that the act underlying the conviction be something
forbidden by United States law, 37 Op. Att'y Gen. 293 (1933).
Counsel cites the case of United States v. Brown, 5 F. Supp. 81 (S. D.
N.Y. 1933) for the proposition that identical conduct in the United
States would not be considered a crime.' The case actually stands for the
contrary proposition. The United States securities laws contain two
offenses which bear substantial similarity to the Canadian statute involved. Under section 10(b) of the Securities Exchange Act of 1934, 15
78j(b):
It shall be unlawful for any person, directly or indirectly, by the use of any means or
instrumentality of interstate commerce or of the mails, or of any facility of any national
securities exchange ... to use or employ, in connection with the purchase or sale of any
security registered on a national securities exchange or any security not so registered,
any manipulative or deceptive device or contrivance in contravention of such rules and
regulations as the Commission may prescribe as necessary or appropriate in the public
interest or for the protection of investors.

Under section 17(a) of the Securities Act of 1933, 15 U.S.C. 77q(a):
It shall be unlawful for any person in the offer or sale of any securities by

the use of

' We could not And In the cited decision the language which is quoted in the brief as a

gluotation from that case.
5'72

Interim Decision #2663
any means or instruments of transportation or communication in interstate commerce or
by the use of the mails, directly or indirectly—
(1) to employ any device, scheme, or artifice to defraud. . .

A violation of 15 U.S.C. 78j(b) was found by the Supreme Court in a
case in which a corporation's assets were used to acquire shares of its
Own

stock. Supt. of 'mu:rouse of New York v. Bankers Life & Cas. Co. ,

404 U.S. 6 (1971). In Securities and Exchange Com'n, v. Commonwealth
Sec., Inc. , 410 F. Supp. 1002 (S.D. N.Y. 1976), the District Courtfor the
Southern District of New York found a violation of both of the above
sections because of self dealing. In the latter case, the defendants
misused their dominant market position to manipulate trading and inflate the price of certain securities artificially for their own gain. The
following statement appears in the decision:
In a free and open public market, it is the cconpeting judgments of numerous buyers
and sellers at an auction which establishes the fair price of a security. When individuals,
occupying a dominant market position, undertake a scheme to distort the price of a
security for their own gain, they violate the securities law by perpetrating a fraud on all
public investors.
The conduct discussed in Securities and Exchange Cam.'n, v. Commonwealth Sec., Inc., supra, appears to be very similar in type to the

conduct for which the respondent was convicted. Like the defendants in
Securities and Exchange Com'n v. Commonwealth Sec., Inc. , supra, he
was in a dominant market position, and he was involved in a scheme to
distort the price of securities through rigged purchases by controlled
accounts. Thus, it appears that the conduct of which the respondent was
convicted would constitute a criminal violation in the United States.
Therefore, judged by United States standards, the Canadian conviction
is for conduct which is prohibited in the United States.
Having established that the conduct would be adjudged criminal , by
our standards, however, is not the end of our inquiry. We are left with
the question of determining whether the crime involved moral turpitude. We look, as counsel urges, to prevailing United States standards in making this determination. 39 Op. Att'y Gen. 95, 96 (1937j; 39
Op. Att'y Gen. 215, 220 (1938); 37 Op. Att'y Gen. 293 (1933), supra.;
Matter of P—, 6 I. & N. Dec. 400, 403 (BIA 1954); Matter of P—, 3 I. &
N. Dec. 56 (CO 1947, BIA 1948). The Canadian statute involved, 2 and

the record of conviction serve as a guide in this inquiry. The Canadian
statute has been quoted above. From the record of conviction we have
2 Here the respondent was convicted of the crime of conspiracy. Whether a conspiracy
involves moral turpitude depends upon whether the offense to be committed pursuant to
the conspiracy involves moral turpitude, Matter of P—, 3 I. & N. Dee. 56 (CO 1947, BIA
1948). Conspiracy to commit an offense does not involve moral turpitude unless the
substantive offense charged therein involves moral turpitude, Mailer of G--. 7 I. &
Dec. 114, 115 (BIA 1956); Hirsch v. INS, 308 F.2d 562 (9 Cir. 1962).

