Interim Decision #1466
•

MAT= OF

Mumma)

In Exclusion Proceedings
A-30728749

Decided by Board May .14, 1985
The special inquiry officer has authority in exclusion proceedings, in the exer-

cise of discretion, to grant waivers of inadmissibility pursuant to sections
212(g) and (h), Immigration and Nationality Act, as amended, to a native
and citizen of Mexico who is in possession of an otherwise valid visa and
who qualities for such relict [Matter of DeF , 8 L st N. Dec. 68, and Matter of Dea , 8 L & N. Dec. 325, distingaished.]
—

—

Examaszta: Act of 1952--Section 212(a) (9) [8 II.S.C. 1182(a) (9)3—Admits
having committed crime involving moral turpitude, perjury.
Act of 1952—Section 212(a) (12) [8 U.S.C. I182(a) (12)3—En' gaged in prostitution.
Act of 1952—Section 212(a) (19) [8 U.S.C. 1182(a) (19)3—Procured visa or other documentation by willfully
misrepresenting a material fzet.

The case comes forward pursuant to certification by the special
inquiry officer of his order dated March 19, 1965 ordering that the
applicant be granted a waiver under sections 212(g) and 212(h)
of the Immigration and Nationality Act of the grounds of her
excludability under section. 212(a) (12) as an alien who engaged in
prostitution and under section 212(a) (9) as an alien who has admitted having committed a crime involving moral turpitude, to wit,
perjury, and under section 212(a) (19) as an alien who has procured
a visa or other documentation by fraud or by willfully misrepresenting a material fact, and further ordering that the applicant. be
admitted to the 'United States as a nonquota immigrant.
The record relates to a native and citizen of Mexico, 30 years old,
female, married, who arrived at the port of El Paso, Texas on
December 7, 1961 in possession of a nonquota immigrant visa issued
to the applicant on December 2, 1964 at the American Consulate,
Juarez, Mexico.
,175

• Interim Decision #1468
The special inquiry officer has set forth the facts in detail. The
record establishes-that the applicant practiced prostitution in Juarez,
Mexico from May until October 1959 voluntarily ,to support herself
and her three young ehildien; that she obtained a. nonimmigrant

local border crossing card at Laredo, Texas during the year of 1960
by concealing from the immigration officers that she had only the
year before practiced prostitution in Juarez, Mexico, and was aware
that she would have been refused . a local border crossing card g"
she had revealed such Activity since she had been denied such a
document the previous year in El Peso, Texas in October 1959 for
the same reason. She also concealed the practice of prostitution
when she executed an application. for a nonquota immigrant visa at
the American Consulate on Decehiber 2, 1964. Concealment of the
practice of prostitution was material to the issuance of the •onquota
immigrant. visa and also to the issuance of the - nonimmigrant local
;herder .crossini card. Excludability under section 212(a)•(19) of
The Immigration. and Nationality Act: as an alien who has procured a visa or other documentation by willfully misrepresenting a material
fact; -under section.212(a) (9) as an alien who has admitted having
committed a crime involving moral turpitude, to wit, perjury 'in connection with the oath for the application for an immigrant visa on
-December -2, 1964 before the American Consul in Juarez, Mexico.;
and under section 212(a) (12) as an Slim who has engaged in pros'fitution,. is established by the evidence of record.
The applicant executed. an application for a waiver under sections
212(g) and 212(h) of the Immigration and Nationality Act of the
aforesaid grounds of her inadmissibility .to the United States. The
''applicant was married on April 9, 1960 to a United States citizen,
her first marriage having been terminated by a divorce, decree

rendered in Mexico on January 22, 1959. Three children, who are
'the issue- of the•first marriage, are lawful permanent residents of
the United States- and two childre
n, who are the issue of the -second
marriage, are 'citizens of the United States. The evidence establishes
:.that -thejexeltsion of the -applicant from _the -United; Stales • would
resultin extreme hardship to her United States citizen husband, her
two United States Citizen children and her three resident ' ,Alien chil=dren. The evidence establishes that the applicant has' not practiced
prostitution since October 1959 and has completely reha'bili'tated herself since she met her husband and their present relationship is a
happy and stable one, A report of investigation conducted by the
Service Contains no derogatory information. There has been no evidence that the-presence of the applicant in the United States would
be contrary to the national welfare, safety or security of this country.

176

Interim Decision #1468
. The evidence establishes that the applicant is eligible for a waiver
under sections 212(g) end. 212(h) of the Act. Such a waiver has
been granted nano pro tune in deportation proceedingi to cure a
ground of inadmissibility existing at the time of entry.' The basis
for the certification of the decision of the apecial inquiry officer
apparently rests upon the holdings in Matter of DeF—, 8 I: & N.
Dec. 88, and Matter of D80—, 8 I. & N. Dec. 325. The former case
held that aliens within the United States who are ineligible for
preexamination cannot be granted. advance waivers of inadmissibility
under sections 5 and 7 of the Act of September 11, 1957 while they
remain in the United States and that natives and citizens of
contiguous territory to whom preexamination procedures are inapplicable, must depart and apply for 'waivers at the time they
make applications to enter the United States from their native
country. The latter case involved the issue whether the Board had
power to grant discretionary relief under sections .5 and 7. of the
Act of September 11, 1957 (P.L. 85-316) to authorize the advance
waiver of certain grounds which prevented the issuance of visas
and which barred entry into the United. States. The Attorney
General held that advance -waivers of inadmissibility under sections
5 and 7 of the Act of September 11, 1957 were not authorized to
facilitate future admission of aliens ordered excluded and disposition
of waiver requests must - await return to foreign territory and compliance with the procedure established by 8 CFR 212.7 (a). 2
here the applicant is actually in possession of a nonquota immigrant visa, an entrant alien seeking admission to the United States.
If the waivers of-sections 212(g) 'and (h) are exercised, no further
action is required. Section 286(a) of the Immigration and Nationality Act authorizes a special inquiry officer to conduct a hearing
and to determine whether an arriving alien who has been detained
for further inquiry under section 235 shall be allowed to enter or
shall be excluded and .deported. The applicable regulation, 8 CFR
236.1, provides that special inquiry officers shall have the powers
and authority conferted upon them by the Act and this chapter,
and subject to any specific limitation prescribed by the Act and this
chapter, special inquiry officers shall also exercise the discretionary
authority conferred. upon the Attorney General by the Act as it is
• appropriate and necessary for the disposition of such cases.
'Matter of P , 7 L & N. Dee. 718.
'Sections 5 and 7 of the Act of September 11, 1957 have been codified into
—

the Immigration and Nationality Act of 1852 of sections 212(g) and
the Act of September 20, 1961 (P.1,. 87 301).
-

177

212(h) by

Interim Decision *1468
In the. present case the exercise of discretionary relief pursuant to
sections 212(g) and 212(h) - of the Immigration and Nationality Act
will effectively eliminate the grounds of inadmissibility and will
concurrently render the visa valid." The instant ease differs in its
facts from Matter of DeF—, and Matter of DeG—, supra. The
former case involved an alien within the United States who was
ineligible for preexamination and was required to depart and apply
for a waiver at the time of making application,for a -visa. In the
latter case there were involved a number of aliens who were
physically present in the United States and were required to leave to
obtain visas so that they might rejoin their families in the -United

States and it was held that advance waiver request must await return
to foreign territory and compliance with procedure established by
8 CFR 212.7(a). The order of the special inquiry officer will be
approved.
ORDER: It is ordered-that the order of the special inquiry officer
dated March 19, 1965 granting the applicant -waivers under sections.
212(g) and 212(h) of the Immigration and Nationality Act and
ordering the applicant admitted. to the United States as a nonquote
immigrant be and the same is hereby approved.
'Compare Matter of CI

—

, 8 I. I N. Dee. M.

178 '


Interim Decision #2389

MATTER OF SINCLITICO

In Deportation Proceedings
A-19155548

Decided by Board June

2, 1975

The respondent, a native of the United States, became a naturalized citizen of Canada and
thereafter entered the United States as a visitor, and having remained longer than
authorized, was found deportable under the provisions of section 241(a)(2) of the
Immigration and Nationality Act. On appeal the proceedings are terminated upon the
respondent's establishing by a preponderance of the evidence that before and after his
Canadian naturalization, he did not have the mental capacity to expatriate himself
under the provisions of section 349(c) of the Act. Under these circumstances the burden
was on the Go ferzunent to show that respondent had sufficient mental capacity to
understand in a reasonable manner, the nature and effect of his act. The Service failed
to prove, by a preponderance of the evidence, that respondent had expatriated himself
and was an alien. The appeal is sustained.
emsnr.r.:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor—
remained longer
ON BEHALF OF :RESPONDENT: Gordon C. Dale, Esquire
1815 N. Broadway
Santa Ana, California 92706

In a decision of an immigration judge dated September 21, 1970, the
respondent was found deportable on the above-stated charge, but was

granted the privilege of voluntary departure. In that decision, the
immigration judge found that the respondent had expatriated himself as
a result of his naturalization as a citizen of Canada on December 8, 1961.
A reopened hearing was held on November 15, 1971 for the purpose of
affording the respondent an opportunity to present additional medical

evidence concerning his mental condition at the time of his naturalization in Canaea in 1961. In an oral decision of the same date, the
immigration judge found the respondent has been expatriated and is not
a citizen of the United States, found him deportable as charged, and
granted him voluntary departure. This is an appeal from this decision.
The appeal will be sustained.
The respondent is an unmarried male, who was born at Lawrence,
320

Interim Decision #2389
Massachusetts, on June 30, 1921, to United States citizen parents. He
was admitted to Canada as a landed immigrant on June 16, 1953 and on
December 8, 1961, took an oath of allegiance rand was granted Canadian
citizenship. He was admitted to the United States as a nonimmigrant
visitor at Niagara-Falls, New York, in October 1968, for a temporary
period not to extend beyond March 1969. He was granted a temporary
stay until February 8, 1970, but failed to depart from the United States
within the time specified. ,
The issue is whether the applicant's naturalization in Canada caused
him to lose United States citizenship. The immigration judge found that
the respondent iwas mentally competent and was aware of what he was
doing when the decision was made to become a citizen of Canada. That
is, he found that the respondent voluntarily became naturalized, has
expatriated himself, and is not a citizen of the United States. It is
counsel's contention that expatriation did not result because the respondent was not mentally competent to intelligently and intentionally surrender his United States citizenship and assume Canadian citizenship.
Prior to the enactment of section 349(c) of the Immigration and
Nationality Act on September 26, 1961, the burden was on the Government to establish -expatriation by clear, convincing and unequivocal
evidence. See Gonzales-Jasso v. Rogers, 264 F.2d 584 (D.C. Cir.. 1959);
Nishikawa v. Dulles, 356 U.S. 120 (1958). .
The Supreme Court held in Woodby v. INS, 385 U.S. 276 (1966) that
the test for burden of proof io a deportation proceeding is as follows:

