Interim Decision #2300

MATTER OF HEMBLEN
In Exclusion Proceedings
A-18480MS

Decided by Board January 31, 1974
Decided by Board June 28, 1974
When a clafin is made under 18 U.S.C. 3504(a) that the subject of exclusion
proceedings has been aggrieved by an unlawful act, a motion to suppress
evidence derived therefrom under 18 U.S.C. 2518(10)(a) may properly be
received and adjudicated by the immigration judge.
EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)}—Immigrant

with no immigrant visa and not exempt therefrom.
ON BEHALF OF SERVICE:

ON BEHALF OF APPLICANT:

Irving A. Appleman
Appellate Trial Attorney
Allan A. Shader
Trial Attorney
Charles Gordon
General Counsel

Paul G. Chevigny, Esquire
New York Civil Liberties Union

84 Fifth Avenue
New York, New York 10011

BEFORE THE BOARD

(January 31, 1974)

This is an appeal from a decision of an immigration judge
finding the applicant excludable on the above charge and ordering
her exclusion and deportation from the United States. The appeal
will be dismissed.
The applicant is a 28-year-old married female alien, native and
citizen of Canada, who was admitted to the United States for

permanent residence on January 8, 1969. The record indicates that
she departed from the United States on or about May 11, 1970, and
on July 12, 1970 sought readmission to this country as a lawful
permanent resident. On that date she presented an Alien Registration Receipt Card, Form 1-151, and was inspected by an officer
of the Immigration and Naturalization Service, who deferred
completion of the inspection. The applicant was then paroled into
the United States for further inspection at New York, New York,
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Interim Decision #2300
where on September 15, 1972 her case was referred to an immigration judge for determination.
At a hearing held before an immigration judge on Oetober 27,
1972, at which the applicant was represented by present counsel,
certified copies of certain pages of the applicant's Canadian passport were offered into evidence by the trial attorney, without
objection by counsel (Tr. p. 5), and were received collectively as
Exhibit 5. The passport contains stamped endorsements which
show that the applicant entered the Soviet Union at Moscow on
May 12, 1970 and departed on June 9, 1970. Also introduced into
evidence were several newspaper articles which indicate that the
applicant was in North Vietnam during 1970 (Exs. 6, 7, 8, 9, 10),
including one which had been written under the byline "Judy
Gumbo" (Ex. 11). The writer of one of these articles (Ex. 7) testified
at the hearing and identified the applicant as the "Judy Gumbo"
who gave a press conference which he attended and on which he
based his article (Tr. pp. 14-16). 1 The immigration judge concluded
that this established that the applicant had engaged in travel
proscribed by 8 CFR 211.1(bXl), which provides in pertinent part:
Iu lieu of an immigrant visa, an immigrant alien returning to an unrelin9uished lawful permanent residence in the United States after a temporary
absence abroad not exceeding 1 year may present Form 1-151, Alien Registration Receipt Card, duly issued to him: Provided, That during such absence he
did wit travel to, in, or through any of the following places: ... Communist
Portions of ... Viet-Nam, and, ... the Union of Soviet Socialist Republics....

The above regulation further provides that these travel restrictions are waived for an alien who, subsequent to his departure
from the United States, has received approval from the Service or
the Department of State authorizing travel to the restricted
places. 8 CFR 211.1(b)(2) provides that a similar waiver of travel
restrictions may be secured by an alien who, prior to his departure
from the United States, obtains a reentry permit which authorizes
such travel. The applicant has stipulated that she had neither a
reentry permit nor authorization from the Government to travel
to or in areas interdicted by 8 CFR 211.1(b)(1) (Tr. pp. 7 and 9). We
therefore agree that the applicant's Form 1-151 was insufficient to
establish her admissibility to the United States, and the immigration judge correctly determined that she was excludable under
section 212(aX20) of the Immigration and Nationality Act.
On appeal counsel contends that 18 U.S.C. 3504 requires that we
remand the record for an inquiry into the applicant's claim that
she has been the subject of unlawful electronic surveillance by the
Government. At the exclusion hearing, the trial -attorney denied
The applicant also has stipulated that she has been known by the name
"Judy Gumbo" (Tr. p. 3).

740

Interim Decision #2300
the occurrence of such surveillance (Tr. pp. 5-6). We note that he
has executed an affidavit restating this denial, in opposition to a
motion for a suppression hearing under 18 U.S.C. 2518, filed by the
applicant in the United States District Court for the Southern
District of New York.2 We find that the Service has thereby
discharged its obligation, under 18 U.S.C. 3504, to either affirm or
deny the occurrence of the alleged unlawful act. See In re Horn,
458 F.2d 468 (CA. 3, 1972) and United States v. Doe (In re Marx),
451 F2d 466 (C.A. 1, 1971).
Further, we find unpersuasive counsel's contention that, these
exclusion proceedings may have been "tainted" by the use of
illegally obtained wiretap evidence. The evidence on which the
immigration judge based his decision consists of entries in the
applicant's Canadian passport, establishing her presence in a
proscribed area, and newspaper articles recounting her own,
deliberate, public statements. With regard to the present proceedings, the applicant could not therefore have been "aggrieved" by
any claimed unlawful wiretap within the contemplation of 18
U.S.C. 3504(aX1). Nor could the evidence on which the immigration
judge relied be characterized as the "primary product of an
unlawful act," as contemplated by 18 U.S.C. 3504(a)(1), since it
merely represents documentation of the applicant's volitional
conduct.
Counsel also challenges the validity of 8 CFR 211.1(b), claiming
that it is not authorized by the Immigration and Nationality Act.
We reject this contention. Section 103 of the Act gives the Attor-

ney General broad authority to promulgate regulations in furtherance of the purposes of the statute. If a regulation is reasonably
related to the purposes of the Act, it will be deemed valid, Fook
Hong Mak v. INS, 435 F2d 728 (C.A. 2, 1970). An alien's right to
travel outside the United States is subject to restrictions not
applicable to citizens, Harisiades v. Shaughnessy, 342 U.S. 580, at
586 (n. 10). The regulation in question, therefore, is clearly within
the scope of the Attorney General's authority, as delegated to the

Commissioner of Immigration and Naturalization, pursuant to section 103 of the Act. See Bilbao-Bastida v. INS, 409 F2d 820 (C.A. 9,
1969). We are without power to rule on counsel's assertion that 8
CFR 211.1(b) is an unconstitutional violation of the applicant's
freedom to traveL C£ Matter of Santana, 13 L & N. Dec. 362 (BIA.
1969); Matter of M—, 9 L & N. Dec. 138 (B IA 1960); Matter of L-- 1 4
I. & N. Dec. 556 (BIA 1951). Such a determination is properly a
judicial, not an administrative, function.
2 While this affivavit has not been made part of the administrative record, it
was called to our attention at oral argument (Tr. of oral argument, pp. 20 22)
and its contents were recited.
-

741

Interim Decision #2300
We reject, too, counsel's argument that under Rosenberg v.
Fleuti, 374 U.S. 449 (1963), the applicant is not seeking to make an
"entry" within the meaning of section 101(aX13) of the Act. In that
case the Supreme Court said that an alien's need to procure travel
documents for a trip abroad, and whether the object of the trip is
contrary to a policy reflected in the immigration laws, are relevant
factors in determining whether such a departure is meaningfully
interruptive of the alien's permanent residence so as to subject
him to the consequences of an "entry" upon his return, within the
scope of section 101(aX13) of the Act. In the present case, the
applicant needed travel documents for her trip, and is now
charged with excludability precisely because she engaged in travel
which, for policy reasons, is restricted by the immigration laws, 8
CFR 211.1(b). The applicant's departure was not, therefore, "innocent" and "casual" within the holding of Rosenberg v. Fleuti,
supra, nor was her absence of two months a "brief' one. See
Matter of of Janati-Ataie, Interim Decision 2170 (A.G. 1972). See
also Bilbao-Bastida v. INS, supra, at 823.
The decision of the immigration judge in supported by clear and
convincing evidence, and it will be affirmed.
ORDER: The appeal is dismissed.
Maurice A. Roberts, Chairman, Dimenting:

It is with some hesitancy that I dissent from the Board's
decision, for it has surface plausibility, appears to be eminently
reasonable, and is disarmingly simple. It seems to me, however,
that the solution is not so simple and that a remand is required on
the issue raised under 18 U.S.C. 3504.
As an alien lawfully admitted for permanent residence, the
applicant is assimilated, on her return from a temporary visit
abroad, to the status of a resident alien. Before she can be lawfully
excluded, she is entitled to a due process hearing on the charge on
which the Immigration and Naturalization Service seeks to exclude her. The burden of proving the charge is on the Service,
Kwong Hai Chew v. Rogers, 257 F.2d 606 (D.C. Cir. 1958); Matter of
B ecorra-Miranda, 12 I. & N. Dec. 258 (BIA 1967).
The record establishes, by evidence which to me is clear, convincing and unequivocal, that during the period of her absence
from the United States between May 11, 1970 and July 12, 1970,
the applicant travelled to both the U.S.S.R. and the Communist
portion of Vietnam. 1 The question presented is whether the appliI Her presence in either of those places would be sufficient to preclude her use
of her Form 1-151 as an entry dcicument under 8 CFR 211.1(41).
742

