Interim Decision #1983

MATTER OF BonoumAwn

In Deportation Proceedings
A-18504220
Decided by Board June 20, 1969
Since there is no provision in the immigration law or regulations thereunder
which authorizes a nonimmigrant under section 101 (a) (15) (F)•(ii) of the
Immigration and Nationality Act, as amended, to accept employment,
respondent, who accepted employment following admission as the nonimmigrant spouse of a student (F-2), is deportable under section 241 (a) (9) of
the Act for failure to comply with the conditions of her nonimmigrant
status.
ClIARGE:
Order: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9)]—Failed to
comply with conditions of nonimmigrant status—
spouse of a student.
ON BEHALF OF RESPONDENT:
James Canfield, Esquire

ON BEHALF OF SERVICE:
Stephen M. Suffin
Trial Attorney
. (Brief filed)

460-Sansome Street

San Francisco, California 94111
(Brief filed)

This appeal comes up from a decision of the special inquiry officer finding the respondent deportable as a non-immigrant who
failed to comply with the conditions of her nonimmigrant status.
He granted her the privilege of voluntary departure. Upon our
review. of the record and the arguments presented on appeal, we
shall affirm his decision.
Respondent is a 25-year-old married female who entered the
United States as a spouse of a student (F-2) on June 11, 1964,
at New York City. She was authorized to remain in the United
States until August 28, 1969. In 1966, respondent accepted employment as a housekeeper and she is now employed for a chain
of discount stores. The respondent testified that she has been separated from her husband since September 8, 1968, and is presently seeking a divorce.

306

Interim Decision #1983
Counsel for the respondent maintained throughout the hearing
that spouses of nonimmigrant students do not violate their status
by accepting employment. He argued that there is no statute or

regulation prohibiting persons in an F-2 status from working.
The Service, in conjunction with its appeal brief, presented Form
1-358, given to nonimmigrants, which contains the instruction
that nonimmigrants are precluded from obtaining employment
unless authorized by the Immigration Service. There was also
presented in evidence a memorandum from the Deputy Regional
Commissioner dated February 1, 1968, stating that there is no
provision in the immigration law or regulations which authorizes
persons in an F-2 status to accept employment (Ex. 2). Counsel
for respondent on appeal contends that neither the general instructions contained in Form 1-358 nor the policy statement con-

tained in the memorandum are sufficient basis to support a deportation charge. Relying on Matter of S , 8 I. & N. Dec. 574
(1960), and Matter of Wang, 11 I. & N. Dec. 704 (1966), counsel
insists that the obtainment of employment is not inconsistent
with the nonimmigrant F-2 status.
We believe that the memorandum of the Deputy Regional Commissioner gives sufficient rebuttal to counsel's argument. In that
memorandum it is stated:
.. there is no provision in the immigration laws or regulations whereby
—

the F-2 spouse of an F-1 student may be granted permission by the Service
to accept employment.
In that respect the situation of an F-2 spouse is different from that of
the J-2 spouse of an exchange alien. Because of the clearly expressed congressional intent with regard to J-2 spouses, Service regulations (8 CPR
214.2(3) (1)) provide that a J-2 spouse may apply to the Service for permission to accept employment ...

The F-2 status was created by the 1961 congressional amendment to the Immigration and Nationality Act. 1 At the same time,
Congress created the J-1 and J-2 statuses, which relate to exchange visitors and their spouses. Prior to that time, spouses of
students were admitted to the United States as nonimmigrant
visitors. As such they were precluded from taking employment.
The effect of the creating of the F-2 status was to permit the
spouse to remain in the United States for an identical period in
which the student was authorized by the terms of his visa. 1 Although the 1961 amendment did permit spouses of exchange visiSection 101(a) (15) (F) (ii) of the I. & N. Act, as amended by section
109 (a) of the Act of September 21, 1961 (75 Stet. 534).
2 Senate Report of the Committee on. Foreign Relations on Senate Bill
1154, S. Rep. No. 372, 87th Cong., 1st Sess. p. 18-19 (1961).

307

Interim. Decision #1983
tors (J-2) the opportunity of employment, Congress declined to
extend that same benefit to spouses of nonimmigrant students. It
is clear from the legislative history behind the creation of the
F-2 status that Congress had a limited objective: that of uniting
the nonimmigrant student and his family during their temporary
sojourn in the United States.' It had no intention of extending
the privilege of employment to those persons who previously were
prohibited from working under the visitor's visa. Therefore we
believe that the memorandum from the Deputy Regional Commissioner and the policy outlined in Form 1-358 clearly establish
that the immigration law forecloses employment to F-2 nonimmigrants and we conclude respondent's employment is a ground for
deportation under section 241(a) (9) of the Immigration and Nationality Act. Accordingly, we affirm the decision of the special
inquiry officer.
As we have pointed out in Matter of Aguirre, Interim Decision
No. 1940, (BIA 1969), the execution of the special inquiry
officer's order has been stayed during the pendency of this appeal.
ORDER: It is ordered that the appeal be and it is hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 32 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that in the event of failure so to departthe respondent shall be deported as provided in the special inquiry officer's order.

3

2 United States Code Cong. and Administrative News, 2789 (1961).

308


Interim Decision #2181

MATTER OF KATSANIS

In Deportation Proceedings
A-17045328
Decided by Board January 10, 1973
of attempted fraud, a crime involving moral
turpitude, for which he was sentenced to 5 months and 10 days, or, in lieu
thereof, 100 drachmas for each day of imprisonment, is classifiable as a "petty
offense" within the purview of the exception provisions of section 212(aX9) of
the Immigration and Nationality Act, as amended.

Respondent's conviction in Greece

CHARGE:

Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2)l—Nonimmigrant
visitor—remained longer than permitted.
ON BEHALF OF SERVICE:
R. A. Vielhaber
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:
Nathan T. Notkin, Esquire
11 South LaSalle Street
Chicago, Illinois flARD2

Counsel of record:
Harry E. Gabrielides, Esquire
2430 West Lawrence Avenue
Chicago, Illinois 60625

The respondent, a native and citizen of Greece, last entered the
United States on April 5, 1965 as a nonimmigrant visitor for
pleasure authorized to remain until July 4, 1965. He remained
thereafter without permission. Deportation proceedings were commenced against him on July 15, 1966 on the above charge. The
respondent conceded deportability and did not appeal from the
special inquiry officer's August 22, 1966 decision finding him
deportable and granting him voluntary departure.

The proceedings were reopened two years later upon the respondent's motion to permit him to apply for adjustment of status
under section 245 of the Immigration and Nationality Act. The
respondent was then and still is the beneficiary of a fifth preference visa petition, which was filed on his behalf by his United
States citizen brother, and which was approved on September 9,
1068, valid through September 9, 1973. In a decision dated June 30,
1971, the special inquiry officer denied the respondent's application

266

Interim Decision #2181
for adjustment of status on the ground that the respondent was
excludable under section 212(aX9) of the Immigration and Nationality Act and was not eligible for a waiver of excludability under
section 212(h) of the Act. The respondent appeals from this
decision. We shall sustain the appeal and remand the case to the
special inquiry officer for discretionary action.
Adjustment of status under section.245 is available to an alien
(1) who is eligible for an immigrant visa, (2) Who is admissible to
the United States for permanent residence, and (3) to whom an
immigrant visa is immediately available at the - time his applica-is approved. In the present case the first and third require- tion
ments evidently have been satisfied, since the respondent , is the
beneficiary of an approved visa petition and, according to the
latest State Department Bulletin, fifth preference visa numbers
are currently available to applicants born in Greece. -The only
remaining question is whether he is admissible to the United
States as a permanent resident. An alien applying for adjustment
of status is assimilated to the position of an alien seeking to enter
the United States for permanent residence, Campos v. INS, 402
F.2d 758, 760 (9 Gin; 1968).

The Service contends that the respondent is not admissible but
rather excludable under section 212(aX9) because he was convicted
in Greece of at least one crime involving moral turpitncle--:to wit,

attempted fraud—and that this conviction does not fall within the
exception for petty offenses contained in section 212(aX9).- In
opposition, the respondent asserts that his conviction was not for a •
crime involving moral turpitude, but that, even if it had been, the
offense was a misdemeanor, and by reason of the sentence actually imposed it was a petty offense and therefore within the
section 212(a)(9) exception.

Section 212 states, in pertinent part:
(a) Except as otherwise provided in this Act, the following classes of aliens
shall be ineligible to receive visas and shall be exclthied from admission into
the United States: ... (9) Aliens who have been convicted of a crime involving
moral turpitude (other than a purely political offense) .... Any alien who
would be excludable because of the conviction of a misdemeanor classifiable as
a petty offense under the provisions of section 1(3) of title 18. United States
Code, by reason of the punishment actually imposed, or who would be excludable as one who admits the commission of an offense that is classifiable as a
misdemeanor under the provisions of section 1(2) of title 18, United States
Code, by reason of the punishment which might have been imposed upon him,
may be granted a visa and admitted to the United States if otherwise
admissible: Provided, That the alien has committed only one such offense....
(Emphasis supplied.)