"No deportation order may be entered unless it is found by clear,.
unequivocal and convincing evidence that the facts alleged as grounds
for deportation are true." However, this is not the situation in reference
to a, case involving loss of„citizenship. Section 349(c) of . the Act 1 was,
specifically enacted by Congress to change the degree of proof required
in loss of citizenship cases from clear, unequivocal and convincing evidence to that of a preponderance of the evidence. This purpose is clearly
shown in the legislative history of the statute (see House Report 1086,
August 30, 1961, to accompany S.,2237). In Matter of Gonzalez-Gomez,
12 L & N. Dec. 344 (BI A,1907), we held that the United States Supreme
Court considered that the degree of proof provision of section 349(c) was

Section 849(c) of the In
and Nationality Act reads as follows:
"Whenever the loss of United States nationality is put in issue in any action or
proceeding commenced on or after the enactment of this Subsectiim under, or by virtue of,
the provisions of this or any other. A'et, the burden shall be upon the person or party
claiming that such .loss occurred, to establish such claim by a preponderance of the
evidence. Except as otherwise provided in Subsection (b), any person who commits or
periormi, or has committed or performed, any act of expatriation under the provisions of
this or any other Act shall be presumed to have done so voluntarily, but such presumption
may be rebutted upon a shiming, by a preponderance of the evidence, that the act or acts
committed or performed were not done voluntarily."

321

Interim Decision #2389
an exception to the rules the Court was enunciating in the Woodby case.
A medical diagnosis from a psychiatrist was submitted in evidence
(Exh. R-1). The psychiatrist's diagnosis was "Schizophrenia with
paranoid features" and it was his opinion that "it would be justifiable to
claim that he was not well enough to make a rational decision when he
surrendered his United States citizenship. This diagnosis and medical
opinion was based upon the psychiatrist's personal observation of the
respondent from when he first saw him in July 1941 at various intervals
up to March :1950 and upon letters received from the respondent from
1950 through 1960. In the record there is a diagnosis made in 1954 of the
respondent by a psychiatrist and by a psychologist from the Ontario
Mental Health Clinic, in which the respondent was diagnosed as presenting a "paranoid picture" (Exh. R-3) and reflecting "the distortion of
ideational processes seen in schizophrenia" (Exh. R-4). A diagnostic
report dated June 20, 1963, less than two years after the respondent
became a Canadian citizen, was provided by a psychiatrist which was
based on medical visits on five Occasions prior to the date of the report.
The psychiatrist's diagnosis of the respondent Was "Paranoid Schizophrenia."
In addition to the medical evidence, the respondent's brother, the

Dean of the University of Sari Diego Law School, was a witness at the
reopened dep Drtation hearing. He testified as to his knowledge that his
brother had been diagnosed as a schizophrenic as early as 1940 (Tr. pp.
28 and 20; that his brother was treated for schizophrenia; and he related
examples of his brother's poor judgment, mental incompetence and
strange behavior for the period from 1958 to 1968 (Tr. pp. 79, 81, 88, 94
and 95). The respondent coroborated by his own testimony that he made
contributions to religious missions and purchased about 70 medical
books for his medical library, despite his financial problems (Tr. pp.
92-96). In response to questions on his application for voluntary departure, the respondent did not seem to understand the questions and
actually his answers were not responsive. (Tr. pp. 98 and 99).
"Schizophrenia" is defined as "Bleuler's term for dementia praecox. A
psychosis characterized by lack of effect, inappropriate mood, unpredictable behavior, and disintegration..Frequently terminates in mental
regression, total withdrawal from reality into phantasies and paranoid
formulations." (Blackiston's —New Gould Medical Dictionary,' p. 910);
Becker v. Becker, 138 N.Y.S. 2d 397, 399, 207 Misc. 17 (1954). "SchizoThrenia, paramid" is a disintegration of the mind and personality of the
individual characterized by disturbances of thinking, hallucinations, and
similar manifestations. In re Meyers, 189 A. 2d 852, 858, 410 Pa. 455
(1963); Am. jar., Proof of Facts, Medical Glossary, p. 215.
The question to be resolved is not, that of voluntariness, but whether
the respondent had the mental capacity or competence to expatriate
322

Interim Decision #2389
himself by Canadian naturalization. The whole pattern of the respondent's life, including his poor judgment, strange behavior and medical
diagnosis of schizophrenia from childhood, shows mental incompetence
to make an intelligent decision regarding voluntarily surrendering his
United States citizenship. We are satisfied that the respondent has
successfully rebutted any presumption that he voluntarily expatriated
himself as a result of Canadian naturalization in 1961. Under these
circumstances, the burden was on the Government to show that at the
time of his naturalization as a citizen of Canada, the respondent was
experiencing a lucid interval when he had sufficient capacity to understand in a reasonable manner the nature and effect of the act which he
was doing. We conclude that the Service has not sustained its burden of
proving by a preponderance of the evidence that the respondent was
expatriated and was an alien. The deportation proceedings will be
terminated.
ORDER: The appeal is sustained and the deportation proceedings are
terminated.

323


. Interim Decision # 1645

kiiTza *or Dzsst
In Visa Petition Proceedings

A 1478685
-

Decided by liegional Commissioner September

8, 1966

A visa petition to accord beneficiary preference classification under section
203(a) (6), Immigration and Nationality Act, as amended by ItL. 89-230,
as an orthopedic shoenlaker, is denied since petitioner's annual gross income
($8,000) is not convincing that, pursuant to section 204(a) of the Act, he
actually intends to employ the beneficiary at the weekly salary ($100)
set forth in the Labor certification; further, there is no evidence beneficiary ben bad experience in making plastic forms and in repairing and
altering orthopedic shoes as specified in the Labor certification.

This matter is before the Regional COmmissioner on appeal from
the denial of the visa petition to accord. the beneficiary sixth preference immigrant status as an orthopedic shoemaker.
The petitioner is engaged in the manufacture of- orthopedic and
custom made shoes and in the repair of such footwear. The visa
-

petition discloses that he does a gross business of $8,000 a year;
that he has one employee, his wife, who is unable to continue in
the job because of poor eyesight; ;hat he requires the services of
the alien in order to expand. It is further indicated that he has
filed three previous petitions, although their disposition is not shown.
The Department of Labor certification dated January 20, 1966,
submitted in this case reflects that the position calls for a "shoe .
fitter, custom made" with 5 years' experience. The rate of pay is
shown as $100.00 per week and the duties of the job are described
as, follows:
.

-

Make plastic forms of deformed feet, and make shoes scaled to a particular
individual's feet .Repair and make alterations on orthopedic shoes.

The beneficiary is an Italian citizen, born September 8, 1952,- at
Catona,' Reggio Calabria, Italy, who was admitted tO.-the United
States for permanent residence on November 20, 1954. She subsequently returned to Italy on September 17, 1955, for the purpose
of getting married and has since remained in that country with her

817

-

Interim Decision # 1645
husband. The records of this Service further reveal that np to the
time of her departure, the beneficiary was employed at a dress shop
in Brooklyn, New York. The documentary evidence initially furnished with the petition stated that she was engaged as a sewer of
orthopedic shoes" by Antonin Condello at Reggio Calabria, Italy,
from October 1, 1955,'until December 31, 1960. Documents which
were later submitted on appeal assert that she was actually employed there as an orthopedic shoemaker; that she took measurements of deformed feet, made the forms with chalk, and manufactured the completed shoe according to the customer's needs.
The entire record in this case has been very carefully reviewed,
and consideration given the additional evidence furnished on appeal.
Section 204(a) of the Immigration and Nationality Act, as amended,
provides in part that "any person desiring and intending to employ
within the Milted. States an alien entitled to classification as a preference immigrant under section 208(a) (6), may file a petition with
the Attorney General for such classification." (Emphasis supplied:)
In the matter at hand, it is noted that the petitioner's gross volume
of business amounts to only $8,000 a year. "Under the circumstances,

we are not convinced that he actually intends and is financially able
tp engage the beneficiary as an orthopedic shoemaker at the $100.00.
weekly salary set forth in the Labor certification.
In addition to the foregoing, the Depaftment of Labor's Dictionary of Occupational Titles, Volume II, Third Edition, reveals that
the occupations of custom shoemaker, code 788.381, and orthopedic
boot and shoe designer and maker, code 788.281, both fall within the

category of highly skilled crafts in which appreriticeships providing
2 to 6 years of on-the-job training and trade instruction are the generally accepted methods of entry into these fields. It is •purported
that the instant beneficiary commenced employment as an orthopedic
shoemaker, without any previous background in such work, 2 weeks
after her arrival in Italy for the purpose of marriage. In any event,
there is no evidence that she has had experience in making plastic
forms, and in repairing and altering orthopedic shoes as specified in
the Labor certification.
In view of the foregoing, we do not find it has been satisfactorily
established that the alien is entitled to sixth preference quota classification in the capacity for which her services are being sought. This
appeal, therefore, will be dismissed.
ORDER: It is ordered that the appeal be and same is hereby
dithnissed.

