Interim Decision #2917

MATTER OF HUGHES

In Visa Petition Proceedings
LOS-N-29403
Decided by the Commissioner February 9, 1982
(1) For the purpose of section 101(a)(15)(L) of the Act, 8 U.S.C. 1101(a)(15)(L), affiliation
exists between tOo companies when the petitioning company: Has a 50% financial interest in the foreign company; has de facto control over the foreign company; and, the
foreign company exists solely. to sell the petitioner's product.
(2) The terms "affiliate" or "affiliation" may be broadly used to describe business entities
which have relationships with one another based Upon both ownership and control.
Ownership need not be majority if control exists.
(3) The term "affiliate* is sometimes more specifically used to describe the relationship
between two companies which have :.o direct linkage but are directed, controlled, and
at least partially owned by the same parent corporation.
(4) The term "subsidiary" is a more specinc form of affiliation in which We rosnpany 50
described is subordinate to the control of another.
ON BEHALF OF PETITIONER: Ron Jeffrey Tasoff, Esquire
10880 Wilshire Boulevard
Los Angeles, California
Co-Counsel:
Sam Bernsen, Esquire
1000 16th Street, N.W., Suite 511
Washington, DC 20036

This matter is before the Commissioner on certification from the decision of the :Western Regional Commissioner denying the visa petition.
The Regional Commissioner in dismissing an appeal from the District
Director's decision of May 12, 1981, found that the petitioner had failed
to establish an affiliate or subsidiary relationship between itself and the
foreign einployer of the beneficiary.
The petitioner seeks to classify the beneficiary as an intra-company
transferee based upon the petitioner's intention to employ him in a
managerial capacity and the claim that the beneficiary has been employed
abroad for one year as a manager for Smith-Boart, Ltd., which the
petitioner characterized as a "fifty percent owned subsidiary". The petitioner is Smith Tool International, a division of Smith international
Incorporated. The petitioner is incorporated under the laws of the State
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Interim Decision #2917
of Californiind is physically located in the city of Irvine, California.
The petitioner is a major United States manufacturer and distributor of
drilling and milling equipment. Smith Tool owns a 50% interest in SmithBout, Ltd., located in South Africa- Smith-Boart is incorporated as a
"private limited liability company" under the South Africa Companies
Act of 1973 and is empowered to issue stock. A limited liability company
is a legal entity which has no exact counterpart in the United States.
The other 50% share of ownership is with Board International, a South
African corporation. The purpose of Smith-Boart, Ltd., is solely to
manufacture, assemble, and market products of the Smith Tool Company.
Smith-Boart, Liinited, is also characterized by the petitioner as a joint
venture. In letters dated June 3, 1981, and April '7, 1981, Ernest L.
Bishop of Smith Tool stated that it is an extremely common practice for
multinational corporations to utilize joint ventures beciaise often under
foreign law it is not always possible to establish a wholly owned
subsidiary. Mr. Bishop states further that in practice these ventures are
'operated by the managers: of the overseas multinational corporation
which created them.

Section 101(a)(15)(L) of the Immigration and Nationality Act as
amended, 8 U.S.C. 1101(a)(15)(1,), provides for classification of the following person as an intra-company transferee:
an alien who, immediately preceding the time of his application for admission to the
United States has been employed continuously for one year by a firm or corporation or
other legal entity or an affiliate or subsidiary thereof in a capacity that is managerial,
executive, or involves specialized knowledge. .

Endel J. Kolde writing in International BUsiness Enterprise (Englewood Cliffs;• Prentice Hall, 1973) defihes joint venture as a "business
enterprise in which two or more economic entities from different countries participate on a permanent basis". He sees two basic types of such
ventures. One is an "equity joint venture" in which there is a joining of
capital or capital resources; another form is when one or more of the
partners participates by contributing the use of manufacturing processes,
patents, trademarks, managerial know how, or other essential factors,
but does not contribute capital. There can also be mixed forms of these
two basic types. Kolde states that the "nonequity joint venture" is
created under contract law while the "equity joint venture" is created
under corporation law. Examining the models developed by Kolde, an
"equity joint venture" which is recognized as an entity under local law
must be recognized as a "legal entity" as used in section 101(a)(15)(L),
supra. However, a joint venture established through contract such as
the "nonequity joint venture" in its pure form or one which is not recognized as a separate entity under the foreign law would not come within
the meaning of an "other legal entity" as contained in the statute. After
reviewing the record of proceeding, I conclude that in this instance the
-

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Interim Decision #2917
beneficiary was employed abroad for one year by a legal entity under
the laws of South Africa. In order to establish eligibility for L-1 nonimmigrant classification here, the petitioner must further establish that it
is a subsidiary or affiliate of Smith-Boart in South Africa or in the
alternative that it is the same employer.
The Immigration and Nati mality Act does not define the term
"subsidiary" nor does the House of Representatives Report No. 451
which contains the legislative history of Public Law 91-225 which created the "L-1" intra-company transferee nonimmigrant classification.
Corporations and other constructed legal entities are created under the
legislative power of each state, the federal government, or by foreign
political units; and each jurisdiction has developed its own body of laws,
regulations, definitions, and judicial and administrative interpretations
concerning corporation structure. Because Congress did not define the
term with respect to immigration statutes, we must conclude that the
common or general meaning and usage of the term is applicable and not
specific statutory, regulatory, or judicial language interpreting narrow
areas of law .and public policy. It is, therefore, appropriate, that we
examine broadly drafted definitions of the term.
Authorities on corporate law differ considerably on the definition of
"subsidiary". Blacks Law Dictionary (Fifth Edition, St. Paul: West
Publishing Company, 1979) and Words and Phrases (St. Paul: West,
Publishing Company) generally treat a subsidiary or subsidiary corporation as one in which another corporation owns at least a majority of the
outstanding shares, and thus has control The definitions in both of

these references are largely derived from court decisions involving insurance liability and tax law. William Fletcher in The Cyclopedia of the
(Chicago: Callaghan, 1968) also defiles
subsidiaryin terms of majority ownership and control. However, Howard L. Oleck in his Modern Corporation Law suggests that control is of
major importance in determining business relationships:

Law of Private Corporations

Subsidiary corporation means—one in which control, usually in the form of majority

ownership of it shares, is in another corporation Ordinarily some similarity of purpose
or auxiliary Purpose must exist between the two.

A majority on the meaning of "affiliation" and "subsidiary" is the
Securities and Exchange Commission (SEC), an independent regulatory agency which was created to oversee and control the sale and
exchange of stock in the United States, and to protect the interest of the
public and investors against malpractice in the securities hnd financial
markets. The Commission regulates the sale of stocks of companies and
corporations in many industries including retail sales, mining, banking,
and many others. Thus its regulations are broadly developed to encompass a great variety of business and commercial relationships.
Under both the Securities Act of 1933, 15 U.S.C. 77a-77aa, and the
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Interim Decision #2917
Securities Exchange Act of 1934, 15 U.S:C. 78a-78jj, the Commission
emphasizes "control" as being determinative as to whether a subsidiary
relationship exists. The term "control" is defined as "the possession.
direct or indirect, or the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of
voting securities, by contract, or otherwise". 17 C.F.R; 230.405(t).' The
regulations issued under both of these laws view a "subsidiary" as a

form of affiliation in which one corporation is subordinate to another.
"Affiliate" is defined as "a person that directly, or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under
common control with the person specified". 17 C.F.R._230.405(a). A
"subsidiary" is defined by 17 C.F.R. 230.405(u) as "an affiliate controlled by such person directly, or indirectly through one or more
intermediaries".
.The Investment Company Act of 1940; 15 U.S.C. 80(a-1)-80(a-52),
also covers a broad spectrum of business activities in the United States
and is administered by the Securities and Exchange Commission. Section 2(a) of the Act defines "control" as "the power to exercise a controlling influence over the management or policies of a company" and includes
.a presumption that a person who owns more than 25% of a company's
voting securities "controls" that company. The rules adopted by the
Commission under the 1940 Act give a definition for the term "subsidiary"
substantially identical to those provided in the rules for the 1933 and
1934 Acts.