lilloCE1111

J./GUID1V11

%.*

cant's challenge to that evidence under 18 U.S.C. 3504 was properly rejected. I think it was not and would remand the record to
the immigration judge for further proceedings.
Preliminarily, I would reject counsel's contention (which the
Board's treatment of the issue renders it unnecessary to confront)
that the suppression question raised incident to 18 U.S.C. 3504 can
be tried and adjudicated only in a judicial forum. 2 The short
answer is that by their terms sections 3504(a) and 18 U.S.C. 2510 et
seq. govern not only court hearings but also proceedings before
quasi-judicial tribunals. Those provisions were assumed without
question to be applicable to a hearing before an immigration judge
in Bufalino v. INS, 473 F2d 728 (C.A. 3, 1973), cert. denied 412 U.S.
928. Motions to suppress evidence have heretofore been made and
adjudicated in deportation proceedings before immigration judges.
See Matter of Au, Yim and Lam, 13 L & N. Dec. 294 (BIA, 1969),
affirmed An Yi Lau v. INS, 445 F.2d -217 (D.C. Cir. 1971), cert.
denied 404 U.S. 864; Matter of Wong, 13 I. & N. Dec. 820 (B IA,
1971);Matter of Perez-Lopez, Interim Decision No. 2132 (BIA, 1972).
To require such suppression issues to be decided initially by the
courts would not only impose an intolerable and unnecessary
burden on them but would at the same time unduly delay the
administrative proceedings pending before the immigration judge.
I can see no good reason why the issue thus raised cannot be
confronted • and settled in the first instance by the immigration
judge.
Turning now to the merits of that issue, it seems to me that the
statutory provisions under discussion were designed to codify and
refine the procedures for adjudicating claims that the Government's evidence had been obtained by illegal wiretaps or other
unlawful means. Where it was established that the Government's
evidence had been thus illegally procured, not only was that
evidence suppressed but also any evidence derived from the
information thus illegally obtained, i.e., "the fruit of the poisonous
tree!' Nardone v. United States, 308 U.S. 338 (1939); Wong Sun v.
United States, 371 U.S. 471 (1963). The burden was on the proponent of the claim to prove that the Government had, in fact,
engaged in the illegal evidence-gathering activity complained of.
Once the use of such an illegal technique by the Government was
proved, however, the burden shifted to the Government to show
that the evidence it relied on was not obtained, directly or
2 That contention was seriously urged before the immigration judge (Tr. p. 2),
before the United States District Court for the Southern District of New York in
the pending litigation there (Affidavit of Paul G. Chevigny, paragraph 4(a),
Exhibit 4) and hefnre the Board on appeal (Supplemental Brief for Respondent,
1).

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Interim Decision #4iuti
derivatively, from the tainted source. The law as codified subsequently in 18 U.S.C. 2510 et seq. and 18 U.S.C. 3504 did not lighten
the Government's burden in that regard. See Gelbard v. United
States, 408 U.S. 41 (1972).
Counsel for the applicant asserts (Tr. p. 6) that as a result of
information illegally obtained by unlawful electronic surveillance,
the Government placed the applicant's name on a "lookout" list
posted at airports, and as a consequence when she applied for
admission at the Montreal airport she was stopped and referred
for further examination culminating in these exclusion proceedings, notwithstanding her possession of a Form 1-151 valid on its
face. Evidence in support of the claimed use of electronic surveillance has been presented (Exhibit 4). In my estimation, this
evidence is sufficient to bring into play the provisions of section
3504.
It seems clear to me that the applicant is a "party aggrieved"
within the meaning of section 3504(a.X1). As the subject of these
exclusion proceedings, who stands to lose her permanent residence
here if her challenge to the evidence is rejected, the applicant
clearly has standing to raise the issue. How much evidence of the

claimed interception she must present to show that she is "aggrieved" need not now be decided. One court has expressed the
view that section 3504(a)(1) is triggered by the mere assertion that
unlawful wiretapping has been used against a party, In re Evans,

452 F.2d 1239 (D.C. Cir. 1971), cent. denied 408 U.S. 930. Another
court has taken a narrower view, stating that section 3504(aX1)
places on the aggrieved party the responsibility of making a
threshold showing of surveillance and some showing of a basis for
suspecting illegal action, United States v. Doe, 460 F.2d 328 (C.A. 1,
1972). On either view, it seems to me, the applicant has made a
sufficient showing to east on the Service the statutory burden of
affirming or denying the occurrence of the alleged unlawful act.
To hold, as does the Board's opinion, that the applicant is not
"aggrieved" within the meaning of section 3504(aX1) because the
evidence on which the immigration judge based his decision
consists of documents which the Board considers untainted, seems
to me to beg the question. That is the very point at issue. If there
was indeed unlawful electronic surveillance of the applicant, then
the passport entries and newspaper articles in evidence, while not
inadmissible as "the primary product" of the unlawful act, might
still be inadmissible as "obtained by the exploitation of an unlawful act," i.e., as the "fruit of the poisonous tree." So far as I am
aware, the doctrine that the "fruit of the poisonous tree" is
inadmissible has not thus far been repudiated by the courts. See,
e.g., United States v. Calandra, 414 U.S. 338 (1974). It would render

744

Interim Decision #2300
nugatory the "affirm or deny" provision of section 3504(a)(1) to
require a party to prove, before he could be considered "aggrieved," that not only was there an "unlawful act" but also that
the Government's evidence is the product of that act or its
exploitation.
If it could be assumed that under no conceivable circumstances
could the Service's possession of the challenged evidence be attributable to information stemming from the claimed "unlawful act," I
would go along with the Board's decision. Underlying the statutory provisions in issue is the policy that the Government shall not
benefit evidence-wise from its own unlawful acts. Congress could
not have intended recourse to those provisions in a situation
where there could not possibly have been any such unlawful act.
But that is not this situation.
Here, a number of factual variables are possible: (1) The Service
could have learned through an "unlawful act" that the applicant
was travelling (or intended to travel) to the proscribed foreign
areas; could have posted the alleged airport "lookout" notices as a
result; and could have achieved its documentary and other eviclones (including the notations in her passport) in consequence of

being thus alerted solely by information deriving from the "unlawful act." (2) The Service could have learned of the applicant's
proscribed travel solely through clearly untainted sources (e.g., the
newspaper accounts); could have posted the alleged airport "lookout" notices as a result; and could have achieved its documentary
and other evidence through being thus alerted by information
deriving from sources clearly legitimate. (3) The. Service could
have been unaware of the applicant's foreign travel until her
actual return; could have posted no airport "lookout" notices;
could have first learned of her proscribed travel by examining the

notations in her passport when she was inspected on arrival at
Montreal airport; and could thereafter have assembled the other
evidence as a result of being thus alerted by information clearly
unexceptionable. Other possible factual variations are conceivable,
but the foregoing should be sufficient to demonstrate that on the
record as thus far developed there is as yet no open-and-shut
answer.

It may be that the Board's decision is premised on the notion
that it would make no difference even if, as postulated in variable
(1) above, the Service had been alerted to the applicant's absence
by information gleaned solely through an unlawful act, so long as
the evidence actually relied on (passport entries, newspaper reports, Oppenheimer's testimony) was not the direct product of the
unlawful act. It seems to me that such an approach ignores the
possibility that the evidence actually relied on may have been
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Interim Decision #2300
assembled as a result of the information allegedly obtained unlawfully, and that the evidence may thus be "the fruit of the
poisonous tree." If that turns out to be the fact, then the question
whether the taint is removed by attenuation, so as to render the
evidence admissible, must await further development of the record
on remand.
In its brief on appeal before us, the Service asserts (p. 9), "It was
clearly the overt act of the applicant in her publicity effort which
brought her travels in the U.S.S.R. and North Vietnam to the
attention of the Service so that she was stopped at Montreal for
completion of inspection. She thereafter presented her passport
showing travel in U.S.S.R." This assertion may very well turn out
to be the fact, upon further development of the record on remand. 3
Athispourefca,tsionuemrag-'
ment and assumes the existence of the very facts in dispute. The
Board's decision, in my view, is based on the same fallacy.
I am somewhat puzzled by counsel's seeming concession at oral
argument that the applicant's travel to the U.S.S.R. was established by probative evidence. 4 If that were the fact, then that
would end the matter, so far as I am concerned, for I agree with
the Board's conclusion that 8 CFR 211.1(bX1) is valid. The applicant's presence in the U.S.S.R. is sufficient, without more, to
render her inadmissible as charged. The concession, however,
appears to be inconsistent with counsel's seriously urged contention that the evidence is tainted. Taken in context, the concession
must be construed as part of the larger argument that, though
probative, the passport entries are inadmissible as evidence because they stem from initial illegal actions by the Government, an
issue that remains to be developed on remand.
At the hearing before the immigration judge, the following
colloquy took place between the immigration judge (SR)) and the
Service's trial attorney, Mr. Shader (Tr. p. 6):
MR_ SHADER: I would say that there is no reason at all to assume that she
was stopped because of electronic surveillance, none at all.

MO: Mr. Shader, do you have the administrative file pertaining to the
applicant?
' In view of the passport waiver accorded returning residents by 8 CFR
211.2(c), there is no reason to assume that, absent some sort of "lookout" posted
at the airport, on arrival at Montreal the applicant would have been asked to
submit her passport to the immigrant inspector.
4 (Tr. of oral argument, p. 3): "We concede there was clearly [adjmissible
probative proof [of] travel, an official U.S. authenticated document showing
there was travel to the U.S.S.R. stamped in her passport." (Tr. of oral argument,
p. 5): "I concede in a legal sense she was in the U.S.S.R. I concede because T have
to, there is probative evidence she was there."

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Interim Decision #2300
MR. SHADER: I do, sir.
SIO: And was your negative statement as a result of your examination of
that file?
MR. SHADER: That is correct, sir.