In order for the section 212(aX9) exception to apply in this case, ,
(1) the conviction must be for a crime involving moral turpitude;
267

Interim Decision #2181
(2) the crime must be a misdemeanor, 18 U.S. Code, section 1(3); (3)
the misdemeanor must be classifiable as a petty offense by reason
of the punishment actually imposed; and (4) there may be only one
such conviction.
, The record shows that the respondent was convicted in Greece
of the offenses of threats, slight bodily injury, and insult. The
special inquiry officer found, and we agree, that these offenses do
not involve moral turpitude. The respondent was also convicted of
an attempt to commit fraud,' and false statements without oath. 2
found that the respondent had, in concert with TheGrkcout

another person, tried to pay for some goods with a $500 check
which he knew was •forged or which he knew had no cover at the
bank on which it was drawn (it is not clear from the English
translation whether or not forgery was involved, Exh. Group 3-4,
pp. 5, 6-7—see below, p. 7). The shopkeeper whom he had attempted to pay with this check decided not to accept it without
first ascertaining that it was genuine. The court also found that
the respondent had subsequently made a false statement concerning his own identification to a passing policeman. For these
offenses together he was sentenced to five months and 10 days, or,
in lieu thereof, 100 drachmas for each day of the imprisonment.
To determine whether or not a crime committed in a foreign
country involves moral turpitude, American standards must be
applied, Matter of M , 9 I. & N. Dec. 132, 134 (BIA, 1960).
According to American standards, moral turpitude attaches to
crimes where fraud is an ingredient, Jordan v. De George, 341 U.S.
223, 232, 71 S. Ct. 103, 95 L. Ed. 886, 893 (1951), such as false
pretenses, Bermann v. Reimer, 123 F.2d 331, 332 (C.A. 2, 1941).
Similarly, passing a bad check generally involves moral turpitude,
U.S. ex rel. Portada v. Day, 16 F.2d 328 (S.D.N.Y., 1926), except
where intent to defraud is not part of the crime as defined in the
,

—

Article 386 of the Greek Penal Code of 1950 (Fraud) (Apate):
(1) Whoever causes damage to the property of another with the intention of
procuring unlawful benefit for himself or a third person by knowingly leading
such other into an act, sufferance, or omission by means of representing
falsehoods as facts or misrepresenting or concealing the existing facts, shall be
punished by imprisonment for not less than three months and, if the damage is
especially great, not less than two years. (Ex. Group 3-1, Analysis of Certain
Aspects of Greek Criminal Law with Translations, p. 5.)
2 Article 225 of the Greek Penal Code of 1950 (False Statements without Oath):
(1) —
(2) Whoever, in other cases, knowingly makes false statements during an
interrogation by a public authority or by his representative or in an application
to a public authority or denies and/or conceals the truth shall be punished with
imprisonment for up to one year. Whoever appears before a public authority and
refuses a deposition or oath shall be punished with the same penalty. (Id.)

268

Interim Decision #2181
statute, Matter of Colbourn, 13 I. & N. Dec. 319 (BIA, 1969). If the
basic crime is one of moral turpitude, so is the attempt to commit
that crime. "An attempt involves specific intent to do the substantive crime ..., and, if doing the latter discloses moral turpitude, so
also does the attempt, for it is in the intent that moral turpitude
inheres," U.S. ex rel. Meyer v. Day, 54 F.2d 336, 337 (CA. 2, 1931).
We conclude that the respondent's conviction for attempted
fraud is a conviction for a. crime involving moral turpitude.
The next question concerns whether or not this crime is a
misdemeanor. The classification of a crime committed in a foreign

country as a misdemeanor or a felony, is likewise made according
to United States standards; i.e., the offense is examined in the
light of the maximum puniihment" imposable for an equivalent

crime described in Title 18 of the United States Code or, if an
equivalent offense is not found there, Title 22 of the DiStriet of
Columbia Code, Matter of T , 6 L & N. Dec. 508, 517 (A.G., 1955);
Matter of Adamo, 10 I. & N. Dec. 593, 595 (BIA, 1964); Gieinmario
v. Hurney, 311 F.2d 285, 286 (C.A. 3, 1962). A misdemeanor is any
offense other than one punishable by death or by imprisonment
—

for a term exceeding one year,• 18 U.S.C. 1(1), (2).

The special inquiry officer found that the comparable crime in
the United States was fake pretenses, 22 D.C. Code 1301. The
maximum punishment for this offense, if the value of the property
is more than $100, is three years. The special inquiry officer then
concluded that the crime in question was not a misdemeanor, but
a felony, and hence that the section 212(aX9) exception did not
apply.
However, counsel has pointed out in his brief and at oral
argument on appeal that the respondent was not convicted of the
completed offense of false pretenses—and the Service concedes
this—but only of an attempt to commit false pretenses. Concerning
attempts the District of Columbia Code specifies that if an attempt
is not otherwise made punishable by Title 22, then it is punishable
by a fine of not more than $1,000 or imprisonment for not more
than one year, or both, which makes the offense of attempt a
misdemeanor. Attempt to commit the crime of false pretenses is
not otherwise made punishable by the District of Columbia Code.

The Service now contends that the attempt at false pretenses of
which the respondent was convicted is actually the crime of
forgery, 22 D.C. Code 1401. Forgery carries a maximum penalty of
10 years and is therefore a felony. But the record of conviction—
which is ambiguous, as mentioned above—says only that the
respondent knew that the check was forged, not that he forged it.
As for uttering or delivering a check with intent to defraud, also
suggested as the equivalent of the Greek crime of which the
269

Interim Decision #2181
respondent was convicted, that is a misdemeanor, 22 D.C. Code
1410. Although this may describe what happened in Greece, it is
not the crime for which the respondent was convicted there. In
any case, this does not help the Service's argument.
The Service urges that the respondent was also convicted of
falsely identifying himself to a police officer in connection with the
attempted •fraud. It is suggested that the equivalent of this crime
in the District of Columbia Code is false personation before court,
officers, notaries, 22 D.C. Code 1303. 3 In our opinion, false personation before court, officers,. notaries implies false swearing and is
not the equivalent of the Greek crime of false statements without
oath.
From the foregoing we conclude that when American standards
are applied to the crime for which the respondent was convicted in
Greece, the equivalent crime is a misdemeanor. Consequently the
petty offense exception applies, since the punishment actually
imposed was less than six months or $500 or both.
Hence the respondent is not excludable under section 212(aX9).
Consequently, he is not statutorily ineligible for adjustment of
status under section 245. The' decision of the special inquiry officer,
then, will be reversed, and we shall remand the case to him to act
upon the respondent's application for adjustment of status.
ORDER:. The case is remanded to the special inquiry officer so
that he may act upon the respondent's application for adjustment
of status, in exercise of the discretion vested in him as the duly
authorized delegate of the Attorney General.

3 Whoever• falsely personates another person before any court of record or
judge thereof, or clerk of court, or any officer in the District authorized to
adrainister oaths or take the acknowledgment of deeds or other instruments or
to grant marriage heenses,. -with intent to defraud, shall be imprienned for not
less Allan one year nor more than five years. (22 D.C. Code 1303.)

270


Interim Decision #1237

MATTER

Or num.

In DEPORTATION Proceedings
A-12470682
Decided by Board August 29,190
(1) Respondent, a single female, who engaged in a meretricious husband-wife
relationship with a married man in the State of Oregon, is not deemed to have
committed adultery under the law of that State.
(2) Notwithstanding respondent is not precluded from establishing good moral
character by the provisions of section 101(1) (2) of the Immigration and Nationality Act and is not statutorily ineligible for the discretionary relief of
voluntary departure, her illicit sexual relations with a married man, maintained with full knowledge of her paramour's marital status, justify denial
of such relief as a matter of administrative discretion.
CHmean: Act of 1952—Section 241(a) (2) (8 U.S.O. 1251(a) (2) 3—Remained
longer—visitor.

This is an appeal from the order of the special inquiry officer finding respondent deportable upon the ground stated above and denying
her application for Voluntary departure. The appeal will be
dismissed.
Respondent, a 19-year-old single female, a native of Bulgaria and
citizen of Germany, last a resident of Canada, was admitted to the
United States on January 24, 1962, as a visitor for a period ending on
January 31, 1962. She failed to obtain an extension of her stay and
has remained in the United States without authority. She is clearly
deportable as charged.
Respondent requested voluntary departure. The special inquiry
officer found her ineligible as a matter of law and also stated that had
she been eligible for the relief, he would have denied it as a matter of
discretion because she lacked good moral character. The finding of
statutory ineligibility for voluntary departure is based upon the fact
that the respondent lived in a husband and wife relationship with a
married man while in the United States.
The record reveals that the respondent's paramour left his wife in
New York and came to Canada where he met respondent and began
35

Interim Decision #1237
the relationship with her apparently in late 1961. He came to the
United States about January 1962, the respondent joined him shortly
thereafter and they commenced living together_ The man testified
thit he had been separated from his wife for about a year, that neither
he nor his wife saw any possibility of reconciliation, and that both
desired a divorce. The respondent and her partner stated they intended to marry.
Section 244(e) of the Act (8 U.S.O. 1254(e) ) under which the respondent applied for voluntary departure requires the applicant to
establish good moral character for five years. Section 101(f) (2) of
the Act (8 U.S.C. 1101(f) (2) ) provides that no person shall be found
to be a person. of good moral character who during the period for which
good moral character must be established "has committed adultery."

