Interim Decision #2239

MATTER OF MONCAYO
In Visa Petition Proceedings
.A-19521225

Decided by Board October 26, 1973
Since beneficiary was not physically present within the jurisdiction of the
Ecuadorian court which rendered the divorce decree dissolving his prior marriage, there was no personal service of process upon the spouse and she did not
appear or otherwise submit to the jurisdiction of the Ecuadorian court, the
divorce is not recognized as valid in the State of New York where his subsequent marriage to petitioner was contracted; therefore, his subsequent marriage to the U.S. citizen petitioner is not recognized as valid for the purpose of
conferring upon him immediate relative status.
ON BEHALF OF PETTrIONER: Bertrand D. Gerber, Esquire
119 West 57th Street
New York, New York 10019

The United States citizen petitioner applied for immediate
relative status for the beneficiary as her spouse under section
201(b) of the Immigration and Nationality Act. The District Director, in an order dated October 10, 1972, denied the petitioner's
application on the ground that a prior marriage of the beneficiary
was never legally terminated. The petitioner has appealed from
that denial. The appeal will be dismissed.
The beneficiary is a native and citizen of Ecuador. The petitioner married the beneficiary on June 20, 1970 in New York.
Pursuant to 8 CFR 204.2(c)(2), the petitioner submitted a decree of
divorce rendered by an Ecuadorian court, dated March 16, 1970, as
proof of the legal termination of the beneficiary's previous marriage.
The District Director refused to accept that decree as establishing the legal termination of the prior marriage, on the ground that
neither the beneficiary nor his wife was personally present at the
divorce hearing. The visa petition indicates that the beneficiary
has not been outside the United States since April 20, 196'7. The
divorce decree states that his wife was served by publication, her
whereabouts being unknown, and that she did not appear at the
hearing.
472

Interim Decision #2239
Usually, the validity of a marriage is governed by the law of the
place where the marriage was celebrated. Matter of P , 4 I. & N.
Dec. 610 (A.G. 1952); Matter of Levine, 13 I. & N. Dec. 244 (BIA
1969). Therefore, the beneficiary's present marriage is valid only if
his Ecuadorian divorce is recognized by New York, where his
marriage to the petitioner took place.
—

Since the full faith and credit clause of the Constitution does not

apply to judgments rendered by courts of foreign countries, the
question of recognition is solely one of comity. New York courts
have held that divorce decrees rendered in foreign countries are
entitled to recognition and effect in New York only when such
recognition is consistent with that state's public policy. Gould v.
Gould, 235 N.Y. 14, 138 N.E. 490 (1923); Rosenbaum v. Rosenbaum,
309 N.Y. 371, 130 N.E.2d 902 (1955).
The leading New York case on the recognition of foreign divorce
decrees is Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 209 N.E.2d 709,
262 N.Y.S.2d 86 (1965), cert. denied 384 U.S. 971 (1966), which dealt
with a bilateral Mexican divorce based on ephemeral contact with
Mexico. In that case the court summarized New York law as
follows:
In eases where a divorce has been obtained without any personal contact
with the jurisdiction by either party or by physical submission to the
jurisdiction by one, with no personal service of process within the foreign
jurisdiction upon, and no appearance or submission by, the other, decision has

been against the validity of the foreign decree (Caldwell v. Caldwell, 298 N.Y.
146 [1948]; Rosenbaum v. Rosenbaum, 309 N.Y. 371 [1955]). 1

A fact situation somewhat analagous to the one before us now
was considered in De Pena v. De Pena, 31 App. Div. 2d 415, 298
N.Y.S.2d 188 (1969). That case involved two nationals and citizens
of the Dominican Republic who were married in the Dominican
consulate in New York. The husband obtained a divorce from a

court in the Dominican Republic. Neither party ever left the
United States and the wife was not personally served and did not
appear in the action. The court noted that except for the husband's continued Dominican citizenship, "he does not claim any
present contacts with that country and he did not even personally
return there to prosecute the divorce proceedings." 2 The court
held that the policy of New York required that the Dominican
decree not be given recognition.
In the present case, the record indicates that the beneficiary
was not physically present within the jurisdiction of the Ecuadorian court. There was no personal service of process upon his wife
1
2

16 N.Y.2d at 72.
31 App. Div. 2d 419.

473

Interim Decision #2239
and she did not appear or otherwise submit to the jurisdiction of
the Ecuadorian court. In light of the statements of New York
policy contained in Rosenetiel and De Pena, we fmd that New York
would not recognize the Ecuadorian decree.
In visa petition proceedings, the burden of proof to establish
eligibility for the benfit conferred by the immigration laws rests
upon the petitioner. Matter of Brantigan, 11 I. & N. Dec. 493 ()MA
1966). In the present case, the petitioner has failed to show that a
prior marriage of the beneficiary was legally terminated. Therefore, the petitioner has failed to establish that her marriage to the
beneficiary is valid under New York law. Accordingly, the appeal
will be dismissed.
ORDER: The appeal is dismissed.

474


Interim Decision 4fr1781

MATTER

or Dix

In Visa Petition Proceedings
A-17890725
Decided by Acting Regional Commissioner May 3,1969
Notwithstanding beneficiary, who has D.A. and M.A. degrees as well as extensive experience in forestry, is a member of the professions within the

meaning of section 101(a) (82) of the Immigration and Nationality Act, as
amended, where he intends to remain employed outside the United States
and will spend only his vacations in this country, a visa petition to accord
him preference classification under section 203(a) (3) of the Act,•as amended,
as a silviculturalist or forestry specialist, is denied since as a third preference immigrant he comes within the purview of section 212(a) (14) of the
Act and must establish

a

bona fide intent to engage in his profession or a

related field within the United States.

This case comes forward on appeal from the decision of the District
Director, Honolulu, who denied the petition on March . 31, 1967 as
follows:
The law (section 212(a) (14) of the Immigration and Nationality Act) relating to petitioners seeking classification as third preference immigrants re-

quires a bona Me intent to engage in the United States in the type of work
described in the petition.
Since you do not intend to practice your profession in the United States, your
petition cannot be approved.

The petitioner is a 52-year-old marled male, a native and citizen
of Burma presently residing in Nepal with his wife and children,
also natives and citizens of Burma.
Petitioner seeks a preference classification under section 203 (a)
(3) of the Immigration and Nationality Act, as amended, as a professional silviculturist and forestry specialist. He has presented evidence of graduation from the Judson College and Rangoon University, Burma, in 1935 with a B.S. in natural science, and graduation from Oxford University, United Kingdom, in 1939 with a B.A.
in forestry, and in 1951 with a Master's Degree in forestry. His academic qualifications are well established.
From 1953 to 1956 he was employed by the Government Forest Serv413

Interim Decision #1781
ice of Burma "In charge of a Forest Circle comprising six Forest
Divisions" and was also a Professor of Foresty at Rangoon University. He is presently on the permanent staff of the Food and Agriculture Organization of the United Nations, with headquarters in Rome,
Italy. From 1958 to January 1966 he was employed by the "Food and
Agriculture Organization of the United Nations" as the Regional
Foresty Officer in charge of the Asia-Pacific Region, working out of
Regional Headquarters in Bangkok. Since January 1966 he has been
Project Manager of the United Nations Development Program, working out of Rome, Italy.
He has stated that as a permanent member of the staff of the Food
and Agriculture Organization of the United Nations, ha has ten (10)
years to go until retirement. For personal reasons he does not wish

to return with his family to Burma and states that for "administra-

tive purposes for home-leave travel, etc., I am required to give a state
as home, hence my choice of Hawaii. . . I will establish my residence and home in Hawaii." He states that until retirement, ten (10)
years hence, he will come to Hawaii for vacations on anunal leave from
his employment with the United Nations from wherever he may be
stationed abroad. He goes on to state: "Thus I will not be engaged
in any profession in Honolulu, Hawaii itself, as I will all the time
be on the FAO/UN permanent staff as an international civil servant."
He is not seeking employment in the United States and does not intend to be employed in the United States.
Section 203(a) (3) of the Immigration and Nationality Act, as

amended, provides for the issuance of visas "to qualified immigrants
who are members of the professions, or who because of their exceptional ability in the sciences or the arts will substantially benefit
prospectively the national economy, cultural interests, or welfare of
the United States."

Section 212(a) (14) provides for the exclusion of aliens seeking to
enter the United States to perform skilled or unskilled labor unless
the Secretary of Labor has determined and certified to the Attorney
General as to the availability of like labor in the United States.
The petitioner is a member of the professions within the purview
of section 203(a) (3) of the Act by reason of his academic degrees in
forestry from an accredited institution of higher learning. The Department of Labor certification requirement of section 212 (a) (14) has
been met in that his academic graduate degree places him within
Group I of Schedule A of 29 OFR 60 for which the Secretary of Labor
has issued a blanket certification.
The term "seeking to enter the United States for the purpose of
performing skilled or unskilled labor" as found in section 212(a) (14)

414

Interim Decision #1781
of the Act includes aliens seeking preference classification under section 203(a) (3) of the Act and contemplates that such aliens perform in
the United States those services which entitle them to the preference
classification for which petitioned. The phrase "for the purpose of
performing" clearly indicates that an immigrant alien within the contemplation of section 212(a) (14) must establish a bona fide intent to
engage in his profession or a related field. In addition, at page 12 of the
House of Representatives Report No. 745, 89th Congress, First Session,
prepared by the Committee on the Judiciary in connection with H.R.
2580 (which, as amended, was enacted as P.L. 89-236), the Committee
made the following statement regarding the preferences established by
the proposed legislation :
Preference Is also provided for those professional people, with personal qualm•

cations, whose services are urgently needed in the United States.

Thus, it appears to be clear that it was the Congressional intent to
award a preference classification to members of the professions, in con-

templation that they would perform needed services for which their
professional status qualified them. It does not appear to have been the
wish of the Congress to award such a preference to an alien who,
although fully qualified as a member of the professions, had no intention of engaging in his profession or, at least, in a related field for
which he was fitted by virtue of his professional education or experience. Matter of &median, Interim Decision #1627, decided by the
Regional Commissioner June 2,8, 1966.
In his brief on appeal, the petitioner states that if he had not
"elected" to accept his assignment with the United Nations he could be
employed on the faculty of any leading American university or any
United States government foreign post or a private company. While
this may be true, he is not so employed. His employment is outside of
the United States and he is not seeking entry to preform services within
the United States.
Under the circumstances, the decision of the District Director was
proper. The appeal will be dismissed.
ORDER : It is ordered that the appeal be dismissed.