A review of other Federal statutory law and regulations bring forth
examples of much broader interpretations such as the Public Utilities
Holding Company Act, 15 U.S.C. 79-79 (z-6), of 1935 which defines
affiliation in terms of "control of 5 per centum or more" of the outstanding voting securities. More restrictive definitions also, exist such as in
the Internal Revenue Code, .26 U.S.C. 1504(a), which requires 80% of
stock ownership to establish affiliation. Both of these examples, however,
relate to narrow issues, i.e., public utility companies and to liability for
federal taxes.
While no specific definition exists for the terms "subsidiary" and
"affiliate" in the context of immigration law, the preceding discussion
presents sufficient information from which to derive general definitions

applicable to modern business practice and organization. In order to be
deemed affiliates, companies should be bound to one another by
While control by contract is treated in the regulations administered by the SEC,
Immigration and Naturalization Service holds that a business created by a contract as
opposed to one created under corporation law would not be deemed a "legal entity" as
used in section 101(a)(15)(b) of the Immigration and Nationality Act. See also Metter of
Schick, 13 I&N Dec. 647 (R. C. 1970).
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Interim Decision #2917
substantial, but not necessarily majority, ownership of shares. The affiliation may be indirect as in the case of two subordinate organizations
related to each other by reason of a parent corporation owning a significant portion of the subordinates' stocks. It may also be applied directly
to the relationship between two legal entities one of which owns a significant percentage (but not nece madly a majority) of the stock of the
other. More importantly, affiliation requires that the financial link
between two entities involve control by one over the management of
another. In the case of entities related to each other as siblings, the
parent entity must have both control and a financial interest in the
subordinate companies. Control may be de :lure by reason of ownership
of 51% of outstanding stocks of the other entity or it may be de facto by
reason of control of voting shares through partial ownership and by
possession of proxy votes. In some corporate structures, a relatively
small concentration of ownership, perhaps 10%, in conjunction with
dispersal of other stock among many minority investors may convey the
right to appoint the board of directors. In examining control, the Service may take into consideration one company's ownership of patents,
processes, copyrights, or other elements which are used by a related
company. Because a structural or economic link is viewed as a characteristic of affiliation by authorities, the foregoing elements of control unaccompanied by significant ownership would not alone be considered as
establishing affiliation.
From the foregoing discussion, the terms "affiliate" or "affiliation"
may be broadly used to describe business entities which have relationships with one another based upon ownership and control. Ownership
need not be majority if control exists. The term "subsidiary" is a more
specific form of affiliation in which the company so described is subordinate to the control of another. A company which exercises control of
another through ownership is usually referred to as a "parent company".
The term "affiliate," is also sometimes more specifically used to describe
the relationship between two companies which have no direct linkage
but are directed, controlled, and at least partially owned by the same
parent corporation.
The record of proceeding before me demonstrates that the petitioner
is an affiliate of Smith-Boart, Ltd. The financial interest of 50% in the
South African Company as well as the de facto control over SmithBoart, Ltd., establish that affiliation exists between these two companies.
In this instance control exists not only from the substantive financial
interest present but also from the fact that the only product sold and
distributed by Smith -Boart, Ltd., is manufactured by the petitioner.
The foreign affiliate exists solely to sell the petitioner's product—mining
and drilling equipment.
The, record also• establishes that the beneficiary has the requisite
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Interim Decision #2917
managerial experience abroad and.will be involved in such duties in the
United States. Ile . is, therefore, entitled to classification under section
101(a)(15)(L) of the Immigration and Nationality Act.
ORDER; The petition is approved.

294


Interim Decision #1686

MATTER OF Fiuson

Application for Classification as Refugee
A-12108899
Decided by Regional Comaniesioner January 19, 1967
Since applicant—a native and citizen of Yugoslavia, who entered the Unitedt
States as a noniramigrant student in possession of a Yugoslav passport and an
exit and reentry visa; who subsequently applied for and was granted extensions thereof by the 'Yugoslav authorities; and who testified she had never
been subject to persecution and that not until after 2 years in this country did
she decide she did not wish to return to Yugoslavia—has not established that
she fled from Yugoslavia because of persecution or fear of persecution on
account of race, religion or political opinion, she is statutorily ineligible forrefugee classification under the proviso to section 203 (a) (7), immigration
and Nationality Act, es amended.
On BEHALF OF AP/smarm : Edward S. Yambusic, Esquire

3410 Lorring Drive, S.R, Apt. 201
Washington, D.C. 20028

This matter is before the Regional Commissioner for review oncertification by the District Director of his decision denying the application for refugee classification under section 203(a) (7) of the
Immigration and Nationality Act, as amended.
The applicant is a citizen of Yugoslavia, born October 17, 1944 in
Krizevci, Yugoslavia. She entered the United States January 23, 1961
as a nonimmigrant student and was thereafter authorized to remain in
that status until March 27, 1965. She graduated from the Julia Richmond High School in June 1964. She has since remained in the United'
States.
i
were instituted October 15, 1964 by the
Deportation proceedings
Service of an order to show cause. The deportation hearing was commenced October 22, 1964 and completed initially on November 16,
1964. The hearing was reopened and again completed July 1, 1965.
The Special Inquiry Officer then deferred his decision. In connection
with the pending deportation proceedings, the Special Inquiry Officer
on January 20, 1966 addressed a letter to counsel calling the latter's
attention to the provisions of Section 203 (a) (7) of the• Immigration

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Interim Decision *1686
and Nationality Act, as amended by PL 89-236 of October 3, 1965,
and to an amendment of the relating regulations (8 CFR 245.1). Counsel was informed that if the application for refugee status were made
to the District Director and approved a motion could then be submitted for a further reopening of the deportation hearing to apply
for adjustment of status to that of a permanent resident under section
245 of the Act. The application for refugee classification on Form
I-590A was received March 6, 1966 and referred to the District
Director for his consideration.
Section 245.4, Title 8, Code of Federal Regulations, reads in part:
The provisions of section 245 of the Act and this Part shall govern the adjustment of status provided for in the proviso to section 203 (a) (7) of the Act ..
alien who claims he is entitled to a preference status pursuant to the proviso to

section 203(a) (7) of the Act shell execute and attach to his application for
adjustment of status Porm I-590A, Application for Classification as a Refugee.
under the proviso to section 203(a) (7), Immigration and Nationality Act. The.
determination as to whether an alien is entitled to the claiined preference shall

be made by the district director ; no appeal shall lie from his determination.

This application on Form I-590A for classification as a refugee is
not physically accompanying an application on Form 1 485 for status
-

as a permanent resident. The later application, however, may be made
only to the Special Inquiry Officer in the deportation proceeding when,
as here, an order to show cause has been served (8 CPR 245.2). The
Special Inquiry Officer suggested the submission of the present application and indicated that upon its approval, he would entertain
an application on Form I-185. Under these circumstances, we find the
application for preference classification as a refugee is properly before

this Service.
Counsel has submitted an extensive brief for our consideration. He
alleges the applicant underwent physical persecution "even at the
age of a year and half" and as a small child because of the conviction
and imprisonment in Yugoslavia of her father for crimes against the
state, and the resultant hardships to his wife and the applicant.. Counsel further states that during her school years she was subjected to
ridicule arising from her father's conviction as well as the family's
religion. The brief deals for the most part, however, with the general
situation of many years duration in Yugoslavia upon which. the applicant's present unwillingness to return to that country is based.
Section 203(a) (7) of the Immigration and Nationality Act, as
amended, provides, so far as pertinent here:

Conditional entries shall next be made available by the Attorney General,
pursuant to such regulations as he may prescribe and in a number not to exceed
6 per centum of the number specified in section 201(a) (ii), to aliens who satisfy
an Immigration and Naturalization Service officer at an examination in any

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Interim Decision #1686
non-Communist or non-Communist-dominated country, (e.) that (I) because of
persecution or fear of persecution on account of race, religion, or political opinion they have lied (I) from any Communist or Communist-dominated country or
area, . . . and (i1) are unable or unwilling to return to such country or area
on account of race, religion, or political opinion, . PROVIDED, That immigrant
visas in a number not exceeding one-half the number specified in this paragraph
may be made available, in nee of ennditional entries of a like number, to such
aliens who have been continuously physically present in the United States for a
period of at least two years prior to application for adjustment of status.

The denial of this application by the District Director is based on
his conclusion that the applicant has failed to establish that upon
her return to Yugoslavia she would be subject to persecution on account
of race, religion or political opinions. The ground as stated in his
decision is not appropriate. The staatory requirement with respect to
possible return to her homeland is that she satisfy the officer of this
Service that she is "unable or unwilling to return" on account of race,
religion, or political opinion. (Underscoring supplied.) The applicant has stated on Form I-590A that she is unwilling to return to
Yugoslavia because of her political and religious convictions. For the
reason stated below, we need not make a determination on this issue.
The use of the conjunction "and" between clause (i) and clause
(ii) of section 203(a) (7) of the Act makes it clear that the applicant
must in any event meet the requirement of clause (i) by establishing
satisfactorily that she has fled from a Communist or Communistdominated country or area "because of persecution or fear of persecution on account of race, religion, or political opinion."
The applicant testified on November 16, 1964 that she had never
been subject to persecution, and that the only thing was a threat she
would be expelled from school if she went to church. The threat was
not carried out. In her present application she says she entered the
United States as a student January 23,1961; that while in the United
States she followed developments in Yugoslavia; that during her
stay here she learned her parents' living conditions and the political
situation in Yugoslavia had become more unfavorable; that she then
decided to stay permanently in the United States; and that on or about
June 18, 1964 she requested permanent residence in a letter addressed
to the President. During the interview on this application, she executed
an affidavit in which she states that she entered the United States
primarily to study and attend school; that after two years in this country she realized the meaning of freedom and decided then she did not
wish to return to Yugoslavia; and that now she does not want to return.
These statements of the applicant are supported by her testimony on
October 22, 1964 before the Special Inquiry Officer indicating her
understanding that return passage had been arranged when she came
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Interim Dedsion #1686'
to the United States. In addition, the applicant was in possession of a
Yugoslav passport issued on September 28, 1960 with an exit and reentry visa when she arrived in the United States on January 23, 1961.
Subsequently she applied to the Yugoslav authorities and obtained
extensions of her Yugoslav passport and visa on March 30, 1962 and
March 17, 1964. Her actions in obtaining those extensions constitute
further evidence that she was not fleeing ( as required by section 203
(a) (7) ) from Yugoslavia when she departed from that country, that
she in fact departed from Yugoslavia with the intention of returning
to that country, and that her change of intention in that regard was
formulated at a considerable time after her departure from Yugoslavia.
After careful consideration of the entire record, we find that the evidence does not establish that the applicant fled from Yugoslavia because of persecution or fear of persecution on account of race, religion
or political opinion. Since she does not meet the statutory requirement,
the application must be denied.
It is ordered that the application be and the same is hereby denied.