818


Interim Decision *1916

MATTER OF CHONG

In Visa Petition Proceedings
A-17119216
Decided by Batted November 7, 1968
Beneficiary, who was born to the united States citizen petitioner's husband
and a concubine during the present marriage of petitioner and her husband, who was brought into the household of petitioner and her husband
when 2 years of age and reared as one of their own children, and whose
birth was registered in the Korean Family Register (even though registered by the husband/father as his child and that of his wife, the petitioner), is deemed adopted under the Korean Civil Code of 1960; hence,
beneficiary, having been adopted when under 14 years of age, is an
adopted child within the meaning of the Immigration and Nationality Act,
as amended.
ON BEHALF

OF

Porrnorges: Pro se

The case comes forward on appeal from the order of the
Officer-in-Charge, Tokyo, Japan, dated July 10, 1968 denying the
visa petition for the reason that the facts presented disclose that
the petitioner is not the mother of the beneficiary, but the beneficiary was born to her husband and a concubine during their present marriage. The facts further disclosed that the beneficiary has
never been legitimated or adopted by the petitioner. It was concluded that the beneficiary was not a child as defined in section
101(b) (1) of the Act.
The petitioner, a native of Honolulu, Hawaii and a citizen of
the United States by birth, 41 years old, female, seeks immediate
relative status on behalf of the beneficiary as her stepson or
adopted son. The beneficiary is a native and citizen of Korea, 16
years old.
The evidence establishes that the petitioner and her husband,
Ki Pang Yun, a native and citizen of Korea, were married on
July 28, 1947 as reported in the Korean Census Family Register.
Seven children were born of this marriage. The beneficiary was
born on January 8, 1952 in Korea to the petitioner's husband and
a concubine, Chong Pun Yi, who died on April 8, 1954. Upon the

45

Interim Decision #1916
death of the natural mother, the petitioner's husband brought the
child into their home and reported his birth in the Family Register on October 4, 1961. The Family Register shows that the beneficiary is registered as the child of Yun Ki Bong, father, and that
his mother is shown as Ok Kyung Hee, whereas the true mother
was the concubine, Chong Pun Yi. The petitioner and her husband received the beneficiary into the household and raised him
as one of their own children. The petitioner seeks to have the
beneficiary immigrate with the other members of the family.
Inquiry was directed to the Library of Congress to ascertain
whether the beneficiary had any status under Korean law, either
as a legitimate or as an adopted ehild,i or as a stepchild.
Under Article 855, paragraph 2, of the Korean Civil Code
(Law No. 471, Feb. 22, 1958; effective January 1, 1960) a
[recognized] child born out of wedlock shall acquire the status of
a legitimate child by reason of the marriage of its father and
mother as from the time of the marriage. Therefore, under Korean law, the beneficiary is neither a legitimate nor a legitimated
child.
Additional information regarding adoption as well as legitimation has been supplied by the Library of Congress? The pertinent
portion of this article is attached hereto and made a part hereof.
Under the old Korean law, prior to the new Civil Code of 1960,
it was not permissible for an individual to adopt his or her child
born out of wedlock_ Such an adoption was held to be contrary to
Korean customary law by the High Court, the court of last resort, during the Japanese occupation.
Under the new Civil Code of 1960, there are no express provisions covering this subject. In the absence of any specific provisions, it may be construed that such an adoption is not
prohibited. Regarding this question, Mr. Mun Chong-song, an authority on Korean law, refers to Article 877 of the Civil Code
which concerns the prohibition of the adoption of a lineal ascendant or older person, and states that a person may adopt persons
to whom he or she actually stands in parental relationship: i.e., a
stepchild, a recognized child or a child born out of wedlock, exSection 101(b) (1) (E) of the Immigration and Nationality Act, defines
the term "child" to include a child ;Adopted while under the ago 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.
2 Prepared by Dr. Sung Yoon Cho, Far Eastern Law Division, Law Library, Library of Congress.

46

Interim Decision *1916
cepting his or her legitimate children. If a husband and wife wish
to adopt his or her child born out of wedlock in order to give the

child the status of a child born during the marriage, a joint adoption [mentioned in Article 876] by the husband and wife is necessary.

Neither the Civil Code nor the Family Registration Law deals
with the question of whether and under what circumstances the
registration of the child by an individual as his child and that of
his wife constitutes such an adoption. In the absence of specific
provisions, the following statement made by Professor Kim regarding notification of an adoption in general is perhaps pertinent: An adoption becomes effective by giving notification thereof
in accordance with the form prescribed by the Family Registration Law -(signed by both parties and two witnesses). Without
the procedural requirement of the registration, there would be no

legally valid adoption, even though the parties have agreed to effect an adoption or they have lived together as parent and child.
The intention of adoption should be shown on the part of the two
parties when the registration is completed and filed. With respect
to the case where the father gives false notification to the Family
Registrar, stating his natural child born out of wedlock is his
child and that of his wife, Professor Chong Kwang-hyon is of the
opinion that in a strict sense, such notification is not valid although its validity may not be seriously questioned. However, it
should be given the effect of recognition because the intention of

the father to recognize the child is manifested through the said
notification. This is called "quasi-recognition" and "conversion of
a void act" set forth in Article 138 of the Civil Code.
According to the information furnished by the Library of Congress, the beneficiary was registered on October 4, 1961 in the
Korean Family Register and the new 1960 Law is applicable to
the case. Under the new Civil Code of 1960 there are no express
provisions concerning whether it is permissible for an individual
to adopt his or her child born out of wedlock. In the absence of
any specific provisions, it may be construed that such an adoption
is not prohibited, according to Korean authorities. The adoption
must be a joint adoption by the husband and wife, such as occurred in this case. Where the father gives false notification to
the Family Registrar stating his child born out of wedlock was
his child and that of his wife, its validity may not be seriously
questioned and it should be given the effect of recognition because
the intention of the father to recognize the child is manifested
47

Interim Decision # 1916
through the said notification. Accordingly, it would appear that
under the facts of this case, there has been effected an adoption
such as would be sufficient to give the beneficiary the status of an
adopted child for immigration purposes, inasmuch as the beneficiarY was adopted while under the age of 14 years as required by
the immigration laws. The visa petition will be approved.
ORDER : It is ordered that the visa petition be approved for
immediate relative status.
ADDENDUM
III. Adoption of a Child Born out of Wedlock by its Parent.
Under the old Korean law, it was not permissible for an individual to adopt his or her child born out of wedlock .3 Such an
adoption was held to be contrary to Korean customary law by the
High Court, the court of last resort, during the Japanese
occupation .3
Under the new Civil Code of 1960, there are no express provisions covering this subject. In the absence of any specific provisions, it may be construed that such an adoption is not
prohibited'
Regarding this question, Mr. Mun Chong-song, however, refers
to Article 877 of the Civil Code and interprets it as follows :
Under this provision (concerning the prohibition of the adoption of a lineal ascendant or older person) ... a person may adopt a nephew or niece,
the child of a first cousin, a younger brother or sister . . . or even persons
tdwards whom he or she actually stands in parental relationship, i.e., a
step-child; a recognized child or a child born out of wedlock, excepting his or
her legitimate children —.4
Professor Kim Chu-su elaborates this subject further stating

that "if husband and wife wish to adopt his or her child born out
of wedlock in order to give the child the status of a child born
during the marriage, a joint adoption by the husband and wife
[mentioned in Article 8763 is necessary."
Kim Chu-su, Sin Cleinzok sangookpgp [New Law of Relatives and Succession], Seoul, Plipmunsa, 1964, p. 204.
2 Judgment of October 4, 1931. See Kakichi Nagumo, Genk8 Chosen shinzoku
s6zoku,h6 ruishi [Present Korean Law of Relatives and Succession], Seoul,
Osakayag0 Shoten, 1936, p. 213.
2

Kim, Chu su, Sin
-

Cleinzok aczogeokpOp,

p. 212.

Mun Chong-song, Sin Mimpop t'ongnan [Commentary on the New Civil
Code], Seoul, PfipchOngsa, 1960, p. 630.
5 Kim, Chu-su, "Ipyang singo," [Notification of Adoption], Sapip haengjang,
4

Vol. 5, No. 8 (1964), p. 80.

48

Interim Decision #1916
However, he distinguishes the adoption of the husband's child
born out of wedlock from that of the wife's child born out of
wedlock :
In the former case, an adoption seems to be difficult because an objection
on the part of the future legitimate mother (the lawful wife of the father
of a natural child) who will become the adoptive mother is anticipated.
However, if the future legitimate mother agrees to effect such an adoption
or she is no longer alive, the said adoption would be effected without too
much difficulty. In the latter case, no objection to an adoption is likely to
occur, because the natural mother who also becomes the adoptive mother has
no conflicting interests. The child's mother who is a party to an adoption
can agree to effect an adoption In the capacity of the adoptive mother and
also can consent to it as the natural mother in behalf of a minor child .13
Neither the Civil Code nor the Family Registration Law deals

with the question of whether and under what circumstances the
registration of the child by an individual as his child and that of
his wife constitutes such an adoption. In the absence of specific
provisions, the following statement made by Professor Kim regarding notification of an adoption in general is perhaps pertinent:
An adoption becomes effective by giving notification thereof in accordance
with the form prescribed by the Family Registration Law (signed by both
parties and two witnesses). Without the procedural requirement of the registration, there would be no legally valid adoption even though the parties
have agreed to effect an adoption or they have lived together as the parent
and child. The intention of adoption should be shown on the part of the two
parties when the registration is completed and filed. If one of the parties
withdraws the intention after signing the registration, the Family Registrar

has the duty to reject such registration [Article 881]. However, the Family
Registrar is only empowered to review the documents presented before
him, not to check the existence of actual intentions of both parties to an
aduption.7

With respect to the case where the father gives false notification to the Family Registrar stating his natural child born out of
wedlock as his child and that of his wife, Professor Chong
Kwang-hyon is of the opinion that:
In Korea there are many cases in which the father gives false notification
to the Family Registrar stating his child born out of wedlock as his child
and that of his wife. In a strict sense, such notification is not valid although
its validity may not be seriously questioned. However, it should be given the
effect of recognition because the intention of the father to recognize the
child is manifested through the said notification. This is called "quasi-recogIbid. With regard to the latter instance, see also Ch'oesin hojec silinu
cleongnan [New Manual of Family Registration], Seoul, Han'guk Sapop
Haengj6ng Halthee, 1964, pp. 860-961.
7

Kim Chu-su, "Ipyang singo," p. 79.

49

Interim Decision #1916
nition" and "conversion of a void act" set forth in Article 138 of the Civil
Code

Prepared by: Dr. Sung Yoon Cho
Far Eastern Law Division
Law Library
Library of Congress

a Chong Kwang-hyon, Sincleinzok sangsokpop yoron [New Law of Relatives
and Succession], Seoul, Isong Munhwasa, 1958, p. 207. See also Kwon
Kankoku shinzolcu sOzoku ho' [Korean Law of Relatives and Succession],
Tokyo, Kabundft, 1961, p.• 113: and Pomnyurhak salon, [Legal Dictionary],
Seoul, Popmunsa, 1964, pp. 721—'122.

50


lkis rER OF II—

In DEPORTATION Proceedings
A-8868381
Decided by Board September 18, 1961
Deportability—Section 241(a)(4), 1952 act—Collateral attack on judgment of
criminal court—Effect of subsequent action by sentencing court in vacating
conviction.

general rule applies in deportation proceedings that the inclement of
a criminal court may be attacked collaterally only for lack of jurisdiction.