415


Interim Decision #2554

MATTEtt OF WV "BERGEN JUNO"
In Fine Proceedings
NOL 10/61.611
Decided by Board February 2, 1977
(1) Under section 256 of the Immigration and Nationality Act the carrier has an absolute
duty not to pay off or discharge any alien crewman employed on board a vessel or
aircraft arriving in the United States without having first obtained the consent of the
Attorney General. The only exception to this rule is an alien lawfully admitted for
permanent residence.
(2) The statute is penal in nature; strict proof of the violation is required; and an essential
element in establishing this violation is the termination of the crewman's employment
by an affirmative act of the parties responsible for the vessel, or the crewman himself,

without prior approval of the Attorney General.
(3) Where the crewmen were paid off, and separated from the crew list, and one of the
vacated positions on the erew was filled by another crewman, the record sufficiently
glows that ouch an affune tiv a act uceuzzed, priur approval of the Attorney General was

not secured; and imposition of the fine was proper.
In re: M/V "BERGEN JITNO:; alien crewmen involved: Ismail Ibraim Juwale and
Swapan Das Sarma
Basis for Fine: Act of 1952—Section 256 [8 U.S.C. 1286]
ON BEHALF OF CARRIER: J. Francois Allain, Esquire
Chaffe, McCall, Phillips, Toler & Sarpy
1500 First National Bank Building
New Orleans, Louisiana 70112
131": Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

This case presents an appeal from a decision of the District Director
wherein a fine in the amount of $2,000, mitigated to the minimum sum of
$1,000, was imposed upon owners of M/V "Bergen Juno" for violation of
section 256 of the Immigration and Nationality Act, as amended. The
appeal will be dismissed.
The specific violation complained of was the failure of the master of
the M/V "Bergen Juno" to obtain the consent of the Attorney General
. Implore paying off and discharging two alien crewmen upon arrival at
New Orleans on April 14, 1976. The ship sailed foreign on April 16, 1976.
On April 16, 1976, the crewmen who had been inspected and granted
102

Interim Decision #2554
permission to land temporarily in the United States were located at the
International Airport in New Orleans, and each signed a Record of
Sworn Statement prior to their departure from the United States at no
expense to the United States Government. Each crewman stated that he
had been paid off from the M/V "Bergen Juno" on April 14, 1976,
without first obtaining the permission of the Attorney General. Furthermore, one of the crewmen, Swapan Das Sarma, also stated "on the
same day of the arrival I was discharged by the master of the vessel and
paid off' (Form I-215B, dated April 16, 1976). Additionally, the Departing Crew List of the vessel showed the two crewmen as "separated

crew," and showed an added crewman as "Chief Engineer," the same
capacity in which one of the two crewmen had served.
Wallem Shipmanagement, Ltd., who employs the officers and crew of
the M/V "Bergen Juno," contends that although the two crewmen were
paid their earned wages, the crewmen were still under its employment.
The crewmen were repatriated to India solely for vacation purposes;
afterwards, both crewmen would be reassigned to the same or other
vessels managed by Wallem.
Under section 256 of the statute, the carrier has an absolute duty not
to pay off or discharge any alien crewman employed on board a vessel or
aircraft arriving in the United States, without first having obtained the
consent of the Attorney General. The only exception to this rule is an

alien lawfully admitted for permanent residence. Inasmuch as the statute we administer is penal in nature, strict proof of a violation is
required. We have stated in Matter of Yacht Caribbean Star, 9 I. & N.
Dec. 272 (BIA 1961), under section 256 of the Act, "the element essential to establish a violation is the termination of the crewman's employment by an affirmative act of the parties responsible for the vessel or of
the crewman himself."
The words "pay off' as used in section 256 are words of art which,
from accepted practice in the shipping industry, carry a clear intention
that a seaman receive his wages upon termination of his employment

under the articles of his service on board the particular vessel. United
States v. Seaboard Surety Company, 239 F.2d. 667 (4 Cir. 1957).
On the record before us, we are convinced that there was such
affirmative act. The two crewmen were paid off, they were separated
from the crew list, and one of the positions vacated was filled by another.
We have held, when this occurs without first obtaining the consent of
the Attorney General a violation of section 256 is established, Matter of
SS Republic, 5 I. & N. Dec. 663 (BIA 1954).
We find the imposition of a fine under section 256 to be proper.
ORDER: The appeal is dismissed_

103


Interim Decision #2028

MATTER OF MARIN

In Deportation Proceedings
A-14226796
Decided by Board March 10, 1970
Respondent's criminal convictions may be used as a ground for his deportation under section 241 (a) (4) of the Immigration and Nationality Act even
though at the time of the convictions respondent and the sentencing judge
were unaware of the recommendation against deportation provisions of
section 241(b) (2) of the Act.*
CHARGE:
Order: Act of 1952—Section 241 (a) (4) [8 U.S.C. 1251 (a) (4)1—Convicted
of two crimes after entry: petty theft and burglary.
ON BEHALF OF RESPONDENT:
Joseph S. Hertogs, Esquire
680 Washington Street
San Francisco, California 94111

ON BEHALF OF SERVICE:

Irring A. Appleman
Appellate Trial Attorney
Stephen M. Suffin
Trial Attorney
(Brief filed)

Donald L. Ungar, Esquire
517 Washington Street
San Francisco, California 94111
(Brief filed)

The special inquiry officer certified his order terminating
deportation proceedings. We find the alien deportable.
The question is whether an alien's criminal conviction may be
used as a basis for his deportation if he did not know that he
could have made a timely application to the sentencing court for
a recommendation against deportation pursuant to section
241 (b) (2) of the Act, 8 U.S.C. 1251(b) (2). We answer the question in the affirmative.
Section 241 (b) states that the law requiring -the deportation of
an alien convicted of a crime involving moral turpitude shall not
apply (1) if the alien obtains a pardon, or (2) if the sentencing
court "shall make, at the time of first imposing judgement or
* Affirmed. See 438 F.2d 933 (C.A. 9, 1971).

497

Interim Decision #2028
passing sentence, or within thirty days thereafter, a recommendation" that the alien be not deported.
Respondent, a 24-year-old male, a native and citizen of El Salvador, was admitted for permanent residence on May 29, 1964.
Conceding that he was convicted of two crimes involving moral
turpitude after his entry, he contends that he is not deportable.
He maintains that since, at the time of the convictions, neither
he, his representative, nor the courts were aware that the courts
could recommend against his deportation under the authority contained in section 241(b) (2) of the Act, the congressional scheme
provided for the deportation of aliens was frustrated and the convictions cannot be used to deport him. The special inquiry officer
sustained the contention. The Service, by brief and at oral argument, requested that the special inquiry officer's order be reversed. Counsel, by brief and at oral argument, requested that no
change be made in the order of the special inquiry officer.
Respondent was convicted for petty theft on August 16, 1966
(Ex. 2), and for burglary, second degree on January 10, 1969
(Ex. 3). The order to show cause is based on these convictions.)
The record establishes that at the time of the convictions, neither
the respondent, his attorneys, nor the judges who presided were
aware that the respondent's immigration status was in jeopardy
by reason of the convictions. The judges and respondent stated
that they were not aware of the existence of section 241 (b) (2) at
the time of the convictions and there was no discussion within
the time limits provided by law concerning a recommendation
against deportation.
The special inquiry officer's comprehensive review of judicial
and administrative decisions dealing with the power of the court
to make a timely recommendation against deportation revealed
none which held that ignorance of the power prevents the use of
a conviction as the basis for a deportation order. The basis foi
the special inquiry officer's original approach is a line of decision
starting with Gubbels v. Hoy, 261 F.2d 952 (9 Cir., 1958). Thes
cases hold that since Congress made the recommendations again;
deportation and intrinsic part of the deportation process, the lac
of capacity in a convicting tribunal to make a recommendatic
1 Respondent was also convicted of what appears to be two counts of pel
theft on June 7, 1967 (Ex. 4). He also admitted that he was convicted :
burglary in September 1969 (pp. 16-17). There was no application fol
recommendation against deportation in connection with these convictions.
convictions occurred in courts provided under the laws of the State of C
fornia.

498

Interim Decision #2028
prevents the conviction from being used as the basis for a deportation order. The special inquiry officer reasons that the lack of
an opportunity to obtain a recommendation because of the incapacity of the court is, in effect, no different than the lack of an
opportunity to ask for a recommendation which occurs when the
court, the alien, and his representatives are unaware of the provisions of section 241 (b) (2) of the Act. 2
Approaching it from another aspect, the special inquiry officer
points out that since the alien's ability to ask the court to make a
recommendation against deportation is a "right", and since a
"right" can be given up only by an intelligent waiver, it follows
that an alien unaware that he possesses the "right" cannot make
an intelligent waiver of it, and to use a conviction so obtained
would violate due process.
The special inquiry officer has shown that a serious recurrent
problem exists because judges, lawyers, and aliens are so frequently unaware of the recommendation provisions during the period statutory limitations permit effective action. However, we
cannot accept his thoughtful solution for we find no authority for
it in either the language of the law or in the interpretations of
the law considered as a whole.
Certainly, the language of the law does not suggest that utilization of a conviction as the basis for the deportation of an alien
requires the alien to be informed by the sentencing court that he
has the right to ask for the recommendation against deportation.
Judicial and administrative interpretations, when considered as a
whole, do not show it has been so interpreted. In fact, the authority is to the contrary. That at the time of sentencing, the aliens
were unaware they had the opportunity to ask the court for a
recommendation is apparent from a series of cases dealing with
aliens who attempted to obtain a recommendation against deportation after the passing of the statutory time. Nevertheless, the
reviewing courts refused to give validity to late recommendations
and permitted the convictions to be used as the basis for the deportation of the aliens, U.S. ex rel Klonis v. Davis, 13 F.2d 630
(2 Cir., 1926) is an example. There, a timely application for a
2 Counsel believes that Gobbets, supra, turned not on lack of capacity of
the military court to make a recommendation, but on the fact that because
of its organization, the alien could not have effectively obtained a recommendation. As we read the case, the organization of the military court was
merely one of the factors that persuaded the circuit court that a military
court has no capacity to make the recommendation. The Supreme Court's
comment on Gubbets, supra, indicates that the military court lacked capacity, Costello v. INS, 376 U.S. 120, 127, note eleven (1964).