In his opinion, the immigration judge concluded (p. 6) that the
foregoing disclaimer was sufficient to meet the requirements of
section 3504, stating "Such negation need not, in this exclusion
hearing, have the same rigidity as in judicial proceedings."
At the oral argument, the Service's representative handed up,
over counsel's objection, a copy of Mr. Shader's affidavit filed in
the District Court proceedings in opposition to the applicant's
motion for a suppression hearing. That affidavit states, in pertinent part:
5. No evidence introduced at the hearing held on October 27, 1972, or which
will be introduced at any adjourned hearing was obtained directly or indirectly as the result of any intercepted wire or oral communication whatsoever.
6. I have reviewed the entire Service file relating to [the applicant) and there
is no information contained therein that was derived either directly or
indirectly from the use of any interception of wire or oral communication.
Additionally, no interception of any wire or oral communication has been the

source, direct or indirect, of any information obtained during the Service's
investigation or pending administrative action.

The Board has concluded that, through the above-quoted assertions of its trial attorney, the Service has discharged its obligation
under section 3504 to either affirm or deny the occurrence of the
alleged unlawful act. I cannot agree. In the quoted material, the
trial attorney neither affirmed nor denied the occurrence of the
alleged electronic surveillance. He merely stated his own generalized conclusion that the Service's information and evidence did not
derive from any intercepted communication. This is a far cry from

a categorical statement, made after inquiry, that there was in fact
no interception. In my estimation, it is the latter sort of statement
which section 3504 contemplates. Cf. United States v. Doe, 451 F2d
466 (C.A. 1, 1971); In re Horn, 458 F2d 468 (C.A. 3, 1972). The trial
attorney's generalized conclusion is as compatible with the existence of the alleged interceptions as it is with their nonexistence. A
factual conclusion of this sort as to whether or not the evidence in

question does in fact derive from the alleged interception is for the
tribunal to make, not the trial attorney.
The danger in permitting such a generalized disclaimer to stand
is that, however sincerely made, it is liable to be unintentionally
false unless based on specific inquiry as to the existence or not of
the alleged intercepts. The Service file itself may not reveal that
the sources of its information were illegal wiretaps. That was the
situation in the Bufalino case. The Board's decision in that case
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Interim Decision #2300
states, "During the course of the last reopened hearing, the trial
attorney denied any knowledge of wiretapping or interception of
phone calls to the respondent by the Immigration and Naturalization Service," Matter of Bufalino, 12 I. & N. Dec. 277, 283 (BIA
1967). And see Bufalino v. INS, supra, 473 F2d 728 at 732: "In the
hearing before the [immigration judge] the prosecuting attorney
and his principal investigator stated that they had no knowledge
whatsoever of wiretapping in the cause and that there was none
to the best of their knowledge." Those statements were undoubtedly sincerely made by the Service officers involved. Yet, it was
subsequently brought out, Bufalino's telephone conversations had
in fact been intercepted by the F.B.I. Logs of the monitored
conversations were produced and a further hearing was held to
determine whether the Service's evidence was tainted, id at pp.
734-735.
I cannot agree with the immigration judge that, in administrative proceedings such as these, the disclaimer need not meet the
standards required in judicial proceedings. Section 3504 in terms
applies equally to both types.
It should be a relatively simple matter for the Service to
ascertain, by appropriate inquiry, whether agencies of the Government did, or did not, engage in the alleged unlawful interception.
If it turns out that there was such interception, the Service may
still be able to demonstrate that its evidence is free of taint. If, fur
example, as asserted by the Service in its brief before us, it was
the applicant's press conference while abroad that first brought
her travel to the U.S.S.R. and North Vietnam to the attention of
the Service, it should be a relatively simple matter to develop that
fact of record.
I would remand the record to the immigration judge for further
hearing.
BEFORE THE BOARD

(June 28, 1974)

On January 31, 1974, with one dissent, we dismissed the applicant's appeal from an order of an immigration judge excluding her
from admission to the United States. In doing so, we rejected
counsel's contention that under 18 U.S.C. 3504(a), remand to the
immigration judge was required for an inquiry into the applicant's
claim that she has been the subject of unlawful electronic surveillance by the Government. Because of the pendency of a court
action brought by the applicant to terminate the exclusion proceedings, our order was reviewed by the Department's Criminal
Division, which recommended to the Service that it file a motion
748

Interim Decision #2300
for reconsideration, asking that we remand the case to the immigration judge for further development of the administrative record
in accordance with the procedures outlined in the dissenting
opinion.
The Service now moves that we reopen the proceedings and
remand to the immigration judge for the purpose of conducting
the hearing on the applicant's claim under 18 U.S.C. 3504(a).
Counsel now opposes the Service motion on the ground that 18
U.S.C. 2518(10)(a) requires that such a hearing must be in a
judicial, and not an administrative, proceeding. The Service motion will be granted and the record will be remanded to the
immigration judge.
By its terms, 18 U.S.C. 2515 prohibits the use of unlawfully
intercepted wire or oral communications as evidence "in any trial,
hearing, or other proceeding in or before any court ... department,
officer, agency, ... or other authority of the United States ... ."
SeCtion 2518 of Title 18 includes procedures for the determination
of motions to suppress such unlawfully obtained evidence. Section
2518(9) specifically governs judicial determinations, and section
25113(10Xa) refers to judicial as well as administrative proceedings
under section 2518.
An examination of the precise language of section 2518(10Xa)
persuades us that the applicant's challenge to the immigration
judge's capacity to entertain a motion to suppress under that
section is without merit. That section provides:
Any aggrieved person in any trial, hearing, or proceeding in or before any
court, department, officer, agency, regulatory body, or other authority of the
United States ... may move to suppress the contents of any intercepted wire
or oral communication, or evidence derived therefrom, on the grounds that(i) the communication was unlawfully intercepted....

The provision goes on to state that such a motion "shall be made
before the trial, hearing, or proceeding unless there was no
opportunity to make such motion...." (Emphasis supplied.) Nowhere does this section expressly, or, in our view, impliedly, limit a
determination on such a motion, made in the course of any
proceeding before an authority of the United States, to a judicial
officer. Nothing in the legislative history of the provision supports
counsel's contention, 1968 U.S. Code Cong. & Ad. News, pp. 21952196.
It is our conclusion that when Congress provided for the filing of
a motion to suppress illegally obtained wiretap evidence in various
proceedings of the United States Government, it intended that the
particular presiding officer rule on its sufficiency. If Congress
intended to carve out an exception to the doctrine of exhaustion of
administrative remedies in proceedings under section 2518, and to
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Interim Decision #2300
provide for immediate judicial intervention, it would have so
stated.
Counsel's reference to the legislative history does not support
his assertion. 1968 U.S. Code Gong. & Ad. News, pp. 2189-2196,
which discusses section 2518, concerns itself primarily with the
procedures for obtaining a court-ordered interception. Naturally,
the provision there discussed, by its terms, contemplates a judicial
proceeding
Section 2518 is captioned "Procedure for interception of wire or
oral communications" (emphasis supplied), and deals with judicially authorized wiretap orders. This accounts for the frequent
references to "judge" throughout section 2518. It does not, however, restrict the well-established authority of administrative officers in immigration proceedings to rule on questions of the
admissibility of evidence. See Matter of Au, Yin?. and Lam, 13 I. &
N. Dec. 294 (BIA 1969), affirmed Au Yi Lau v. INS, 445 F2d 217
(D.C. Cir. 1971), cert. denied 404 U.S. 864; Matter of Wong, 13 L & N.
Dec. 820 (BIA 1971); Matter of Perez-Lopez, Interim Decision No.
2132 (BIA 1972).
Sound judicial administration requires that unnecessary litigation be avoided. It is possible for the applicant to get relief

administratively here, and if she does not, then judicial review of
the immigration judge's action is ultimately available. We will not
impute to Congress an intention to thrust upon the courts matters
which might have been disposed of administratively.
We conclude, therefore, that when a claim is made under 18
U.S.C. 3504(a) that the subject of exclusion proceedings has been
aggrieved by an unlawful act, a motion to suppress evidence
derived therefrom may properly be received and adjudicated by
the immigration judge. Accordingly, the following order will be
entered..
ORDER: The Service motion to reopen is granted and the
record is remanded to the immigration judge for further proceedings in accordance with the foregoing opinion.

750


Interim Decision #1580

11.Axaxn or Nnatorrs
Section 215 Proceedings
A-14418456
Decided by Regional Commissioner Apra 12, 1965

The departure of a permanent resident alien who seeks to abandon her residence here and return to her native country will not be prevented since it
has not been established under the Drovitdons of 22 US 41111(g) that she is
"needed" in a criminal proceeding in a court in the 'United States when she
is not the subject of such proceedings, it has been determined the Government does not intend to present her therein as a witness, and it is not
. known whether she will be Used as a witness by the defendant.