(1) The

(2) The justice court of Michigan is a court of limited jurisdiction without
common law powers. The justice of the peace cannot alter a sentence once
imposed, and cannot grant a new trial.
(3) Respondent was convicted in 1958 by the justice court, Dearborn Township, Michigan, for malicious deStrttion of property and served 50 days in
jail under a year's probation. In September 1960, at respondent's request
and with the consent of the prosecutor, the justice of the peace issued an
order vacating the judgment of conviction. Held: this action was beyond
the jurisdiction of the justice court and, hence, without effect on respondent's deportabi lity under section 241 (a ) (4) of the Act as a twice convicted
alien. (Cf. Matter of P—, 3-187.)
CHABGE:
Order : Act of 1952—Section 241 (a ) (4) [8 U.S.C. 1251 (a) (4))—Twice convicted of crimes involving moral turpitude, to wit: Larceny and
malicious UeslrucLluu of pruperLy.
BEFORE THE BOARD

DISCUSSION: The special inquiry officer denied the Service motion for reconsideration of his decision terminating proceedings.
The examining officer has filed this appeal.
The respondent is a 20-year-old single male, a native and citizen
of Germany, who was admitted to the United States for permanent
residence on August 22, 1955. On September 4, 1958, he was convicted in the justice court, Dearborn Township, Michigan, of the
offense of malicious destruction of property at a trial conducted by
the justice without a jury. Respondent was sentenced to probation
for a year, the first 20 days to be served in the Wayne County Jail;
he was fined $100, or 30 additional days if the fine was not paid.
Respondent served 50 days. On June 9, 1960, he was convicted in
460

the justice court, St. John, Michigan, of the offense of larceny. He
was sentenced to pay a fine of $100 and to be imprisoned in the
county jail for 30 days. On October 3, 1960, after a deportation
hearing, the special inquiry officer ordered the respondent deported
on the charge set forth above.
Subsequently, hearing was reopened to permit entry into the record of a court order dated October 20, 1960, by the justice of the
paece of Dearborn Township justice court. This order states that
the order of September 4, 1958, was "vacated, set aside and held for
naught," and that this action had been taken on the motion of the
respondent, consultation with the prosecuting attorney, and on the
withdrawal of the complaint by the complainant.
The special inquiry officer decided that he was bound by precedent
to recognize the vacating order and terminated proceedings. He
relied upon Matter of P , 3 187, from which he drew the principle
that the vacating of the conviction in the State of Michigan was to be
recognized whether or not a new trial had been involved. Termination was on the theory that the respondent now stood convicted not of
two crimes, but of one only.
The examining officer filed a motion for reconsideration of the decision holding that under a "federal standard" the conviction of
1958 constituted a conviction for immigration purposes despite the
vacating order of the justice of the peace. The examining officer
also relied upon the fact that the court had failed to make use of the
statute which permitted the granting of a new trial and vacating the
judgment. The examining officer also depended on United States ex
rel. Piperkof v. Esperdy, 267 F.2d 72 (C.A. 2, 1959).
The special inquiry officer denied the examining officer's motion.
He pointed out that in Matter of G—, 9-159, the Attorney General
held that the interpretation of section 241(a) (4) of the Immigration
and _Nationality Act is not purely a federal question but one which
must be determined with regard to state law and to state procedure.
He held that the record did not affirmatively show that the justice of
the peace was without jurisdiction to vacate his prior conviction and
pointed to indicia to the contrary—consultation taken with the office
of the prosecuting attorney, the fact that a proceeding in a criminal
case before a justice of the peace is based upon a complaint and the

complaint was withdrawn, and the fact that if the action was taken
under section 28.1098 of the Michigan Statutes, Annotated, providing
for a new trial, there was, despite the Service contention, a showing of
adequate cause in the respondent's youth and the fact that he was not
represented by counsel when convicted. Finally, the special inquiry
officer held that even if the order were to show on its face an error of
law, it would not be subject to collateral attack.
461

At oral argument the Service representative pointed out that section 27.3181, Michigan Statutes, Annotated, denies the justice court
the power of setting aside a verdict and arresting judgment thereon.
He pointed to opinions of the Attorney General of the State of
Michigan to the effect that a justice of the peace may not alter a
sentence entered upon his docket. The Service represeritative stated
that a new trial was not available to the respondent because a timely
application for new trial had not been made, and argued that once
the sentence had been served the court did not have the power to
reduce the sentence (People v. Fox, 20 N.W. 732). The Service
representative believes that the instant case is within Matter of B—,
8-686, because the sole purpose for the setting aside of the sentence
was the desire to eliminate respondent's liability to deportation.
At oral argument counsel for the respondent stated that the lack
of power to set aside a verdict related to jury decisions and did not
affect the power to set aside the judgment of a justice sitting without
a jury. He contended that the restriction on the power to set aside
a verdict or judgment is a limitation under code law and does not
affect the common-law rights possessed by the justice court. He
pointed to cases where leave to file delayed motion for new trial was
granted after the statutory time !or appeal had expired, and argued
that the respondent's constitutional rights were not protected at the
time of hi3 conviction in 1958 and would have required the vacating

of the judgment and the granting of a new trial if such motion had
been made.
The judgment of a criminal court enjoys the same immunity from
collateral attack as does a civil decision (15 Am. Jur., Cr. Law, sec.
504). Its force cannot be questioned other than by a judicial proceeding which is recognized for such specific purpose, except that
the question of whether the court had jurisdiction to make the order
may be raised in any forum. It is, therefore, proper to inquire into
(1) the legal organization of the tribunal, (2) whether it had jurisdiction over the person, (3) whether it had jurisdiction over the
subject matter, and (4) whether it had the power to grant the judgment (Vasquez v. Vasquez, 240 P.2d 319; see also Brock v. Superior
CourG, 177 P.2d 273, 274). We see no reason in deportation proceed
ings for any departure from this general rule. It is proper to inquire here whether the court had the power to vacate the judgment
of conviction. We believe the record establishes that the justice of
the peace was without jurisdiction to enter the vacating order. The
Attorney General of the State of Michigan has stated that the justice court is one of limited juridiction without common-law powers;
that a justice of the peace does not have the right to change a sentence after the same has been imposed ; and that a justice of the
-

462

peace cannot grant a new trial (Opinions Attorney General, Michigan, 1030 1032, pp. 318 310, Appendix "A"). We find nothing to
show that the jurisdiction and procedure of the justice court in
criminal cases has changed significantly since this opinion of the
Attorney General was rendered. Section 28.1192-28.1239, Michigan
Statutes, Annotated; see People v. Fox, 312 Mich. 577; 20 N.W. 732.
Counsel contends that the justice had the power to vacate the
judgment of conviction here because it was a "void" one, and has
cited cases supporting the rule that a court may vacate a void judgment. The judgment was void, counsel contends, because the respondent was not represented at the time of the conviction and because his youth and inexperience left him ignorant that he was
entitled to the aid of an attorney. (Counsel refers to Michigan
Court Rule 35(a), which requires the court in a prosecution involving a felony to advise the defendant of his constitutional rights before accepting a plea of guilty. The pertinency of this rule is not
apparent since a felony was not involved here.) The difficulty with
counsel's contention is that a careful examination of both the petition to vacate the judgment and the order vacating the judgment
fails to reveal that the conviction was vacated because it was void.
The petition reveals that the respondent was not represented at the
time of the conviction but it does not state that he was denied representation, or that, lie did not know that he could have had representation if he wanted it, or that he could not be legally convicted unless
he had been represented. The petition reveals that the respondent's
plea of guilty was entered without knowledge that the conviction
could affect his immigration status, but there is no allegation that
the alien did not commit the criminal offense of which he was
charged, or that he did not know the effect of the guilty plea in the
criminal matter, or that it was involuntarily made. It is difficult to
conclude from this record that the conviction was not vacated because it made the respondent liable to deportation. The case of
Hodges v. Bagg, 81 _Mich. 543; 45 N.W. 841, cited by counsel, is, we
believe, distinguishable. Hodges concerned the vacating of an oral
order dismissing an action before a justice of the peace in the mistaken belief that the plaintiff had failed to appear. However, before
an entry of the order had been made and within a few minutes of
the making of the order, the court learned of its error. The court
-

treated the oral order as a nullity and assumed jurisdiction of the

matter. This action was upheld on appeal, the appellate court
stating that a court can disregard a void judgment but resting its
approval nu flip grniiild that, the justice had not rendered any judg-

This is quite unlike the present case where the judgment and
sentence were entered, where the sentence was served, and the conviction remained unquestioned for about 2 years.
ment.

463

Taking a different approach to the problem, counsel alleges that
the court was justified in vacating the judgment of conviction under
section 28.1098 of the Michigan Statutes, Annotated, which permits
a new trial to be granted in the interest of justice. We are of the
opinion that this section is not pertinent. First, it is clear that a
new trial was not granted here. Furthermore, it does not appear
that this provision applies to proceedings in the justice court. The
Attorney General in his opinion, stating that the justice court could
not order a new trial, revealed his awareness of the existence of a
provision similar in essence to the one in question. It follows, therefore, that the cases cited by counsel concerning the power of a court
other than the justice court to grant a new trial are not pertinent
to the issue. (The one case, Hodges v. Bagg, supra, related to the
:j ustice court, has been discussed.)
In further support of the contention that a justice court can alter
its judgment even if it is not void, counsel relies upon section 27.3181,
Michigan Statutes, Annotated, which purports to divest. a justice of
the power to set aside a verdict. It is counsel's contention that this
section prohibits a justice from setting aside a judgment based on a
verdict, that is, where a jury is involved, but that otherwise a judge
has the power to change an order. The section is found in the law
defining the civil jurisdiction of the court and there appears to be
no authority for intermingling the civil and criminal powers given
to the justice court. (/7t re Heirtad, 954 Mich. 581; 936 N.W. 869).
Moreover, the interpretation advanced by counsel is not supported
by a citation of authority and we have found no case which makes
the distinction counsel relies upon.
Matter of P—, 3-187, cited by the special inquiry officer in his
capable order, furnishes support for his conclusion that a modification
of a sentence in Michigan to defeat deportation has been recognized
,

-

without a strict adherence to statutory procedure in obtaining a new

trial; however, it must be pointed out that insofar as P— himself
was concerned, a new trial had taken place and that the administrative
decision purported to apply "the principle enunciated by the Casado
(United States ex rel. Casado v. Uh.l S.D.N.Y., No. 8-31, June 21,
1910, unreported) decision" in which there was also a new trial. It
is conceded that had P— personally attended proceedings at his new
trial, the superseding judgment would have been effective. In the
instant case, it does not appear that the action of the court could have
been effective despite any waiver by the respondent or prosecuting
attorney since it affirmatively appears that the court did not have
power to vacate the judgment of conviction. We agree with the
special inquiry officer in his evaluation of the Service contention concerning a federal standard and the inapplicability of United States ex
,

rel. Piperkoff v. Esperdy, supra.