In finding that respondent had committed adultery and was, therefore, statutorily ineligible for the relief requested, the special inquiry
officer relied upon the fact that in the State of Oregon a. single female
who has illicit sexual intercourse with a married man may be prosecuted for adultery (State v. Case, 61 Oreg. 265). Counsel is of the
belief that it is improper to apply a state standard since a federal law
is involved. He contends that in the absence of a federal statutory
definition, the common law definition should obtain, and points to
the fact that under the common law adultery could be committed only
where the woman was married. Admitting that there is no ease directly on the point, he relies upon Evans v. Murff, 135 F. Supp. 907
(D.C. Md. 1955) ; Diakhoff v. Shaughnessy, 142 F. Supp. 535 (S.D.
N.Y. 1956) ; and United States v. Shaughnessy, 221 F. 2d 578 (2d Cir.
1955).
Under the common law, both parties committed adultery, if a married woman engaged in sexual relations with a man other than her
husband whether the man was married or single. Under ecclesiastical
law, adultery existed as to the married person, whether male or female,

who engaged in sexual relations with one other than the lawful spouse.
It mattered not that the unlawful partner was married or single;
however, if the unlawful partner was single, the single person's crime
was not adultery, but fornication. In most jurisdictions in the United
States, the common law definition has been enlarged by statute to
provide that adultery is committed by a married person who has sexual
intercourse with some person other than the lawful spouse. It is in
this last sense that adultery is popularly defined. An unmarried partner in the illicit affair is in some states guilty of adultery while in
other states the single person cannot be convicted of adultery (2 C.J.S.
Adultery secs. 1 and 11).
We find no clear-cut judicial holding that a federal standard based
upon the common law definition of adultery should apply in constru86

Interim Decision *1237
ing section 101(f) (2) of the Act. U.S. ex rel. Zacharias v. Shaughnessy, 221 F. 2d. 578 (24 Cir. 1955) (single man—married woman)
holds that the provisions of the Act concerning good moral character
did not apply to Zacharias because of the existence of a savings clause.
The courts' comments concerning adultery are dicta. Furthermore,
it is to be noted that the court held adultery existed under either the
common law or the law of New York where the acts of adultery were
committed. Dickhoff v. Shaughnessy, 142 F. Supp. 535, S.D.N.Y.
(1956) (married man single woman) concerned a commission of
adultery that was artificial in that it was the result of a divorced
—

man remarrying without knowledge that his divorce was invalid. No
federal definition of adultery was attempted, the court holding that
adultery, if adultery had been committed, could be found only by
reason of the New York statutes. The court pointed out that if the
common law were relied upon, there would have been no adultery (142

F. Supp. at 539). (The court also stated that Congress desired to rely
upon the past judicial interpretations as to good moral character (142
,F. Supp. at 539.) Evans v. Murff, 135 F. Supp. 907 (I). Md. 1955)
(single man—married woman) holds that Congress intended that the
definition of adultery be the same throughout the country and that
Congress probably intended to apply the common law to the definition of adultery rather than the ecclesiastical. However, it is noted
that the court found that in the case before it that adultery had probably been committed under the laws of Maryland. Moreover, by reserving the question as to whether adultery is committed by a married
man. who has sexual intercourse with an unmarried woman, the court
indicated that the common law definition may not control (135 F.
Supp. at 911).
The history of the legislation reveals no indication that Congress

desired that the common law standard bo imposed or that there be a
departure from the administrative and judicial reliance upon state
law in determining whether adultery existed. The committee of
Congress upon whose recommendation the Act was based recommended
that "more uniform regulations should be employed * * * to the end
that a higher general standard of goods (sio) morals and personal
and political conduct are (sic) established" and comment was made
concerning the "confusion" which existed because all aliens who had
committed adultery were not treated alike by both courts and administrative officials (S. Rapt. No. 1515, 81st Cong. 2d Sess. 699-701 (1950),
see, S. Rept. No. 1137, 82nd Cong. 2d Sees. 6 (1052) ). It is our belief
that Congress' desire that there be uniformity related not to the
method to be used in. determining whether adultery had been committed, but related rather to the desire that all persons who had committed adultery should be barred from the prizes of the law. This

37

Interim Decision #1237
provision is in consonance with the finding of the court in Dickhoff
that Congress -wished to rely upon past judicial interpretations as
to good moral character and it takes cognizance of the fact that
Congress has not criticized the long established administrative practice (based upon the judicial rulings) in which a determination as
to whether there had been the commission of adultery was made
dependent upon the law of the state in which the act occurred.
It appears to us, therefore, that to determine the issue before us,
we must decide whether respondent has committed adultery under
the civil or criminal laws of Oregon. State v. Case, 61 Oreg. 265, 122
P. 304 (1912), relied upon by the special inquiry officer concerned a
married man who had been indicted for committing adultery with a
single woman. She also, had been indicted for adultery. The case

appears to hold that although the single woman could not commit
adultery, she could be convicted of adultery because she was an
accomplice of the person who had violated the laws of the state concerning the commission of adultery. Since the woman was an accomplice, she could be indicted as a principal and convicted of adultery.
For an analogy, the court gave the example of a person who because
he had aided a man and woman to commit bigamy, could under the
laws of Oregon be himself convicted for bigamy. As far as the law
of Oregon is concerned, it is only technically and artificially that
adultery has occurred in relation to the single woman. We do not
believe that Case is authority for holding that within the framework
of the immigration laws, a single female who has engaged in sexual
relations with a married man in Oregon has committed adultery. The
respondent is, therefore, in our opinion not statutorily ineligible for
the relief requested.
Counsel contends that if the respondent is not statutorily ineligible
for relief, she should be found to be of good moral character although
she lived with a married man. Counsel is of the belief that consideration must be given to the fact that the respondent had been brought
up in Europe where a different standard allegedly relates to such
matters and he also asks that consideration be given to the fact that
the parties intended getting married. Counsel requests that he be permitted to produce expert witnesses who would testify as to the general
moral attitude of the community concerning respondent's conduct.
The examining officer in a brief opposes these contentions.
Whether a person is of good moral character or not, is to be judged
by standards prevailing in the United States. The declaration of
Congress concerning the denial of relief to a person who has committed
adultery represents the moral feeling prevalent generally in the 'United
States (Petitions of F G and E E 0 , let F. Supp. '782
1956)). It is an indication of the attitude to be taken to illicit rela-

-

-

38

-

Interim Decision #1237
tions by a single woman with a married man. We agree with the
special inquiry officer, that the meretricious relationship maintained
by the respondent, with the full knowledge that her paramour was
a married man, that he had not been divorced, and that he could not
get a. final divorce because he could not satisfy residential requirements (p. 22) justifies a denial of relief as a discretionary matter.
Prior to the service upon counsel on April 24, 1962 of the special
inquiry officer's order, he had inquired of the District Director at
Portland, Oregon concerning inclusion into the record of a copy of a
divorce decree obtained in Mexico on April 11, 1962 by the respondent's
paramour from his wife. The legal papers submitted with the divorce
were entitled "Motion to Reopen" and were served upon the District
Director who aoknowledged receipt in writing on April 24, 1962.

(Whether the motion was filed before or after service upon. counsel
on the same day of the special inquiry officer's order is not clear, but
the matter is immaterial.) There is no indication that the fee for the
filing of the motion to reopen was paid (8 CFR 103.5). On April 30,
the District Director apparently returned the motion papers to counsel.
On May 1, counsel wrote a letter to the special inquiry officer attaching
the motion and divorce decree and explaining that the purpose of his

action was to have the record completed for the benefit of the Board in
consideration of the appeal to the Board he had filed on May 1, 1962.
On May 2, 1962, the special inquiry officer wrote to counsel stating
that the only way the divorce decree could be made a part of the record
was by motion to reopen and since such a motion had not been properly submitted, the divorce decree was being attached to the record
for the information of the Board in considering the appeal which
counsel had filed.
Counsel complains that his motion was not properly forwarded to
the special inquiry officer. Counsel's contentions are not justified.