This matter. is before the Regional Commissioner under the authority contained in 22 CFR 46.5(d) frn. final decision on the special
inquiry officer's order of. March 26, 1966, recommending that the
alien not be prevented. froni.deparbing from the United States of her
own volition and at her own expense.
The applicant is-a, married German citizen, born September 12,

1947, at Magdeburg, Germany. Ifer husband is a United States citizen serving with the armed forces in Vietnam. The alien was admitted to the United States for permanent residence on September
26, 1965. She now wishes to abandon her residence in this country
and return to her parents' home in Germany, where her infant son
is also residing. She has stated that her mother, who has been caring for the child, is ill and must undergo surgery; that she is fearful
she may lose custody of her son if she is not there to look after him.
Under the provisions of 22 CFR 46.3(g), the departure of an alien
who is needed in the United States-as a witness in, or as a party to,
any criminal ease undei investigation or pending in a court in the
United States shall be deemed prejudicial to the interests of the
United States and may be temporarily prevented. The applicant
herein was served with a notice of temporary prevention of departure on March 4, 1966, on the basis of representations by the United
States Attorney's office for the District of Connecticut that her pres.
599

Interim Decision #1580
ence is required in a criminal case presently pending in the United
States District Court for the District of Massachusetts.
Subsequent to the service on the alien of the written notice temporarily preventing her departure, the office of the United States
Attorney for the District of Massachusetts in a letter dated March
14, 1966 to the United States Attorney at Hartford stated; in part, as
follows:
Although this office does not intend to present Mrs. Nimmons as a witness on
behalf of the Government, we believe that since the second count of the indictment recites a capital offense, all efforts should be expended to have her available at the time of trial. At the present time we have no way of knowing
whether the defendant will use this witness in his behalf.
hearing in. this matter was conducted before a special inquiry

officer in accordance with the provisions of 22 CFR 46.5. In his decision, the Special inquiry officer has indicated that there are no deportation proceedings presently pending' against the applicant and,
on the basis of the record, there appears to be no chaios on which
she inight•be fewad deportable. He has further Tinted that the alien
is not the subject of criminal' proceedings but may possibly be used
therein as a witness. In this connection, the special inquiry officer
has called attention to the fact that the departure of an alien can be
temporarily prevented when such 'alien' is "needed in the United
States as a witness in, Or as a party to, any criminal case under inVestigation: or pending in'a 'court in the United States . ." (Emphasis supplied.) The special inquiry officer has determined that the
applicant. wishes 'to depart and live permanently with her parents
and child'in Germany; that she has sufficient funds to defray the

cost of her passage; that it has not been established she is "needed"
as a witness in a criminal case; that she'ehould not be deprived of
her right to return to her native land. on; the basis of Mere conjecture
that 'she might be called as witness for the defendant in a 'pending
"
criminal prosecution.
The record in this matter has been carefully reviewed in the light
of the special inquiry officer's fiindinge of fact and conclusions of law.
We concur in his recommended order that the applicant should not
be prevented from departing froth the United States of her own
volition and at her own expense. Aiitording,ly, the following order
will be entered.
ORDER :,It is ordered that the make of temporary prevention of
departure dated March 4, 1966, be and the same is hereby canceled.


MATTER of

P

In EXCLUSION Proceedings
A-11163038
Decided by Board December 3, 1958
Nonimmigrant—Visitor for business—Canadian salesman eligible to enter
United States temporarily to solicit orders.
Employee of a Canadian firm who comes to United States about four times a
year for 2-week periods to sell plastic bags to United States customers is
eligible for admission as nonimmigrant visitor for business where his employer's principal place of business is in Canada, the accrual of profits from
LIm w solo takes pincc in Canada, Li commissions from sales in the United
States are a minor part of his over-all income, and each of his entries is
plainly of a temporary nature.
RecTIrn nrs. r Act of 1952—Section 212(a) (20) (8 U.S.C. 1182(a) (20) —Immigrant not in possession of a valid immigrant visa.

BEFORE THE BOARD

Discussion: The case comes forward on appeal by the Acting
District Director, Helena, Montana, from the decision of the special
inquiry officer dated July 10, 1958, ordering that the applicant be
admitted to the United states as a temporary visitor for inisimi,s
for a period not to exceed 14 days.
The applicant is a native of Scotland, national of Great Britain,
a permanent resident of Canada, who seeks admission to the United
States as a temporary visitor for business under the provisions of
section 101(a) (15) (B) of the Immigration and Nationality Act.
As a British resident of Canada he is exempt under the provisions
of S CFR 212.1 from the necessity of presenting a passport or visa.
The question to be determined is whether the applicant qualifies as a
nonimmigrant.
The applicant testified that he has never resided in the -united
States and has no intention of residing here but intends to continue
to make his home with his wife and family in Calgary, Alberta,
Canada, where he is employed as a salesman for a firm which manufactures polythylene and cellophane bags. Ile desires to enter the
United States temporarily as a visitor for a period of 10 days or
2 weeks for the purpose of selling the cellophane bags as part of
200

his employment for the Canadian firm. His selling territory in the
United States embraces customers in the States of Montana, Idaho,
Oregon, California and Washington. These customers are produce
packers whom lie calls on for the purpose of selling them these bags
as he has in the past 2 years. He enters the United states for this
purpose 3 or 4 times a year for a period of 10 days to 2 weeks. The
applicant is paid a commission of four-and-a-half per cent and earns
approximately $1000 a year on the sales he makes in the United
States. The employer testified that it would not be profitable to
engage a salesman in the United States to sell these products since
there is not enough business to warrant ouch employment.
Under the provisions of section 101(a) (15) (B) of the Immigration and Nationality Act a nonimmigrant visitor is defined as an
alien having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure. The applicant satisfies the first part of this definition and the remaining question is to
whether he is a visitor for business. The term "business" as used in
section 101(a) (15) (B) refers to legitimate activities of a commercial or professional character but does not include purely local
employment or labor for hire (22 CFR 41.40 (b)). Innumerable
cases have arisen, some of which present borderline situations which
require a determination as to whether the applicant is a nonimmigrant or en immigrant Previous cases have laid down the following significant considerations to be stressed: (1) there is a clear
intent on the part of the alien applicant to continue the foreign
residence and not abandon the existing domicile; (2) the principal
place of business and the actual place of eventual accrual of profits,
at least predominantly, remains in the foreign country; (3) while
the business activity itself need not be temporary, and indeed may
be long continued, the various entries into the United States made
in the course thereof must be individually or separately of a plainly
temporary nature in keeping with the existence of the two preceding
considerations.'
Both the special inquiry officer and the Service representative at
oral argument have cited a number of cases to sustain their respective positions. None of the cited cases appears to be particularly
helpful. Analyzing the facts in the instant case, there is no doubt
of a clear intent on the part of the alien applicant to continue his
foreign residence and not abandon his existing Canadian domicile.
The principal place of business of the firm which employs him is
in Canada and it appears that the applicant is paid in Canada. The
actual accrual of profits from his work (or wages) appears to take
-.1fatter of •

255; Mattel- of

P—, 4 I. & N. Dee. 217; Matter o1 G—, G I. & N. Dee.

6 I. & N. Dec. 533.
207

place in Canada. Since he is a full-time salesman the amount of
commissions he earns from sales in the United States would appear
to constitute a minor port of his total income. There is no doubt
that each separate entry is of a plainly temporary nature in keeping
with the existence of the two previous considerations. His situation
appears to be similar to that of a sales representative of a Canadian
advertising firm who was admitted as a temporary visitor for business to solicit accounts of long standing which would continue
indefinitely in the future? It is believed that the entry of the
applicant is in furtherance of international trade or commerce and
that he may properly be regarded as a nonimmigrant. The order
of the special inquiry officer will be affirmed.
Order: it is ortleted that the appeal be dismissed and that the
order of the special inquiry officer dated July 10, 197;8, admitting
the applicant as a temporary visitor for business for a period not
to exceed 14 days be and the same is hereby affirmed.
Matter of 0
, 6 7. & X Dec. 255, 257, footnote 3, citing Matter of S—,
A-68773(79. Bee also unreported Matter of H---, A-7142296 Pone 17, 1949),
and motto, of ,5-7142287 (Tune 22, 1949), In which Canadian farmers
coming here for 2 days to solicit orders or raroicro and bar dealers iu Bangor.
Maine, for purchases of bay obtained in Canada were held to be coming temporarily to do business of a commercial nature which was not permanent or
continuing, although both had been here a number of times before.

Otis


Interim Decision #2933

MATTER OF ISOVIC

In Visa Petition Proceedings
LOS-N-45355
Decided by Commissioner June 6, 1982

(1)A petitioner seeking to classify an alien under section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. 1101(a)(15)(L), must demonstrate the intention to employ
the beneficiary in the United States for only a temporary period.
(2) While a petitioner for an L classification generally need submit only a simple statement
of the facts and a listing of dates to demonstrate the intent to employ the beneficiary
in the United Staten temporarily, where the beneficiary in the owner/major atockholdei

of the petitioning company, a greater degree of proof is required.
ON BEHALF OF PETITIONER: Robert L. Miller, Esquire
Miller and Miller
2500 Wilshire Boulevard
Suite 1019
Los Angeles, California 90057

This matter is before the Commissioner upon certification in accordance with 8 C.F.R. 103.4. The petition was denied by the District
Director. An appeal to the Regional Commissioner was dismissed on
November 25, 1981.

The petitioner, Bis-Shaefer Corporation, seeks to classify the benefi. ciary, Midhat Isovic, as an intra-company transferee. The petitioner is
incorporated in the state of California to conduct a heavy construction
business and the import and export of electronic apparatus. A 51%
share of the petitioning corporation is owned •by the beneficiary. The
.beneficiary's presence in the United States is sought to manage and
direct the corporation's activities in the United States. Evidence has
been submitted that the beneficiary was employed abroad for more than
one year by the Shaefer Company Ltd., of Munich, Germany, and by
the BIS Company, also of Munich, Germany. Evidence demonstrates
that the overseas companies are affiliated with the petitioner inasmuch
as they are under the common ownership and control of the beneficiary
and that the beneficiary was substantially involved in management and
executive duties for the overseas companies for the requisite one year
or more. Both overseas "affiliates" are incorporated in Germany. '
361

Interim Decision #2933
In Matter of Tessel, Inc., 17 I&N Dec. 631 (A.C. 1981), the Service
determined that a corporation and its stockholders are separate legal
entities and that a corporation can employ and petition for a stockholder.