464

While the result leached iii finding the iespundent deportable is
harsh under the circumstances shown here, the respondent does fall
within the confines of the law requiring his deportation and, absent
a reversal of the conviction, or a pardon, his deportation must be
ordered.
ORDER: It is ordered that the appeal of the examining officer be
and the same is hereby sustained.
APPENDIX "A"

BIENNIAL REPORT OF ATTORNEY GENERAL
MICHIGAN, 1930-32, pp. 348-49
October 23, 1931
Mr. L. 0. Telfer
201-205 U.S Bank Bldg.
Port Huron, Michigan
Dear Sir :
We have your letter of September 10th in which you ask for an
opinion of this department regarding the right of a circuit judge
to change a sentence after the same has been imposed. You also
inquire what right a justice of the peace has to change a sentence
after the same has been imposed.
16 Corpus Juris, page 1314, in discussing the right of a court to
modify, change or revise its sentence, states the rule as follows:
At any time during the term the court has power to reconsider the judgment, and to revise and correct it by mitigating and even by Increasing its
severity, where the original sentence has not been executed or put into
operation.

The authority cites the case of People v. Dane, 81 Mich. 36,
wherein the court held (quoting from the :syllabus):
The imposition of a void sentence by a circuit judge does not deprive him
of authority to impose a valid one, nothing having been done by way of executing the first sentence.

In the Dane case the court cited the earlier case of People v.
Maervey, 76 Mich. 323, wherein our court held (quoting from the
syllabus) :
The authority of a circuit judge over a prisoner ceases upon sentencing him
to State prison, and remanding him to jail to await the execution of the
sentence.
A circuit judge has no power to vacate a sentence imposed upon a prisoner,
of imprisonment in State prison, after remanding him to jail to await its
execution, and impose a heavier one because of the prisoner's attempted
escape from jail, and such a sentence will be set aside and the original one
held to be in full force.

465
654377 63

31

These decisions were approved by our Supreme Court in In re
Richards, 150 Mich. 421, where the court again held that :
A trial court cannot set aside a valid sentence and impose a new and different one after the prisoner has been remanded to jail to await the execution of his sentence.

While the imposition of a sentence and the act of remanding the
prisoner to the county jail thereby prevents the circuit judge from
changing the sentence imposed, yet under our statute a motion for
new trial could be filed within the proper time and the sentence of
the court set aside upon the granting of said motion. The court
would then be in a position after the retrial to impose a new and
different sentence.
Jurisdiction and procedure of justice courts in criminal cases
are found in chapter 14 Of the Code of Criminal Procedure, the
same being section 17426-17470 of the Compiled Laws of 1929.
Section 7 of said chapter provides that "after the accused shall
plead guilty to such charge the court shall thereupon render judgment thereon."

Inasmuch as a justice court is a court of limited jurisdiction
without common law powers, we do not believe that a justice of the
peace would have any right to change a sentence after the same
has been imposed. New trials are purely statutory. At the common law there was no new trial. Frazer v. Judge of Recorder's
Court, 112 Mich. 469. Our court held in the case of Alt v. Lalone,
54 Mich. 308, that a justice of the peace could not grant a new trial.
Very truly yours,
[s]

PAUL W. VOORHIES,

Attorney General.

4(1(1


.11.114011111

iJwa lavu

tin 101.1VII

MATTER OF BIJENATENTIIILk

In Visa Petition Proceedingu
A-17192986
Decided by District Director November 2, 1967
Since the minimum requirements for professional recognition as a school counselor consists of graduate level work in the guidance field plus at least one

year of teaching experience, beneficiary, who has done no graduate level work
in the guidance field and has no teaching experience, is not a qualified member
of the professions within the meaning of section 101(a) (32) of the Immigration and Nationality Act, as amended, and is not eligible for preference
classification under section 203(a) (3) of the Act, as amended, as a school
counselor.

Discussion z The petitioner seeks classification, as a preference immigrant under section 203(a) (3) of the Immigration and Nationality
Act, as amended, based upon her qualifications as a school counselor.
She received a Bachelor of Arts degree in guidance and counseling
from St. Scholastica's College, Manila, Philippines on April 11, 1964.
She was employed as a Guidance Counselor from June 1964 to August
1905 by the I:)e La Salle College, Manila, Philippines and from April
1966 to date has been employed as Guidance Counselor by the Assump-

tion Convent, Makati, Rizol, Philippines.
Counselors are listed under professional, technical, and managerial
occupations, Code 045.108 in the dictionary of occupational titles,
Volume I, 3rd Edition, prepared by the United States Department of
Labor. The duties involve counseling individuals and providing group
educational and vocational guidance services : collecting, organizing,
and analyzing information about individuals through records, tests,
interviews, and professional sources to appraise their interests, aptitudes, abilities, and personality characteristics for vocational and
educational planning; compiling and studying occupational, educational, and economic information to aid counselees in nntiring and
carrying out vocational and educational objectives ; referring students
to placement service; assisting individuals to understand and overcome social and emotional problems, and engaging in research and
follow-up activities to evaluate counseling techniques:Counselors may
754

internn Decision .#1869
teach classes and may be designated according to area of activity
as counselor, college; counselor, school.
The Occupational Outlook Handbook, 1966-1967 edition, of the
United States Department of Lahor, states that most states require

counselors to have both a teaching certificate and a counseling certificate. A counseling certificate usually requires graduate level work in
the guidance field, and from one to five years teaching experience.
Seventeen states require a Masters Degree in counseling; and about
half the states require some work experience outside the teaching
fields. In some school systems, teachers who have completed half of
the courses required for the Masters Degree may counsel under
supervision while taking additional courses.
Based upon the foregoing, it is concluded that the minimum requirements for professional recognition as a school counselor consists of
graduate level work in the guidance field plus at least one year of
teaching experience. The beneficiary possesses no graduate level work
and no teaching experience. Consequently, she does not qualify as a
member of the professions under section 203(a) (8).
ORDER : It is ordered that the petition to clasisfy the status of Aglaloros, Abueg Buenaventura as a preference immigrant under section
203(a) (3) of the Immigration and Nationality Act, as amended, be
and is hereby denied.

755


Cite as 28 I&N Dec. 310 (BIA 2021)

Interim Decision #4020

Matter of Jorge MORADEL, Respondent
Decided June 23, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An applicant for adjustment of status with Special Immigrant Juvenile status may, in
conjunction with a waiver under section 245(h)(2)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1255(h)(2)(B) (2018), seek to waive his or her
inadmissibility under section 212(a)(2)(A)(i)(II) of the Act, 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) (2018), based on a single offense of simple possession of
30 grams or less of marijuana.
(2) The “simple possession” exception at section 245(h)(2)(B) calls for
a circumstance-specific inquiry into the nature of the conduct surrounding an applicant’s
simple possession offense.
FOR RESPONDENT: Anna K. Byers, Esquire, Newark, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Assistant Chief Counsel

Patricia M. Medeiros,

BEFORE: Board Panel: GREER and O’CONNOR, Appellate Immigration Judges;
LIEBMANN, Temporary Appellate Immigration Judge.
O’CONNOR, Appellate Immigration Judge:

In a decision dated November 18, 2019, an Immigration Judge found that
the respondent was ineligible for a waiver of inadmissibility under section
245(h)(2)(B) of the Immigration and Nationality Act, 8 U.S.C.
§ 1255(h)(2)(B) (2018), and thus ineligible for adjustment of status under
section 245(a) of the Act. The respondent has appealed from this decision.
The appeal will be sustained, and the record will be remanded for further
proceedings. 1

I. FACTUAL BACKGROUND
The respondent is a native and citizen of Honduras, who was born in 1995
and entered the United States without being admitted or paroled when he was
approximately 4 years old. In 2013, he was placed in removal proceedings
1

We acknowledge with appreciation the brief submitted on behalf of Public Counsel,
Catholic Legal Immigration Network, Inc., and Children’s Rights as amici curiae.

310

Cite as 28 I&N Dec. 310 (BIA 2021)

Interim Decision #4020

and conceded his removability. He subsequently filed a petition to be
classified as a Special Immigrant Juvenile, which was approved. In
December 2017, the respondent was convicted of possession of 50 grams or
less of marijuana in violation of section 2C:35-10(a)(4) of the New Jersey
Statutes Annotated. Before the Immigration Judge, the respondent conceded
that his conviction rendered him inadmissible under section
212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2018), as an
alien convicted of an offense relating to a controlled substance.
The respondent sought relief from removal in the form of adjustment of
status under section 245(a) of the Act. However, the Immigration Judge
found that his inadmissibility under section 212(a)(2)(A)(i)(II) of the Act
rendered him ineligible for this relief because it prevented him from
establishing that he was “admissible to the United States” pursuant to section
245(a)(2) of the Act. The respondent asked the Immigration Judge to grant
him a waiver of inadmissibility under section 245(h)(2)(B) of the Act. That
section applies to applicants for adjustment of status with Special Immigrant
Juvenile status, and provides that
the Attorney General may waive other paragraphs of section 212(a) (other than
paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related
to a single offense of simple possession of 30 grams or less of marijuana), (3)(A),
(3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes,
family unity, or when it is otherwise in the public interest.

Section 245(h)(2)(B) of the Act (emphasis added); see also 8 C.F.R.
§ 1245.1(e)(3) (2020).
The respondent argued that his inadmissibility under section
212(a)(2)(A)(i)(II) can be waived under section 245(h)(2)(B) of the Act
because section 2C:35-10(a)(4) reaches offenses involving the simple
possession of 30 grams or less than of marijuana. However, the Immigration
Judge disagreed, concluding that the respondent was ineligible for a section
245(h)(2)(B) waiver because the “simple possession” exception in that
provision only waives an applicant’s inadmissibility under section
212(a)(2)(C) of the Act, which applies to aliens reasonably believed to have
engaged in illicit trafficking. The respondent challenges the Immigration
Judge’s interpretation on appeal. We review de novo the scope of the “simple
possession” exception in section 245(h)(2)(B) of the Act and whether that
provision can waive the respondent’s inadmissibility under section
212(a)(2)(A)(i)(II) of the Act. See 8 C.F.R. § 1003.1(d)(3)(ii) (2020).