43


Interim Decision #2948

MATTER OF ALDECOAOTALORA

In Visa Petition Proceedings
A-23693777
Decided by Board July 22, 1983

A visa petition filed by a petitioner seeking to accord immigration benefits to her
unmarried daughter under section 203(a)(2) of the Immigration and Nationality Act, 8
U.S.C. 1153(a)(2), is properly denied where the beneficiary admitted that she was divorced
for the sole purpose of obtaining immigration benefits and continued to reside with and
own property jointly with her former husband in what by all appearances is a marital
relationship; such a divorce is considered a sham and is not recognized for immigration
purposes.
ON BEHALF OF PETITIONER: James J. Kelly, Esquire
Valley Bank 114(.4
300 South Fourth Street
Las Vegas, Nevada 89101 ,
By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

The lawful permanent resident petitioner filed a visa petition on behalf
of the beneficiary to accord her benefits as her unmarried daughter

under section 202(a)(2) of the Immigration and Nationality Ad, 8 U.S.C.
1159(a)(2). In a decision dated November 3, 1982, the District Director

denied the petition on the ground that the beneficiary does not qualify
as the petitioner's unmarried daughter because her divorce is a sham.
The District Director's decision has been certified to the Board for
review. The decision will be affirmed.
The petitioner is a 64-year-old native and citizen of the Philippines.
The beneficiary is a 31-year-old native of the Philippines. The record
reflects that she claims to be a citizen of Spain. It further reflects that
she was married to a citizen of Spain on April 15, 1973, in the Philippines
and that they have two United States citizen children born on March 17,
1976, and July 13, 1981. The beneficiary obtained a divorce from her
husband on July 28, 1981.
' Ili his decision the District Director concluded that the beneficiary's
divorce was entered into for the sole purpose of circumventing the
irrimigration visa pteference system. He based his findings primarily on
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Interim Decision #2948
the beneficiary's own statements made at an interview on May 18, 1982.
In her sworn statement, the beneficiary claimed that she was divorced
because of irreconcilable differences with her husband, but when questioned regarding those differenees she stated that she needed a green
card in order that her children could remain in the United States. She
further admitted that she had never stopped residing with her former
husband, that they still filet' joint tax returns, and that they -continued
to own their home and all other property jointly as community property.
The District Director further noted that the employment records of
the beneficiary's former husband indicate that he claims to be married
with three dependents. In addition, the telephone at the beneficiary's
residence is listed in the directory under the name of her divorced
spouse. From this evidence and the beneficiary's statements, the District Director determined that her divorce was a sham. He further
concluded that she could not obtain immigration benefits as an unmarried person by virtue of such a divorce. We agree.
The legislative history of the Act reflects that the intent of Congress
in providing for preference status for unmarried sons and daughters of
lawful permanent residents was to reunite with their parents unmarried
children who, although not minors, were still part of a family unit. See
Matter of Coletti, 11 I&N Dec. 551 (BIA 1965); see also Matter of Lew,
11 I&N Dec. 148 (BIA 1900). By her own admissions, the beneficiary
has established that, although divorced from her husband, she has neither severed her relationship with him nor returned to the family unit of
her parents.
In Gregory v. Helvering , 293 U.S. 465 (1935), the Supreme Court
created the sham transaction doctrine in the context of tax law, holding
that where such a transaction on its face is outside the plain intent of the
statute involved, it should be disregarded because to do otherwise "would

be to exalt artifice above reality and to deprive the statutory provision
in question of all serious purpose." Id. at 470. See also Commissioner
v. Tower, 327 U.S. 280 (1946); Commissioner v. Court Holding
Company, 324 U.S. 331 (1945); Boynton v. Commissioner, 649 F.2d
1168 (5 Cir. 1981), cert. denied, 102 S.Ct. 1009 (1982); Davis v.
Commissioner, 585 F.2d 807 (6 Cir. 1978), cert. denied, 99 S.Ct. 1789
(1979). Following that decision, the Fourth Circuit Court of Appeals

recently determined that tlae sham transaction doctrine may apply to a
divorce obtained in order to avoid the "marriage penalty" imposed on
married taxpayers if "the parties intended merely to procure divorce
papers rather than actually' to effect a real dissolution of their marriage
contract." Boyter v. Commissioner, 668 F.2d 1382, 1387 (4 Cir. 1981).
There can be no doubt that the beneficiary's sole intention in seeking
a divorce was to obtain immigration benefits because she has admitted
as much. She has nevertheless continued to live with her former hus431

Interim Decision #2948
banctin what by all appearances is a marital relationship. In so doing she
is clearly attempting to thwart the statutory purpose of the Act to unite
unmarried children with their lawful permanent resident parents. We

therefore agree with the District Director's conclusion that the beneficiary's divorce is a sham and that it should not be recognized for immigration purposes as qualifying her for preference status under section
203(a)(2) of the Act. Cf. Lutwak v. United States, 344 U.S 604 (1953);
McLat v. Longo, 412 F.Supp. 1021 (D.V.I. 1976); Matter of McKee, 17

I&N Dec. 332 (BIA 1980). Accordingly, we shall affirm the decision of
the District Director denying the visa petition.
ORDER: The decision of the District Director is affirmed.

432


Interim Decision

4t1738

MATTER OF GUERRERO

In Adjustment of Status Proceedings
A-10189810
Decided by Regional Commissioner May

24, 1967

Applicant, a native and citizen of Cuba, who last entered the United States on
August 29, 1958, is ineligible for adjustment of status under section 1 of the
Act of November 2, 1966, either in his own right or as the spouse of an eligible
alien under the provisions of the lest sentence of section 1. since he was not
inspected and admitted or paroled into the United States subsequent to
January 1, 1959, as required by the provisions of section 1 of the Act.

This ease is before me on certification from the District Director,
Miami, Florida, who denied the application for the reason that the
applicant has not been inspected and admitted or paroled into the
United States subsequent to January 1, 1959, within the meaning of
the statute.
The applicant is a native and citizen of Cuba born Mirch 9, 1942.
He is married to, and residing in the United States with, a Cuban
citizen who is eligible for adjustment under the Act. He last entered
the United States on August 29, 1958, as a nonimmigrant student for
a period to expire August 29,1959.

In previous years he had attended school in the United States and
returned to Cuba each summer. He did not, however, return to Cuba
during the summer of 1959 as he feared communism. His departure
was not enforced because of the conditions in Cuba and on September
21, 1961, he was given refugee status by the formal grant of an indefinite period of time within which to depart voluntarily from the
United States. There has been no chage in that status.
Section 1 of the Act of November 2, 1966, provides that the Attorney
General may, in his discretion and under such regulations as he may
prescribe, adjust the status to that of an alien lawfully admitted for

permanent residence of any alien who :
1. Is a native or citizen of Cuba, and
2. Bas been inspected and admitted or paroled into the United States subsequent to January 1, 1959, and

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Interim Decision #1738
a Has been physically present in the United States for at least two years, if
the alien
4. Makes application for such adjustment, and
5. Is eligible to receive an Immigrant visa, and
6. Is admissible to the United States for permanent residence.

When considered on its own merits the application must fail because, while there is no doubt that the applicant is now in the United
States as a refugee from the current regime in Cuba, the fact is that
he has not been inspected and admitted or paroled into the United
States subsequent to January 1, 1959, as is clearly required by the
language of the Act.
The last sentence of section 1 of the Act of November 2, 1966 provides that, "The provisions of this Act shall be applicable to the
spouse and child of any alien described in this subsection, regardless
of their citizenship and place of birth, who are residing with such
alien in the United States". We have also considered the eligibility of
the applicant as the spouse of an alien described in that subsection of
the Act. We find he is ineligible as a spouse, as the Act does not
exempt a spouse from any of the provisions of section 1 except for
the citizenship or nativity requirements. Since he was not inspected

and admitted or paroled into the United States subsequent to January
1, 1959, he cannot qualify either in his own right or as a spouse.
We are completely sympathetic with the applicant's desire to remain
in the United States with his wife. However, for the reasons set out
above, we are unable to find him eligible for adjustment of status under
the Act of November 2, 1966, and must affirm the decision of the
District Director.
ORDER: The decision of the District Director, Miami, Florida, is
affirmed and the application is denied.