After the hearing had been closed and before an appeal to the Board
had been filed counsel could make the divorce decree a part of the
record only by obtaining a reopening of proceedings from the special
inquiry officer. The motion to reopen was not filed with a fee and was
therefore, properly returned to counsel (8 CFR 103.5). Of course in
connection with an appeal, and without the payment of a, fee in addition to that paid for filing the appeal, the Board can be requested
to reopen proceedings to receive new evidence. In the instant case a
request for such action would not have been granted since no purpose
would be served in making the divorce decree a part of the record;
the divorce decree does not excuse the conduct which occurred before
the decree was obtained (see Matter of CL—, 6 I. &. N. Dec. 675).
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
39


Interim Decision #2724

MATTER OF SAN JUAN

In Visa Petition Proceedings
A-20814290
Decided by Board August 14, 1979
(1) Notwithstanding evidence that the petitioner did not meet the jurisdictional requirements for obtaining a divorce in Puerto Rico, the Service cannot deny validity to
her Pqerto Rican divorce decree if neither Puerto Rico nor the jurisidiction of her
subsequent marriage would permit an attack on that decree.
(2) Where neither Puerto Rico nor New York, the place of the petitioner's subsequent
marriage to the beneficiary, would permit a collateral attack on the petitioner's
bilateral divorce, the Service cannot refuse to recognize the Puerto Rican decree and
visa petition approval is reinstated. Matter of De Padova, 15 I&N Dec. 502 (BIA 1975)
followed.
ON BEHALF OF PETITIONER: Jeffrey Bryer, Esquire
152 West 42nd Street
New York, New York 10036
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The District Director has certified his decision to the Board for

review in accordance with 8 C.F.R. 3.1(c). The decision will be reversed,
and approval of the visa petition will be reinstated.
The petitioner married the beneficiary, a 32-year-old native and
citizen of Colombia, on February 22, 1975, in Newburgh, New York. On
March 20, 1975, the petitioner filed a visa petition on the beneficiary's
behalf, seeking to accord him immediate relative status under section
201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b). On

September 17, 1975, the visa petition was approved, and forwarded to
the United States Consulate in Montreal, Canada. On January 20, 1977,
the Service sent the petitioner a Notice of Intent to Revoke Visa
Petition Approval, based upon a determination that the petitioner had
a prior, undissolved marriage which prevented recognition of her
subsequent marriage to the beneficiary. On August 30, 1978, visa
petition approval was revoked.
On September 12, 1978, the petitioner filed an appeal from the
revocation, claiming that the District Director was not permitted to
66

Interim Decision #2724
deny full faith and credit to her prior Puerto Rican divorce. On March
7, 1979, we remanded the record for further evidence regarding the
circumstances surrounding the petitioner's divorce. After correspondence with counsel for the petitioner, the District Director affirmed his
prior decision of revocation and certified the record to us for review.
It appears from the record that the petitioner obtained a divorce
from her first husband in Puerto Rico on February 1, 1973. The law
regulating divorce in Puerto Rico, P.R. Laws Ann., ch. 41 sec. 331,
provides, in pertinent part, that
,

No person can secure a divorce under this title who has not resided in Commonwealth
for one fall year immediately preceding the action, unless the act or acts on which the
suit is based have been committed, in Puerto Rico, or while one of the parties to the
marriage resided here. .

The petitioner concedes that she did not meet any of these jurisdictional requirements for obtaining a divorce in Puerto Rico. However, she
argues that the Service cannot deny validity to a divorce decree
rendered by a jurisdiction if neither the divorcing jurisdiction nor the
jurisdiction of the new marriage would permit anyone to do so. The
petitioner relies on our decision in Matter of De Padova,15 I&N Dec.
502 (BIA 1975), for this proposition.
In Matter of DePaclova, we considered the case of a petitioner who
obtained a divorce in Georgia, subsequently marrying the beneficiary
in Massachusetts. We found, based upon a review of the pertinent
Georgia and Massachusetts cases, that the petitioner's divorce was
immune to attack in both jurisdictions, and, accordingly, was entitled
to recognition by the Service. We relied, in part, on the decision of
Johnson v. Muelberger, 340 U.S. 581 (1951), in reaching that result. We
agree that our decision on Matter of De Padova governs the present
proceedings.
In Johnson v. Mv,elberger, supra, the Supreme Court was faced with
the issue of the right of a daughter to attack in New York the validity
of her decased father's Florida divorce. The Court reviewed their prior
decisions dealing with recognition of sister state divorces, stating that
. . . under our decisions, a state ... must give full faith and credit to an out-of-state
divorce by barring either party to that divorce who has been personally served or who
has entered a personal appearance from collaterally attacking the decree. Such an
attack is barred where the party attacking would not be permitted to make a collateral
attack in the courts of the granting state.

340 U.S. at 587. Compare Williams v. North Carolina, 325 U.S. 226
(judicial reexamination of findings of jurisdic(1945) ("Williams
tional fact permitted where sister state has entered a divorce decree In
ex parte proceedings). The Court then held that the daughter was
barred from attacking the Florida divorce decree because her father

in

67

Interim Decision #2724
was barred from contesting the decree's validity, stating:
When a divorce cannot be attacked for lack of jurisdiction by parties actually before
the court or strangers in the rendering state, it cannot be attacked by them anywhere
in the Union. The Full Faith and Credit Clause forbids.

340 U.S. at 589.
As recognized in Matter of De Padova, supra, the question in the
present case is

whether the courts of Puerto Rico would permit a

collateral attack on the divorce decree involved.' The decree states that
the petitioner appeared personally at the divorce hearing, her former
husband was summoned, and he accepted all the facts of the complaint.
Accordingly, this case does not involve the issue of whether Puerto
Rico would permit a collateral attack on an ex parte divorce, thereby
permitting such an attack in New York, the state in which the subsequent marriage of the petitioner was celebrated. Of. In re Estate of
Carter, 69 Misc. 2d 630, 331 N.Y.S. 2d 257 (Surr. Ct., N.Y. Co. 1972) (if
plaintiff in an ex parte sister state divorce was clearly not domiciled in
the divorcing state, the divorce will be considered void).
In People v. Superior Court, 99 P.R.R. 29 (1970), the Supreme Court
of Puerto Rico refused to allow the District Attorney to collaterally
attack a divorce decree entered by the Superior Court for lack of
jurisdiction. The District Attorney alleged that neither of the parties
to the divorce had the necessary residence or domicile in Puerto Rico,
and requested that the Supreme Court void the decree. In its decision,
the court noted that "[t]he jurisdiction and the venue of the court to
entertain an issue are the responsibility, in the last instance, of the
court itself." 99 P.R.R. at 36. Similarly, in Rodriguez v. Albizu, 76
P.R.R. 590 (1954), the court stated, in denying appellant the right to
collaterally attack a judgment awarding alimony to his former wife,
the general rule that:
... Even if [a] judgment is voidable, that is, so irregular or defective that it would he
set aside or annulled on a proper direct application for that purpose, it is well settled
as a general rule that it is not subject to colleteral impeachment as long as it stands
unreversed and in force.

at 595_
It appears, therefore, that Puerto Rico would not allow a third party
to attack a decree of divorce in which both parties to the marriage
appeared. Accordingly, New York would give full faith and credit to
the decree, thereby precluding a collateral attack in that state.
Weisner v. Weisner, 17 N.Y. 2d 799, 271 N.Y.S. 2d 252 (1966); see also
76 P_R_R

As pointed out by counsel for the petitioner, judgments of the courts of Puerto Rico
are entitled to full faith and credit in all the states of the Union. Americana of Puerto
Rico, Inc. v. Kaplus, 368 F.2d 431 (3 Cir. 1966), cert. denied, 386 U.S. 943 (1967); Torres v.
Gardner, 270 F.Supp. 1 (D. P.R. 1967).

68

Interim Decision #2724
49 A.D. 2d 911, 374 N.Y.S. 2d 29 (2d Dept.
1975) (allegation of false testimony not the type of extrinsic fraud that
will allow one state to deny a sister state's judgment full faith and
credit). Since the Puerto Rican decree is immune to attack by the
parties or strangers in Puerto Rico and New York, we find that the
Service was in error in denying recognition to the divorce in these
proceedings. Accordingly, the District Director's decision will be
reversed and approval of the visa petition will be reinstated.
ORDERS The decision of the District Director is reversed, and
approval of the visa petition is reinstated.
McLoughlin v. McLoughlin,

69


Interim Decision #2298

M.A.1 lk..ft OF PARK

In Deportation Proceedings
A-20516396
Decided by Board June 27, 1974
An alien who is an intending member of the Armed Forces of the United States,
who has been found mentally and physically qualified for induction into the
army, but who is not at present a member of any branch of the military
service of this country, is ineligible for the exemption from the labor certificatiOn requirement provided by 8 OFR 212.8(b)(1) for members of the 'United
States Armed Forces.
CHAIM:

Order: Act of 1952—Section 241(a)(2) [8

1251(aX2))—Nonimmigrant-

remained longer.
ON BBnatz or RESPONDMI■Vrt

Bert D. Greenberg, Esquire
5670 Wilshire Blvd., Suite 1800
Los Angeles, California 90036

The alien respondent has appealed the November 19, 1973
decision of an immigration judge in which the respondent was
found deportable, was found statutorily ineligible for adjustment

of status under section 245 of the Immigration and Nationality
Act, and was granted the privilege of voluntary departure. The
appeal will be dismissed.
The respondent, a native and citizen of Korea, has conceded
deportability as a nonimmigrant who has remained beyond the
authorized length of his stay. The only issues on appeal involve
the application for section 245 relief which the respondent renewed
at the hearing below.
The respondent seeks adjustment of status as a nonpreference
immigrant. The record indicates that he initially submitted his
application (Form I-485) to the Service in February of 1973. The
Service rejected the application primarily because the respondent
had not established that he was in compliance with the labor
certification requirements of the Act. The respondent, however,
maintains that he is exempt from the provisions of section
734

Interim Decision #2298

212(aX14) of the Act by virtue of 8 CFR 212.8(bX1). That regulation
states:
The following persons are not considered to be within the purview of section
212(a)(14) of the Act and do not require a labor certification: (1) A member of
the Armed Forces of the United States ....