499

Interim Decision #2028
recommendation was not made because the alien's attorneys I
not known of his alienage and the danger of his being deport
They learned of this after the statutory time had run. They
tallied a nuns pro tune amendment of the sentence with the /
ommendation that the alien be not deported. The immigration
ficials refused to honor the recommendation. On review
district court held that the recommendation did not bar depo3
tion. The circuit court approved. It held that it could not inter
late in the law a provision that the recommendation could
made within 30 days after the effect of the sentence was reath
Several courts have indicated the absence of any obligation
a sentencing court to inform an alien that he has the opportui
to ask for a recommendation. Todaro v. Munster, 62 F.2d 963
Cir., 1933), cert. denied 289 'U.S. 738, involved a review of a
portation order based on a narcotic conviction. By way of diet
the court stated that as long as the recommendation was
made, it was immaterial whether or not a sentencing court
an erroneous impression as to its power to recommend aga
deportation.
In U.S. ex rel. Durante v. Holton, 228 F.2d 827 (7 Cir., 19€
cert. denied 351 U.S. 963, the court stated that there was no
upon a sentencing court to advise a convicted alien of the pc
bility of deportation that might result from the criminal con
tion. The court stated that a judgment of conviction otbained
result of a guilty plea in a court which had not informed
alien that the conviction might be made a basis for his depo
tion had not been obtained without due process of law.
In Joseph v. Esperdy, 267 F. Supp. 492 (S.D.N.Y., 1966),
alien's deportation was sought because of a narcotic convic
obtained on a plea of guilty. The alien maintained that the
viction was void because he had not been advised that his cor
tion would subject him to deportation. The court stated (p. 4
that even in a federal court, where the full range of conseque
had to be set out, it seemed absurd to expect a judge to explai
each "defendant who pleads guilty the full range of coned
consequences of his plea and, indeed, to anticipate what those
lateral consequences are. Nothing more should be expected of
State court" (emphasis in original).
It is true, as the special inquiry officer states, that many c
on the section are concerned with the issue of the timeline:
the recommendation against deportation and not with the sii
cance of the lack of knowledge; yet, as we pointed out, the al
lack of knowledge, which was apparent in most of the cases

500

Interim Decision #2028
not prevent the court from ruling against the alien, nor did the
line of cases on which the special inquiry officer relies repudiate
the cases concerned with the time limitations.
Moreover, Congress must have been aware of the many decisions in which, despite an alien's failure to seek a recommendation because of his ignorance of the possibility, his conviction was
made the basis for an order of deportation. Yet, although Congress revised the section in 1952 and 1956, it took no steps to
eliminate the problem presented here. Congressional acceptance
of the situation is some evidence that Congress did not intend
that a conviction could not be used as the basis for deportation
unless it was shown that the convicted alien was aware of the opportunity to obtain a recommendation that the law offered him.
In U.S. ex rel. Circella, v. Sahli, 216 F.2d 33 (7 Cir., 1954),
cert. denied 348 U.S. 964, the alien contended that use of his 1916
conviction as the basis for an order of deportation was a denial
of due process because, since the conviction occurred before the
1917 Act authorized courts to make recommendations, it deprived
him of the opportunity to ask for a recommendation that aliens
had who were convicted after the 1917 Act became effective. The
court rejected the contention.
We have some additional grounds for our conclusion. The
wording of section 241 (b) (2) and judicial interpretations reveal
that it was the intent of Congress to have the matter of a recommendation settled within a 31-day period including the date of
the passing of sentence. To make ignorance a material matter
would nullify the limitation, for such a conclusion might require
reopening of the criminal case and extension of the power of the
court beyond the time provided by Congress. 3
The cases based on Gubbels, supra, did not deal with the issue
before us. They concerned, aliens who did not have the opportunity of successfully applying for a recommendation against deportation. In the instant case, the alien had the opportunity.
There is no evidence he was misled by the Government. His failure to take advantage of the application because of his ignorance
is not excusable. See Lockhart v. United States, No. 21,311 (9
Cir., 12/18/69) (ignorance that failure to take administrative appeal would preclude judicial review did not excuse the failure).
Moreover, to explore the question whether a conviction should
3 At the hearing, counsel contended that the alien was forever nondeportable by reason of a conviction entered without knowledge of the possibility
that he could apply for a recommendation against deportation (p. 7). At
oral argument, counsel indicated that the defect might be cured by a motion,

501

Interim Decision #2028
or should not have been accompanied by a recommendation
against deportation violates the long established rule that a collateral attack on a criminal conviction will not be permitted in a
deportation proceeding. We are bound by the conviction as it
stands, Matter of T--, 3 I. & N. Dec. 641 (BIA, 1949).
As to the constitutional issue, if one is presented, we have no
power to pass on it, Matter of L—, 4 I. & N. Dec. 566 (B1A,
1951). We note for the record the Service contention that Congress did not grant a "right" but a "privilege" and therefore no
constitutional issue is involved.
To accept the special inquiry officer's position would result in a
situation where an alien could be better off if he did not seek a
recommendation at the time of sentencing. Later, he could attempt to prove that he was ignorant of his right to apply at the
time of sentencing. If the "defect" is not curable, he would have
frustrated the congressional intent to deport convicted aliens. If
the "defect" is curable, action would be required that would involve courts and administrative officials in litigation. It is difficult
to believe Congress contemplated this.
The appellate trial attorney has pointed out that the respondent is not remediless. He can eliminate the convictions for deportation purposes if he obtains a pardon, section 241(b) (1) of the
Act.
ORDER The order of the special inquiry officer is withdrawn.
The case is returned to the special inquiry officer for the entry of
an appropriate order.

502


Interim. Decision #1870

lliaa,Las or Cormoronnos
In VISA PETITION Proceedings
SFR-N-3506
Decided by Acting Regioruzl Commissioner February 11,1964
Permanent nature of position of "governess, mother's helper" precludes granting beneficiary nonimmigrant status as a temporary worker under section
101(a) (15) (H) (ii), Immigration and Nationality Act, even though intended
duration of employment would be limited to 2 years.

This case is before me on appeal from the District Director's denial
of the petition for the following reasons : "In order for the beneficiary
to be classified as nonimmigrant temporary worker, the position to be
filled must be temporary. The United States Employment clearance
order describes the opening as permanent. Your desire to employ the
beneficiary for two to three years does not alter the permanent character of the position."
The appellant petitions for an alien to perform temporary service
or labor and to perform duties which are themselves temporary in
nature. The descriptive job title of the work to be performed if
admitted was shown in the application as Governess, Mother's Helper.
A clearance certificate from the State of California, Department of
Employment Service on Form ES-560 was submitted. The occupational title of Governess, Mother's Helper, is shown with respective
codes of G-32.98 and 2-07.03. A permanent job was indicated and the
rate of pay was $200.00 per month plus room and board. The job
summary indicates that the person to be employed was to "teach Greek
language to young ehildern and act as mother's helper. Three children
ages 10, 8, and 21/2 years." The education and experience requirements are shown as: "Prefer with diploma from Greek high school.
Must be able to read, write and speak Greek. Pleasant personality.
Be able to perform duties of mother's helper." It is stamped as of June
26, 1963, by the U.S. Employment Service, Bureau of Employment
Security, by Mr. Louis Levine, Director, to show that qualified workers as described in this Form ES 560 are not available within the
-

654

Interim Decision #1370
United States for referral to the employer by the Employment Service
and that Employment Service policies have been observed.
The petitioners are aliens, permanent residents of the United States.
The husband is a professor at the University of California Medical
School and the wife/petitioner has been assisting a professor of bacteriology at Berkeley, California,e
and is stated by him to be a key
department of bacteriology supperson in the research project in
ported by NIH grants totaling some half million. dollars. It is stated
that unless Mrs. Contopoulos "gets just the sort of person she has in
mind, she will feel morally obligated to quit her job and stay with
her children".
The petitioners have asserted that the beneficiary of this petition

will return to her native Greece, that her services would no longer
be needed after about two years after her arrival in California and
that the beneficiary herself made it clear to the petitioners that she
does not wish to leave her family and country (Greece) for a longer
period of time. (Petitioner speaks of 3 years.)
The petitioners have indicated that they would do anything necessary to guarantee that the beneficiary would return to Greece at the
conclusion of her services and were willing to post whatever bond
might be required to insure that the beneficiary would return to her
native Greece after her stay here in the capacity sought for a period
of about two years. It was also asserted that the youngest child of
the petitioners would be attending school at the end of that period
and that the mother anticipated concluding her present employment
in the University of California by that time.

The admission of temporary workers under prior law had created
many problems. Enactment of the Immigration and Nationality Act
created a new category of nonimmigrants to provide for the temporary

admission of aliens having a fixed foreign domicile seeking to
enter the United States for the purpose of furnishing services of an
exceptional nature or to perform other services or labor if like unemployed labor could not be found in this country. It was believed
that a provision for this category would provide adequate authority
for the admission of aliens whose temporary services in this country
are needed or held otherwise desirable in the national interest. Pages
588-590, Senate Report 1515, 81st Congress, 2d Session, Report on the
Committee on the Judiciary, pursuant to S. Res. 137.
In House Report No. 1365, 82d Congress, 2d Session, accompanying
H.R. 5678, on page 44 and 45, similar comment was made:

h. Temporary workers
This is new class of nonimmigrants and embraces "an alien having a residence

in a foreign country which he has no intention of abandoning (i) who is of

distinguished merit and ability and who is coming temporarily to the United
655

Interim Decision 4t1970
States to perform temporary services of an exceptional nature requiring such
merit and ability ; or (ii) who is coming temporarily to the United States to
perform other temporary services or labor, if unemployed persons capable of
performing such service or labor cannot be found in the country; or (iii) who
is coming temporarily to the United States as an industrial trainee."