573

Interim Decision #2663
the verdict and sentencing opinions by the trial court and the Quebec
Court of Appeals. '
The specific conduct which was found to be criminal in the respondent's case was the manipulation of the "box" in such a way as to give
the appearance to the public that bona fide sales of the stock were being
made at higher prices than was actually the case. This had the effect of
artificially raising the price of the stock for the benefit of the operators
of the "box," and to the detriment of the investing public. As described
above in the quotation from Securities and Exchange Com'n v. Commonwealth Sec., Inc., supra, a violation of the securities law hi this
manner is deemed a fraud on the public.
Fraud has, as a general rule, been held to involve moral turpitude,
Jordan v. DeGeorge, 341 U.S. 223 (1951) (defrauding the United States
of taxes on distilled spirits); Mercer v. Lance, 96 F.2d 122 (10 Cir. 1938)
(defrauding a person of a large sum of money); U.S. ex rel. Berlandi v.
Reimer, 30 F. Supp. 767 (S.D. N.Y. 1939), affd 113 F.2d 429 (2 Cir.
1940) (defrauding the United States of taxes on distilled spirits); U.S. ex
rel. Amato v. Commissioner of Immigration Ellis Island, New York
Harbor, 18 F. Supp. 480 (S.D. N.Y. 1937) (petty larceny); U.S`_ ex rel,
Partuda v. Day, 16 F.2d 328 (S.D. N.Y. 1926) (issuing of checks without
sufficient funds, with intent to defraud); Ponzi v. Ward, 7 F. Supp. 736
(D. Mass. 1934) (use of the mails to defraud); Matter of Martinez,
Interim DeeisiOn 2611 (MA 1977) (passing counterfeit money); Matter of
P--L, 3 I. & N. Dec. 56 (CO 1947, BIA 1948) (obtaining money by false

pretenses); Matter of F— , 2 I. & N. Dee. '754 (CO 1947, BIA 1948)
(defrauding government of customs duties).
From these cases it can be seen that whenever a crime has involved
intent to defraud, it has been found to involve moral turpitude. The
crime of which the respondent was convicted included "intent to defraud" as an element necessary for conviction. The fraud was committed
against the investing public as a whole. The number of potential victims,
therefore, was very large.
Moral turpitude, which is a vague term, has been described as amrthing done contrary to justice, honesty, principle, or good morals; conduct contrary to the accepted and customary rule of right and duty owed
between man and man, either one's fellowman or society in general, 37
Op. Att'y Gen., supra, Matter of P—, 6 I. & N. Dec. 400 at 403Deceptive practices engaged in to affect the public market price of
stocks or shares at the expense of the investing public certainly violates
the customary rule of right and duty owed between man and man in
relation to society in general. Intent to defraud the investing public,
which is an entire segment of society, is at least as heinous as intent to
deraud an individual or the Government (who were the victims of the
e ases involving fraud listed above).
574

Interim Decision #2663
A purpose common to the securities acts was the goal of substituting
for the philosophy of caveat emptor a level of business practices more
consonant with what was believed to be morally acceptable, SEC v.
Capital Gains Research Bureau, 375 U.S. 180, 194 (1963). It was felt
that public policy could no longer tolerate certain practices. The fact
that the criminal prohibition of the practices is fairly recent in origin
does not detract from the inherent immorality of the acts. As stated in
Rudolph, v. United States, 6 F.2d 487 (D.C. Cir. 1925) (and quoted with
approval in 39 Op. Att'y Gen. 215, supra, at 221):
Many things which were not considered criminal in the past have, with the advancement of civilization, been declared such by statute; and the commission of the offense if
it involves the violation of a rule of public policy and morals, is such an act as may
involve moral turpitude.