The respondent contends that as a person intending to join the
Armed Forces he comes within the terms of this regulation. It
appears that the respondent has been found mentally and physically qualified for induction into the United States Army. However, he is not at present a member of any branch of the Armed
Forces of the United States. The language of the regulation is
clear. Since he is only an intending member of the military, the
exemption from labor certification contained in 8 CFR 212.8(b)(1)
does not apply to the respondent.
The respondent nevertheless raises several arguments in favor
of the interpretation he suggests. It seems that the various
branches of the Armed Services will not enlist an alien unless that
alien has been lawfully admitted for permanent residence. The
respondent accordingly argues that the regulation is meaningless
unless it is construed to apply to intending members of the

Armed Forces.
There is no general statutory prohibition which prevents an
alien who is not a lawful permanent resident from being enlisted
in the Armed Forces of the United States. See 10 U.S.C. § 504
(1970). In time of peace the Army and the Air Force are precluded
from accepting nonresident aliens as enlistees. 10 U.S.C. §§ 3253,
8253 (1970); see also 10 U.S.C. § 510(b) (1970). However, other than
in times of peace, the determination by a given branch of the
Armed Services not to accept nonresident aliens appears to be one
of internal policy. Although the regulation may appear to be of
little or no real consequence at present, it is clearly not meaningless because circumstances and military policy may change,
thereby rendering it of considerable significance.
The respondent also raises what appears to be a due process
challenge to the denial of his application for section 245 relief.
Prior to its rejection of the respondent's application for adjustment of status, the district office involved in this case had
.evidently treated similarly situated aliens as qualifying for the
labor certification exemption contained in 8 CFR 212.8(b)(1).
Whether or not this was a Service-wide policy is not clear;
however, our reading of the regulation makes it plain that such
treatment of intending members of the Armed Forces was inappropriate. As long as the Service is consistent in its future
interpretation of this regulation, the respondent will not have
been denied due process of law. The conclusion that the respond735

Interim Decision #2298
ent is statutorily ineligible for adjustment of status does not
represent an arbitrary and capricious handling of this matter;
instead, it represents a reasoned change in the interpretation of a
regulation. The respondent has been treated fairly. Compare Fan
Wan Keung v. INS, 434 F.2d 301 (CA. 2, 1970), with Santos v. INS,
375 F2d 262, 265 (CA. 9, 1967), andMeDade v. Morton, 353 F. Supp.
1006, 1012 (D.D.C. 1973).
The respondent has not shown that he is admissible to the
United States for permanent residence or that an immigrant visa
is immediately available to him. Accordingly, he is statutorily
ineligible for section 245 relief. The decision of the immigration
judge was correct.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension
beyond that time as may be granted by the District Director; and
in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.

736


'Interim Decision #1494

MATTER OP BATTEN

In Deportation Proceedings
A-2997296

Decided by Board August 17, 1966
securities
in violation of the Federal Reserve Act (18 U.S.C. 658) is conviction of a
crime involving moral turpitude.

Conviction of conspiracy to embesrld and misapply fonds, monies and
-

CHARGE:
Order: Act of 1552—Section 241(a) (4) 13 U.S.C. 1231(a) (4)1—Convicted

after entry of two crimes involving moral tarPityle,
to wit: larceny of property and conspiracy in violation of the Federal Reserve Act of embezzling and
misapplying funds, monies and securities.
The respondent, a native and citizen of Canada, appeals from an
order entered by the special inquiry officer on April 20, 1965 directing his deportation on the charge stated in the order to show cause.
Exceptions have been taken to the finding that the respondent's
conviction for conspiracy to violate Title 18, U.S.C., section 656, is
a crime involving mural turpitude.
The respondent, a married male -alien, 51 years of age last entered
the United States through , the port of Detroit, Michigan on or
about October 24; 1933. - He concedes that he was convicted in. the
Recorder's Court, Detroit, Michigan on. July 13, 1935, for the offense of larceny of property. It is conceded that this offense involves moral turpitude.
The respondent was convicted in the United States District
Court, Detroit, Michigan, on April 23, 1964, for the offense of conspiracy in violation of Federal Reserve Act, 1.8 U.S.C. 656, for
embezzling and misapplying funds, monies and securities. The
issue before us is whether the offense defined by 18 U.S.C. 656 1 is
a crime involving moral turpitude. ,
'Tice pertinent portion of Tine 18, U.S.C., 656 reads as follows:
Whoever, being an officer, director, agent or employee of, or connected in
any capacity with any Federal Reserve bank, member bank, national bank or
271

Interim Decision #1494
The statute punishes embezzling, abstracting, purloining and
willfully misap plying any funds or monks. The indictment (Ex.
3) Charges the 'respondent as a co-conspirator with one, Charles
Graul (an .officer of the bank) "did unlawfully, wilfully and knowingly and feloniously conspire, combine, confederate and agree together, and each with the other, and diverse other persons presently unknown ... to embezzle, abstract, purloin and wilfully misapply and cause to embezzle, abstract and wilfully misapply
monies, funds, securities and credits, which were entrusted to the
. custody, care and control of the National. Bank of Wyandotte, 2517
' Fort Highway, Wyandotte, Michigan, it Member of the Federal
Reserve System, and to the custody and care 'of Charles Graul, a
Vice-President and Branch Manager of the said National Bank of
Wyandotte, in violation of section 656, Title 18, U.S.C."
It has been held that conspiracy to commit an offense does not
involve moral turpitude unless the substantive offense, the object
of the conspiracy itself, involves moral turpitude. Matter of G ,
7 Dee. 114, citing Mercer v. Leswe, 96 F.2d 122; cer. den. 805
13.S..611. The question to be resolved is whether the substantive
offenses of embezzlement, abstraction, purloining and wilfully misapplying money belonging to the National Bank of Wyandotte involve moral turpitude. While the statute may include offenses
which do and other which do not involve moral turpitude, we of
course _must look to the' record of conviction to determine. which
portion of the statute was violated. Matter of C—, b I.. & N. Dec.
65; Matter of R , 6 I. & N. Dec. 444.
There is no question but that embezzling or "purloiiring involves
moral turpitude. The issue presented id whether the offenses of
•abstracting or wilfully misapplying funds involves moral turpitride.
Counsel maintains that since there is no reference to an intent to
defraud in the statute and since there is no such charge in the in
the respondent must be deemed to have plead guilty to
the least' imaginable offense defined by the statute, namely, "A wilful misapplication of iunds with intent to injure." Counsel urges
that this offense does not involve moral turpitude because there is
-

—

—

insuredbank, or a receiver of a national bank, or any agent or employee of the
receiver, or a Federal Reserve Agent, or an agent or employee of a Federal
Reserve Agent or of the Board of Governors of the Federal Reserve System,
embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds
or credits of such bank or any moneys, funds, assets or securities intrusted
to the custody or care of any .such bank or to the custody or care of any such
agent, cancer, director, employee or receiver, sball be fined net more than
55,000 or imprisoned not more than five years, or both.
272

Interim Decision #1494
no allegation that there was a misapplication of funds with an intent to defraud.
It has been consistently held that an intent to injure or defraud
the bank is an element of the offense defined by 18 U.S,O. 806 dethe fact that such an intent is omitted from the statute.

spite

Golden v. United States, 318 F.2d. 357 (0.A. 1, 1963) ; Seals v.
United States 221 F.2d 243; Ramirez v. United States, 318 F.2d
155 (CA. 9, key 1963) ; Logsdon v. United States, 253 F.2d 12;
Williamson v. United States, 332 Fad 123; United States v. Natot,
146 F2d 197, 198 (CA. 2). The court in the Rs.mirez's CASE! (p.
158), (supra) said that "the words 'did wilfully misapply' consti-

tute a sufficient charge of a criminal intent to defraud." According
to the indictment the respondent and others entered into a conspiracy with an officer of the National Bank of Wyandotte, Michigan who in return for a fixed fee would approve loans,in the name
of a third party submitted for discount by an organization controlled
by the respondent. The indictment charges embezzlement, purloining and .misapplieation of the funds of the bank as a result of this
conspiracy.. Under the circumstances we find that the offense of
which the respondent was convicted. involves moral turpitude. The
appeal -will be dismissed.
• ORDER: It is directed that )the appeal be and the same is hereby dismissed. •

278


Interim Decision #2347

MATTER, OF CESSNA 180 "N4502B"

In Fine Proceedings
E LP-10/2.46
Decided by Board February 20, 1975
The maximum penalty to be assessed upon the pilot for a violation of section 239 of the
Immigration and Nationality Act is $500 for each arrival of the aircraft in the United
States, not $500 for each passenger. Although the pilot intentionally disregarded the
law by failing to notify the proper authorities upon landing, mitigation

of the fine by

$200 was appropriate wheie the plane had a faulty compass and faulty carburetor
resultingin a rough and exhausting flight which did not arrive back in the United States
until a very late hour.
BASIS FOR FINE: Act of 1952—Section 239 [8 U.S.C. 1229]
IN RE: Cessna 180 "N4502B", which arrived at El Paso, Texas, from foreign, on Apri129,
1973. Persons involved: John B. Miller, pilot, Barbara Logan, Stephen Weeks
and Aleta Nelson.
ON BEHALF OF APPELLANT: Pro Se