248


Cite as 27 I&N Dec. 27 (BIA 2017)

Interim Decision #3891

Matter of J. M. ALVARADO, Respondent
Decided May 5, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The persecutor bar in section 241(b)(3)(B)(i) of the Immigration and Nationality Act,
8 U.S.C. § 1231(b)(3)(B)(i) (2012), applies to an alien who assists or otherwise participates
in the persecution of an individual because of that person’s race, religion, nationality,
membership in a particular social group, or political opinion, without regard to the alien’s
personal motivation for assisting or participating in the persecution.
FOR RESPONDENT: Daniel Santiago, Esquire, Malden, Massachusetts
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Assistant Chief Counsel

Jennifer A. Mulcahy,

BEFORE: Board Panel: MALPHRUS, MULLANE, and LIEBOWITZ, Board Members.
MALPHRUS, Board Member:

In a decision dated June 4, 2014, an Immigration Judge granted the
respondent’s request for special rule cancellation of removal under section
203 of the Nicaraguan Adjustment and Central American Relief Act
(“NACARA”), Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2196
(1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), after
concluding that he is not subject to the “persecutor bar” in section
241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1231(b)(3)(B)(i) (2012). The Department of Homeland Security (“DHS”)
has appealed from that decision. The appeal will be sustained.
To establish eligibility for special rule cancellation of removal under the
NACARA, the respondent must show that he is not barred from relief
because he “ordered, incited, assisted, or otherwise participated in the
persecution of an individual because of the individual’s race, religion,
nationality, membership in a particular social group, or political opinion.”
Section 241(b)(3)(B)(i) of the Act; see also 8 C.F.R. § 1240.66(a) (2016).
The only issue on appeal is whether the persecutor bar applies in this case.
The record reflects that the respondent served in the Salvadoran National
Guard from 1981 to 1984, during the Salvadoran Civil War. He stated that
he joined the National Guard because he needed to earn money to support
himself. While serving in the National Guard, the respondent detained an
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Interim Decision #3891

individual whom he delivered to his superiors for questioning. The
respondent’s superiors ordered him to stand guard away from the immediate
area where they interrogated this detainee and to provide a security patrol
during the questioning. The respondent knew that his superiors severely
mistreated the detainee by actions that included placing needles under his
fingernails and that such acts were based on the victim’s political opinion.
Because the respondent had detained this individual and stood guard
while he was interrogated and mistreated, the Immigration Judge concluded
that he had “assisted” or “otherwise participated” in his superiors’ actions.
However, the Immigration Judge found that the respondent’s actions were a
consequence of his service in the Salvadoran National Guard, which he had
joined to earn money to support himself, and that he had not imputed a
political opinion to the detainee. Since the respondent had not intended to
overcome the political opinion or other protected characteristic of the
detainee, the Immigration Judge determined that the respondent’s actions did
not qualify as assistance or participation in persecution within the meaning
of section 241(b)(3)(B)(i) of the Act. We disagree with this analysis.
The respondent does not contest that he “assisted” his superiors’ actions
and that their acts were committed on account of the victim’s political
opinion. Nor does he assert that he did not have “prior or contemporaneous
knowledge” of his superiors’ persecutory acts, as required by the United
States Court of Appeals for the First Circuit, in whose jurisdiction this case
arises. 1 Castañeda-Castillo v. Gonzales, 488 F.3d 17, 20, 24 (1st Cir. 2007)
(en banc). Thus, the critical inquiry is whether to be subject to the persecutor
bar, the respondent was required to have a persecutory motive when he
assisted in the persecution of the detainee. 2
1

To the extent that the respondent claims that his superiors’ actions do not constitute
persecution because they were incidental to a civil war, we disagree. The acts that occurred
during the interrogation here were not limited to “military activities of a type normal in
such conflicts.” Matter of Rodriguez-Majano, 19 I&N Dec. 811, 815 (BIA 1988),
abrogated on other grounds by Negusie v. Holder, 555 U.S. 511 (2009). In that case we
held that harm resulting incidentally from acts directed at the overthrow, or defense of, a
government is not persecution. Id. at 815−16; see also Matter of D-R-, 25 I&N Dec. 445,
456 (BIA 2011) (stating that conduct incident to the military objectives inherent in a civil
war is not persecution), remanded on other grounds, Radojkovic v. Holder, 599 F. App’x
646 (9th Cir. 2015). However, persecution can occur in the context of a civil war, and the
mistreatment of the detainee in this case exceeded accepted military activities.
2
The respondent does not dispute that he bears the burden to disprove that he was
engaged in persecution. See Castañeda-Castillo v. Gonzales, 488 F.3d at 21 & n.3 (noting
that once the DHS introduces evidence of an alien’s association with persecution, the alien
has the burden to disprove that he engaged in persecution); Matter of R-S-H-, 23 I&N Dec.
629, 640 (BIA 2003) (“Where the evidence indicates that one or more of the grounds for
mandatory denial of an application for relief may apply, the alien has the burden of proving
by a preponderance of the evidence that such grounds do not apply.”).

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We have a duty to apply the plain language of the Act and not to create
ambiguity where none exists. See K Mart Corp. v. Cartier, Inc., 486 U.S.
281, 291 (1988) (“If the statute is clear and unambiguous ‘that is the end of
the matter, for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.’” (citations omitted)). Section
241(b)(3)(B)(i) of the Act states that the persecutor bar applies if an alien
“ordered, incited, assisted, or otherwise participated in the persecution”
of another. In view of this plain language, we conclude that an “alien’s
personal motivation is not relevant” to the application of this provision. Bah
v. Ashcroft, 341 F.3d 348, 351 (5th Cir. 2003).
In Bah, the Fifth Circuit applied the plain language of section
241(b)(3)(B)(i) to reject an alien’s argument that he was not subject to the
persecutor bar because he was forcibly conscripted by the insurgent group
and did not have a persecutory motive for the violent acts he had committed.
Id. The court reasoned that if Congress wanted an alien’s intent to be relevant
to the persecutor bar, it could have drafted section 241(b)(3)(B)(i) so that the
phrase “because of” modified the term “alien” and would thus apply to an
“alien who, because of an individual’s political opinion, ordered, incited,
assisted, or otherwise participated in the persecution.” Id. (emphasis added)
(citing Maikovskis v. INS, 773 F.2d 435, 445 (2d Cir. 1985) (analyzing
identical language in a Nazi collaboration statute and concluding that the
provision did “not require proof that the alien identified himself with the
Nazis’ basis for persecution; if the Nazi persecution occurred ‘because of’
political opinion, the alien who assisted or otherwise participated in it is
subject to deportation”)). Since the alien in Bah had “participated in
persecution, and the persecution occurred because of an individual’s political
opinions,” the court held that he was subject to the persecutor bar. Id.
The Immigration Judge’s determination that the respondent’s personal
motives were relevant to the applicability of the persecutor bar contravenes
the plain language of section 241(b)(3)(B)(i) of the Act. Moreover, the
Immigration Judge misapplied our decision in Matter of Rodriguez-Majano,
19 I&N Dec. 811, 815 (BIA 1988), abrogated on other grounds by Negusie
v. Holder, 555 U.S. 511 (2009). In that case we held that “[i]n analyzing a
claim of persecution in the context of a civil war, one must examine the
motivation of the group threatening harm,” because “persecution requires
some degree of intent on the part” of such a group. Significantly, the
“persecutor” whose intent we examine is the “group threatening harm”—in
other words, those who committed the underlying persecutory acts.
When determining whether an alien has assisted or participated in
persecution under section 241(b)(3)(B)(i) of the Act, the proper focus is not
on the motive of the alien, but rather on the intent of the perpetrator of the
underlying persecution. If the perpetrator is motivated by the victim’s race,
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Interim Decision #3891

religion, nationality, membership in a particular social group, or political
opinion, then the alien’s assistance invokes the persecutor bar, without regard
to the personal motivation of the alien who assisted or otherwise participated
in the persecution. See Bah, 341 F.3d at 351 (looking to the intentions of
those inflicting persecution in determining whether the persecutor bar
applies). Here, there is no dispute that the persecutors’ conduct was based
on the victim’s political opinion at the time of the persecution. The fact that
the respondent joined the military for financial, as opposed to political,
reasons does not preclude the application of the persecutor bar. 3
For the reasons discussed above, the persecutor bar in section
241(b)(3)(B)(i) of the Act applies to the respondent because, regardless of
his own motives, he “assisted, or otherwise participated in the persecution of
an individual because of the individual’s . . . political opinion.” He has
therefore not met his burden of establishing that he is eligible for special rule
cancellation of removal under the NACARA. The respondent did not request
any other form of relief from removal. Accordingly, the DHS’s appeal will
be sustained and the respondent will be ordered removed from the United
States to El Salvador.
ORDER: The appeal of the Department of Homeland Security is
sustained, and the Immigration Judge’s grant of special rule cancellation of
removal is vacated.
FURTHER ORDER: The respondent is ordered removed from the
United States to El Salvador.

3
Our holding is consistent with Congress’ interpretation of the international treaty
obligations of the United States regarding the protection of refugees. The persecutor bar
was enacted as part of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, and one
of Congress’ primary purposes in passing the Refugee Act was to implement the principles
agreed to in the United Nations Convention Relating to the Status of Refugees, adopted
July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954)
(“Convention”), and the United Nations Protocol Relating to the Status of Refugees,
opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force
Oct. 4, 1967; for the United States Nov. 1, 1968). Negusie, 555 U.S. at 520. The
Convention prohibits the return of individuals to countries where their life or freedom may
be threatened, except when such individuals have “committed a crime against peace, a war
crime, or a crime against humanity.” Id. at 536 (Stevens, J., concurring) (citation omitted).
Congress considered the persecutor bar to be consistent with this exception. Id. (citing
H.R. Rep. No. 96-608, at 18 (1979)).