The Regional Commissioner concedes that the petitioner has established the foregoing facts, but in his decision of December 8, 1981, found
that the petitioner had failed to establish that the beneficiary was coming to the United States temporarily and, therefore, the beneficiary was
not entitled to classification as an intra-company transferee. The petitioner argues that section 101(a)(15)(L) of the Immigration and - Nationality Act, as amended, 8 U.S.C. 1101(a)(15)(L), does not require the
petitioner to establish that a beneficiary is coming temporarily, and that
the temporariness of a beneficiary's stay is an issue which may be considered only in conjunction with an application for visa issuance before a
United States consular officer. The petitioner, through counsel, also
argues that the Regional Commissioner has inappropriately imposed
the requirement that the services required of the beneficiary be of a
temporary nature. The petitioner correctly comments that the temporariness of an occupational position is a statutory requisite for classifying a temporary worker under section 101(a)(15)(H)(ii) of the Act.
Section 101(a)(15)(L) of the Act provides for the classification and
admission of an intra-company transferee as follows:
(I.) an alien who, immediately preceding the time of his application for admission into

the United States, has been employed continuously for one year by a firm or corporation
or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the
United States temporarily in order to continue to render his services to the same
employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive,
or involves specialized knowledge, and the alien spouse and minor children of any such
alien if accompanying him or following to join him.

Title 8, Code of Federal Regulations 214.2(1)(1) provides that, "A
petition approved under this paragraph is valid for the period of established need for the beneficiary's temporary services, but not to exceed
three years." Service Operations Instruction 214.2(1) provides that, "A
petitioner for an L-1 nonimmigiant must establish that he is seeking
such classification for the beneficiary to enable the latter to enter temporarily to perform specified services."
The same Operations Instruction provides that the beneficiary's intent
With regard to the temporariness of his proposed stay in the United
States is pertinent primarily to the beneficiary's eligibility for issuance
of an L 1 visa and his admission to the United States as a nonimmigrant.
In the foregoing discussion and references, the concept of "temporariness" has two separate applications: the intent of the alien beneficiary to enter temporarily, and the intent of the employer to use the
-

beneficiary's services temporarily. The Service has long held that the

intent of the beneficiary is not relevant in a nonimmigrant visa petition
proceeding. Matter of University of Oklahoma, 14 I&N Dec. 213 (R.C.
• 362

Interim Decision #2933
1972). In this context, temporariness relates to the alien's eligibility for
classification as a nonimmigrant and is to be considered in the visa
issuance process or at the time of his application for admission to the
United States. The intention of the petitioning employer to use a beneficiary temporarily or permanently, however, does relate to the nonimmigrant visa petition process for temporary workers under either the "H"
or "L" nonimmigrant categories. Sections 101(a)(15)(H) and (L) clearly

state that the beneficiary must be coming temporarily. Matter of Lee,
18 I&N Dec. 96 (R.C. 1981).
In this proceeding, the Regional Commissioner saw these two separate applications of "temporary" but did not clearly express them. His
use of the phrases "temporary nature of services" and "services needed
only on a temporary basis" are not correct in this context. The requirement that a job-or occupation be of a temporary nature relates to the
statutory requirement fox the "11-2" temporary nonimmigrant worker
section 101(a)(15)(H)(ii) and not to sections 101(a)(15)(H)(i) or (L). The
Regional Commissioner also improperly cited Hess v. Esperdy, 234 F.
Stipp. 909 (S.D.N.Y. 1964). That decision again relates to the "11 2"
temporary worker claisification and not to the intra-company transferee (L-1). The issues which must be satisfied in the present proceeding are not the intent of the beneficiary nor whether the occupational
position requires services of a temporary nature. The issue is whether
or not the petitioner will employ the beneficiary for a limited period of
time. It is irrelevant to the "L-1" classification whether the occupation
is temporary or permanent, so long as the alien beneficiary will only be
utilized for a temporary period.
The Regional Commissioner has raised a valid question in the instance
of a corporate enterprise which is essentially owned by the alien beneficiary who is engaged as the principal manager or executive: Does the
petitioner an,d corporate entity intend to employ the beneficiary permanently in the position for which it is petitioning? I do not agree with the
-

Regional Commissioner that this question must be answered in the
affirmative to the effect that the permanent presence and employment

of a principal stockholder and beneficiary is automatically indicated in
all cases. Nonetheless, the question must be asked and the petitioner
must be given an opportunity to establish whether it is the petitioner's
intention to employ the beneficiary for only a temporary period in the
United States. Although the intentions of the alien beneficiary and of
the company's stockholder appear to merge in this situation, the legal
fiction of corporate identity separate from the stockholders must be
maintained.
The petitioner, through counsel, was requested to furnish evidence
and information concerning whether or not the beneficiary will be

employed temporarily. The specific information sought included the
363

Interim Decision #2933
following:
(1) a description of the petitioner's/beneficiary's other business activities and/or invest-

any; (2) the petitioner's statement concerning how long the beneficiary's
will be required in the United States; (3) what provisions, if any, have been
made to operate the business when the beneficiary returns abroad; and (4) whether or
not the Bis-Shaefer Corporation plans• to permanently or indefinitely operate in the
ments,

if

services

United States.

The petitioner's reply, through counsel, reaffirmed that the petitioner
intended to employ the beneficiary temporarily but provided few
specifics. No information is available here as to whether or not the
overseas affiliates will continue in operation and whether or not these
activities will cause the beneficiary to travel abroad. Counsel states
that, "It is impossible to have any provisions to operate the business
when the beneficiary returns abroad." Counsel also states that if the
company is successful, "it will operate indefinitely."
Because of the indefinite character of the business which requires
careful corporate planning of long-term contingencies, the fadt that the
operation and, indeed, (.he very esistenm of the business depends upon

the presence of the ownerloperator/stockholder, and the fact that no

evidence or information has been offered to show that the employment
will be of limited duration, I must conclude that the petitioner has failed
to establish that it is seeking L-1 nonimmigrant classification to enable
the beneficiary to enter the United States temporarily to perform the
specified services.
This finding, however, should not be construed as prohibiting a corporation owned wholly or primarily by one individual from bringing to the
United States the owner/operator under the "L-l" visa classification. .
This can be accomplished if the petitioner demonstrates its intention to
employ the beneficiary temporarily and can show that the temporary
services of the owner/operator will no longer be utilized at some future
date. It can be further evidenced by demonstrating that the operating
company will exist only for a finite period in the United States or that

the owner's/operator's investments and enterprises abroad are such
in an likelihood he will not be employed and present in the United States
for indefinite periods of time, but will return to manage the other
investments.
While the Service has generally accepted that the burden of proving
the temporary utilization of a beneficiary's services is met through a
simple statement of the facts and listing of dates, the circumstances
involved in a petition for an owner/operator require a greater degree of
proof beyond a mere on-record statement. The form of this proof is the
responsibility of the petitioner. However, it is suggested that evidence
establishing a record of corporate transfers, relocation of high level
-

personnel, or anticipated future events which will affect the reassign364

Interim Decision #2933

went of the owner/operator outside of the United States, will normally
meet the petitioner's burden of proof.
ORDER The petition is denied.

_ 365


Interim Decision #2912

MATTER OF DEA

In Exclusion Proceedings •
A-26007015
Decided by Board July 14, 1982
(1) An alien makes a request for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. 1158, only by formally filing a Form 1-589, "Request for Asylum
in the United•States."
(2) Where the alien applicant for admission to the United States filed a Form 1-589 asylum
application after being placed in exclusion proceedings, jurisdiction over his asylum claim
properlyliea only with the immigration judge; therefore, the immigrationjudge'a decision

terminating exclusion proceedings for lack of jurisdiction is reversed, and the record is
remanded for a determination of the applicant's asylum claitit and admissibility to the
United States.
EXCLUDABLE: Act of 1952---Sec. '1.12(a)(ZU)18
11F.L(a)(21:)1 — inunigrant not in possession of valid immigrant visa

ON BEHALF OF SERVICE:
William F. Jankun
Lolita J. Semidey
General Attorneys

ON BEHALF OF APPLICANT:
Wren Rivera, Esquire
Banco de Ponce Building
Suite 00907
1250 Ponce de Leon Avenue

Santruce, Puerto Rico 00907

Gerald S. Hurwitz

Appellate Thal Attorney

By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

In his decision of November 20, 1981, the immigration judge ordered

these exclusion proceedings terminated due to lack of jurisdiction. The
Immigration and Naturalization Service appeals. The appeal will be
sustained.
The applicant is a 82-year-old native and citizen of Haiti who arrived
in the United States on July 8, 1981, by boat near Miami, Florida.
Having no apparent documents with which to enter the United States,
he was held in detention by the Service, and on July 27, 1981, he was
served with a Form 1-122, "Notice to Applicant for Admission Detained
for Hearing Before Immigration Judge," alleging that he was excludable
from admission to the United States under section 212(a)(20) of the
Immigration and Nationality Act, 8 U.S.C. 118Z(a)(2U), as an immigrant
not in possession of a valid immigrant visa. Service of the Form 1-122
placed the applicant under these exclusion proceedings.
269

Interim Decision #2912
The applicant's initial exclusion hearing on August 21, 1981,was apparently adjourned until September 9, 1981. On September 9 the hearing
was continued in order to allow the applicant to prepare and file an
application for asylum under section 208 of the Act, 8 U.S.C. 1158. The
applicant formally filed a Form 1-589 "Request for Asylum" on October
9, 1981. 1 Pursuant to federal regulations at S C.F.R. 208.7 and 208.10(b),
that application was submitted to the United States Department of
State; Bureau of Human Rights and Humanitarian Affairs (BHRHA),
for its advisory opinion regarding the applicant's asylum claim. Upon
receipt of the BHRHA response dated November 2, 1981, the hearing
was resumed on November 20, with a new immigration judge now
presiding. The applicant then for the first time challenged the immigration judge's jurisdiction to rule on his admissibility and adjudicate his
asylum application, arguing that the District Director, by regulation,
must first adjudicate his request for asylum.
8 C.F.R. 208.1 provides as follows:
Jurisdiction over any request for asylum made by au applicant for acluzioaion at a port of
entry shall lie with the District Director having jurisdiction over that port of entry(,] .. .

except that jurisdiction over an asylum request made by an alien after he has been
placed under exclusion proceedings pursuant to 8 C.F.R. 236.2 . . . shall lie with the
intrnigradion ju•ge.