In a decision dated August 27, 1974, the district director imposed a
fine of &.'2,000 upon the pilot for violation of section 239 of the Immigration and Nationality Act, and he denied the pilot's request for mitigation
or remission of the fine. The pilot has appealed from that decision. The
appeal will be sustained.
The pilot has conceded that he violated section 239 of the Act when he
arrived at El Paso, Texas from Mexico on April 29, 1973, without
notifying the proper authorities in advance and without presenting
himself or his passengers for inspection. However, the district director
imposed a fine of $2,000 for that violation, apparently on the theory that
failure to present each passenger resulted in a separate violation. This
was error.
We have held that section 239 contemplates a maximum penalty
of only $500for each arrival of an aircraft in the United States. Matter
of Howard Aircraft "N-813," 7 I. & N. Dec. 584 (BIA 1957); see Matter
of Aircraft No. "N-2476—U," 11 I. & N. Dec. 73 (BIA 1965). Consequently, the pilot is subject only to a fine of $500 stemming from his
arrival in the United States on April 29, 1973.
185

Interim DeeisiOn #2247

The pilot has requested mitigation or remission of the fine. He is a
United Staten citizen, and has stated that he was returning with three
friends, also United States citizens, from a beach outing in Mexico when
the -violation occurred. He has alleged that his plane had a faulty compass and a faulty carburetor and that the flight to El Paso had therefore
been rough and exhausting. He has also stated that he elected not to

notify the prcper authorities of the arrival "because it was very late and
I didn't want to bother a customs agent to come out and see four
beach-tired El Pasoans."
The District Director noted in his opinion that the pilot had failed to
report for inspection on another occasion in 1963, but that he had only
been issued a warning letter by the district director on that occasion. On
appeal, the pilot has stated that his earlier violation was the result of
bad weather conditions, and that he had voluntarily notified the Service
of that violation immediately after it had occurred.
While we cannot condone the pilot's intentional disregard of the law,
we believe that under the circumstances some mitigation is warranted.
Consequently, we will allow mitigation in the amount of $200 and impose
a fine of $300 upon the pilot.
ORDER: The appeal is sustained, and the fine permitted to stand is
reduced to $800.

186


Interim Decision #2322

MATTER OF HALABI

In Deportation Proceedings
, A-19931274
Decided by Board October 8,

974

Respondent was initially charged with failure to comply with the conditions of his nonimmigrant status under section 241(a)(9) of the Immigration and Nationality Act. He
denied deportability under the charge. After the date the order to show cause was
issued, but prior to the hearing date, the respondent's authorized period of stay
expired. Respondent was found deportable under section 241(a)(2) of the Act on a
remained longer charge which was lodged at the hearing.
CHARGES:
Order: Act of 1952 —Section 241(a)(9) [8 U.S.C. 1251(a)(9)] —Nonimmigrant--Failed to
comply with conditions of nonimmigrant status

Lodged: Act of 1952—Section 241(a)(2) [8 !MC. 1251(a)(2)1—NonimmigrantRemained longer than permitted.
.
Ole

BERALW

or RE.spcminvaT: David F. Aberson, Esquire
1801 Avenue of the Stars, #900
. Los Angeles, California 90067

In a decision dated February 23, 1973, the immigration judge found
the respondent deportable on the lodged charge, but granted him the
privilege of departing voluntarily from the United States in lieu of
deportation. The respondent has appealed from that decision. The
peal will be dismissed.
The respondent is an alien who is a native and citizen of Lebanon. He
entered the United States as a nonimmigrant student and was au
thorized to remain until January 26, 1973. On November 29, 1972, an

order to show cause was issued charging the respondent with being
deportable under section 241(a)(9)"of the Immigration and Nationality
Act for failure to comply with the conditions Of his nonimmigrant status.
A hearing was held on February 9, 1973, at which the respondent
admitted the first four factual allegations of the order to show cause,
denied the fifth allegation, denied deportability, and refused to answer
questions regarding deportability. The trial attorney then lodged a
factual allegation, number six, that the respondent had not departed
from the United States. He also lodged the charge that the respondent
105

Interim Decision

#2222

was deportable under section 241(a)(2) of the Act for having remained in
the United States longer than permitted. The hearing was adjourned at
the respondent's request.
At the continued hearing held on February 23, 1973, the respondent
admitted the lodged factual allegation, but denied deportability on the
lodged charge. We agree with the immigration judge that deportability
on the lodged charge has been established by evidence that is clear,
convincing, and unequivocal.
The respondent contends that he has been deprived of a hearing on,
and an oppormity to defend against, the "out of status" charge. However, he has not shown how he was prejudiced by the failure of the

Government to pursue that charge.
The present case is not like Matter of Siffre, 14 I. & N. Dec. 444 (BIA
1973). In Siffre, we held that deportability of an alien on a "remained
longer" charge under section 241(a)(2) cannot be sustained where the
charge was brought prior to the expiration of the alien's authorized
period of stay. In the case before us, however, the "remained longer"
charge was properly lodged after the expiration of the respondent's
authorized period of stay. The respondent received adequate notice of,
and an opportunity to defend against, the lodged charge.

The respondent asserts that he is not deportable on the "remained
longer" charge because at the time his visa expired he was "under
docket control" with a hearing pending on his violation of status. The

respondent was not detained or held on bond pending hearing. He was
free to leave the country at any time prior to the commencement of his
hearing. The pendency of deportation proceedings does not entitle a
nonimmigrant to an extension of his authorized stay in order to attend
the scheduled hearing.
The respondent did not apply for an extension of his student stay. He
claims that by charging him with being out of status the district director

in effect precluded him from submitting an application for an extension.
The question of whether or not a student stay should be extended is a
matter within the sole discretion of the district director. See 8 CFR
103.1(f); 8 CFR 214.2(0(5); 8 CFR 214.2(0(7); Matter of Sourbis, 11 I. &
N. Dec. 335 (BIA 1965). Neither we nor the immigration judge has any
authority to consider a claim that the district director did not give the
respondent a proper opportunity to apply for an extension.

Finally, the respondent contends that 22 CFR 41.122(e), a Department of State regulation, prevents the expiration of a nonimmigrant's
authorized stay while deportation proceedings are pending. The short
answer to this contention is that the regulation in question is not
applicable to this case.
The immigration judge's decision was correct. The appeal will be
dismissed.
106

Interim Decision #2322

ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the re-

spondent is permitted to depart from the United States voluntarily
within 28 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.
Maurice A. Roberts, Chairman, dissenting:
I respectfully dissent. It seems to me that the respondent was denied
due process by the procedures here employed.
The respondent was admitted as a. nonimmigrant student until
January 26, 1973. Before that period expired, an order to show cause
was issued on November 29, 1972, charging him with failure to comply
with the conditions of his nonimmigrant admission. Had the hearing
been promptly held, the Service wouldhave been required to prove that
charge; a "remained longer" charge could not then be sustained, Matter
of Siffre, 14 I. & N. Dec. 444 (BIA 1973). By holding the hearing after
January 26, 1973 and then lodging a "remained longer" charge, the
Service was able to avoid proving its original accusation and to confront
respondent with one to which there could be no defense. This "heads I
win—tails you lose" procedure was prejudicial to the respondent.
We may not presume that the Service would have been able to prove
the charge contained in the order to show cause; conceivably, the respondent might have been able to show that he had not violated his
student status. By thus switching charges after respondent's remaining
beyond January 26, 1973 was a fait accompli, the Service put him in a
position where, conceivably without fault, he was defenseless. This is
not due process.
It is no answer to say, as does the Board opinion (p. 2), that the
respondent was free to leave the country at any time prior to the
commencement of his hearing. If the respondent felt he had a defense to
the charge in the order to show cause, there was no reason for him to
leave the country before his authorized stay expired without contesting
the charge and then seeking an extension of student stay if the charge
should not be sustained.
It would have been futile for him to apply for an extension of his
student stay, once the order to show cause was issued. The district
director's issuance of the order to show range on the "failed to maintain
status" charge within the period of admission constituted a preliminary
finding by that officer that prima facie the respondent was out of status.
Since maintenance of status is a prerequisite to an extension of stay, the
district director's action in issuing an order to show cause effectively
blocked a timely extension application. I do not think an alien under
107

Interim Decision #2322
such circumstances should be expected to file an extension application
anyway, just in case the "failed to maintain status" charge turns out not
to be sustained at the hearing.
It is also no answer, in my estimation to say that "The question of
whether or nc• a student stay should be extended is a matter within the
sole discretion of the district director." (Opinion, p. 3; emphasis in
original.) That statement would be germane if no order to show cause
had been issued and an extension application had been timely made and
denied. On the other hand, where as here a "failed to maintain status"
charge is used, there is no reasonto believe that•f it is .not sustained at

the hearing the district director will in any event deny an extension
application. Conceivably, if the deportation hearing had been held before January 26, 1973 and the immigration judge had not sustained the
charge, the district director would have accepted the holding, the respondent would have filed a timely extension application, and the district director would have granted it. Respondent was deprived of this
opportunity of applying for an extension of stay when the hearing was
held after January 26, 1973 and the original charge was abandoned.
I would remand to give the Service the opportunity to elect either to
prove the original "failed to maintain status" charge or to terminate the

proceedings .i.nd give the respondent • a chance to file an extension
application.