30


Interim Decision #2196

MATTER OF ACOSTA
In Deportation Proceedings
A-10731904
Decided by Board April 19, 1973
Conviction of the offense of making a false statement in the acquisition of a
firearm from a licensed dealer in violation of 18 U.S.C. 922(a)(6) is conviction of
a crime involving moral turpitude.
CHARGE:

Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(aX4)]—Convicted of two
crimes involving moral turpitude, to wit: (1) transporting a forged and altered security in foreign commerce
and (2) making a fake statement in the negnieition of a
firearm from a licensed dealer.
ON BEHALF OF RESPONDENT: Joseph J. Rey, Esquire
453 Magoffin Avenue
El Paso, Texas
(B rief filed)

The special inquiry officer, in an order dated October 16, 1972,
found the respondent deportable as charged and ineligible for any
discretionary relief. The respondent appeals from that order. The
appeal will be dismissed.
The respondent is a 37-year-old married male, a native and
citizen of Mexico, who entered the United States on February 12,
1960 as an alien lawfully admitted for permanent residence. He
was charged with deportability under the second portion of section

241(a)(4) of the Immigration and Nationality Act. That section
makes deportable any alien who "at any time after entry is
convicted of two crimes involving moral turpitude, not arising out
of a single scheme of criminal misconduct." The file contains the
record of two convictions.
The first, on October 29, 1970, was for transportation of a forged
and altered security in foreign commerce in violation of the third
paragraph of 18 U.S.C. 2314. We find that this offense involved
moral turpitude. See Matter of Fernandez, Interim Decision No.
2123 (131A, 1072), also dealing with 18 U.S.C. 2314 (transportation

in interstate commerce of forged securities).

338

Interim Decision #2196
The second conviction occurred on February 10, 1972 and was
for the offense of making a false statement in the acquisition of a
firearm from a licensed dealer in violation of 18 U.S.C. 922(aX6).
That section makes it a crime for any person "... knowingly to
make any false or fictitious statement ... intended or likely to
deceive such ... dealer ... with respect to any fact material to the
lawfulness of the sale. ..." The respondent was convicted because
he did not mention his first conviction, which would have disqualified him as a firearms buyer under 18 U.S.C. 922(dX1).
Moral turpitude is present in connection with the respondent's

second conviction because fraud and materiality are essential
elements of the crime. See Fiswick v. United States, 329 U.S. 211
(1946) (concealing membership in Nazi Party under Alien Registration Act of 1940); U.S. ex rel. Popoff v. Reinter, 79 F2d 513 (C.A.
2, 1935) (knowingly submitting false information in an application
for naturalization); Matter of B—, 7 L & N. Dec. 342 (BIA, 1956)
(wilfully and knowingly making false statements in an application
for a passport).
The special inquiry officer was correct, then, in finding that the
respondent had boon convicted of two crimes involving moral
turpitude. There is no contention that these crimes arose out of a
common scheme of criminal misconduct. We, therefore, affirm the
special inquiry officer's finding of deportability under section
241(aX4) of the Act. The appeal will be dismissed and the following
order will be entered.
ORDER: The appeal is dismissed

3 29


Interim Decision #1809

MATTER OF PlEAINO

In Deportation Proceedings
A-14797687
Decided by Board November 3, 1967
Respondent's conviction in Italy of aggravated theft, a crime involving moral

turpitude, for which he was sentenced to one year's imprisonment and a 1,200
lire fine which sentence was reduced to eight months' imprisonment and an 800
lire fine and execution of sentence suspended, is classifiable as a "petty offense"
within the meaning of section 212(a) (9) of the Immigration and Nationality
Act, as amended.

Ortesez:
Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (1)7—Excludable
at entry under section 212(a) (9)—Alien convicted of
crime involving moral turpitude.
ON BEHALF OF RESPONDENT:
Benedict Brucia, Esquire
26 Court Street
Brooklyn, New York 11201

ON BEHALF OF SERVICE:
IL A. Vielhaber
Appellate Trial Attorney
(Oral argument)
Vincent A. Schiano. Esquire
Trial Attorney
(Brief submitted)

The Service appeals from a decision of the special inquiry officer,
finding respondent not deportable as charged and terminating these
proceedings. The appeal will be dismissed.
Respondent is a 42-year-old married male alien, a native and citizen
of Italy, who was issued a, preference quota immigrant visa on April
15, 1966 as the spouse of a married daughter of a United States citizen.
Upon presentation of that visa, he was admitted to the United States
for permanent residence on May 16, 1966 at New York, New York, together with his wife and five minor children.
The Service seeks to deport respondent upon the ground that on
May 16, 1966, when he entered the United States, he was deportable as
one excludable under section 212(a) (9) for having been convicted of
a crime involving moral turpitude.
Respondent has bad two convictions. The first, in 1944, was for ag508

Interim Decision #1809
gravated theft, which involved moral turpitude; respondent was found
to have stolen a sack of sugar, worth 739.35 lire, and was sentenced to
one year's imprisonment and a 1,200 lire fine, which was reduced to

eight months' imprisonment and an 800 lire fine, and execution of sentence was suspended. In 1953, he was convicted of peddling fruit without a license and fined 4,000 lire; this does not involve moral turpitude.
The details of both these convictions were available to the consular
officer who issued respondent's visa on April 15, 1966 and to the immigrant inspector who admitted him on May 16, 1966 (see Ex. 3, -visa
and attached documents). That they were aware of the conviction
when they found respondent not to be excludable is apparent from the
fact that the consular officer marked the visa application, in answer to
the relevant question, with the words "petty offense 1944".

These are deportation proceedings, respondent being in the United
States after having been admitted for permanent residence. It, therefore, devolves upon the Service to establish, by clear, unequivocal and
.convincing evidence, that the facts upon which it bases its claim that
respondent was excludable on May 16, 1966, and is now deportable,
are true.

The Service contends that respondent did not come within the petty
offense exception to excludability under section 212(a) (9) for two
reasons : (a) the 1944 conviction, although conceded to be a mis.demeanor within the definition set forth in Title 22 of the District
of ColuMbia, Code, was not for a petty offense; and (2) respondent
has failed to prove that he committed only one such offense.
The statute makes admissible:
* * * Any alien who would be excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1(8) of
title 18. United States Code, by reason of the punishment actually imposed,
* • • if otherwise admissible: Provided, that the alien has committed only one
such offense * • •. (Emphasis supplied.)

The Service points out that "a sentence of eight months and eight
hundred lira was imposed and * * * the execution of the sentence
was suspended. * * *" It concludes, therefore, that the "punishment
actually imposed" exceeds the statutory limit for a petty offense of
six months' imprisonment or a five hundred dollar fine or both. It
cites, in support of its position, four precedent decisions of the Board.
None of the cited decisions is actually in point.' No reference is made
'Matter of D , 8 L & N. Dec. 658, involved a crime committed in the United
States with deportability charged under section 241(a) (4) ; we held that a sentence to imprisonment for one year, even if there was no confinement, came
within the specific language of that section, and that the petty offense amendment was not applicable to section 241(a) (4). In Matter of M—, 8 I. & N. Dec.
—

509

Interim Decision #1809
to Matter of T—, 8 I. & N. Dec. 4, in which the Board had before it
the specific question here. T-- was a native of Italy who had been convicted of aggravated theft (lumber valued at less than $50) and sentenced to one year's imprisonment and a fine of 3,000 lire. After
sentencing, the court declared the appellant had been pardoned, in
accordance with a specified decree. The Board found, on examining
the record, that this was not a pardon of the conviction, but only of
the sentence imposed, and that the alien had, therefore, been granted
a suspended sentence. Specifically considering the effect of a suspended sentence under the petty offenses amendment, we held that
"sentence imposed" was not the same as "punishment imposed", that
"punishment" must be given its ordinary meaning, and that because
sentence had been suspended, there was no "punishment actually
imposed", and the conviction came within the petty offenses exception. In the case now before us, the special inquiry officer's statement
on the applicable law was correct, and the consular officer was also
correct in his evaluation of the 1944 conviction as a petty offense? We
are not persuaded by anything in the Service appeal that a reevaluation of the rationale in Matter of 2'—, supra, is warranted.
Turning 'to the second contention, we believe the respondent met
the burden, imposed on him by section 291, of establishing eligibility
when he applied for his visa. Section 212 (a) (9) defines the type of
crime which will render an alien excludable, and provides that excludability will result when there has been conviction of such a crime, or
when 'the alien admits having committed such a crime, or when the
alien admits having committed acts which constitute the essential elements of such a crime. The petty offense exemption (which, it must her
remembered, is not a discretionary waiver but a limitation on the applicability of section 212(a) (9)), excuses the commission or convic453, the alien was sentenced to three years' imprisonment, and there is nothing
to show that he was not actually confined for that time Therefore, by virtue of
the length of the punishment actually imposed, the case did not come within 18
U.C.
9. 1(3) and was not a petty offense. Matter of C-0—, 8 I. & N. Dec. 488,
dealt with a crime committed in Texas, for which the maximum penalty was two
years' imprisonment; because of this factor, the crime was not classifiable as a
misdemeanor under 18 U.S.C. 1, and could not qualify as a petty offense, in spite
of the fact that the punishment actually imposed was only two months' imprisonment. Matter of M—C--, 8 L & N. Dec. 280, dealt with a California statute under
which there could be a conviction for either a misdemeanor or a felony, and the
actual conviction was for a misdemeanor with a six-month suspended sentence;
we held the crime to be a petty offense but the alien could not qualify for the exception because he was not otherwise admissible.
The points raised on oral argument about the alleged actual nature of the
crime and whether respondent bad any other convictions are far too nebulous
and speculative to add any real weight to the battle Service argument.