(Emphasis supplied). See also 8 C.F.R. 208.3(a)(2) and (b). 8 C.F.R.
208.9 also specifies that, "Where an application for asylum is denied by
the District Director; the applicant may renew his request for asylum
before an immigration judge in exclusion . . . proceedings." .
The immigration judge1 ruled that; the District Direetoi had been put
on notice of a colorable claim to asylum by the applicant prior to placing
him under exclusion proceedings, and therefore the District Director
must first exercise jurisdiction over the applicant's asylum application
as provided in 8 C.F.R. 208.1. Accordingly, the immigration judge held
that he had no present jurisdiction over the matter, and he ordered the
exclusion proceedings terminated. This was erroneous.

8 C.F.R. 248.2•specifies that, "Applications for political asylum shall
be made on Form 1-589, 'Request for Asylum in the United States.' "
(Emphasis supplied.) Thus, the only recognized mechanism by which an
alien can officially register his request for asylum is through the formal
filing of a Form I-589. The filing of the Form 1-589 provides a "brightline" reference for determining when an asylum request is made. It also
avoids the delays, inefficiencies, and practical difficulties involved in
going behind the record to determine exactly what the alien may have
8 C.F.R. 208.3(b) provides that the Ming of an application. for asylum made In exclu. siqn proceedings shall also be considered as a request for withholding of exclusion under
section 243(h) of the Act, 8 U.S.C. 1253(h).

270

Interim Decision #2912
told Service officers, and in reviewing the subjective judgment of the
District Director regarding what claims are "colorable" and what statements suffice to constitute "notice." Furthermore, the issue of asylum
jurisdiction does not, in any way, affect the substantive rights of the
alien, but concerns merely how procedurally he will obtain administrative assessment of his allegations of persecution, i.e., whether the District Director or the immigration judge will first adjudicate his asylum
claim. The above factors militate in favor of viewing the actual filing
date of the Form 1-589 application as being determinative of the time
when an alien is considered to have made a request forasylum.
In view of the foregoing, we hold that where an alien applicant for
admission to the United States files a Form 1-589 request for asylum
after being placed in exclusion proceedings, jurisdiction over his asylum
claim properly lies only with the immigration judge. Here, the applicant
was placed in exclusion proceedings by service of the Form 1-122 on July
27, 1981 , and he subsequently filed his Form 1-589 request for asylum on
September 9, 1981. Therefore, jurisdiction exists only with the immigration judge to adjudicate the applicant's asylum application as a part, of
these exclusion proceedings. Accordingly, the immigration judge's decision terminating these proceedings for lack of 'jurisdiction will be
reversed, and the record will be remanded for a determination of the
applicant's asylum claim and admissibility to the United States.
ORDER: The appeal is sustained and the record is remanded to
the immigration judge for further proceedings consistent with the foregoing opinion and entry of a new decision.

271


Interim Decision #2121

MATTER OF GREER
In Visa Petition Proceedings
A-19470009
Decided by Board January 24,1972
Acknowledgment alone by the natural father of a child born out of wedlock in
Montserrat, West Indies, does not constitute legitimation since, under the law
of Montserrat, legitimation is accomplished by the marriage of the parents.
ON BEHALF OF PETITIONER: Pro se

This is an appeal from a decision of the District Director which
denied a petition to grant immediate relative status to the beneficiary, the petitioner's illegitimate daughter, a native and resident of
Montserrat, West Indies. The denial was based on the provisions of
section 101(b)(1) of the Immigration and Nationality Act which
requires, inter edict, that a "child" must be an unmarried person
under twenty-one years of age who is legitimate or legitimated.
The petitioner has acknowledged that he never married the
beneficiary's natural mother. He contends, however, that he has
acknowledged paternity since the beneficiary's birth and his name
appears as her father on the birth certificate. In the beneficiary's
birth certificate presented in conjunction with the visa petition,
the petitioner is shown as the "father" and the child's status is
shown as "illegitimate."
The Laws of Montserrat (Revised Edition 1962), Title XXXIII,
Chapter 298 (July 4, 1929), section 3(1) of the Legitimacy Act
provides that:
Subject to the provisions of this section, where the parents of an illegitimate
person marry or have married one another, whether before or after the
commencement of this Act, the marriage shall, if the father of the illegitimate
person was or is at the date of the marriage domiciled in the Colony, render that
person, if living, legitimate from the commencement of this Act, or from the date
of the marriage, whichever last happens.

Since there has been no valid marriage under the law of
Montserrat, the beneficiary in this case does not qualify as a child
within the meaning of section 101(b)(1) of the Immigration and
Nationality Act.

16

Interim (Decision #2121
The Board can find no error in the District Director's decision
and the appeal will be dismissed.
ORDER: The appeal is dismissed.

17


Interim Decision #1893

MASTER OF YALDO
In Section 246 Proceedings
A-13777983
Decided by Board August 19, 1968
(1) Where an alien's supporting marriage for adjustment of status under section
245, Immigration and Nationality Act, as amended, was a sham marriage entered into to circumvent the immigration laws, testimony of the alien's wife

concerning confidential communications between the spouses during the existence of the marriage is admissible in evidence in rescission proceedings under
section 240 of the Act.

(2) In section 246 rescission proceedings, there must be an evaluation of all the
evidence and a finding made with regard to its credibility before the clear,
convincing and unequivocable burden of proof test of Woodby V. immigration
and Nataraitaation Service, 386 17.5. 270, comes into play.
Oz BEIIALF OF SERVICE:
Irving A. Appleman

ON RFRATV or RESPONDENT :

John Palumbo, Esquire
21261 Kelly Road
East Detroit, Michigan 48021

Appellate Trial Attorney

The respondent, a native and citizen of Iraq, appeals from an order
entered by the special inquiry officer on April 8, 1968 rescinding his
adjustment of status which was granted on April 21, 1967 pursuant
to the provisions of section 245 of the Immigration and Nationality
Act. Counsel on appeal seeks a termination of the proceeding.
The respondent, an unmarried male alien, 21 years of age, last entered the United States through the port of New York on July 14,
1965. He was admitted as a student destined to the Electronics Institute of Technology at Detroit, Michigan until July 13, 1966. He was
thereafter granted an extension of temporary stay until July 12, 1967.
The respondent married Sharon Florence, a native and citizen of the
United States at Detroit, Michigan on December 12, 1966. She filed a
petition to accord the respondent immediate relative status on December 28, 1966. The petition was approved on January 30, 196T. The respondent applied for status as a permanent resident alien pursuant to
the provisions of section 245 of the Immigration and Nationality Act
on February 17, 1967. The application was approved on April 21, 1967.
830

Almeria'

JJtItAbittll

.4;;F 10

The respondent's wife advised the Immigration Service on May 25,
1967 that the respondent left her on or about May 15, 1967. The respondent filed a complaint for divorce against his wife on June 29,
1967 and on July 18, 1967 his wife filed an answer to the complaint

and a counterclaim for annulment. A default judgment of annulment
was entered by the Circuit Court for the County of Wayne, State of
Michigan, on October 20, 1967. The judgement of annulment states that
the marriage ceremony entered into by the respondent and his wife was
and is a nullity and that the respondent and his wife were never legally
married.
The District Director at Detroit, Michigan charges in his notice of
January 3, 1968 that the respondent was ineligible to receive the adjustment of status accorded him on April 21, 1967 in that his adjustment -was obtained on the basis of a. marriage entered into solely for
the purpose of evading the immigration laws. The respondent was accorded a hearing in rescission proceedings on April 3, 1968. Counsel, in
behalf of the respondent, acknowledges the truth of the first 11 factual
statements contained in the District Director's' notice of January 3,
1968 and admitted in evidence as Exhibit 1. Counsel denies that the
respondent's marriage to his former wife, Sharon Florence, was for
the purpose of evading the immigration laws as charged in Allegations 12 and 13 of the District Director's notice of January 3, 1968.
The respondent testified that he separated from his wife about 10
days prior to receiving his alien registration card (p. 61) which was
mailed to the respondent on April 27, 1967. When questioned as to
what prompted him to leave the apartment he shared with his wife,
the respondent replied that his departure was "related to the circumstances of my seeing the people in the house" (p. 61), referring to his
prior testimony that on one occasion he came home and found his wife
with two men and another girl; that his wife instructed him not to
enter the apartment; and that he was:threatened by one of the men
(1)- 58).
The respondent's wife testified that she married the respondent in
good faith; that after the respondent received his alien reoistration
card, his attitude toward her changed (p. 28) ; that he "packed his
clothes and left" soon after receiving the card (p. 28) ; that after receiving his "green card" (I-151), the respondent told her that he
married only to stay in the United States; and that "God told him to
find a girl and marry her so that he could get his 'green card' but to
pick a bad one" (pp. 48 51) _
-

The respondent maintains that the failure of his marriage is chargeable to his wife's infidelity. He testified that he has witnesses who
"have seen it"; that "I have seen her with a man in the apartment ..
831

Interim Decision #1893
also with men in the car . . . these same men also threatened me" (p.
67). None of the witnesses to the alleged infidelity of the respondent's
wife testified during the hearing. When questioned as to why he permitted his wife to proceed with the annulment counterclaim uncontested inasmuch as he filed the original divorce proceeding, the respondent testified "it was because of my fear of her . . . I didn't care
at that point" since he was contemplating returning to Iraq (pp. 6465) .