The question of importing any alien as a nonimmigrant in this class is to
be determined by the Attorney General as prescribed in section 214(c) which
sets forth a petition procedure. These provisions of the bill grant the Attorney

General sufficient authority to admit temporarily certain alien workers, industrial, agricultural, or otherwise, for the purpose of alleviating labor shortages as they exist or may develop in certain areas or certain branches of
American productive enterprises, particularly in periods of intensified production.
They also enable foreign trainees to acquire the knowledge of American industrial. agricultural, and business methods.
This was repeated in substance in Senate Report No. 1137, Calendar
No. 1072, 82d Congress, 2d. Session accompanying S. 2550 on pages 20
and 21.
The foregoing is part of the legislative history of the provisions of
law which became effective December 24, 1952 under Public Law 414.
The pertinent provisions of law that obtain are quoted herewith :
Under section 101(a) of the Immigration and Nationality Act, as
amended.:
(15) The term "Immigrant" means every alien except an alien who is within
one of the following classes of nonimmigrant aliens*
*
*
(R) An alien having a. residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is
coming temporarily to the United States to perform temporary services of an
exceptional nature requiring such merit and ability ; or (ii) who is coming
temporarily to the United States to perform other temporary services or labor, if
unemployed persons capable of performing such service or labor cannot be found
in this country, or (iii) who is coming temporarily to the United States as an
industrial trainee.

Section 214 of the Immigration and Nationality Act, in its pertinent
portions, reads as follows :
Sec. 214. (a) The admission to the United States of any alien as a nonimmigrant shall be for such time and undet such conditions as the Attorney
General may by regulations prescribe, including when he deems necessary the
giving of a bond with sufficient surety in such • sum and containing such conditions as the Attorney General shall prescribe, to insure that at the expiration
of such time or upon failure to maintain the status under which he was admitted,
or to maintain any status subsequently acquired under section 248, such alien
will depart from the United States.
(b) Every alien shall be presumed to be an immigrant until he establishes
to the satisfaction of the consular officer, at the time of application for a visa,
and the immigration officers, at the time of application for admission, that he
is entitled to a nonimmigrant status under section 101(a) (15). An alien who
is an °facer or employee of any foreign government or of any international
organization entitled to enjoy privileges, exemptions, and immunities under the

656

Interim Decision #1370
International Organizations Immunities Act, or an alien who is the attendant,
servant, employee, or member of the immediate family of any such alien shall
not be entitled to apply for or receive an immigrant visa, or to enter the United

States as an immigrant unless be executes a written waiver in the same form
and substance as is prescribed by section 247 (b).
(c) The question of importing any alien as a nonimmigrant under section
101 (a) (15) (H) in any specific case or specific cases shall be determined by the
Attorney General, after consultation with appropriate agencies of the Government, upon petition of the importing employer. Such petition shall be made
and approved before the visa is granted. The petition shall be in such form and
contain such information as the Attorney General shall prescribe. The approval
of such a petition shall not, of Itself, be construed as establishing that the alien
is a nonimmigrant.
It is to be noted that under section 101(a) (15) (H) (ii) above, as
well as under (i) above, both, the coining to the United States and the
performance of service or labor must be temporary, the term "tempo-

rary"

being used twice. It must be further noted that section 214(c)

states that the approval of such a petition is not of itself to be con-

strued as establishing that the alien is a nonimmigrant.
In determining whether the position of an intern at a hospital was
a temporary position under (i) , note was taken that although the intern

would be in the position of intern no longer than a year, that the
position of intern was of a continuing nature at the hospital and that
such intern would be coming to a permanent position regardless of the
actual period of the expected employment of the specific alien (Matter
of 111—S—H—, 8 & N. Dec. 460) .
In this case, it is urged that the duration of the employment is set
by the expressed needs of the petitioners for a period of about two

years, by the clear intention of the prospective employee to return to
her native country abroad at the end of the contemplated employment
hors, and because the female petitioner intends to remain at home after

this two-year period in order to take care of her own children herself.
Because of these particular circumstances, it is contended the job
involved must be deemed temporary inasmuch as it is thereby limited
in duration.
This merely takes into consideration the limitations set by the parties
for the duration of the period of the beneficiary's employment. It
does not consider the nature of the duties involved in this function.
The test that must still be met is whether this function is of a temporary nature or whether it is of such a continuing nature that it cannot
be considered temporary. If the petitioners fall short of establishing

that the nature of the employment itself is temporary, then this
petition must be denied.
Are the services involved of a temporary nature? The clearance
order is for one who will teach the Greek language to young children
and act as "mother's helper". The female petitioner asserts that she
758-456-65----43

657

Interim Decision #1370
will be working in the department of bacteriology at the University of
California as a research bacteriologist. Therefore, the term "mother's
helper" would include those duties normally performed by a housewife
and mother of children. These familial duties are not temporary in
nature but persist and continue so long as a family unit exists. Since
it is the nature of the position which determines whether the job is
temporary and not the personal need in an individual case, the duties
of "mother's helper" cannot be considered temporary within the meaning of section 101 (a) (15) (H) (ii) or section 214 of the Immigration
and Nationality Act, supra.
Accordingly, it is concluded that the District Director correctly
denied this petition and the appeal must be dismissed.
ORDER; It is ordered that the appeal from the denial of the petition by the District Director be and is hereby dismissed.

658


Interim Decision #2498

MATTER. OF TEBEREN
In Deportation

Proceedings

A-17442007
Decided by, Boird June 16, 1976
in order to establish an alien's deportability as an overstay, the Service need only show
that the alien was admitted as a nonimmigrant for a temporary period; that the period
has elapsed; and that the alien has not departed. Since an alien becomes deportable as
an overstay at the time the authorized period of his admission expires unless he receives
a grant of extension from a district director, a formal denial of an application for
extension of stay by a district director is not required to establish an alien's deportability as an overstay.
CHARGE:

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

Richard D. Steel, Esquire
Wasserman, Orlow, Kaye & Rubin
636 Public Ledger Building
Sixth and Chestnut Streets
Philadelphia, PA 19106

In a decision dated November 13, 1975, the immigration judge found
the respondent deportable under section 241(a)(2) of the Immigration
and Nationality Act, but granted him the privilege of voluntary departure in lieu of deportation.. The respondent has appealed from the
finding of deportability. The appeal will be. dismissed.
The respondent is a native and citizen of Nigeria who was admitted to
the United States

as a nonimmigrant student in September of 1967_ His

stay as a student was ultimately extended until June 1, 1975. He did not
obtain an extension beyond that date, and the immigration judge therefore found him deportable as a nonimmigrant who had remained beyond
the authorized length of his stay.
The respondent admitted the truth"of the factual allegations contained
in the order to show cause. He denies deportability, however, contending that the district director never adjudicated a timely filed application
for an extension of stay.
The record indicates that the respondent completed his under689

Interim Decision #2498
education in the fall of 1974, presumably receiving a
graduate cot
degree in either December 1974 or January 1975. He thereafter sought
to attend graduate school at North Carolina State University. The
university apparently prepared a Certificate of Eligibility for nonimmigrant student status (Form I-20A), which was received by the district director's office on January 2, 1975, and which indicated that the
respondent Lad been accepted to the graduate school of the university
for a full course of study to commence in January of 1975.
The Service evidently returned the Form I-20A to the university
because certain data was lacking. The respondent testified that a new
and complete set of documents was submitted by mail to the Service in
February of 1975, approximately three and one half months prior to the
expiration of the respondent's stay. At the hearing, the Service's trial
attorney stated that the Service had no record of such an application
having been filed. For present purposes, we shall assume that the
respondent mailed the required application to the Service, and that the
application was lost prior to its adjudication.
Counsel recognizes that the propriety of a district director's decision

on an application for an extension of stay cannot be considered in
deportation proceedings. See Matter of Hossinpour, 15 I. & N. Dee.
191 (BIA 1975), aff'd, 520 F.2d 941 (C.A. 5, 1975) (table); Matter of
Saurbis, 11 & N. Dec. 335 (BIA 1965). Counsel, however, does not
seek approval of an extension of stay from the immigration judge.
Counsel merely argues that the respondent should not be found deportable as an "overstay" absent a ruling by the district director on a timely
filed application for an extension of stay.
A nonimmigrant alien has the obligation either to depart at the
expiration of his authorized period of stay, or to obtain a proper extension of that stay. Counsel, in essence, argues that the respondent's
overstay was justified under the circumstances. As a general rule,
however, an inquiry into whether or not an overstay was justified is not
germane to ;he question of an alien's deportability under section 241(a)(2). Matter of Arao, 13 I. & N. Dec. 156 (BIA 1969); see Matter of
Halabi, 15 I. & N. Dec. 105 (BIA 1974). See also Matter of C—C—, 3
I. & N. Doc. 221 (31A 1948).
In order to establish an alien's deportability as an "overstay," the
Service need only show that the alien was admitted as a nonimmigrant
". . . for a temporary period, that the period has elapsed, and that the
nonimmigrant has not departed." Milande v. INS, 484 F.2d 774, 776
(C.A. 7, 1973). The Service has made such a showing in this case.
We reject counsel's contention that the respondent, cannot be an
"overstay" until he receives a formal denial of an extension from Lhe
district director. Rather, we hold that a nonimmigrant becomes deportable as an "overstay" when the period of his admission expires, unless
690

Interim Decision #2498
he receives a grant of an extension of his stay. The respondent is
deportable as charged.
Finally, we note that the district director evidently offered to consider reinstatement of the respondent's student status (see Tr. pp.
17- 18). We have not been informed of any developments with respect to
that offer. However, there is an indication in the record that North
Carolina State University ultimately decided not to accept the respondent as a student because he did not satisfy the school's admission
requirements (see Tr. pp. 8, 15).
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 31 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.