510

Interim Decision #1809
tion of such a crime, if by its magnitude it is properly classifiable as a
petty offense, and if the alien has committed or admits the commission
of "only one such offense." Since section 212(a) (9) deals only with conduct which will result in excludability, the restriction of the petty offense exemption to "only one such offense" of necessity relates to conduct which would result in excludability, i.e., a. crime involving moral
turpitude, of which the alien has been convicted, or which he admits
having committed, or of which he admits having committed acts constituting its essential elements. Respondent presented evidence of a
single conviction of a crime involving moral turpitude, which was
properly classifiable as a petty offense, and of a conviction for illegal
peddling which did not involve moral turpitude. He did not (and does
not now) admit conviction or commission of any other crime or acts

constituting the essential elements of any other crime, of any sort, and
his police record showed that no other action was then pending against
him. We do not see how he could possibly have gone further in. establishing-that he had committed only one petty offense, and find that visa
issuance and admission for permanent residence were proper in the
circumstances.
The burden is now on the Service, to establish by clear, unequivocal
and convincing evidence, that respondent had committed more than
one such offense prior to entry, if it is to be successful in its effort to
reverse the special inquiry officer's finding that respondent is not
deportable as charged. In support of its claim, the Service has presented, as Exhibit 4, an Order of Arrest, signed by the Judge at the
Tribunal of &lama, Italy, on June 23, 1966, five weeks after respondent's admission to the United States and five months after he made

application to the local authorities for documents to support his visa
application. This order authorizes the arrest of respondent (whom
it shows to have emigrated to the United States) and six others,
on a charge of complicity in the knife slaying of one Liborio Maggio,
which took place twelve years earlier, on May 25, 1954. The Service
argument, stripped of rhetoric and reduced to essentials, is that respondent was excludable on May 16, 1966 because he had not disproved
commission of this crime, with which he had not yet been charged,
and that he must now be deported so that he can discharge that task
in the jurisdiction where the accusation has taken place. If a conviction in absentia cannot be the basis for a finding of excludability
under section 212(a) (9) or (10) (see 22 CFR 42.91(a) (9) (v) ; 42.91
(a) (10) (iii) ; 41.91(a) (9) (iv) ; 41.91(a) (10) (ii)), or for a finding of
deportability based on conviction of crime (Ex park Koerner, 176
Fed. 478; Ex parte Tratehom, 160 Fed. 1014; Gordon & Rosenfield,
Immigration Law and Procedure, Revised Edition, 1966, p. 4-88), it
511

Interim Decision #1809
follows that the Service claim that respondent is deportable as one
who was excludable for crime, based only on an Order of Arrest issued in absentia, must fail. As the special inquiry officer has pointed
out, the cause of justice need not suffer, since the government of Italy
can resort to the extradition process if it wishes to have respondent
returned to Italy for trial.

ORDER: It is ordered that the appeal herein be and the same is
hereby dismissed.

512


Interim Decision #2943

MATTER OF DI SANTILLO

In Deportation Proceedings
A-30619277
Decided by Board May 24, 1983
(1)An alien may be deported wider section 241(a)(1) of the Immigration and Nationality
Act, 8 U.S.C. 1251(t)(1), if, at the thus of entry, heir excludable under sectMn212(a)(17)
of the Act, 8 U.S.C. 1182 (a)(17), as one who, having been arrested and deported, fails
to obtain consent from the Attorney General to apply or reapply for 'admission prior
to his embarkation.
(2)Section 252(b) of the Act. 8 U.S.C. 1282(b),:provides a summary deportation procedure
under which an alien crewmen's D-1 conditional landing permit may be revoked and the
alien deported without a hearing.
(3)The summary procedure under section 252(b) of the Act, which governs only the alien
crewman whose D-1 conditional landing permit is formally revoked prior to the departure
of his vessel, represents a narrow exception to the deportation procedures found In
section 242(b) of the Act and reflects Congress' commitment to address and correct the
serious problem of illegal crewmen in the United States.
(4)An alien who is deported pursuant to the summary procedures contained in section 252(6)
of the Act is not relieved of the requirements of obtaining consent from the Attorney
. General to. reapply for admission under section 212(a)(17) of the Act.
(5)The revocation of respondent's D-1 conditional landing permit and his removal from

the United States pursuant to the provisions of section 252(b) of the Act constituted an
"arrest and deportation" for purposes of section 212(a)(17) and, therefore, his deportability under section 241(a)(1) is established by his failure to obtain consent from the
Attorney General to reapply for admission as a lawful permanent resident.

CHARGE:
ORDER: Act of 1952—Sec. 241(a)(1) (8 U.S.C. 1251(a)(1)]—Excludable at of entry under
section 212(a)(17) [8 U.S.C. 1182(a)(17)}—No permission to
reapply after deportation
ON BEHALF OF Rireporiorwr:
ON BEHALF OF SERVICE:
Paul Vincent
Charles Gordon, Esquire
Appellate Trial
931 Investment Building
Attorney
15U K Street, N.W.
Washington, D.C. 20005
Br: lifilhollan, Chairman; Idaniatis, Dunne, Morris, and Vacca, Board Members

The Immigration and Naturalization Service has appealed from the
decision of the inunigration judge, dated October 22, 1980, terminating

407

Interim Decision #2943
the deportation proceedings brought against the respondent. The appeal
will be sustained.
The respondent is a 37-year - old native and citizen of Italy who was

admitted to the United States as a lawful permanent resident on March
23, 1970. Prior to that entry he was a crewman aboard the Italian
vessel, M/V Maria Amelia Lolli Chetti, when it docked at Baltimore,
Maryland on December 10, 1962. The respondent requested and was
issued a "D-1" Conditional Landing Permit, in accordance with 8 C.F. R.
252.1(d)(1) and section 252(aX1) of the Immigration and Nationality Act,
8 U.S.C. 1282(a)(1). 1 On December 11, 1962, the respondent was served

with Form 1-99, Notice of Revocation and Penalty, revoking his "D-1"
conditional landing permit and directing his detention and deportation
aboard the M/V Maria Amelia Lolli Chetti pursuant to section 252(b) of
the Act. 2 That section provides in relevant part:
[A]u immigration officer may, in his discretion, if he determines that an alien . . . does
not intend to depart on the vessel or aircraft which brought him, revoke the conditional
permit to land which was granted such crewman under the provisions of subsection
(a)(1), take such crewmen lute custody; and require the master or commanding officer of
the vessel or aircraft on which the crewman arrived to receive and detain•him on board
such vessel or aircraft, if practicable, and such crewman shall be deported from the
1 Section 252(a)(1) provides:
No alien crewman shall be permitted to land temporarily in the United States except as
provided in this section . . . . If an immigration officer fmds upon examination that an
alien crewman is a nonimmigrant . . . and is otherwise admissible and has agreed to
accept such permit, he may, in his discretion, grant the crewman asonditional permit to

land temporarily pursuant to regulations prescribed by the Attorney General, subject

to revocation in subsequent proceedings as provided in subsection (b), and for a period
of time, in any event, not to exceed (1) the period of time (nut exceeding twenty nine days) during which the vessel or
aircraft on which he arrived remains in port, if the immigration officer is satisfied that
the crewman intends to depart on the vessel or aircraft on which he arrived[.]
2 The-Notice (Exhibit 8) provided:
-

Your n4 Conditional Landing Permit has been revoked, and your detention and deportation aboard the. MAT Maria Amelia Lolli Chetti has been directed, pursuant to Section

252(b) of the Immigration and Nationality Act.
You are hereby placed on notice that under the law a crewman whose D-1 Conditional
Landing Permit is revoked, and who is then deported, cannot there after lawfully enter
the United States, unless prior to his embarkation at a place outside the United States,
the Attorney General has expressly consented to his reapplying for admission. Moreover,
under the law a crewman who enters or attempts to enter the United States at any time
after such deportation without having received 'permission from the Attorney General
to reapply for admission, is guilty of a felony and, upon conviction, is liable to imprisonment of not more than two years, or a fine of not more than 81,000, or both such fine and
imprisonment.
The respondent signed the Notice, acknowledging that he had received a copy, that it had
been read and explained to him, and that he understood it. The Notice also contain* a

verification by a Service Officer that the Notice was read and explained to the respondent
through an interpreter in the Italian language.
408

Interim Decision #2943
United States at the expense of the transportation line which brought him to the United
States . . . . Nothing in this section shall be construed to require• the procedure prescribed in section 242 of this Act to cases falling within the provisions of this subsection.

On June 28, 1977, an Order to Show Cause was issued against the
respondent, alleging that he had been arrested and deported from the
United States on December 11, 1962, at. Baltimore, Maryland and that he
had reentered on March 2,3, 1970, as an immigrant without first receiving
permission from the Attorney General to reapply for admission. The
respondent was charged with' being deportable under section 241(a)(1)
of the Act, 8 U.S.C. 1251 (a)(1). 3 At his deportation hearing begun on
September 25, 1979, and completed on October 22, 1980, the respondent,

who was represented by counsel, admitted that he was an alien and that
he had entered the United States on March 23, 1970, as an immigrant.
He denied the allegations that he had been arrested and deported from
the United States on December 11, 1962, and that he had not been
granted permission to reapply for admission. He also denied the charge
of deportability as an alien excludable at entry.
The respondent's deportation hearing was• continued during the pendency of his appeal from the April 7, 1979, conviction under section 276 of
the Act, 8 U.S.C. 1326, for reentry after having been arrested and
deported. The Third Circuit reversed the judgment of conviction on the
ground that Lhe respondent's prosecution under section 276 was barred

by the federal statute of limitations. See'United States v. DiSantillo,
615 F.2d 128 (3 Cir. 1980).
Following the reversal of his conviction, the respondent filed a motion
to dismiss deportation proceedings. He argued that the revocation of a
crewman's conditional landing permit and his removal from the United
States pursuant to section 252(b) of the Act did not constitute an "arrest
and deportation" for purposes of section 212(2)(17). He claimed that the

perpetual bar against a deported alien' was a severe sanction and that
there was nothing in the language or structure of the statutes, or its
legislative history, to warrant an assumption that Congress intended
that sanction to apply to crewmen whose conditional landing permits
had been revoked. He further argued that in referring to an alien who
was "arrested and deported!' Congress evidently intended to signify one
3 Under section 241(a)(1), an alien who "at the time of entry was within one or more of
the classes of aliens excludable by the law existing at the time of such entry" may be
deported.
One such excludable class consists of "(a)liens who have been arrested and deported . . . ,
unless prior to their embarkation . . . the Attorney General has consented to their applying or reapplying for admission." Section 212(a)(17).
4 Section 212(aX17) as amended by section 4 of the Immigration and Nationality Act
Amendments of 1081, Pub. L. 97-116, 95 Stot 1611 (nor 29, 1981), now requires previously deported aliens to obtain permission to reapply for admission if they seek admission within 5 years of their deportation or removal.