We find much of the respondent's testimony incredible. He has
offered no proof that his wife was unfaithful to him. His testimony
with regard to threats against his life by men interested in his wife
because he filed for a divorce is unrealistic in light of the fact that his
wife counterclaimed for an annulment proceeding. Furthermore, the
annulment of the marriage was granted on the basis of the respondent
having entered into the marriage solely to obtain a benefit under the
immigration laws (Er. 4).
Counsel challenges the admissibility of the testimony of the respon-dent's wife. He maintains that her testimony is privileged and cannot
be used against the respondent; and that absent this testimony, the
Government has not met the burden of establishing by clear, unequivocal, and convincing evidence that the respondent was not in fact eligible to receive an adjustment of his status.
It is a generally acceptable rule that a termination of the marriage
removes any bar of incompetency on the part of the former wife except
for confidential communications between the spouses during the existence of the marital relationsliip..Pereira v. (baited States, 347 U.S.
1, 98 L. Ed. 435. The Supreme 'Court has also held that where there is
a prima facie showing that the marriage relationship was a sham and
without substance, confidential communications between the spouses
during the existence of the marital relationship are admissible. Luttvale
v. United States, 344 U.S. 604, 97 L. Ed. 593 (1953). •

The fact that the respondent's former wife obtained an annulment
of her marriage to the respondent on the ground that "he had no
intention of keeping his marriage vows but did enter into the marriage
for the sole reason of obtaining a permanent residence visa which
would permit him to live in the United States and for -which purpose
he needed the assistance of this defendant (respondent's former wife)
so that he could claim marriage to an American citizen" while not
conclusive,' nevertheless, is prima facie . evidence that the marriage
was a sham for immigration purposes. Furthermore, the prima facie
1 This Board has held that the relation back theory of an annulment decree
is not to be followed blindly where to do so would result in an injustice to an

innocent respondent. Matter of B—, 3I. & N. Dec. 102, BD1, 1947.

832

Interim Decision #1893
showing of a sham marriage has support in the fact that the respondent permitted a default judgment in the annulment counterclaim
althoigh he had originally filed a divorce proceeding. Accordingly,
we rule that the testimony of the respondent's wife concerning con-

fidential communications during the existence of the marriage is not
privileged under the circumstances of this particular case.
We must next determine whether the Service has established by

clear, unequivocal and convincing evidence that the respondent was
ineligible for adjustment of status under Section 245 because his supporting marriage was a sham and entered into to circumvent the
immigration laws. Cf., Traziri v. Immigration and Naturalization
Service, 392 F. 2d 129 (CA. 9, January 1968). A determination of
whether there is clear, unequivocal and convincing evidence that the

respondent's marriage was entered into as a sham solely for the purpose
of circumventing the immigration laws resolves itself into a determination of whether the testimony of the respondent's former wife is
worthy of belief. Credibility involves more than demeanor. It apprehends the overall evaluation of testimony in light of its rationality or
internal consistency and the manner in which it hangs together ,rrith
other evidence. Carbo v. United States, 314 F. 2c1 718, 749 (CA. 9,
1963) .
We have held that in a deportation proceeding there must be an
evaluation and a weighing of all the evidence and a finding made with
regard to its credibility before the test for burden of proof as set
forth in Woodby v. Immigration and N ura2iaation Service 2 (385
U.S. 276) comes into play. Cf., Matter of Lugo-Guadiana, Int. Dec.
No. 1861, BIA, May 16, 1968. The Waziri case (supra) imposes the
same test for a rescission proceeding.
An overall evaluation of the testimony of the respondent's wife when
compared with some of the irrational testimony of the respondent

concerning threats to his life, his failure to prosecute the divorce
proceeding filed by him, his testimony that his failure was due to fear
of his wife, and his failure to introduce evidence of his wife's alleged
immorality although he claimed that there were witnesses which could
establish her immoral character leads us to conclude that her testimony
is more credible than that of the respondent. Based upon this finding,
a The Supreme Court held that the test for burden of proof in a deportation

proceeding is as follows :
No deportation order way be entered unless it Is found by clear, unequivocal
and convincing evidence that the facts alleged as grounds for deportation are

true.

833

Interim Decision #1893
we conclude that there is clear, unequivocal and convincing evidence
that the respondent was ineligible for adjustment of status on April 21,
1967 because his marriage to a United States citizen was a sham entered into by him for the purpose of circumventing the immigration
laws. The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.

834


Interim Decision #1288

Marrer or Rios-Carrmto
In DEPORTATION Proceedings
A-13568545
Decided by Board Jume 12, 1963

An application under section 248, Immigration and Nationality Act, for change
of nonimmigrant status and the issues raised in the proceedings thereunder
are not within the jurisdiction of either the special inguiry officer or the Board
of Immigration Appeals. 1

Crarce:

Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a) (9)}—Failed to
comply with conditions of status of agricultural worker wader which
admitted to the United States.

A total of 14 eases involving the sama issues have been appealed
by counsel. This case will serve as a precedent for the disposition
of the others. To simplify the discussion and for administrative
convenience, this case which the special inquiry officer handled in an
erder also disposing of two other cases (Rogelio Avila-Valdez —
A-13568544 and Jose Salud Guiterrez-Serrato — A-18569146) will be
considered separately.

Respondent appeals fru un urder vf the special inquiry ofllcer
finding him deportable upon the ground stated above. Voluntary
departure was granted. We shall reopen proceedings.

Rocpondont, a 96-yoar-old single malo alion, o native and citizen of
Mexico, was admitted to the United States as an agricultural worker
on May 8, 1962 for a period ending June 14, 1962. Recontracts ex-
tended the period to Decamher 20, 1962 (Fx. 4). For tha purpnses
of this opinion, as is explained later, we shall assume that by reason
of an agreement between the Republic of Mexico and the United
States (Ex. 7), the period was extended an additional 15 days to Jan-
uary 4, 1963. Respondent was given no further extension by the
Service yet remains in the United States. The Service charges that
the respondent is deportable because his failure to depart violated the
conditions of his admission. Counsel contends that the respondent

291
Interim Decision #1288

who had submitted an application for a change of his status, is legally
in the United States because his application was improperly denied ;
counsel also raises a question as to the applicability of the charge
in the order to show cause, and contends that the order to show cause
‘was prematurely issued.
‘The questions raised by counsel require a full statement of facts
- even though some of the facts are irrelevant in this deportation pro-
ceeding. Respondent was admitted to the United States as an agri-
cultural worker under the Agricultural Act of 1949 as amended
(7 U.S.C, 1461-1468) On January 4, 1963, the respondent filed an
application (Ex. 5) with the District Director at Los Angeles, Cali-
fornia under section 248 of the Act (8 U.S.C. 1258)? for a change of
his status from on agricultural worker to a temporary agricultural
worker described in section 101(a) (15) (H) (ii), 8 U.S.C. 1101(a)

1 Pertinent portions of the Agricuitnral Act of 1949, as amended, follow:

Workers recruited under this title who are not citizens of the United States
shall be admitted to the United States subject to the immigration laws (or if
already in, for not less than the preceding five years or by virtue of legal entry,
and othorwice oligible for admiceion to, tha TInitad States may, nursvant to
arrangements between the United States and the Republic of Mexico, be per-
mitted to remain therein) for such time and under such conditions as may be
specified by the Attorney General but, notwithstanding any other provision of
Jaw ox rogulation, no penalty bond shall he required which imposes Hahility upon
any person for the failure of any such worker to depart from the United States
‘upon termination of employment: * * * (section 505, 7 U.S.C. 1464, as amended,
TU.S.C. 1464, 1465 (Supp. IIT) ).

‘Workers recruited under the provisions of this title shall not. he subject to the
head tax levied under section 2 of the Immigration Act of 1917 (section 506(c),
70.8.0. 1465, as amended, 7 U.S.C. 1464, 1465 (Supp. III)).

Nothing in this Act shall be construed as limiting the authority of the Attorney
General, purcuant to thé gonoral immigratian laws, ta narmit the importation
of aliens of any nationality for agricultural employment as defined in section
507 [Agricultural Act of 1949], or to permit auy such alien who entered the
‘United States legally to remain for the purpose of engaging in such agricultural
omploymont ander auch conditions and far such Hma as ho, the Attnrney General.
shall specify (section 509, 7 U.S.O. 1468, 2s amended, 7 U.S.C. 1468 (Supp. IIT) }.

* The Attorney General may, under such conditions as he may prescribe, au-
thorize a change from any nonimmigrant classification to any other nonimmi-
grant claccification in the enso of any alien lawfnily admitted to the Tinited
States as a nonimmigrant who is continuing to maintain that status, except an
alien classified as a nonimmigrant under paragraph (15(D) of section 101(a)
[alien crewmen], or an alien classified as a nonimmigrant under paragraph
(45) (G) or (J) of section 101(a) [alien in transit or alien coming as participant
in a State Department program] unless he applies to have his classification
changed from classification under paragraph (15) (C) or (J) to a classification
under paragraph (15)(A) or (15)(@) of section 101(a) [diplomat or repre-
sentative of a foreign government] (section 248 of the Act).