691


Interim Decision #2342

MATTER OF YACHT "SANDPIPER"

In Fine Proceedings
MIA-10/12.378
Decided by Board January 23, 1975
The involved carrier pleaded guilty to criminal charges which related to the transportation
of the sanu• aliens involved in this civil fine proceeding. Carrier contends that imposition
of fine under section 273 of the Immigration and Nationality Act would result in a double
penalty for the same offense. The mere fact that the same conduct gives rise to both a
civil and criminal penalty does not equate with the imposition of a double fine. The
decision of the district director was correct.
IN RE: YACHT "SANDPIPER", which arrived at the port of Miami, Florida, from
foreign on August 26, 1973. Alien passengers involved: Jose VillamilRodriguez, Antonio Perez-Lopez, Marla Emilia Marti-Del Toro, Lidia
•
Morales-Bernal and Lidia Miguez-Lugones.
BASIS FOR FINES: Act of 1952—Section 273(b) (8 U.S.C.1323(b)]
ON BEHALF or APPELLANT:

Steadman S. Stahl, Jr., Esquire

Varon, Stahl and Kay, P.A.
2432 Hollywood Boulevard
Hollywood, Florida 33020

In a decision dated November 23, 1973, the district director imposed a
fine of $5,000 upon the carrier under section 273(b) of the Immigration
and Nationality Act for five violations of section 273(a) of the Act. The
district director also denied the carrier's request for remission of the
fine. The carrier has appealed from that decision. The appeal will be
dismissed.
Our review of the record satisfies us that the carrier's liability for the
fine has been established and that the district director properly denied
the carrier's request for remission of the fine.

Counsel has informed us that the carrier has entered a plea of guilty
to criminal charges stemming from his transportation of the alien passengers involved in these fine proceedings. Counsel contends that if the
carrier is fined for both the criminal violation and the section 273
violation, be will be subjected to a double penalty for the same Offense.
Counsel's contention is without merit. An administrative fine , under
section 273 is a civil obligation and is entirely separate and distinct from

172

Interim Decision #2342
any punishment imposed for violation of the criminal law. See Lloyd
Sabaudo Societa Anonima v. Elting, 287 U.S. 329 (1932); Oceanic
Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909). The mere fact
that the same incident may give rise to both civil liability under section
273 and criminal liability under the criminal provisions of the Act does
not equate with the imposition of a double fine for the same violation.
The district director's decision was correct. The appeal will be dismissed.
ORDER: The appeal is dismissed.

173


11iLCl lilt

MATTER OF

1Jelt1S11.111 if .60a4

KoTrE

In Deportation Proceedings
A-22281822
Decided by Board February 140, 1978
(1)Where a visa petition, filed prior to the commencement of deportation proceedings, to
accord the respondent third-preference status, had not been approved at the time of the

deportation hearing, the Board of Immigration Appeals concluded that the immigration
judge was not required to continue deportation proceedings pending adjudication of
respondent's visa petition by the District Director.
(2)In deciding that the respondent did not possess an approved visa petition and that,
therefore, he was statutorily ineligible for adjustment of status under section 245 of the
Immigration and Nationality Act, the Board of Immigration Appeals concluded that
neither it nor the immigration judge had authority to determine the respondent's
qualifications for third-preference status and that jurisdiction in this matter rested
solely with the District Director and Regional Commissioner.
(3)Notwithstanding the amendment of section 245(a) of the Immigration and Nationality
Aet by Pub. L. 94 -571, Immigration and Nationality Act -Amendments of 1276 (October
20, 1976), and the amendment of 8 C.F.R. 245.2(a)(2) making adjustment of status
contingent upon the availability of a visa on the date of, ting rather than on the date of
approval of an application, there is no absolute right to a continuance of the deportation
hearing, at which adjustment is sought, to a date after the District Director has
adjudicated a pending third-preference visa petition.
CHARGE:
Order: At of 1952—Section 241(aX9) [8 U.S.O. 1251(a)(9))—Nonimmigrant student—

failed to comply with conditions of status
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Ben H. Kim. Esquire
120 South LaSalle Street
Chicago, Illinois 60603

Gerald S. Hurwitz
'Dial Attorney

BY: IVElhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

In a decision dated April 18, 1977, the respondent was found deportable by the immigration judge under section 241(2)(9) of the Immigration
and Nationality Act (8 U.S.C. 1251(a)(9)). The respondent was granted
the privilege of voluntary departure on or before July 18, 1977. On April
28, 1977, he filed a notice of appeal. The appeal will be dismissed.
The respondent, a native and citizen of India, entered the United
449

.1.11‘G.I. 1111

410.1V 11 77-

States on January 3, 1975, as a nonimmigrant student, who was authorized to remain in the 'United States until January 2, 1976. He
subsequently received an extension of stay until January 2, 1977. An
Order to Show Cause issued on January 31, 1977, alleged that since
October 25, 1976, the respondent was employed as a machine operator
for a private corporation and that, therefore, he was subject to section
241(a)(9) of the Act as an alien who failed to comply with the conditions

of his nonimmigrant status under which he was admitted. At his hearing, he admitted, through counsel, the factual allegations contained in
the Order to Show Cause and conceded deportability. We conclude that
deportability has been established by clear, convincing, and unequivocal
evidence.
The facts of this case show - that on December 20, 1976, the respondent

petitioned the District Director for classification as a third-preference
immigrant. An application for adjustment of status was filed on the
same day. On April 5, 1977, the respondent filed a "notice of intent' with
the District Director, stating his desire that his application as a thirdpreference immigrant and his application for adjustment of status be
considered simultaneously under amended regulation 8 C. F.R.
245.2(a)(2).
At his hearing in deportation proceedings on March 8, 1977, the
respondent applied for adjustment of status under section 245 of the
Immigration and Nationality Act (8 U.S.C. 1255). He requested that
the immigration judge continue the hearing and defer consideration of

his application for adjustment of status until the District Director adjudicated his visa petition. An adjournment was granted until April 18,
1977. On reconvening, the third-preference petition had not yet been
approved. The immigration judge denied respondent's request for
further continuance and for relief on the ground that the respondent did
not have an approved visa petition and that, therefore, respondent's
adjustment of status application could not be approved.
On appeal, the respondent argues that the immigration judge erred
by not granting the continuance request. The respondent argues that
unless the deportation proceedings are continued until the District
Director adjudicates his visa petition, the amendment to 8 C.F.R.
245.2(a)(2) is rendered meaningless and serves no purpose. It also
appears that by sling his "notice of intent" after January 1, 1977, the
effective date of the new regulation, the respondent is claiming that his
application for adjustment of status lies within the ambit of the amendment to 8 C.F.R. 245.2(a)(2).
The amendment to 8 C.F.R. 245.2(a)(2) which became effective on
January 1, 1977, provides in pertinent part that:
Before an application for adjustment of status under section 245 of the Act may be
considered properly filed, a Visa must be immediately available. If a visa would be

450

•.1

available only upon approval of a visa petition, the application will not be considered
properly filed unless such petition has first been approved. If a visa petition is submit-

ted simultaneously with the adjustment application, the adjustment application shall
be retained for processing only if approval of the petition when reached for adjudication
would make a visa immediately available at the time of filing of the adjustment
application. If such petition is subsequently approved, the date of filing the adjustment
application shall be deemed the date on which the accompanying petition was filed.
(Emphasis supplied.)

The regulatory history' reveals that this amendment and other
amendments to the regulations were made necessary by the enactment
into law of the Immigration and Vationality Act Amendments of 1976

Under this law, section 245(a) of
(Pub. L. 94-571) on October 20, 1976.
the Act was amended to provide that:
The status of an alien ... who was inspected and admitted or paroled into the United
States may be adjusted by the Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien lawfully-admitted for permanent
residence if (1) the alien makes an application for such adjustment, (2) the alien is
eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his
application is filed. 2 (Emphasis supplied.)

that, under the amendment to section 245(a) of the Act, the date that the application for
adjustment of status is filed isdesignated as the date used in determining availability of a visa number rather than the date that the application is approved. We note that the legislative history is silent as to the
reason for this amendment to section. 245(a) of the Act. •
The issue before us is whether or not the immigration judge is required to continue a hearing in deportation proceedings pending - the
adjudication of respondent's visa petition by a District Director in light
of the aforementioned amendments. It is probable that the amendment
to section 245.2(x)(2) of the regulations was predicated upon the
amendment to section 245(a) of the Act. We find that the legislative and
regulatory histories do not express the reason for the amendment.
The respondent submits that the effect of amended regulation 8
C.F.R. 245.2(a)(2) is that, once the immigration judge in a deportation
The legislative history 3 of this statute shows

41 FR 49994, November 12, 1976.

Prior to October 20, 1976, section 245 (a) of the Act provided that:
The status of an alien, other than an alien crewman, who was inspected and admitted or
Paroled into the United States may be adjusted by the Attorney General, in his
discretion and under such regulations as he may prescribe, to that of an alien lawfully
admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the
United States for permanent residence, and (3) an immigrant visa is immediately
available to him at the time his application is approved.
3 H.R. Rep. No. 94-1553, 94th Cong., 2nd Sess. 15 (1976); 122 Cong. Rec. Hll, 682
(1976).
2

451

1111.V/1111 lie1:101V11

G. ,Jc7.-1

proceeding becomes aware that the respondent has pending before the
District Director a petition for classification as a preference immigrant
filed simultaneously with an application for adjustment of status, he
must adjourn the deportation proceedings until such time as the visa
petition is adjudicated. We disagree that amended regulation 8 C.F.R.
245.2(a)(2) was intended to have this effect upon deportation proceedings.
We find no provision of law or regulation that gives an alien an
absolute right to an adjournment of a deportation hearing in order to
have his application for adjustment of status disposed of. Matter of

, 5 I. & N. Dec.
622 (BIA 1954).
8 C.F.R. 245.1(d) provides that an applicant for preference status
such as this respondent is not eligible for the benefits of section 245 of
the Act unless he is the beneficiary of a valid unexpired visa petition
filed in accordance with 8 C.F.R. 204 and approved to accord him such
status. 8 C.F.R. 103.1(m)(2) and (n) places the determination of whether
or not an alien possesses the qualifications for third-preference status
solely within the jurisdiction of the appropriate District Director and

Ficalora, 11 I. & N. Dec. 592 (BIA 1966); Matter of M

—

Regional Commissioner_ 8 C F.R. 242.8 does not vest in the immigra-

tion judge authority over such a question; and 8 C.F.R. 3.1(b)(5) specifically excepts appellate jurisdiction of such a question from this Board.
The respondent does not possess an approved visa petition for a third
preference_ Therefore,• he is statutorily ineligible for adjustment of
status under section 245 of the Act. Respondent's remedy lies with the
District Director. There is no merit to respondent's contention that the
immigration judge was required to continue deportation proceedings.
The respondent has available to him the remedy of a motion to reopen
should future events in connection with his visa petition render such
aetion appropriate. See Matter of Ching, Interim Decision 2518 (BIA
1976); Matter of Ficalora, supra. The immigration judge's decision was
correct. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is permitted to depart from

the United States voluntarily within 30 days from the date of this order
or any extension beyond that time as may be granted by the District
Director; and in the event of failure so to depart, the respondent shall be

deported as provided in the immigration judge's order.