409

Interim Decision #2943
who had undergone the formal expulsion process now described in sections 242 and 243 of the Act, and that the terms originated at a time
when all formal deportation proceedings were commenced with the alien's
arrest. The respondent relied on United States v. Wong Kim Bo, 466
F.2d 1298 (5 Cir. 1972), rehearing denied 472 F.2d 720; United States v.
Farias-Arroyo, 528 F.2d 904 (9 Cir. 1975); and United States v.
DiSantillo, supra., to support his arguments that the "arrested and

deported" language of section 212(a)(17) relates to the expulsion of aliens
through a formal deportation proceeding and the issuance of a warrant
of deportation and not to the informal revocation and removal procedure
under section 252(b) of the Act. The immigration judge, adopting the
respondent's arguments, found that he had not been "arrested and
deported" in December 1962 for purposes of section 212(a)(17), did not
require the Attorney General's permission to reapply for admission, and
was therefore not deportable under section 241 (a)(1) of the Act_
For the following reasons, we are convinced that the revocation of the
respondent's conditional landing permit and his removal from the United
States in December 1962 under section 252(b) of the Act constitutes an

"arrest and deportation" pursuant to section 212(a)(17) and that his
deportability under section 241(a)(1) of the Act is established by his
admission as a lawful permanent resident on March 23, 1970, without
obtaining permission to reapply.
Section 242(b) of the Act provides a generally applicable procedure •
for determining the deportability of an alien. Section 252(b) provides a
specific procedure for the deportation of alien crewmen holding D-1
landing permits. The summary procedure set forth in section 252(b)
under which the conditional permit to land may be revoked and the alien
deported without a hearing represents a narrow exception to the deportation procedures found in section 242(b). It governs only the alien
crewman whose D-1 permit is formally revoked prior to the departure of
his vessel. 8 C.F.R. 252.2; Matter of M-, 5 I&N Dee. 127 (BIA 1953).
Section 252(b) was designed to address the serious problem created
"by alien crewmen who deserted their ships and secreted themselves in
the United States." Congress recognized that "the temporary 'shore
leave' admission of alien seamen who remain illegally constitutes one of
the most important loopholes in our whole system of restrictions and

control of the entry of aliens into the United States." Immigration and
Naturalization Service v. Stanisic, 395 U.S. 62, 73 74 (1969). Congress'
-

commitment to address and correct the growing problem of illegal crewmen in this country is further demonstrated by its refusal to permit
crewmen adjustment of status or suspension of deportation. Sections
244(f) and 245(c) of the Act, 8 U.S.C. 1254(f) and 1255(c).
We fail to see how an interpretation which would relieve an alien
crewman deported under section 252(b) of the requirement of obtaining
410

Interim Decision #2943
consent to reapply for admission under section 212 (a)(17) would further
Congress' intent to address the serious illegal crewman problem. Such
an interpretation would elevate the alien crewman to a favored status
under the Act, a result clearly not intended by Congress and one that
we decline to adopt. 5 While section 252(b) provides for the summary
deportation of certain alien crewmen, it does not follow that once so
deported the alien is relieved of the requirements of section 212(a)(17)
applicable to all deported aliens. See generally Matter of Lee, 17 I&N
Dec. 275 (Comm. 1978); Matter of Bunag, 13 I&N Dec. 103 (D.D. 1967).
The -ecord establishes that the respondent was properly deported as
an alien crewman in December 1962 under the provisions of section
252(b) of the Act. We conclude that the respondent was required to
obtain consent to reapply for admission under section 212(a)(17) at the
time of his admission as a lawful permanent resident on March 23, 1970,
that the immigration judge improperly terminated the proceedings, and
that the respondent's deportability under section 241(a)(1) of the Act
has been established by evidence which is clear, convincing, and unequivocal as required by Woodby v. INS, 285U.S_ 276 flfiR)_
The respondent has not had an opportunity to apply for discretionary
relief. We note that he has resided in the United States for more than 13
years, that he is married to a United States citizen, and that the record
does not disclose any adverse factors. The respondent appears to be
eligible for mow pro tiinc permission to reapply for admission pursuant
to Matter of Ducret, 15 UN Dec. 620 (BIA 1976). Accordingly, we will
s stain the Service's appeal and remand the record to afford the respondent an opportunity to apply for that and any other available discretionary relief.
ORDER The appeal is sustained.
FURTHER ORDER

The immigration judge's order terminat-

the deportation proceedings is vacated.
FURTHER ORDER: The record is remanded to the the immigration judge for further proceedings consistent with the foregoing opinion and the entry of a new decision.
ing

and United States v.
5 Respondent's reliance on United States v. Wong Kim Bo, supra,
Parias Arroyo, supra, is misplaced. Neither case involved alien crewmen deported under
section 252(b) of the Att. They concerned criminal convictions under section 276 of aliens
deported under section 242. The court in United States v. DiSantitto, supra, did not
reach the issue presented by this appeal, reversing the judgment of conviction solely on
the basis of the statute of limitations.
-

411


Interim Decision

Miners of

*no

FARINA6

In Deportation Proceedings
A-4699814
Decided by Board September 16, 1967
A. gross miscarriage of justice occurred where respondent, an unrepresented alien,

was ordered deported in November 1946 but from November 1947 to May 15,
1950, the date of his actual deportation, such decision could not have withstood
judicial attack under the interpretation of the prevailing law as laid down
by the Supreme Court in DetgadirIn v. Cam&has; 822 U.B. 288, and other
cases; hence, respondent having been granted permission to reapply and
waivers of the grounds of excludability, the present proceedings under section
242(f) of the Immigration and Nationality Act are terminated.
CHARGE :
Order: Act of 1952—Sections 241(a) (2) [8 U.S.O. 1251 (a) (2)] and 242(f)
[8 U.B.C. 1252(f )l—Previously deported on ground
enumerated in section 242(e).
ON BEHALF OF RESPONDENT:
On Brims or SMNICE:
Stephen M. Suffin
Charles S. Wong, Esquire
755 Commercial Street
Trial Attorney
(Brief filed)
San Francisco, Calif. 94108
(Brief filed)

Respondent appeals from the decision of the special inquiry officer
finding him depottable as charged, and granting him voluntary departure with an alternate order of deportation to the Philippines.
Respondent is a 64-year-old married male alien, a native and citizen
of the Philippines, who last entered the United States at Honolulu,
Hawaii on or about September 9, 1966 as a visitor for pleasure. In
earlier proceedings he testified that he first entered the United States
at Hawaii on June 14, 1922 and arrived in the continental United
States at San Pedro, California in either December 1923 or January
1924. He remained in this country continuously from that time, with
the exception of occasional brief crossings into Mexico, the last one
being in 1929, until he was deported from the United States in
May 1950.
467

Interim Decision *1797
In November 1935, respondent was charged, in the Superior Court,
San Joaquin, California, with burglary in the first degree. After
proceedings in which he was represented by counsel, he was convicted
of burglary in the second degree (a crime involving moral turpitude,
cf. Matter of V—T—, 2 I. & N. Dec. 213), and on January 25, 1936
was sentenced to imprisonment for eight years. With time off for good
behavior, etc., he was discharged in 1941.
After his release, respondent worked for the Libby Company which
sent him to Alaska as one of a group of cannery workers in the summers
of 1941, 1942, 1943 and 1944. The company made all arrangements
for their transportation from California to Alegre and back, and it
was respondent's recollection that they went sometimes by airplane
and sometimes by boat. During the 1942 trip north, the boat stopped
in the port of Vancouver, B.C., Canada, and the workers were transferred to another boat which took them the rest of the way to Alaska.
Respondent was ashore for about an hour, for the purposes of the
transfer, but there is no showing that he had anything to do with, or
knew anything of, the arrangements for the stopover and transfer
in the Canadian port. Immigration Service records show him as being
thereafter admitted at IrAAiken, Alaska on June 20, 1942.
In September 1944, a two-count information was filed against respondent in the Superior Court, King County, State of Washington.
charging abduction of a female under 18 for the purpose of sexual
intercourse or marriage without the consent of her legal guardian,
and carnal knowledge and abuse of a female under the age of 18. He
was represented by counsel and pleaded guilty to the first charge on
December 5,1944; the second was dismissed on December 22, 1944. He
was sentenced to imprisonment for a maximum term of not more than
10 years, and started serving his sentence.
Deportation proceedings were instituted in early 1945. Respondent
was charged with being deportable as one excludable at the time of
his June 1942 entry, under the Act of February 5, 1917, because of
prior conviction of crime involving moral turpitude (burglary, second degree), and with being deportable under the same Act because
he had been sentenced to imprisonment for a year or more after conviction of a crime involving moral turpitude committed within five
years after entry (abduction).