108


MATTER OF S-

In DEPORTATION Proceedings
A-11621450
Decided by Board February 24, 1960

Nonimmigrant—Deportability, section 241(a)(9)—Employment.
Alien visitor who accepts employment without permission violates terms of
admission and becomes deportable under section 241(a) (9) of the 1952 act
for failure to comply with renditions of nonimmigrant status. Determination of deportability is not dependent upon whether Service regulations contain specific bar against such employment.
CHARGE :

Order: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9) ]—Failure to
comply with the conditions of status as a nonimmigrant visitor for
pleasure [section 101(a) (15) ; 8 U.S.C. 1101(a) (15)].
BEFORE THE BOARD

Discussion: This case is before us on appeal from a decision of
the special inquiry officer, dated November 6, 1959, holding the alien
deportable and denying discretionary relief in the form of voluntary
departure. Respondent, a 35-year-old native and last a citizen of
Poland, last entered the United States on March 9, 1959, at New
York as a nonimmigrant visitor for pleasure. Although the authorized period of his stay as a visitor was extended to December 9, 1959,
respondent accepted employment in March 1959.
The special inquiry officer determined that prior to August 1, 1958,
the appropriate regulations specifically stated that a nonimmigrant
alien should not be employed during the period of his stay [8 CFR
214.2(c)] ; that the regulations thereafter merely directed that the
alien, seeking admission as a nonimmigrant, must agree to abide by
all the terms and conditions attached to his admission as a visitor
[set out in 22 CFR 41].
The special inquiry officer found that an alien may become deportable under section 241(a) (9) for failure to maintain his status in
two ways: (1) the alien may abandon the activities for which he
was admitted, as in the case of a student who ceases his schooling;
or (2) the alien may continue the activities for which he was ad-

574

aitted but simultaneously engage in conflicting activities inconsistnt with the purpose for which he was admitted.
The special inquiry officer concluded that in the latter instance the
illeged maintenance of status becomes fictional and the alien's status
as a nonimmigrant actually becomes abandoned. The special inquiry
officer felt that there is an implied condition upon admission that
the alien will not engage in activity which is inconsistent with his
status and not required for the maintenance of such status.
For this reason, the special inquiry officer held that "Whatever
activities the respondent contemplated at the time of his arrival,
which were within the area specified in 22 CFR 41.40 [which defines
the word "pleasure" as it relates to a visitor], it is clear that by
taking regular full-time employment in the United States, he made
it either completely impossible to carry on such permissible activities, or reduced the time available for such permissible activities to
a point where they would become merely a fiction indulged in for
the purpose of maintaining his theoretical status." Hence, the special inquiry officer held that the alien had violated the conditions
of his status by taking employment and was deportable.
According to State Department regulations, a visitor for pleasure
is an alien who seeks to enter the United States temporarily as a
tourist or for some other legal purpose such as health, to visit with
relatives, etc. [22 CFR 41.40(c)]. In addition, the Immigration.
Service has issued printed material putting nonimmigrant aliens on
notice that they may not engage in employment without permission
of the Immigration Service [Form I-358, which is routinely given
to all entering nonimmigrant aliens].
The Immigration Service's view, sustained by the special inquiry
officer, is that the changes in the regulations in 1958 did nothing to
change the requirements for admission as a noniminigrant. We feel
that the Immigration Service's view correctly reflects the effect of
the regulation change.
Since respondent took employment, which was both not permissible
and inconsistent with his status as a nonimmigrant visitor, he has
clearly violated the terms of his admission and clearly failed to
comply with the conditions of his status as a nonimmigrant visitor.
He is thus definitely deportable under section 241 (a) (9).
In connection with respondent's application for voluntary departure, the special inquiry officer found that the alien had entered
France about 12 years ago as a refugee, where he was required to
obtain permission to accept employment. However, in spite. of his
background, the alien testified that he was unaware that he was not
permitted to work in the United States and the special inquiry officer
found this testimony unbelievable.
Similarly, the special inquiry officer finds respondent's testimony
concerning his alleged attempts to reveal his employment to the

proper authorities and circumstances surrounding his applications
for extension of the period of his temporary stay to be incredible.
The special inquiry officer determined that the record further established that respondent at the time of his arrival intended to work
in the United States, although this was impossible by law [See,
sworn statement of October 13, 1959].
Consequently, the special inquiry officer ruled that "Upon consideration of all of the facts of record, taking into particular consideration his intent at the time of arrival, the celerity with which he
sought employment immediately after his arrival, and the nature
of his testimony regarding the making of his applications for extensions of stay, I feel that the requested relief should be denied as a
irAtter of administrative discretion."
The special inquiry officer had an opportunity to observe the demeanor of the alien as a witness and to evaluate his testimony.
Hence, his judgment is entitled to great weight, especially in case
of a recent entrant respondent. Consequently, we agree with
the special inquiry officer's denial of discretionary relief. Counsel
, 5 I. & N. Dec. 514 (B.I.A., 1953), and
has cited Matter of Z
Matter of G , 6 I. & N. Dec. 208 (B.I.A., 1954), in support of
his various contentions. Both of these decisions were concerned with
the issue of whether the aliens were precluded from establishing
good moral character under section 101(f) (6) of the Immigration
and Nationality Act as aliens who had given false testimony to
secure a benefit. under the act. That issue has not been raised here.
The special inquiry officer denied voluntary departure as a matter
—

of discretion.

For all the foregoing reasons, the appeal must be dismissed.
Order: It is hereby directed that the appeal be dismissed.

576


Interim Decision -#1506

Mawr= of

SANGSTER

In Deportation Proceedings
A-10198568

Decided by Bard September 14, 1965
While resnondent's deportation would result in economic detriment to her,
such economic detriment, in the absence of other substantial equities, Is nut
tantamount to "extreme hardship" within the meaning of section 244(a) (1),
Immigration and Nationality Act, as amended, since there is no evidence of
record that she could not obtain suitable employment in Jamaica, her native
country, or England, and it is due only to the Government's liberal student
and trainee policy that she has been able to acquire the statutory continuous
physical presence in this country for suspension of deportation.
CRAROE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)1—Remained
longer—nonimmigrant student.

The trial attorney at the New York, New York Office of the Service appeals from the decision entered by the special inquiry officer on
June 18, 1965, granting the respondent's application for suspension
of deportation under section 244(a) (1) of the Immigration and
Nationality Act and directing that if Congress takes no action
adverse to the order granting suspension of deportation, the proceedings be canceled, * * * and further ordering that in the event
the Congress takes action reverse to the order granting suspension
of deportation, these proceedings be reopened upon notice to the
alien. The respondent, a 36-year-old married female, native and citizen of Jamaica, has had continuous residence in the United States
since her admission at Miami, Florida on or about September 14,
1954 as a. nonimmigrant student. Deportation proceedings were
instituted against the respondent on January 18, 1965. The order to
show cause among other things alleges that she was authorized to
remain in the United Statei until December 31, 1964; that she has
remained in the United States without authority since the latter
date. A hearing in deportation proceedings was held at New York,
309,

Interim Decision *1506
New York on March 3, 1965 at which time the respondent and counsel admitted the truth of the factual allegations set forth in the
order to show cause and conceded deportability on the charge stated
therein (pp. 2 3). The evidence of record clearly establishes that
-

the respondent is subject to deportation under the provisions of section 241(a) (2) of the Immigration and Nationality Act, in that,
after admission as a nonimmigrant under section 101(a) (15) of the
Act, she remained in the United States for a longer time than
permitted. '
The trial attorney by brief and the Service representative in oral
argument on appeal urged that the order entered by the special'
inquiry officer on June 18, 1965 granting the respondent's application

for suspension of deportation under section 244(a) (1) of the Immigration and Nationality Act be withdrawn and the respondent be
accorded the privilege of voluntary departure. The Service representative argued the facts and circumstances in this case do not
affirmatively establish that the respondent would suffer "extreme
hardship" if compelled to depart from the United States for England or to Jamaica the country of her nativity. Counsel for the

respondent urged that the order of the special inquiry officer granting the respondent's application for suspension of deportation be
approved. Counsel asserted that the respondent should be allowed to
remain in the United States and adjust her immigrant status to that
of a permanent resident as provided in section 244(a) (1) of the Act.
Counsel declared that the grant of suspension of deportation is justified because the respondent would suffer extreme hardship withiri the
meaning of the statute if compelled to depart from the United States.
On examination of the record, we find that the respondent was
over 26 years old when she was admitted to the United States as a
nonimmigrant student in September of 1954. Respondent testified
that immediately after her admission to the United States she enrolled as a student at Fisk University; that she attended said university from September 1954 until she was graduated therefrom on
January 28, 1959 at which time she was awarded a Bachelor of Arts
Degree with a major in biology (p. 7 & Ex. 9). Respondent testified
that after being graduated from Fisk University she received per., mission from the Immigration Service to take a course in laboratory
technology; that she registered at the Manhattan Medical and Dental
Assistants' School in New York, New York and completed her course
of study in the latter school in' March 1960 (p. 8 & Ex. 4). The
respondent testified that after completing her course at the Manhattan Medical and Dental Assistants' School she obtained employment
-