452


MATTER OF S—M-In EXCLUSION Proceedings
A-12709704
DeoZded by Board May 10,100

Loss of citizenship—Section 350—Dual national—Use of communal land in
Mexico.
A

cum

nanonal or the Milled Stu Le' and hieAle%) who accepte the right to

develop a parcel. of laud in a communal project in Mexico limited to "Mexicans by birth" ttlereby voluntarily enjoys a benefit of Mexican nationality.
Since he has resAl€,-,1 in Mexico for 3 years after his 22cl birthday and after
the benefit was accepted, both occurring after December 24, 1952, he has
lost United States citizenship under section 350 of the 1952 Act.
EXCLUDABLE:

Act of 1952—Section 212(a) (20) [8 U.S.C. 1182 (a ) (20) ]—No
valid immigrant visa.
BEFORE THE BOARD

DISCUSSION: The special inquiry officer ordered the applicant
excluded from admission on the ground stated above and certified the
case to this Board for final decision. No change will be made in the
special inquiry officer's order.
The applicant seeks

admission as a

citizen

of the United States.

The Service claims that he lost his United States citizenship under
section 350 of the Immigration and Nationality Act, 8 U.S.C. 1482,
by accepting the right to develop a parcel of land in a communal
project (ejido) in Mexico. The issue here is, in our opinion, whether
the applicant voluntarily utilized benefits from the Mexican government which he would not have been eligible to receive except for the
fact that he was a citizen of Mexico.
Section 350 of the Immigration and Nationality Act provides, with
certain exceptions not applicable here, that :
A person who acquired at birth the nationality of the United States and of

a foreign state and who has voluntarily sought or claimed benefits of the
nationality of any foreign state shall lose his United States nationality by
hereafter having a continuous residence for three years in the foreign state
of which he is a national by birth nt any time after attaining the age of
twenty - two

years • • •.

The following extract from Article 27 of the Mexican Constitution
is considered pertinent:
664

The ability to acquire domain over the lands and waters of the nation shall
be governed by the following laws: (1) Only Mcxicans by birth or naturalization and Mexican societies have the right to acquire domain over lands,
waters and their accessions, or to obtain grants t, , exploit mines, waters or
combustible minerals in the Mexican Republic. The state may grant the same
right to foreigners if they agree before the Secretary of Relations to be considered as nations with respect to said rights. and not to invoke, by the same
token, the protection of their government insofar as it refers to them; under
the penalty, in case of failure-to comply with the agreement, of losing, to the
benefit of the nation, whatever rights they would have acquired by virtue of
same. In a zone of 100 kilometers along the land boundaries or 50 along the
sea shores, for no reason may foreigners acquire direct domain over lands and
waters. (Exh. 11)

The following articles of the Agrarian Code of Mexico are applicable:
Article 54: Those country dwellers who fulfill the following requirements
will have capacity to obtain unit of endowment or parcel by means of endowment, enlargement, creation of new centers of population or accommodation on
surplus public lands:
1. To be a Mexicau by birth, a male over 16 years, if single, or of any age,
if married, or a single woman or widow if she has a family in her charge.
Article 112: Upon partition of the cultivated lands, the possession of these
will pass, with the limitations established by this Code, to the landholders in
whose favor the parcels of land shall he adjudicated.
Article 154: The certificates of agrarian rights will be issued prior to the
determination of the annual rental and should not be extended in a greater
number than the landholders who can conveniently maintain or support themselves from the land, hearing in mind the extent and quality of the lands
over which he commands. (Exh. 12, parts 1 and

The facts are fully stated by the special inquiry officer. Briefly,
the applicant was born in Texas on March 19, 1923, to parents who
are natives and citizens of Mexico. At birth he acquired the nationality both of the United States and Mexico. He was taken to Mexico
when he was about four years of age to be raised by his grandparents
since his mother was ill_ In 1040, he learned for the first time
that he had been born in the United Stales. In 1940, .Mexico granted
him the right to farm a plot of about 30 acres in a communal project.
On September 10, 1951, he was granted a "title" to the plot which is
about 31 kilometers from the border. The title guarantees the applicant's rights over the plot of land and guarantees that lie may freely
enjoy the benefits of his plot according to the "lawful regulations
in effect" and guarantees him "peaceful possession" of the plot (Exh.
7). The applicant continues to farm the plot and has resided in
Mexico continuously since he was brought there at the age of four.
The Service urges that the applicant's loss of United States nationality was brought about under section 350 when, claiming the benefits
of his Mexican nationality, he accepted the right offered by the Government of Mexico to develop the plot of land to which lie subsequently obtained "title'' and continued to take advantage of the bene665

fits of such membership for three years after December 24, 1952,
when section 350 became effective. 1
Counsel contends that the Service has failed to show that the applicant's claiming of benefits was voluntary, since applicant's testimony
reveals that he did not apply for the use of the land, but it was
granted to him as a matter of course because of his service in the
Mexican army. Counsel contends also that the constitutional requirement that "domain" over land within 100 kilometers be reserved to
Mexicans is not applicable because the applicant was not the owner
of the land but merely has certain rights in the land.
It is unnecessary to decide whether the applicant's rights to the
land constituted the "direct domain" reserved in the border zone
only to Mexicans by the constitution, for it appears to Ila that
Article 54 of the Agrarian Code of Mexico limits the obtaining of a
unit in the communal projects to "a Mexican by birth"; thus, the obtaining of a unit in such a parcel would be the enjoyment of a benefit
which could not have been obtained by one who was not a Mexican
by birth. Moreover, we believe that there was a voluntary enjoyment
of this benefit. Whether applicant applied for it or not, it was
made available to him if he desired to take it. It is not shown
that the law required that a former soldier enjoy such a benefit,
and it appears he was free to take or reject the right to work the
communal land. We must, therefore, conclude that the applicant
voluntarily accepted the benefits of his Mexican nationality ; he has
maintained a continuous residence in Mexico for three years after
his 22d birthday and after the benefit was accepted; therefore, he
has lost United States citizenship under section 350 of the Act (MetC E ,7 599).
ORDER: It is ordered that no change be made in the order of the

ter of

—

—

-

special inquiry officer.
1 To fall within section 350 of the Immigration and Nationality Act, the
use of the benefit must be after December 24, 1952, the effective date of the
Act, and foreign residence must continue for 3 years after the same date, and
after the person reached the age of - twenty-two (Matter of G—Q—, 7-195).

666


Cite as 27 I&N Dec. 560 (BIA 2019)

Interim Decision #3956

Matter of Jesus Gabriel NAVARRO GUADARRAMA,
Respondent
Decided June 11, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where an alien has been convicted of violating a State drug statute that includes a
controlled substance that is not on the Federal controlled substances schedules, he or she
must establish a realistic probability that the State would actually apply the language of the
statute to prosecute conduct involving that substance in order to avoid the immigration
consequences of such a conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014),
reaffirmed.
FOR RESPONDENT: David Stoller, Orlando, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Maria T. Armas, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, MANN, and KELLY, Board Members.
MANN, Board Member:

In a decision dated August 2, 2018, an Immigration Judge determined
that the respondent is removable under sections 212(a)(2)(A)(i)(II), (6)(A)(i),
and (7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1182(a)(2)(A)(i)(II), (6)(A)(i), and (7)(A)(i)(I) (2012), as an alien who
was convicted of a controlled substance violation, is present in the United
States without being admitted or paroled, and is not in possession of a valid
entry document. Finding that the respondent is ineligible for a waiver of
inadmissibility under section 212(h) of the Act, the Immigration Judge
denied his application for adjustment of status and ordered him removed
from the United States. The respondent has appealed from that decision. The
appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico. In 2005 and 2010, he
was convicted of possession of less than 20 grams of marijuana in violation
of section 893.13(6)(b) of the Florida Statutes. On the basis of these two
convictions, the Immigration Judge found that the respondent is inadmissible
560

Cite as 27 I&N Dec. 560 (BIA 2019)

Interim Decision #3956

under section 212(a)(2)(A)(i)(II) of the Act. 1 Because the respondent was
convicted of more than a “single offense of simple possession of 30 grams
or less of marijuana,” the Immigration Judge determined that he is ineligible
for a section 212(h) waiver and, consequently, for adjustment of status.

II. ANALYSIS
Under section 212(a)(2)(A)(i)(II) of the Act, an alien who has been
convicted of a violation of a State law “relating to a controlled substance (as
defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))”
is inadmissible. The respondent argues that he is not inadmissible under
that section because the definition of cannabis (commonly referred to as
marijuana) under Florida law is broader than the Federal definition.
At the time of the respondent’s convictions, marijuana, which was a
schedule I controlled substance under 21 U.S.C. § 812 (2000), was defined
as
all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof;
the resin extracted from any part of such plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term
does not include the mature stalks of such plant, fiber produced from such stalks, oil
or cake made from the seeds of such plant, any other compound, manufacture, salt,
derivative, mixture, or preparation of such mature stalks (except the resin extracted
therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable
of germination.