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Cite as 28 I&N Dec. 310 (BIA 2021)

Interim Decision #4020

II. ANALYSIS
A. Scope of 245(h)(2)(B) Waiver
We recognize that the canon of statutory construction known as the “rule
of the last antecedent” lends some support to the Immigration Judge’s
conclusion. Lockhart v. United States, 577 U.S. 347, 351 (2016) (citation
omitted). Under that rule, “a limiting clause or phrase . . . should ordinarily
be read as modifying only the noun or phrase that it immediately follows.”
Id. (citation omitted) (stating that this “rule reflects the basic intuition that
when a modifier appears at the end of a list, it is easier to apply that modifier
only to the item directly before it”); see also Barnhart v. Thomas, 540 U.S.
20, 26 (2003).
However, the last-antecedent rule is “not an absolute and can assuredly
be overcome by other indicia of meaning.” Paroline v. United States, 572
U.S. 434, 447 (2014) (citation omitted). In this regard, the structure of
section 245(h)(2)(B) indicates that the last-antecedent rule is insufficient for
understanding the scope of the “simple possession” exception. See Lockhart,
577 U.S. at 355 (acknowledging that “structural or contextual evidence may
‘rebut the last antecedent inference’” (citation omitted)).
Section
245(h)(2)(B) contains a parenthetical clause listing provisions under sections
212(a)(2) and (3), and the “simple possession” exception is integrated into
this parenthetical directly after the list of provisions under section 212(a)(2)
but before the list of provisions under section 212(a)(3). This structure
suggests that the “simple possession” exception modifies all of the provisions
listed under section 212(a)(2) but does not apply to the list of provisions
under section 212(a)(3). See Jama v. ICE, 543 U.S. 335, 344 n.4 (2005)
(explaining that the last-antecedent rule would not apply where the
“modifying clause appeared . . . at the end of a single, integrated list”). 2
The plain language of section 245(h)(2)(B) of the Act also persuades us
that the last-antecedent rule is insufficient for understanding the scope of the
“simple possession” exception. See Pereira v. Sessions, 138 S. Ct. 2105,
2117 (2018) (relying on “plain language and statutory context” in
interpreting a provision of the Act). We find it significant that section
245(h)(2)(B) provides that we may “waive other paragraphs of section
212(a) (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of
such paragraph as related to a single offense of simple possession of
30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)).”
2
By contrast, the last-antecedent rule would be applicable if the “simple possession”
exception appeared with section 212(a)(2)(C) in a distinct clause that “ends with a period,
strongly suggesting that [the clause] may be understood completely without reading any
further.” Jama, 543 U.S. at 344.

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(Emphases added.) The terms “section” and “paragraph” have distinct,
technical meanings in Federal statutes. Congressional drafters are required
to break Federal statutory sections into subsections, paragraphs,
subparagraphs, clauses, and subclauses and mark each subdivision with
a specific type of symbol. Office of Legislative Counsel, U.S. House of
Representatives, House Legislative Counsel’s Manual on Drafting Style,
HLC No. 104-1, at 23–24 (1995); see also Tima v. Att’y Gen., 903 F.3d 272,
276 (3d Cir. 2018). As relevant here, congressional drafters mark
subsections with lowercase letters, paragraphs with Arabic numerals, and
subparagraphs with capital letters. Tima, 903 F.3d at 276 (citing HLC No.
104-1, at 24). So when the “simple possession” exception uses the phrase
“such paragraph,” it is clearly referring to paragraph 212(a)(2) in its
entirety—not just to subparagraph 212(a)(2)(C) of the Act, its nearest
antecedent.
Other canons of statutory construction support this conclusion. “When
several words are followed by a clause which is applicable as much to the
first and other words as to the last, the natural construction of the language
demands that the clause be read as applicable to all.” Paroline, 572 U.S.
at 447 (citation omitted). The “simple possession” exception is just as
applicable to section 212(a)(2)(A)(i)(II) as it is to sections 212(a)(2)(B) 3 and
(C) of the Act, and thus the natural reading of that exception is that it applies
with equal force to sections 212(a)(2)(A), (B), and (C) of the Act.
Furthermore, courts generally do not apply the “rule of the last
antecedent” if doing so “would require accepting ‘unlikely premises.’” Id.
(citation omitted); see also Lockhart, 577 U.S. at 355. Although the
Immigration Judge found that the “simple possession” exception only waives
inadmissibility under section 212(a)(2)(C) for suspected traffickers, illicit
trafficking has long been viewed as a significantly more serious crime than
simple possession because trafficking requires distribution, exchange, or
some form of transfer of controlled substances from one person to another.
See, e.g., Lopez v. Gonzales, 549 U.S. 47, 53 (2006) (“[O]rdinarily
‘trafficking’ means some sort of commercial dealing.”); Urena-Ramirez
v. Ashcroft, 341 F.3d 51, 57 (1st Cir. 2003) (defining “‘illicit trafficking’ as
illegally ‘trading, selling or dealing’ in specified goods” (citation omitted)).
And simple possession is by definition not illicit trafficking, since simple
possession does not involve any intent to transfer or exchange. See
Carachuri-Rosendo v. Holder, 560 U.S. 563, 574 (2010) (explaining that
a “petty simple possession offense is not typically thought of as . . . ‘illicit
trafficking’” since “commercial dealing” “is no[t] [an] element of simple
3

Section 212(a)(2)(B) of the Act renders aliens inadmissible if they are convicted of two
or more offenses with an aggregate sentence to confinement of 5 years or more, including
convictions for offenses relating to simple possession.

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possession” (citations omitted)). Thus, under the Immigration Judge’s
interpretation, an individual with Special Immigrant Juvenile status with
a single conviction for simple possession of 30 grams or less of marijuana
would rarely, if ever, qualify for a waiver under section 245(h)(2)(B), while
a person with a more serious trafficking conviction would. We conclude that
this “unlikely premise” rebuts the “the last antecedent inference.” Lockhart,
577 U.S. at 355–56 (citation omitted). 4
Because simple possession does not qualify as trafficking, the
last-antecedent rule would also effectively read the “simple possession”
exception out of section 245(h)(2)(B) of the Act. It is “one of the most basic
interpretive canons . . . that [a] statute should be construed so that effect is
given to all its provisions, so that no part will be inoperative or superfluous,
void or insignificant.” Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 824
(2018) (alteration in original) (citation omitted). The rule against surplusage
lends further support to our conclusion that the last-antecedent rule is
inapplicable and the “simple possession” exception in section 245(h)(2)(B)
4

The legislative history of similar provisions underscores our conclusion that this is an
“unlikely premise” because this history indicates that Congress intended section
245(h)(2)(B) to waive the simple possession of marijuana, and it did not intend the waiver
to apply to trafficking offenses at all. In 1981, Congress first added provisions to the Act
waiving an alien’s excludability and deportability—now inadmissibility and
deportability—for “a single offense of simple possession of 30 grams or less of
marihuana.” Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116,
§§ 2(c)(2), 4(3), 8, 95 Stat. 1611, 1611–12, 1616 (codified at former sections 101(f), 212(h),
and 241(f)(2) of the Act, 8 U.S.C. §§ 1101(f), 1182(h), and 1251(f)(2) (1982)). During
passage, the House issued a report explicitly stating that one of these provisions—
amending the definition of good moral character under former section 101(f)—was
intended to provide greater flexibility in cases involving “minor drug offenses (not
involving trafficking in narcotics).” H.R. Rep. No. 96-1301, at 25 (1980) (emphasis added);
see also id. at 51. The Senate agreed, but it narrowed the exception to a single offense of
simple possession of 30 grams or less of marijuana, and the amended language in this and
other provisions was adopted without further discussion. See 127 Cong. Rec. 23,776
(1981) (statement of Rep. McClory) (stating that the amended statutory language is “now
limited explicitly to simple possession of marihuana” and excludes “trafficking”); see also
id. at 32,008 (statement of Sen. Simpson). Although section 245(h)(2)(B) has limited
legislative history, given that Congress intended other, similarly-worded provisions to
reach only simple possession, not trafficking offenses, it is unlikely that Congress intended
the “simple possession” exception in section 245(h)(2)(B) to apply only to trafficking
offenses under section 212(a)(2)(C) but not to the simple possession of marijuana under
212(a)(2)(A)(i)(II). See Matter of Moncada, 24 I&N Dec. 62, 65–67 (BIA 2007)
(concluding, based on the same legislative history, that the similarly-worded “personal use”
exception under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), was
intended to cover “the simple possession of small amounts of marijuana”).

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applies to all of the provisions listed under section 212(a)(2), including the
ground of inadmissibility at section 212(a)(2)(A)(i)(II) of the Act.
We additionally observe that the “simple possession” exception and
a similar “personal use” exception appear in numerous places throughout the
Act.
Compare sections 101(f)(3), 210(c)(2)(B)(ii)(III), 212(h),
244(c)(2)(A)(iii)(II), 245(h)(2)(B), 245A(d)(2)(B)(ii)(II) of the Act, 8 U.S.C.
§§ 1101(f)(3), 1160(c)(2)(B)(ii)(III), 1182(h), 1254a(c)(2)(A)(iii)(II),
1255(h)(2)(B), 1255a(d)(2)(B)(ii)(II) (2018) (“simple possession”), with
section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2018)
(“personal use”). 5 The broad phrasing of these exceptions also supports our
conclusion that Congress intended the “simple possession” exception in
section 245(h)(2)(B) to be applied broadly. But see section 212(h) of the Act
(waiving sections 212(a)(2)(A)(i)(II) and (B) but excluding section
212(a)(2)(C) from the waiver). We therefore hold that an applicant for
adjustment of status with Special Immigrant Juvenile status may, in
conjunction with a waiver under section 245(h)(2)(B) of the Act, seek to
waive his or her inadmissibility under section 212(a)(2)(A)(i)(II) of the Act
based on a single offense of simple possession of 30 grams or less of
marijuana. 6
B. “Simple Possession” Exception is Circumstance-Specific
Having determined that section 245(h)(2)(B) can waive an applicant’s
inadmissibility under section 212(a)(2)(A)(i)(II) of the Act arising from
a single offense of simple possession of 30 grams or less of marijuana, we
must now address how to determine whether an applicant’s offense falls
within the “simple possession” exception. The respondent argues that we
should determine whether an offense falls within this exception using the
categorical approach.
The Immigration Judge found that the
circumstance-specific approach—“that is, an inquiry into the nature of the
conduct that caused [the respondent] to become inadmissible”—was
appropriate, but she did not apply this approach below. Matter of Martinez
Espinoza, 25 I&N Dec. 118, 124 (BIA 2009) (citing Nijhawan v. Holder, 557
U.S. 29, 32 (2009)), abrogated on other grounds by Mellouli v. Lynch, 575
U.S. 798 (2015). We agree with the Immigration Judge and will remand the

5

See Esquivel v. Lynch, 803 F.3d 699, 703–05 (5th Cir. 2015) (explaining the differences
between the “simple possession” and “personal use” exceptions).
6
We leave for another day whether there are any circumstances under which the “simple
possession” exception may waive inadmissibility under section 212(a)(2)(B) or (C) of the
Act, because this case does not present that question.