310

Interim Decision #1506
at the Maimonides Hospital in Brooklyn, New York; and that, she
has been working at said hospital since May 1960 (pp.,8 & 9 and Mrs:
3 & 8). The respondent testified that her father is a native and citizen of Janiaica, and that her motresi is a native of Jamaica presently
.residing in England -(pp:8 ,- 9).
The respondent's application requesting, that her deportation be
suspended under section 244(a) of the Immigration and Nationality'
Act was subscribed, sworn to and submitted for consideration at the
New York, New York office of the Service on March 3, 1965. The
respondent has been 'employed by the llahnonides Hospital from
May iutio to the present time as a. laboratory technician at a salary of
$94 per week (Ens. 2, 3 & 10). The respondent's assets, comprising
of cash and personal property, are valued at $4700 (Ex. 2). When
the respondent was asked in what manner she would suffer hardship
if recjuired to leave the United States and return to her native country she replied that she had broken her ties with the people back
home and that it would be difficult to adjust there since she has now
adjusted to life in the United States (p. 10). The respondent testified that prior to her employment at the aforenamed hospital she
was supported for the most part by her father,plus small earnings as
a part-time employee at Fisk University (pp. 12-14).
The respondent was married in a. civil ceremony to a lawful resident alien of the United States at New York, New York on December 14, 1964. The respondent testified her marriage has never been
consummated; that she and her husband have never lived together
since their marriage in December 1964. Respondent's husband in an
affidavit subscribed and sworn to before an officer of the Service on
May 6, 1965 deposed that he met the respondent approximately three
months prior to their marriage on December 14, 1961. He stated his
marriage had never been consummated and that he had never had
sexual intercourse with his wife either prior or subsequent to the date
the marriage ceremony was performed in December 1964. The
respondent's husband. testified that he is not ready to accept the
responsibility of a wife and family, that he contracted the aforementioned marriage for the privilege of determining whether he could
become a husband and father. The testimony of this -witness indicates he is not ready to assume such a, role and he advised his wife,
the respondent herein, during March. 1965 that it would be better for
both of them if they were to have their marriage annulled. The
respondent's husband declared that the respondent herein told him
she would contact a lawyer to see what could be done; that he did not
know at the time he executed the aforementioned affidavit whether or
'

311

Interim Decision #1506
not his wife had instituted annulment proceedings. The respondent's
testimony reveals that on June 17, 1960 she was granted an extension
of temporary stay until July 1960 for the purpose of obtaining practical training at the Maimonides Hospital (p. 16 % Ex. 8).
The respondent testified and the record shows that on July 19, 1960
she filed an application to extend time of temporary stay and an
application for permission to accept employment (Ex. 9). She testified she was never informed that this latter application for extension
of time to take practical training was granted (p. 18). When the
respondent was interviewed at the New York, New York office of the
Service on July 95, 1062 regarding her nonimmigrant status (p. 18)

she revealed she was a full-time employee of the Maimonides Hospital (pp. 18 & 19). The record establishes there was 'executed and
filed on behalf of the respondent by the Maimonides Hospital a petition to accord the respondent quota immigrant status under section
203(a) (1) of the Immigration and Nationality Act. She testified
she did not leave the United States upon completion of her practical
training because she wanted to remain in the United States (pp. 9 &

10). The visa petition filed by the Maimonides Hospital to accord
the respondent first preference status under section 203(a) (1) of the
Immigration •and Nationality Act was denied by the Service on October 5, 1964 and counsel for the respondent was advised of this action
on December 3, 1964 and at the same time the respondent was granted
until December 31, 1964 within which to effect her voluntary departure from the United States (p. 28).
The respondent testified that she could resume her teaching in the
public schools of Jamaica if compelled to return to that country.
When the respondent was asked if she could use the training she
'received in the United States in the field of chemistry and laboratory
technology if compelled to return to Jamaica she replied, "Yes" (p.
24). She testified she has not yet instituted proceedings to have her
marriage annulled (p. 25). The respondent has no close family ties
or dependents living in the United States. It is conceded that she is
a person of good moral character and has the necessary continuous
physical presence in the United States. The respondent, because of

the Government's liberal student and trainee policy has been able to
acquire the necessary continuous physical presence in the United
States to meet the requirements of the statute.
Respondent has acquired an excellent education since her admission to the United States. Unquestionably she will be able to utilize
the advanced education she has acquired in the United States in
obtaining suitable and acceptable employment in Jamaica or Eng312

Interim Decision *1506
land. It has been leld. that "extreme hardship" is not a definable
term of fixed and inflexible content or meaning. The elements .required to establish "extreme' hardship" are dependent upon the‘ facts
and circuihstances peculiar to each case (Cf. Matter - of Etwarig,•nt.
Dec. No. 1319, and Matter of Uy, Int. Dec. No 1464). •In the instant
case, we are concerned with an alien - who has been in the United
States since her admission thereto in September of 1954. She has no
dependents living in this country. Her father is a native, citizen and
resident of Jamaica, and her mother a native of Jamaica is presently
residing in England. Concededly the respondent's deportation from.
the United States would result in economic detriment to her. It is
the considered opinion of this Board, however, that under the cir-

cumstances present in this particular case economic detriment in and
of itself does not amount to "extreme hardship " There has been no
showing that the respondent could not obtain employment in her
native country or England. Factually she has testified that she could
use to her advantage the training she acquired in the United States
in the field of chemistry and laboratory technology. There are no
substantial equities in this case except those arising from the economic factor and this factor, standing alone, is insufficient to support
a finding of "extreme hardship" within the meaning of the statute..
There is not a scintilla of evidence present in this record showing
that the respondent could not obtain suitable employment in Jamaica
or England and as previously stated it is only because of the Government's liberal student and trainee policy that she has been able to
acquire the necessary continuous physical presence requirements • of
the statute. •
After carefully considering all the evidence 15f record together

with the representations of the trial attorney and counsel on appeal
we will direct that the special inquiry officer's order of June 18, 1965
granting the respondent's application for suspension of deportation
be withdrawn. Since the respondent is statutorily eligible for voluntary departure we will remand the case to the special inquiry officer
so that he may give consideration to her alternative request for the
discretionary relief of voluntary departure and to afford the special
inquiry officer the opportunity to direct the respondent's deportation
to the country designated by her and for such further action as may
be necessary and appropriate in the premises- Accordingly, the -following order will be entered.
ORDER: It is ordered that the appeal of the Service trial attorney
be and the same is hereby sustained.
It is further ordered that the order entered by the special inquiry
313

Interim Decision #1506
officer on June 18, 1965, directing that the alien's deportation be suspended under the provisions of section 244(a) (1) of the Immigration and Nationality Act be and the same is hereby withdrawn.
It is further ordered that the ease he remanded to the special
inquiry officer for the purposes set forth in the foregoing opinion and
for the entry of an appropriate order.

814


Interim Decision #1948

MATTER OF

AGARWAL

In Deportation Proceedings
A-17230653
Decided by Board March 18, 1969
Currently pending litigation of a collateral issue (denial of respondent's visa
petition) in the United States District Court is no justification for the termination or postponement of the deportation proceedings against respondent.
CHARGE:

Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]—Nonimmigrant—remained longer.
ON BEHALF OF RESPONDENT:

Hiram W. Ewan, Esquire
1011 North Broadway
Suite 203
Los Angeles, California 90012

This is an appeal from the order of the special inquiry officer
finding respondent deportable as charged but granting him the
privilege of voluntary departure on or before January 2, 1969.
The respondent is a 89-year-old married male alien, a native
and citizen of India, who was admitted to the United States at
Honolulu, Hawaii on or about May 25, 1966, being admitted as a
nonimmigrant temporary worker and authorized to remain in the
United States until June 3,1968. He remained beyond that date.
He was subsequently granted the privilege of voluntary departure
by a United States immigration officer in lieu of the institution of
deportation proceedings, but he did not depart within the time
designated. The instant deportation proceedings were then commenced.
The respondent admits the allegations of fact contained in the

order to show cause and concedes that he is deportable as
charged.
On appeal, the respondent contends that the order to show
cause should be dismissed pending the outcome of a petition for
171

Interim Decision #1948
judicial review which is currently pending in the United States
District Court to review the decision of the District Director who
denied the respondent's third preference visa petition. In his appeal to this Board, respondent states that he should have been
classified as a qualified member of the professions and that his
third preference visa petition should have been approved.
This Board has no jurisdiction to adjudicate a third preference
visa petition. The jurisdiction to do that lies with the District
Director under 8 CFR 103.1(f), and the administrative appeal
from the District Director's decision lies with the Regional Commissioner of the Immigration and Naturalization Service under
the provisions of 8 CFR 108.1(e) (2).
The fact that the respondent has filed a court proceeding relative to this visa petition matter is no reason or justification for

the termination of the deportation proceedings against him. He
has admitted that he is deportable as charged and his deportation
is established by evidence in the record that is clear, unequivocal
and convincing. To postpone deportation proceedings while a collateral issue is being litigated, which might or might not result in
a favorable decision for respondent, would allow a deportable
person to avoid the adjudication of his deportability for perhaps
long periods of time by the simple expedient of filing a judicial
proceeding or proceedings. We hold that respondent's claim that
the order to show cause should be dismissed pending the outcome
of his present litigation in the United States District Court is
without merit.
We find that the respondent is deportable as charged. We will
allow him the privilege of voluntary departure within 30 days
from the date of this decision, which is the same period of time
granted to him by the special inquiry officer. Any extension of

this time is solely within the jurisdiction of the District Director
under the provisions of 8 CFR 244.2.
ORDER: It is ordered that the appeal be and it is hereby dismissed.
It is further ordered that, " pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special
inquiry officer's order.

172