21 U.S.C. § 802(16) (2000) (emphasis added). 2
Like the Federal statute, Florida once defined “cannabis” to exclude “the
mature stalks of the plant.” Purifoy v. State, 359 So. 2d 446, 447 (Fla. 1978)
(quoting Fla. Stat. § 893.02(2) (1975)). However, in 1978, the Florida
Supreme Court quashed a conviction for possession of more than 5 grams of
1

The respondent had a third conviction for a marijuana possession that was subsequently
vacated. He was also convicted of contributing to the delinquency of a minor. However,
for purposes of this appeal, we need not decide whether that conviction is for a crime
involving moral turpitude.
2
On December 20, 2018, the Federal definition of “marijuana” at 21 U.S.C. § 802(16)
was amended by the Agricultural Improvement Act of 2018, Pub. L. No. 115-334,
§ 12619(a), 132 Stat. 4490, 5018. The definition essentially remained the same, but the
statute was divided into two parts: subsection (A), which defines marijuana, and subsection
(B), which specifies what the term marijuana does not include. In addition to the mature
stalks and other parts of the plant that were previously excluded, § 802(16)(B) now also
provides that that marijuana does not include a certain type of “hemp.” Id. § 10113, 132
Stat. at 4908 (to be codified at 7 U.S.C. § 1639o(1)).

561

Cite as 27 I&N Dec. 560 (BIA 2019)

Interim Decision #3956

marijuana where the defendant possessed “an aggregation of prohibited
cannabis and non-prohibited ‘mature (plant) stalks’ weigh[ing] 7.05 grams.”
Id. In response, the Florida Legislature amended its laws to redefine the term
“cannabis” in section 893.02(3) as
all parts of any plant of the genus Cannabis, whether growing or not; the seeds
thereof; the resin extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.

(Emphasis added.) 3
The respondent has the burden to establish that he is not inadmissible.
Section 240(c)(2)(A) of the Act, 8 U.S.C. § 1229a(c)(2)(A) (2012); 8 C.F.R.
§ 1240.8(c), (d) (2018). Arguing that Florida law defines cannabis more
broadly than 21 U.S.C. § 802(16), the respondent asserts that the statutes
are not a categorical match and, therefore, that he has not been convicted
of a controlled substance violation within the meaning of section
212(a)(2)(A)(i)(II) of the Act. However, the fact that some incongruity
exists between the Federal and Florida laws is not dispositive.
To show that a State statute prohibits conduct outside the generic
definition of an offense in a Federal statute, an alien must establish that there
is “a realistic probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic definition of a
crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); see also
Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). We have held that “even
where a State statute on its face covers a . . . [controlled] substance not
included in a Federal statute’s generic definition, there must be a realistic
probability that the State would prosecute conduct falling outside the generic
crime in order to defeat a charge of removability.” Matter of Ferreira,
26 I&N Dec. 415, 420–21 (BIA 2014). Thus, an alien can establish that he
is not removable based on a conviction for a State drug offense if he can
show that in either his own case or other cases, the State court actually
applied the statute to an offense involving a substance that is not federally

3

The stated purpose of Florida’s expansion of the definition of cannabis was to facilitate
law enforcement’s determination of the precise weight of a controlled substance by
eliminating the time-consuming need for drug labs to separate the prohibited part of the
cannabis plant from the stalks and stems, which are of no drug value to the user.
Joint Legis. Mgmt. Comm., Fla. Leg., 1979 Summary of General Legislation, at 178–79,
https://fall.law.fsu.edu/collection/FlSumGenLeg/FlSumGenLeg1979.pdf.
In addition
to expanding the definition of cannabis, the legislature increased the misdemeanor/felony
threshold for simple possession from 5 to 20 grams to make allowances for the possible
weight of stalks and stems. Nothing in the Florida law suggests that there was any intent
to criminalize forms of marijuana that are not also federally controlled.

562

Cite as 27 I&N Dec. 560 (BIA 2019)

Interim Decision #3956

controlled. Id. at 422 (citing Duenas-Alvarez, 549 U.S. at 193); see also
Matter of Mendoza Osorio, 26 I&N Dec. 703, 706 n.2 (BIA 2016).
With respect to his own case, the respondent does not claim that his
Florida possession convictions were for a substance that is outside the
Federal definition of marijuana at 21 U.S.C. § 802(16). In fact, he admits
that his convictions were based on pleas of guilty or nolo contendere to
possession of marijuana and were in conjunction with convictions for
possession of drug paraphernalia. There is no basis to believe that the
substances he possessed were marijuana stalks, sterilized seeds, or other
derivatives that are not federally controlled. Moreover, since separate stalks
and stems are of no value to a drug user, it is unlikely that the respondent
would possess such substances along with drug paraphernalia.
The respondent has also not presented any cases where a defendant was
successfully prosecuted under Florida law for an offense that involved only
a form of marijuana that was not prohibited by 21 U.S.C. § 802(16). We
are also not aware of any, and the change in the Florida law makes such
prosecutions even more unlikely. We are therefore unpersuaded that there is
a realistic probability that Florida would prosecute a person under section
893.13(6)(b) for possession of less than 20 grams of a form of marijuana that
is not federally controlled.
Notwithstanding the actual application of section 893.02(3) of the Florida
Statutes, however, the respondent argues that the plain language of the statute
itself establishes a realistic probability that the State would prosecute conduct
that falls outside the Federal definition of marijuana. In support of this
contention, the respondent relies on a decision of the United States Court of
Appeals for the Eleventh Circuit, in whose jurisdiction this case arises.
Ramos v. U.S. Att’y Gen., 709 F.3d 1066 (11th Cir. 2013). In that case, the
court found that Duenas-Alvarez does not require a showing that the State
would prosecute conduct falling outside the Federal definition of the crime
“when the statutory language itself, rather than ‘the application of legal
imagination’ to that language, creates the ‘realistic probability’ that a state
would apply the statute to conduct beyond the generic definition.” Id. at 1072
(quoting Duenas-Alvarez, 549 U.S. at 193).
The decision in Ramos predates the Supreme Court’s ruling in
Moncrieffe, where the Court stated that to successfully “defeat the
categorical comparison” under the realistic probability test, a party “would
have to demonstrate that the State actually prosecutes the relevant offense.”
Moncrieffe, 569 U.S. at 206 (emphasis added). Moreover, a majority of
the Eleventh Circuit sitting en banc subsequently declined to follow
Ramos’s understanding of the realistic probability doctrine. United States
v. Vail-Bailon, 868 F.3d 1293, 1295 (11th Cir. 2017) (en banc), cert. denied,
138 S. Ct. 2620 (2018) (mem.).
563

Cite as 27 I&N Dec. 560 (BIA 2019)

Interim Decision #3956

In that case, the Eleventh Circuit considered whether the offense of
felony battery under Florida law is a crime of violence under the United
States Sentencing Guidelines. The defendant proffered several hypothetical
scenarios, claiming that an offender could be prosecuted under the Florida
statute for conduct involving only the minimal use of force in his effort to
demonstrate that the statute “flunks the physical force test.” Id. at 1305.
However, a majority of the court found his argument to be “[c]ontrary to
every Florida court that has considered the issue,” noting that “the real-world
examples of Florida felony battery [it was] aware of all involve conduct
that clearly required the use of physical force.” Id. at 1305–06.
The Eleventh Circuit relied on the realistic probability test in Moncrieffe
and Duenas-Alvarez to reject the defendant’s “farfetched hypotheticals.” Id.
at 1306. It found “no support in Florida law for the idea that [the statute] is
designed to criminalize the conduct described” by the defendant, which
involved only “highly improbable ways of inflicting severe physical injury
on a victim.” Id. at 1306–07. The court therefore concluded that there was
no realistic probability of prosecution in the hypothetical scenarios posited
by the defendant, which it said “reflect little more than the verboten legal
imagination proscribed” by the Supreme Court. Id. at 1307.
In support of his argument, the respondent cites to a dissenting opinion in
the case. Id. at 1315 (Rosenbaum, J., dissenting). According to that opinion,
“Florida felony battery does not satisfy the federal definition for a ‘crime of
violence,’ despite what intuition might otherwise tell us.” Id. at 1315. In this
regard, the dissent asserted that “a petitioner does not engage in ‘legal
imagination’ ‘when the statutory language itself . . . creates the ‘realistic
probability’ that a state would apply the statute’ to the identified least
culpable conduct,’ regardless of whether it actually has done so.” Id. at 1320
(quoting Ramos, 709 F.3d at 1071–72)). Thus, the dissent stated that where
the language of the statute itself proscribes conduct outside the generic
definition of the crime, the question “whether Florida has actually prosecuted
such a case is entirely irrelevant to the analysis.” Id. at 1320–21.
Subsequent to its decision in Vail-Bailon, the Eleventh Circuit has
consistently required that actual examples be identified to demonstrate that a
statute falls outside the generic definition of the crime at issue. See, e.g.,
United States v. St. Hubert, 909 F.3d 335, 350 (11th Cir. 2018); Ovalles
v. United States, 905 F.3d 1300, 1305–06 (11th Cir. 2018) (per curiam),
petition for cert. filed (U.S. March 12, 2019) (No. 18-8393); Pierre v. U.S.
Att’y Gen., 879 F.3d 1241, 1252 (11th Cir. 2018); United States
v. Morales-Alonso, 878 F.3d 1311, 1319–20 (11th Cir. 2018). For example,
in Pierre, 879 F.3d at 1252, the court squarely rejected the petitioner’s
argument that “the act of expelling urine on a child’s jellyfish sting, in order
to alleviate the pain, would violate the letter of the [Florida statute prohibiting
564

Cite as 27 I&N Dec. 560 (BIA 2019)