292,
Interim Decision #1288

(15) (1) (ii).2 As required by regulation, the application for a
change of status was accompanied by a petition made by an agri-
cultural cooperative for the respondent’s services as a temporary agri-
cultural worker (Ex. 6). On January 17, 1968 the District Director
returned the petition to the agricultural cooperative with a request
that a clearance from the State of California be submitted showing
that unemployed persons capable of performing the labor could not
be found in the United States (Ex. 6). Nothing further appears to
have been done with this petition. On January 18, 1963, the District
Director denied the application for a chango of status on tho ground
that respondent was not a nonimmigrant and therefore could not
change from one nonimmigrant class to another nonimmigrant class.
‘The reason given for finding respondent was not a nonimmigrant was
that the nonimmigrant class is created by section 101(a) (15) of the
Act, but respondent had not been admitted under this section: he had
been admitted under the Agricultural Act of 1949, as amended. The
decision also notified the respondent that he had 15 days within which
to appeal to the Regional Commissioner. On the same day the deci-
sion was handed down, the District Director issued an order to show
cause formally commencing deportation proceedings against the ro-
spondent, and notifying him to appear for his deportation hearing
on January 29. The order to show cause was served by mail. On
January 25, 1963, the respondent filed an appeal with the Regional
Commissioner from the District Director’s denial of his application
for a. change of status. (The deportation hearing was not held on
January 29th as scheduled.) On January 30, 1963, the Regional Com-
missioner dismissed the appeal on the ground used by the District
Director and on the additional ground that respondent had not been
the beneficiary of an approved petition (Ex. 5). On February 4, 1963
tho respondent wao notified that the hearing in the deportation caso
had been rescheduled to February 12, 1968.

On the rescheduled date, the deportation hearing was held. The
Service established that the respondent had been admitted as an agri-
cultural worker authorized to remain until December 20, 1962 and
that he had not departed after the terminal date. Respondent testi-
fied that on December 20, 1962, the terminal date, he had been em-
ployed by the ‘amaka Growers, that an official of the camp requested.

*In pertinent part the section relates to an alien “who is coming temporarily
to the United States to perform other temporary services or lahor, if unemployed
persons capable of performing such service or labor cannot be found in this
country ;”

‘In pertinent part the regulation requires that an application for a change of
nonimmigrant classification “chall bo accompanied by an application an Worm
I-129B made by the alien’s prospective employer or trainer.” (8 OFR 248.3)

293
Interim Decision #1288

him to remain for an additional 15 days. (A statement taken from
the respondent before the issuance of the order to show cause reveals,
that on December 28, 1962, he changed from one agricultural employer
to another.) The special inquiry officer ordered respondent deported
on the charge in the order to show cause, and the appeal before us was
filed. :

On appeal, counsel contends tab the vider to show cause was pro
maturely issued and is in violation of due process because it was issued
before the decision of respondent’s appeal to the Regional Commis-
sionor from the District Director’e danial of hic applieation for a
change of status. (It is also alleged that the Service arrested six re-
spondents ignoring the fact that their appeals to the Regional Com-
missioner were pending and did not release them until after the order
to show cause had been served. The allegation of counsel is not con-
tested by the Service. Whether or not respondent was in this group
is not clear; however, for the purpose of this order we shall assume
that he was.)

Counsel’s contention concerning the issuance of the order to show
cause will be dismissed. Enforcement of the immigration laws often
mokoe necessary, investigation and detention af aliens suspected to be

- in the United States Mlegally. ‘The question as to whether there was
an abuse of these powers and unwarranted haste in the issuance of the
order to show cause is, in the absence of matters of duress and due
process, for the attention of the Service rather than the Board. No
maiter of duress is raised. While a matter of due process is advanced,
it seems clear that premature issuance of an order to show cause would
not alone amount to a denial of due process. A similar matter was
involved in U.S. ew rel. Bilolowmsky v. Tod, 268 U.S. 156 (1923).
Bilokumsky, an alien who had been ordered deported contended that
tho deportation praranding was void ab initio becansa there had been
a lack of probable cause for the issuance of the warrant of arrest. The
court rejected the contention saying, “Irregularities on the part of the
government official prior to, or in connection with, the arrest, would’
not necessarily invalidate later proceedings in all respects conform-
able to law.” (268 U.S. at 188) There is no evidence here that the
later proceedings failed to conform to law.

‘We come thus Ww thw issue of respondents deportability. Doporta-
tion is sought under section 241 (a) (9) of the Act (8 U.S.C. 1251 (2)
(9)). The section provides for the deportation of an alien who:
was admitted as a nonimmigrant and failed ta maintain the nonimmigrant
status in which he was admitted or to which it was changed pursuant to section
248, or to comply with the conditions of any such status; * * *

Although the section speaks of an alien admitted as 2 nonimmigrant,
neither the statement of law in the order to show cause nor the factual

294
Interim Decision #1288

allegation of the order to show cause claims that respondent was ad-
mitted as a nonimmigrant: the statement of Jaw is that respondent
was admitted “in a temporary status, to wit, an agricultural worker
under Title V of the Agricultural Act of 1949, as amended,” ; the fac-
tual allegation is that respondent was “admitted in the temporary
statis of an agricultural worker”. The special inquiry officer, as-
suming without discussion (the issue had not been raised before him)
that an agricultural worker was a nonimmigrant as described in sec-
tion 241 (a) (9) of the Act, found the charge sustained on the ground
that. tha respandent. had clearly remained in the Tinited States longer
than the period for which he had been authorized to remain.

We shall reopen proceedings so that the assumption made by the
special inquiry officer may be examined since the record raises the
question as to whether a temporary worker admitted under the Agri-
cultura] Act is a nonimmigrant and whether one who is not a nonimmi-
grant is deportable under section 241(2)(9). As counsel (who
contends that respondent is a nonimmigrant but not a deporteble one)
points out, the Service, in the proceeding for the change of status took
the position that respondent is not a nonimmigrant’, yet in this pro-
eoading the Serviea proceeds an the theory that. respondent is a. nan-
immigrant. How can the respondent be a nonimmigrant for one
purpose and not for another in matters as vital as those involved?
Even more to the point is the fact that section 241(a) (9) of the Act
on which the deportation order is based appears by its terms to relate
to aliens whose status can be changed by section 248 of the Act. The
respondent has been found by the Service in the change of status pro-
ceeding to be an alien whose status cannot be changed by seotion 248 of
the Act. Is section 241 (a) (9) of the Act broad enough to include an
alien whose status cannot be changed by section 248 of the Act? These
issues require an answer‘, for if the respondent is not deportable
under the section of law on which this proceeding is based, he cannot
be ordered deported in this proceeding merely because he appears to be

“The order of the District Director denying the application for a change of
status reads:

An alien who was admitted to the United States as an agricultural worker
under the provisions of the Agricultural Act of 194¥, a3 amended, not naving
acquired a nonimmigrant classification under section 101(a)(15) of the Im-
migration and Nationality Act is ineligible for a change of nonimmigrant status
under section 248 of the Act (Ifatter of O—, 8 I. & N. Dec. 419).

‘he Regional Commissioner in atfirming the denial stated: “Che alien may
not be considered as a nonimmigrant and, therefore, is not in a nonimmigrant
classification.”

‘The issues have apparently not been the subject of adjudication by this
Board; however, see Matter of G—I—, 6 1. & N. Vee, 491.

295
Interim: Decision #1288

deportable under a section which has not been lodged.’ Due process

requires that deportation be accomplished only on a ground provided

by law, that the alien be notified of the ground so that he can make his

defense, that a record be created, and that the record reveal that the

Service has established in a fair hearing, by reasonable, substantial, and
* probative evidence, that the alien is within that ground.

An issue Which may come up aguin wt Ube reuponed hearing is the
contention of counsel that the provisions of a standard work contract
(Bx. 7) which provide that the services of an agricultural worker
may be utilised for a poriod of not more than 1% days after the ex-
piration of his contract, constitutes an extension of legal stay for the
15 days if the option is exercised. While this contention appears to
be arguable on the basis of what little there is in the record, we see
no need for attempting to decide or for developing tho issue since
deportation is sought not for what occurred within the 15-day period
following the termination of the contract, but for the failure to depart
from the United States even after the 15-day period. (In respond-
ent’s particular case, we note that on December 28, 1962, before the
expiration of the 15-day extension, he left the employer who had asked
him to continu.) Howover, dovalapment. af this matter is left to the
discretion of the special inquiry officer.

‘We have reserved until now comment on the issues raised by counsel
concerning respondent's attempt to change his status from an agricul-
tural worker to a nonimmigrant worker. The proceeding to obtain
the change of status and the issues raised in the proceeding—the
propriety of the denial of the application for the change of status,
the necessity for filing a petition from the employer in connection
with the application, the propriety of using state permission to employ
agricultural workers made in collateral cases—are not within the juris-
diction of cither tho opecial inquiry officor or thie Raard. Tha initial
decision on the application for a change of status is for the District

- Director (8 CFR 108.1(£), 1082-8, 214.4, Form I-199B .(note instrue-
tions on Form) ; the appeal is tn the Regional Commissioner (8 CFR
108.1(e)). Clearly, neither the special inquiry officer nor the Board
has jurisdiction over the proceeding (8 CFR 8.1; see Matter of Malk-
desman, Tat. Dec. No. 1090). Since this is so, it follows that comment
‘on the issues raised as to the change of status proceeding would be
inappropriate.

"Counsel suggests that if the respondent is deportable at all, the proper
charge would be under section 241(a)(2) of the Act (8 U.S.C. 1251(a) (2))
which requires the deportation of an alien who is in the United States in viola-
bred a) the Immigration and Nationality Act or “any other law of the United

tates”,

296
Interim Decision #1288

ORDER: It is ordered that the outstanding order of the special
inquiry officer be and the same is hereby withdrawn.

It is further ordered that proceedings be reopened for purposes not
inconsistent with those stated in our order and for such other purposes
as the special inquiry officer may deem appropriate.

It is further ordered that the decision of the special inquiry officer
‘be certified to this Board.

9
3S
+