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record for her to apply the circumstance-specific approach to the
respondent’s case in the first instance.
We previously held that the circumstance-specific approach applies in
determining whether, for purposes of a waiver under section 212(h), an
applicant committed “a single offense of simple possession of 30 grams or
less of marijuana.” Id. at 124–25. 7 We reasoned that this language invited
a circumstance-specific inquiry under Nijhawan because it “referenc[ed]
a specific type of conduct (simple possession) committed on a specific
number of occasions (a ‘single’ offense) and involving a specific quantity
(30 grams or less) of a specific substance (marijuana).” Id. at 124. Because
the “simple possession” exception at section 245(h)(2)(B) contains identical
language and is defined just as narrowly as the exception under section
212(h), we conclude that it also calls for a circumstance-specific inquiry into
the nature of the conduct surrounding an applicant’s simple possession
offense. See Pereira, 138 S. Ct. at 2115 (“[I]t is a normal rule of statutory
construction that identical words used in different parts of the same act are
intended to have the same meaning.” (citation omitted)). 8
The respondent counters that Nijhawan analyzed the aggravated felony
ground of removability at section 101(a)(43)(M)(i) of the Act, which renders
an alien removable for an offense that involves fraud or deceit “in which” the
loss to the victim exceeds $10,000. He argues that the phrase “in which” in
this provision indicates that the circumstance-specific approach applies,
whereas the “simple possession” exception includes the phrase “related to,”
which the Court in Mellouli found calls for a categorical inquiry.
We are unpersuaded by the respondent’s argument. Mellouli dealt with
the proper method for assessing an alien’s removability; it did not address
the distinct issue here: the proper method for determining an alien’s
eligibility for a waiver of inadmissibility. The Court has long held that the
categorical approach applies when evaluating an alien’s removability,
particularly where the ground of removability at issue requires
a “conviction.” See, e.g., Moncrieffe v. Holder, 569 U.S. 184, 190–91
7

We disagree with the respondent’s contention that Mellouli abrogated our holding in
Matter of Martinez Espinoza that section 212(h) calls for a circumstance-specific inquiry.
The Court in Mellouli specifically abrogated the portion of our decision addressing the
ground of inadmissibility under section 212(a)(2)(A)(i)(II) of the Act; it did not disagree
with, nor did it address, our discussion of 212(h). See Mellouli, 575 U.S. at 809 (citing
Matter of Martinez Espinoza, 25 I&N Dec. at 120–21).
8
We have likewise concluded that the “personal use” exception in section 237(a)(2)(B)(i)
of the Act, which contains similarly narrow language, calls for a circumstance-specific
inquiry. See Matter of Davey, 26 I&N Dec. 37, 39 (BIA 2012). We reaffirmed Davey in
Matter of Dominguez-Rodriguez, 26 I&N Dec. 408, 411–12 (BIA 2014), and a recent
circuit court decision deferred to our holdings in Dominguez-Rodriguez and Davey. See
Cardoso de Flores v. Whitaker, 915 F.3d 379, 382 (5th Cir. 2019) (per curiam).

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(2013). However, section 245(h)(2)(B) does not require a “conviction,” and
thus it does not mandate a categorical inquiry. Mellouli is distinct, moreover,
because, although the Department of Homeland Security bears the burden of
establishing removability, the respondent is required to establish his
eligibility for relief from removal, including his eligibility for a section
245(h)(2)(B) waiver. See Pereida v. Wilkinson, 141 S. Ct. 754, 760 (2021)
(stating that the Act provides that “‘[a]n alien applying for relief or protection
from removal has the burden of proof to establish’ that he ‘satisfies the
applicable eligibility requirements’ and that he ‘merits a favorable exercise
of discretion’” (alteration in original) (citation omitted)). We therefore
conclude that the “simple possession” exception under section 245(h)(2)(B)
of the Act calls for a circumstance-specific inquiry.

III. CONCLUSION
The respondent may seek a waiver of his inadmissibility under section
212(a)(2)(A)(i)(II) pursuant to section 245(h)(2)(B) of the Act. However,
we will remand the record to allow the Immigration Judge to evaluate, in the
first instance, whether he qualifies for the “simple possession” exception to
section 245(h)(2)(B) under the circumstance-specific approach. We express
no opinion regarding the outcome on remand. Accordingly, the respondent’s
appeal is sustained, and the record is remanded for further consideration of
the respondent’s application for adjustment of status and request for a waiver
of his inadmissibility.
ORDER: The respondent’s appeal is sustained.
FURTHER ORDER: The record is remanded for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

317


Interim Decision #1280

MATTER OF

Pascrano-Caarnao

In DEPORTATION Proceedings
A-11431809
Decided by Board July 6, 1962.
An alien who was lawfully admitted for permanent residence in 1918 and who
was found deportable in 1901 on grounds arising subsequent to such admission
is ineligible for creation of a record of lawful admission under section 249 since
a record of lawful admission in his case is still available.
CHARGE:

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—Two crimes
involving moral turpitude, petty theft and attempted petty theft.

The case comes forward on appeal from the order of the, special inquiry officer dated May 14, 1962, denying the motion to reopen to afford
the respondent an opportunity to apply, for adjustment of status under
the provisions of section 249 of the Immigration and Nationality Act.
The record-relates to a native and citizen of Mexico, 61 years old,
male, who first came to the United 'States in January 1914. His status
in this country was adjusted by payment of head tax and there appears to be a record of his lawful admission for permanent residence
on June ft, 1918. He has lived in this country continuously with
the exception of a 23-day-visit to Mexico in October 1929. On September 12, 1961, after hearing, the respondent was found deportable
under the provisions of section 241(a) (4) of the Immigration and
Nationality Act on the ground that he had been convicted of two
crimes involving moral turpitude not arising out of a single scheme
of criminal misconduct, to wit: (1) petty theft in violation of section.
484 of the Penal Code of the State of California, on February 20, 1951,
in the Municipal Court of Oakland, California, and (2) attempted
petty theft on March 29, 1938, in the Municipal Court of Oakland,
California; and was granted the privilege of voluntary departure in

lieu of deportation, with the further order that if he failed to depart
as required, the privilege of voluntary departure would be withdrawn
without further notice and the respondent would be ordered deported
on thetharge contained in the order to show cause.
3

Interim Decision #1280
Thereafter, in April 1982, counsel for the respondent submitted a
motion to the special inquiry officer for reopening of the deportation
proeeedbvs to permit submission of an application for a change of
status to that of a permanent resident under section 249 of the Immigration and Nationality Act. Although counsel concedes that the
respondent did in fact enter the United States for permanent lawful
residence, he points out it has been determined in the deportation
proceedings that he is not at this time a lawful permanent resident
of the United States. He argues that the respondent's record of entry
has in effect been nullified by acts committed by him since entry, and
thatseetion-249- -was.enacterito make available a means of adjusting
status for an alien who has no effective and subsisting record of lawful
admission_ In connection with the appeal enimsel has filed a brief

in which he repeats these arguments and in addition, urgds that although the respondent was once lawfully admitted for permanent
residence, either in 1914 or none pro tune in 1918, he does not now have
a status which entitles him to depart from the United States and reenter, to apply for United States Citizenship or to take advantage of
any other privilege normally available to a lawful permanent resident;
that he does not have an effective subsisting useable status as an alien
lawfully admitted for permanent residence who has not subsequently
committed acts which would render him subject to deportation; and
that the phrase in section 249 "if no such record is otherwise available"
means there must be available, to a section 249 applicant a record of
admission for permanent residence as fully effective as on the day
he was lawfully admitted.
The special inquiry officer denied the motion to reopen for adjustment of status under section 249 of the Immigration and Nationality
Act on the ground that in the instant case, a record of respondent's
lawful admission for permanent residence is available and consequently he would not come -within the purview of section 249. In
addition, the special inquiry officer cited Matter of 5,-6 I. & N. Dec.
392, in which the Board held that the status of one lawfully admitted
for permanent residence is not vitiated by the fact that he may
subsequently have become deportable.
Section 249 of the Immigration and Nationality Act, as amended
by the Act of August 8, 1958 (Public Law 85-616, 72 Stat. 540, 1
providesaflw:
-

A record of lawful admission for permanent residence may, in the discretion
of the Attorney General and under such regulations as he may prescribe, be
made in the case of any alien, as of the date of the approval of his application
or, if entry occurred prior to July 1, 192, as of the date of such entry, if no
such record is otherwise available and such alien shall satisfy the Attorney
1

8 U.S.C. 1258 (C.A.P.P.19131).

4

Interim Decision #1230
General that he is not inadmissible under Section 212(a) insofar as it relates
to criminals, procurers and other immoral persons, subversives, violators of the
.narcotic laws or smugglers of aliens, and he establishes that lie—

(a) entered the United States prior to June 28,1940;
(b) has had his residence in the United States continuously since such
entry ;
(c) is a person of good moral character ; and
(d) is not ineligible to citizenship.