We are not unaware of the sympathetic aspects of the respondent's
case, which prompted the Quebec Appeals Court to reduce his sentence.
The respondent's motivation, naivete, and ignorance of the law, however, do not bear on the nature of the crime itself, which must be the
test of whether it involves moral turpitude.
The Supreme Court observed in Jordan v. DeGeorge, supra, that in
every deportation ease where fraud has been proved, Federal courts
have held that the crime at issue involved moral turpitude. After observing:
f I)t can be concluded that fraud has consistently been regarded as such a contaminating component in any crime that American courts have without exception, included such
crimes within the scope of moral turpitude,

the Court found the crime of conspiring to defraud the United States to
be a crime involving moral turpitude. We see no reason to depart from
the direction there laid down. We find the crime of conspiring to defraud
the investing public to be a crime involving moral turpitude.
ORDER: The appeal is dismissed..

575


Interim Decision # 2756

MATTER OF SAMAI

In Deportation Proceedings
A-21424247
Decided by Board January 16, 1980
(1) Sufficient notice of hearing and an opportunity to prepare a defense to deportation is
a basic prOcedural right. Yin Fong Cheung v. IN$, 418 F.2d 460, 462463 (D.C. Cir.
1969).
(2) An objection raised for the first time on appeal concerning improper notice of the
deportation hearing was not untimely made, since the respondent was previously
unrepresented and had not made a knowing waiver of his procedural rights.
(3) Where the failure to observe 8 C.F.R. 242.1(b) and 103.5a(b) requiring a minimum
period before a deportation hearing can be held after service of the Order to Show
Cause deprived the unrepresented alien of a fair hearing, the Board remanded for a de
novo hearing and entry of a new derision.

CHARGE
Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant student—remained longer than permitted
Richard W. Williams, Esquire
283 Greenwich Avenue
Greenwich, Connecticut 06830
Milhollan,
Chairman;
Maniatie,
Appleman, Maguire, and Farb, Board Members
BY:
ON BEHALF OF RESPONDENT:

The respondent has appealed from the decision of an immigration

judge, dated September 11, 1978, finding him deportable as charged
and denying his request for voluntary departure in lieu of deportation.
The appeal will be sustained and the record will be remanded.
The respondent is a 32-year-old native and citizen of Iran who last
entered the United States on July 22, 1977, as a nonimmigrant student.
On September 5, 1978, an Order to Show Cause was issued, charging
the respondent with deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant
who had remained in the 'United States beyond the period of his
authorized stay. The Order to Show Cause was served on the respondent by certified mail, return receipt requested. The respondent received
the Order to Show Cause on September 8, 1978. See Exhibit 1.
242

Interim Decision #2756
8 C.F.R. 242.1(b) specifies that a deportation hearing may not be held
less than 7 days after service of an Order to Show Cause except where
the issuing officer determines that the public interest, safety, or security so requires, or at the request of the respondent. 8 C.F.R. 103.5a(b)
specifies:
Whenever a person has the right or is required to do some act within a prescribed
period after the service of a notice upon him and the notice is served by mail, 3 days
shall be added to the prescribed period_ Service by mail in complete upon mailing.

Implementation of the regulations cited above required that the
earliest proper hearing date which the Order to Show Cause served by
mail on September 5, 1978, might contain was September 15, 1978. At
the scheduled hearing on September 8, the immigration judge did not
mention the irregularity of the notice to the then unrepresented respondent. On appeal, respondent alleged, without contradiction by the
Service, that the public interest, safety, or security had not made it
necessary to shorten the notice period, and he contended that holding
the hearing in less than 7 days had deprived him of a fair hearing.
The existence of the regulation relieves us of the need to calculate in

each individual case how much notice is sufficient when, as here; the
regulation is violated. There was no knowing waiver and the objection
at the appeal stage was not untimely in the circumstances. Sufficient
notice of hearing and an opportunity to prepare a defense to deportation is a basic procedural right. Nu Fong Cheung v. INS, 418 F.2d 460,
462-463 (D.C. Cir. 1969). The record will be remanded for a de novo
hearing and the entry of a new decision.
On remand, the immigration judge should reconsider the respondent's request for voluntary departure if it can be shown that the
punishment actually imposed for the respondent's conviction for petty

theft brings that conviction within the petty offense exception to
section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9). See generally Matter of
Urpi-Sancho, 13 I&N Dec. 641 (BIA 1970).
ORDERS The immigration judge's decision of September 11, 1978,
is vacated and the record is remanded for a de novo hearing and the
entry of a new decision.

243