Interim Decision #3956

the battery of a child by causing him to come into contact with bodily fluids],
but would not be base or vile and thus would not be a [crime involving moral
turpitude].” Relying on the Supreme Court’s realistic probability test, the
court stated that “to show that a statute creates a crime outside the categorical
definition, a party . . . must at least point to his own case or other cases in
which the state courts in fact did apply the statute in the special (nongeneric)
manner for which he argues.” Id. (quoting Duenas-Alvarez, 549 U.S. at 193)
(emphasis added). The court denied the petition for review, finding that the
petitioner had “pointed to no instance in which the state of Florida has
prosecuted a person under [the child battery statute] for urinating on a
jellyfish sting, or indeed for any realistic conduct that would not qualify as a
crime involving moral turpitude.” Id.
The respondent’s position on appeal is not wholly without legal support,
however. In certain circumstances, some circuit courts have looked only to
a State statute if they found that its language was plain and clearly reached
conduct outside the generic definition. For example, in Swaby v. Yates, 847
F.3d 62, 66 (1st Cir. 2017), the First Circuit concluded that because “the plain
terms of the Rhode Island drug schedules” covered a drug that the Federal
schedules did not, the statute was “simply too broad” for the alien’s crime
“to qualify as a predicate offense under the categorical approach, whether or
not there is a realistic probability that the state actually will prosecute
offenses involving that particular drug.” 4 Similarly, in Hylton v. Sessions,
897 F.3d 57, 60–63 (2d Cir. 2018), the Second Circuit held, without applying
the realistic probability test, that the sale of marijuana in the third degree
under New York law was not an aggravated felony drug-trafficking offense
because the State statute, on its face, explicitly included an offense that is
punishable as a misdemeanor under Federal law. 5
In an unpublished decision, the Ninth Circuit held that the definition of
methamphetamine under California law is broader than the Federal definition
because it includes geometric isomers, which are not in the Controlled
Substances Act. Lorenzo v. Whitaker, 752 F. App’x 482, 485 (9th Cir. 2019)

4

Despite this conclusion, the First Circuit ultimately dismissed the alien’s petition for
review, applying the modified categorical approach to find that his convictions were for
crimes relating to the distribution of marijuana. Therefore, its discussion of the realistic
probability analysis was not necessary to the result in the case.
5
We consider the decision in Hylton to be limited to the specific issue addressed—
whether the alien was convicted of a drug-trafficking aggravated felony. Despite its
holding, the Second Circuit recognized that “[t]here are cases in which a separate realistic
probability inquiry remains necessary because the elements of the state statute alone do not
provide sufficient guidance on its application.” Hylton, 897 F.3d at 64.

565

Cite as 27 I&N Dec. 560 (BIA 2019)

Interim Decision #3956

(mem.). 6 The court concluded that the alien was not deportable “[b]ecause
this mismatch between the federal and state statutes is apparent on the face
of the statutes, such that no rational interpretation of either statute would
reconcile the two.” Id. It also rejected the Government’s contention that “the
facial overbreadth in California law is of no significance because geometric
isomers of methamphetamine do not in fact exist,” finding that the issue had
not previously been raised. Id. However, the court did “not foreclose the
government from presenting its new argument or new evidence in another
case,” noting that its decision “concludes only that the record in this case
does not show that [geometric isomers of methamphetamine] do not exist.”
Id. at 485 & n.2. 7
To the extent that these decisions can be read as being inconsistent with
the application of the realistic probability test to the controlled substance
statute we now address, they are not binding because this case arises in the
Eleventh Circuit. Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989)
(“Where we disagree with a court’s position on a given issue, we decline to
follow it outside the court’s circuit.”). Ultimately, the decisions of the
Supreme Court and the Eleventh Circuit control and support our approach in
this case. The Court has broadly stated that there must be a realistic
probability of a State applying a statute beyond the Federal definition for
the State law “to fail the categorical inquiry,” and that whether such a
probability exists depends on if the State “actually” prosecutes the offense in
a manner broader than the Federal law. 8 Moncrieffe, 569 U.S. at 205–06.
6

The opinion in Lorenzo was originally published as a precedent decision. Lorenzo
v. Sessions, 902 F.3d 930 (9th Cir. 2018). However, it was subsequently withdrawn in
Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. 2019), which was filed concurrently with this
unpublished memorandum disposition that was substituted on rehearing.
7
More recently, the Ninth Circuit addressed Oregon’s third degree robbery statute and
found that although it “theoretically could cover a consensual taking due to its
incorporation of theft by deception,” conviction was “unlikely.” Lopez-Aguilar v. Barr,
921 F.3d 898, 903–04 (9th Cir. 2019). Contrary to the dissenting opinion, which stated
that “[a]s long as the application of the statute’s text in the nongeneric manner is not a
logical impossibility, the relative likelihood of application to nongeneric conduct is
immaterial,” id. at 908 (Berzon, J., dissenting), the majority found there was “no realistic
probability that Oregon would prosecute such conduct under the statute,” id. at 904. Since
the alien had “not presented, and [the court was] unable to find, any Oregon case in which
a defendant was prosecuted for conduct falling outside the generic definition of theft,” the
court concluded that the Oregon statute was not overbroad and the alien’s crime qualified
as a categorical theft offense. Id.
8
Other circuits have also subsequently applied the realistic probability test broadly. For
example, the Fifth Circuit has found that although an Oklahoma statute was “facially
overbroad under the categorical approach” because the State’s drug schedule contained
two controlled substances that were not on the Federal schedule, the court rejected the

566

Cite as 27 I&N Dec. 560 (BIA 2019)

Interim Decision #3956

Thus, according to Moncrieffe, the realistic probability test is required, even
where a State statute is facially broader than its Federal counterpart. Id. at
206 (employing that test in determining whether a State firearms statute that
had no exception for antique firearms was applied more broadly than the
Federal statute, which included such an exception).
For the reasons set forth above, we reaffirm our decision in Matter of
Ferreira, 26 I&N Dec. at 421, which relied on the Supreme Court’s rulings
in Duenas-Alvarez and Moncrieffe. Even if the language of a statute is plain,
its application may still be altogether hypothetical and may not satisfy the
requirements of Moncrieffe if the respondent cannot point to his own case or
other cases where the statute has been applied in the manner that he
advocates. Accordingly, where an alien has been convicted of violating a
State drug statute that includes a controlled substance that is not on the
Federal controlled substances schedules, he or she must establish a realistic
probability that the State would actually apply the language of the statute to
prosecute conduct involving that substance in order to avoid the immigration
consequences of such a conviction. This approach to the realistic probability
test should be applied in any circuit that does not have binding legal authority
requiring a contrary interpretation.
As we emphasized in Matter of Ferreira, “the application of the realistic
probability test is necessary to prevent the categorical approach from
eliminating the immigration consequences for many State drug offenses.” Id.
The categorical approach itself already greatly restricts the immigration
consequences for aliens convicted of serious and dangerous crimes and “has
alien’s claim that his conviction for a drug-related offense did not render him deportable.
Vazquez v. Sessions, 885 F.3d 862, 872–74 (5th Cir.), cert. denied, 138 S. Ct. 2697 (2018)
(mem.). Relying on a case in which the Fifth Circuit was sitting en banc, the court stated
that “the realistic probability test applies whenever the categorical approach is employed.”
Id. at 866 (citing United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir.) (en banc), cert.
denied, 138 S. Ct. 501 (2017) (mem.)). Thus, while acknowledging that the “application
of the realistic probability test is largely unsettled,” id. at 873, the court held that it must
be applied, even where a State provides penalties for offenses involving substances that are
not federally controlled. Id. at 874. It further noted that a person “must point to an actual
state case applying a state statute in a nongeneric manner, even where the state statute may
be plausibly interpreted as broader on its face.” Id. (quoting Castillo-Rivera, 853 F.3d at
224 n.4). Because the alien “never suggested that the realistic probability test [was]
satisfied,” he “waived the only viable argument.” Id. at 874; see also Morey v. Att’y Gen.
of U.S., 722 F. App’x 239. 241–42 (3d Cir. 2018) (stating that because the alien “failed to
identify a single instance of New York prosecuting someone for the sale of [a substance
that was not on the Federal controlled substances schedules], such a prosecution is merely
a ‘theoretical possibility’ and does not prevent [the State crime] from being considered
a categorical match for the generic offense” (citing Matter of Ferreira, 26 I&N Dec. at
420–21)).

567

Cite as 27 I&N Dec. 560 (BIA 2019)

Interim Decision #3956

increasingly led to results that Congress could not have intended.” Mathis
v. United States, 136 S. Ct. 2223, 2268 (2016) (Alito, J., dissenting). Without
the application of the realistic probability test, the categorical approach
would sweep away the immigration consequences for many more offenses
than it already does. See generally Torres v. Lynch, 136 S. Ct. 1619, 1628
(2016) (declining to construe the Act “so as to produce such ‘haphazard’—
indeed, upside-down—coverage”). Our approach is based on Supreme Court
precedent and is eminently reasonable because it promotes fairness and
consistency in the application of the immigration laws by ensuring that aliens
in different States face the same consequences for drug-related convictions.
See Matter of Mohamed, 27 I&N Dec. 92, 96 (BIA 2017) (“[W]hether or not
a conviction exists for immigration purposes is a question of federal law and
is not dependent on the vagaries of state law.” (citation omitted)).
In this case, the respondent has two convictions for possession of less
than 20 grams of marijuana in violation of section 893.13(6)(b) of the Florida
Statutes. These convictions are for violations of a State law relating to a
controlled substance, as defined in 21 U.S.C. § 802. It is theoretically
possible that Florida might apply its statute to conduct that only involves
forms of marijuana (such as stalks or sterilized seeds) that are not included
in the Federal definition of marijuana at 21 U.S.C. § 802(16). However, the
respondent has not established a realistic probability that the State of Florida
would prosecute such conduct, and there is no indication that it has
successfully done so. The actual examples of Florida’s prosecution of
possession of less than 20 grams of marijuana all appear to involve controlled
substances contained in the Federal definition of marijuana.

III. CONCLUSION
Although the Florida statute defining marijuana includes substances that
are not in the Federal definition, the respondent has presented no cases that
establish a realistic probability that the State would actually apply the statute
to an offense involving a substance that was not federally controlled. We
therefore conclude that he has been convicted of violating a State law relating
to a controlled substance, as defined in 21 U.S.C. § 802, and is inadmissible
under section 212(a)(2)(A)(i)(II) of the Act. Since he was convicted of
more than one such crime, the respondent is ineligible for a waiver of
inadmissibility under section 212(h) and is therefore unable to establish
eligibility for adjustment of status. Accordingly, the respondent’s appeal will
be dismissed.
ORDER: The appeal is dismissed.

568