The predecessor statute to section 249 was the Act of March 2, 1929;
its purpose was to provide relief for aliens who entered the United
States prior to July 1, 1924, (now June 28, 1940) where there was inability to locate a record of their permanent admission in comforraity
with the immigration law at the time of their entry. The Act of June
29, 1906, required that a registry be made of certain facts concerning
each alien arriving in the United States and that "a certificate of such
entry with the particulars thereof" be granted to each alien. Section
249, and its predecessor statutes was passed in order to permit the
naturalization, at the discretion of the government, of aliens who did
not possess this certificate of registry—a certificate which was required for naturalization. In short, section 249 is an ameliorative
provision; it appears to have been designed to aid a person who has
formed a substantial tie to the United States and who should not be
automatically denied naturalization because of his inability to furnish
the certificate?
The amendments adopted in 1958 have enlarged the impact and significance of the registry proceeding and have expanded the number
who can qualify. The major revision in 1958 advanced the cut off
slate to June 28, 1940 (the effective date of the Alien Registration Act
of 1940, 54 Stat. 670), and eliminated the complete disqualification of
.

those subject to deportation. Instead, the 1958 amendment disqualified only those inadmissible for certain aggravated grounds specified

therein. Elimination of the disqualification of deportables has made
this procedure for administrative adjustment of status available to
many who previously were deportable as overstayed nonimmigrants
or as illegal entrants.'
The 1952 Act in its original form, and prior enactments, barred
relief to aliens who were deportable. This limitation was revised by
the 1958 amendment, which withholds registry only from aliens who
are inadmissible to the United States on criminal, prostitution, subversive, narcotics, or aliens smuggling grounds. This means that re' Sit Jay Sing v. Nice, 182 F. Supp. 292 (N.D. Cal., S.D. 1960), aff'd 287
F. 2d 561 (C.A. 9, 1961) ; 2 U.B. Code Cong. Adm. News (85th Cong., 2d Sess., 1958)
p. 8249.

Gordon & Rosenfield, Immigration Law and Procedure

p. 735

(1959), section 7.6,

Interim Decision #1280
lief is available to aliens otherwise qualified under the statute, who
are deportable for entry without proper inspection or documents or
who overstayed the period or violated the terms of temporary entry?
The statutory requirement in section 249 as amended, that there be
no record of a lawful admission, is satisfied when there exists a record
of admission which however is not lawful, ab initio as when an alien
is admitted in a nonquota immigrant- status to which he was not
entitled.5
Such a situation, however, does not apply to the instant case, where
the requirement in the statute, that there be no record of a lawful
admission, has not been met because there does exist such a record of
lawful admission and the respondent has thereafter become subject to
deportation on grounds arising subsequent to such admission The
fact that an alien lawfully admitted for permanent residence subsequently became deportable for causes arising after entry does not
prevent the exercise of the discretion contained in section 212(c) of
the Immigration and Nationality Act, which deals with discretionary
relief for an alien lawfully admitted for permanent residence, for the
reason that the status of such an alien did not change because of his
subsequent deportability.6 It has been held that a record of prior
lawful admission did not preclude an adjustment of immigration status
under section 249 where such record of lawful admission existed but
was vitiated by a subsequent • illegal entry, but in that case it was
pointed out that the alien's departure and subsequent illegal entry
without inspection was not the result of exclusion or expulsion proceedings, his absence was temporary, and he was not a member of one,
of the excludable classes enumerated in section 241 7
In the instant ease, the application for registry pursuant to section
249 of the Immigration and Nationality Act, as amended, is not available for the reason that there exists a record of lawful entry which
has not been, vitiated by the respondent's subsequent deportability on
criminal. grounds. The appeal-from the -order .of the special inquiry
officer denying the motion to reopen under the provisions of section 249
of the Immigration and Nationality Act, as amended, will be dismissed.
- ORDER: It is ordered that the appeal be and the same is hereby
dismissed..
-•
,

• Om, p. 738:•
'
'Matter . of 2—, 8 I. & N. Dec. 288; Cf. Matter.ofR-11--, Int. Dec. No. 1110,
vihere section 212 (n) Could not be used to aid a section 249 adjustment where no
record of entry could be found.
" • Matter of g—, 61. &N. Dee. 892.
Matter of
8 L & N. Dem 598. -

6


Interim Decision #1416

MA

of GAROL9.-CASTILLO

In DEPORTATION Proceedings
A-33710425

Decided by Board October 0,1964
The mere making of a misrepresentation by an alien to a United States consular
officer abroad in obtaining a visa for entry into this country is an important
element for consideration in any subsequent application for adjustment of
status under section 245, Immigration and Nationality Act, as amended. (See
also, Matter of Garcia-Castitio, Int. Dec. No. 1335.)

OReson:
Order: Act of 1952—Section 241(a) (2) [8
remained longer.

1252(a) (2)1—Visitor.

Respondent asks that the Board reconsider its decision denying his
application for adjustment of status to that of a permanent resident
under section 245 of the Act (8 U.S.C. 1255 (Supp. IV) ) ; in the event
the Board affirms its denial, counsel requests that the case be certified
to the Attorney General for review.
Respondent, 24-year-old single male, a native and citizen of Peru,
applied in Peru for a visitor's visa, to the United States. He presented
to the United States consul a letter from his employer stating he had
quit his job because the pay was poor and he was planning to go to
the -United States; the consul refused to issue a visitor's visa. Through
the services of a travel agent, the respondent obtained a. letter from a
doctor indicating that the respondent was going to the United States
for rest and treatment. In fact, the respondent was not a patient of
the doctor, was not ill, and was without intention of seeking treatment in the United States. On the strength of the letter, the respondent obtained a temporary visitor's visa although he then intended to
remain in the United States permanently through adjustment of his
status under section 215 of the Act as had some of his friends. Believing the adjustment was a simple matter -which would take a little
time, he anticipated obtaining work shortly after his entry.
Respondent was admitted to the United States on June 13, 1963
as a visitor and was authorized to remain to July 15, 1963. Shortly
790

Interim Decision #1416
after arrival he began to work a day a week; he then learned that
it was unlawful for him to work in the United States. On September
16, 1963, he submitted his application for adjustment of status under
section 245; on September 22, 1963, he obtained full-time employment; on October 2, 1963, he was interviewed in connection with his
application for adjustment of status and denied that he was working;
on November 15, 1963, he voluntarily informed the Service that he
had not told the truth about employment; on November 26, 1963,
respondent's application for adjustment of status was denied by the
District Director (the reason for the refusal is not shown in the file)
and respondent was given until December 26, 1963 to depart voluntarily; the respondent remained upon the advice of his attorney in
order to obtain an adjudication of the application for adjustment
of status by a special inquiry officer.
On January 29, 1964 an order to show cause was issued charging
the respondent with being deportable upon the ground stated above;
in the following month a deportation hearing was held. The special
inquiry officer granted the application for adjustment of status.
To the special inquiry officer, it appeared that Matte?. of Barrios,

Int. Dec. No. 1264, implied that the bona fides of a visitor from a,
nonquota country was not a material matter; therefore, and because
thA respondent had testified with candor, and because it appeared

he would make a desirable resident the special inquiry officer
granted the application.
The trial attorney took an appeal from this grant on the ground
that it would encourage evasion of consular functions and disregard
for the immigration laws; the trial attorney further pointed out that
the respondent had taken unauthorized employment, that he had
falsely testified before an immigration officer, that he had no close

family ties in the United States, and that his mother, brothers and
sisters were in Peru. The Board sustained the appeal of the trial
attorney and ordered the application for adjustment of status denied
as a matter of discretion, stating that respondent had flagrantly disregarded lawful visa procedures, and that he had not been a bona, fide
nonimmigrant. Counsel filed the present motion; in support of it we
have considered his letter of July 13, 1964 addressed to the Attorney
General and in opposition we have considered the brief dated August
31, 1964 from the trial attorney.
Counsel is of the belief that the Board's action is inconsistent with
Matter of Martinez-Lopez, Int. Dee. No. 1312. Martinez-Lopez concerned a native and citizen of Mexico who in applying for an immigrant visa, and to satisfy the request of the counsel that he furnish
an offer of employment, supplied a letter which he knew did not
represent an actual offer of employment; the Service sought to deport
791

Interim Decision 41416
him as one who had procured. his visa by fraud or wilful misrepresentation. To sustain this charge, the Service had to establish that the
fraud or misrepresentation was a "material one" : one concealing a
ground of inadmissibility or cutting off a relevant line of inquiry
which might have resulted in a proper determination that the alien
was inadmissible. The only possible ground of inadmissibility suggested, was the likelihood that the alien might become a public charge.
The Attorney General held that the evidence in the deportation proceeding established that the alien would not have been inadmissible
as a person likely to become a public charge and that there was nothing
in the regulations of the Department of State which would have prevented the issuance of an immigrant visa to the respondent.
Counsel's point is that the respondent here made a representation
which in its character is essentially like the one made by MartinezLopez: both misrepresentations were made to obtain permanent residence in the United States, both were made because the aliens would
otherwise have been denied visas upon an "improper determination
that they were likely to become public charges." The distinction we
see is that in Martinez-Lopez the making of the misrepresentation was
not important; what the misrepresentation concealed was important
in the instant case the mere making of the misrepresentation is important. Surely, when an alien applies for discretionary relief, the
fact that he lied before a United States official ought to be an important
element for consideration. And it might be one which weighed in
light of the means used, the purpose sought to be achieved, and the
advantage gained, could well determine the outcome of the case. ,
Counsel contends that American consular officers have instituted
unreasonable requirements (in violation of the State Department's
own regulations) as to the establishment by an alien of the fact that
he will not become a public charge, and that the impossibility of
meeting these demands together with the fact that the alien cannot
appeal from the denial of his visa, creates a frustration which drives
aliens to make misrepresentations in order to get their visas. It is
inappropriate for us to comment on this matter : it is one for the
attention of the Department of State.
Counsel suggests that many aliens obtain adjustment of status by
lying about the bona fides of their intentions to come to the United
States as visitors. Obviously, this charge is a matter of surmise on
the part of counsel. The procedure used in considering an application
for adjustment of status permits examination and cross-examination
of the alien under oath and requires a check of consular sources abroad.
The procedure is not an infallible one, however, it is the best that can
be devised to determine the truthfulness of an applicant's contentions.
792

Interim Decision #1416
Counsel contends that to deny respondent's application for adjustment on the ground that he intended to seek permanent residence
when he entered, would be to read into section 215 a restriction which
was removed when Congress eliminated the requirement that only
aliens admitted as bona fide nonimmigrants were to be granted relief.
The short answer is that we did not find respondent statutorily ineligible for relief, and that Congress did not eliminate the discretionary
aspect of the relief. After careful consideration of the record we
find the motion must be denied.
Counsel has requested that the Board certify this case to the Attorney General for review if a decision unfavorable to the alien is reached.
We do not believe that the case presents an issue which requires
certification to the Attorney General.

ORDER: It is ordered that the motion for reconsideration be and
the same is hereby denied.

793