The hearings were held, without interpreter, at the State Penitentiary in Walla Walla, Washington. Respondent, when asked if he
wished counsel, stated that he did and was given a two -week adjourment. At the continued hearing, on September 12, 1945, respondent
testified that he had not yet secured counsel. The special inquiry
officer declared that the hearing would proceed and in the event re468

Interim Decision #179?
spondent should later secure counsel, his attorney could contact the
Immigration'ervice and would be afforded an opportunity to review
the proceedings to that date.
At the hearing, it was clearly established that respondent was a
native and citizen of the Philippines; that he had touched at a Canadian port in 1942 when the company transportation provided for a
transfer of beats and he had gone ashore for that purpose; and that
he was the person referred to in the record showing Mariano Farinas
to have been admitted at Ketchikan, Alaska on June 20, 1942. He
identified as relating to him the two convictions referred to above and
sought to explain the circumstances leading to the second. conviction,
but was advised this was not relevant. He was advised that he would
be served with a copy of the proposed findings of fact, conclusions of

law and order, and advised of his appeal rights. He was served on
November 23, 1945, but did not file exceptions within the specified
period. Both of the warrant charges were sustained, and in ordering
him deported to the Philippines, it was specifically recommended that
execution of the warrant of deportation be deferred until such time as
respondent was released from imprisonment.
The Commissioner of Immigration, on review, amended the order

only to the extent of holding that since respondent had been inadmissible for a cause existing at the time of entry, deportation was to be at
the expense of the transportation company. The case then came before
the Board, which on November 12, 1946, rendered a decision holding
respondent deportable on the first charge only. The Board was of the
opinion that it was possible respondent had taken the girl for the
purpose of marriage, and that moral turpitude might not inhere in
abduction for that purpose. Since it was sustaining the first charge, the
Board held it would not pass on whether respondent's 1944 conviction
was for a crime involving moral turpitude. It was affirmed that (=eon-

don of the warrant of deportation should. be deferred until respondent
was released. from prison.
Respondent finished serving his sentence in 1950 and was deported
to the Philippines on May 15, 1950. He never returned to the -United
States until his entry of September 9, 1966.
At the present hearing, at which respondent was represented by
counsel and communication was through an official interpreter, in the
Ilocano dialect, the Government rested after introducing the warrant
of deportation, showing execution on May 15, 1950 via the USNS
Simon B. Buckner. Although making no claim that permission to reapply for admission had ever been applied for or received, respondent
denied deportability, contending that the 1950 deportation was improper and invalid. It was urged that he had not made an entry in
469

Interim Decision *1797
June 1942 and therefore could not be found deportable for crime prior
to entry, and it was farther contended that at the time of respondent's original entry and at all times until 1946, he was a United States
national and that the Act of 1917 therefore did not apply to him.
At the close of the hearing, the special inquiry officer rendered an
oral decision finding respondent deportable on the charge contained
in the order to show cause. It was bottomed upon his holding that the
arrival in Alaska in June 1942 had properly been deemed an entry.
He stated:
• • • Counsel, presumably referring to Rosenberg v. Nicoll, 3T4 U.S. 449, contends that this was not an entry within the meaning of the immigration laws.
He also contends that as the respondent was then a national of the United States,

he was not deportable.
At the time of respondent's deportation, Mould had not been decided by the
Supreme Court. Under the law as it was then interpreted, the respondent bad

made an entry into the United States after his stop at Vancouver, B.C.,
Canada. • • •
It may well be that if the respondent bad not been deported and the ease were
now coming before me, I would find that he had not made an entry in 1912.
However, collateral attacks on the validity of a deportation order after deportation had taken place, based on changes in judicial and administrative decisions
interpreting the law, are permitted only where there is evidence of a gross miscarriage of justice. No evidence of such miscarriage of justice has been adduced,
merely a showing that the law is now interpreted differently. • • •

The Service, in its brief supporting the decision of the special
inquiry officer, makes no claim that the earlier decision was in accordance with prevailing law as it was interpreted at the time .of respondent's deportation, but urges that the deportation order is not subject
to collateral attack because on November 12, 1946 (the date of the
Board's order, which was three and one-half years before the actual
deportation) respondent was clearly subject to deportation under the
prevailing judicial and administrative determinations.
On appeal, counsel repeats the two contentions made at the hearing.
On the "entry" question, he relies not on Rosenberg v. Rena, as
assumed by the special inquiry officer, but on Delgo427,lo v. Carmichael,
332 U.S. 388 (November 10, 1947) and DiPasguale v. Karnuth, 158
F. 2d 878 (CA. 2, January 11, 1947), two cases closer in facts and in
time to respondent's proceedings than the Flexed matter. Both were
administratively decided before or contemporaneously with the finding of deportability herein, and were in litigation when the Board
rendered its decision of November 12, 194.6. Both became the prevailing law at least two and one half years before respondent was deported
on a finding made under a theory of law overruled and set aside by
those cases.
Had respondent been deported on November 12, 1948, or at any time
-

470

Interim Decision #1797
prior to the Supreme Court's November 1947 decision in the Delgadillo case, we would be bound, by the weight of administrative and
judicial decisions, to hold that he could not now attack the prior deportation, for the reasons advanced by the special inquiry officer and
the Service (cf. Gordon and Rosenfield, Immigration Law and Procedure, section 4.7h). But neither the finding of deportability nor the
order of deportation is clothed with the armor of immunity from attack while the alien is still in the United States and before the order
of deportation is executed. Reopening or reconsideration of the proceedings on the administrative level (8 CFR 3.2) may be had as well
as judicial review of the validity of the administrative decision (section 106, Immigration and Nationality Act), without the necessity for
first showing that there was a gross miscarriage of justice. It is
enough to show a change in facts or in the law, whether statutory or
case law (for administrative reconsideration or reopening), or to allege error in the administrative decision or that it was arbitrary and
capricibus (for judicial review). Thus, the changes in the case law in
this area which took place between November 12, 1946 and May 15,
1950 must be considered, and followed, in determining whether respondent's deportation was a proper one.
The DiPasguede case involved an alien who entrained at Buffalo,
New York for a trip to Detroit and who, during the night, was carried into Canada as the train followed its normal route. There was no
showing that he knew in advance that the train was scheduled to go
through Canada, or that he actually set foot on Canadian soil. Mr.
Justice Learned Hand, in holding that there was no entry because the
alien had never intended to depart from the United States, stated:
• • • we think that the intent of a carrier, unknown to the alien, to carry him
across a border and back again, upon a route whose termini are
the United
States, should not be imputed to him. *
In Delgadillo, the Supreme Court granted certiorari because of a

contrary result reached in the Ninth Circuit. Delgadillo was a crew
member on an American ship making a coastwise voyage from Los
Angeles to New 'York, during World War IL The ship was torpedoed
in the Caribbean Sea and the alien was rescued and taken to Cuba,
where he remained for one week until his return to the United States
was arranged. The Ninth Circuit held that he hid made an entry upon
his return from Cuba. The . Supreme Court, in reversing and. holding
that he had not, specifically approved the rationale bf DiPasquale v.
Karma& Mr. Justice Douglas stated:
• • • in the Smith' case it was stated, 289 U.S. p. 425, that "any coming of the
alien from a foreign country into the United States whether such coming be
the first or any subsequent one" Is such an "entu". But those were eases where

471

Interim), Decision #1797

the alien plainly expected or planned to enter a foreign port or place. Here he
was catapulted into the ocean, rescued, and taken to Cuba. He had no part in
selecting the foreign port as his destination. His itinerary was forced on him by
wholly fortuitous circumstances. If, nonetheless, his return to this country was
an "entry" into the United States within the meaning of the Act, the law has
been given a captious application as DiPasquale v. Kamuth, (C.C.A.2d, N.Y.)
158 F.24 878, supra, suggests.
In that ease an alien traveled between Buffalo and Detroit on a railroad which.

unknown to him, passed through Canada. He was asleep during the time he was
in transit through Canada and was quite unaware that be bad left or returned to
this country. The court refused to hold that the alien had made an "entry", for to
do so would impute to Congress a purpose to subject aliens "to the sport of
chance." 158 F. 2d 879. In this case, petitioner, of course, chose to return to this
country knowing he was in a foreign place. But the exigencies of war, not his
voluntary act, put him on foreign soils • • •

In Yukio Chai v. Bonham, 165 F. 2d 207 (CA. 9, December 29,
1947), a case squarely in point arising in the same circuit as respondent's case, the court withheld disposition of the case pending the
Supreme Court's decision in Delgada°, and then held that a cannery
worker in the employ of a Seattle canner, who had been sent to Alaska

as a seasonal worker, his transportation both coming and going having
been arranged by his employer, had not made en entry into the United

States when his vessel, returning from Alaska, had made an unscheduled stop at Victoria, B.C., before landing at Seattle and the alien did
not know of the intention of the ship to leave United States waters or
of the fact that it had done so. While in the instant case respondent
went ashore in Canada to transfer to another ship, the actual knowledge of being in a foreign place or the actual setting foot on foreign
soil are not controlling. Delgadillo was ashore a full week in Cuba.
Therefore, from November 1947 until respondent's deportation in
May 1950, the decision in respondent's case could not have withstood
judicial attack under the law as it was than (and still is) interpreted.

This being the case, a showing of gross miscarriage of justice has been
made (cf. Matter of Malone, Int. Dec. No. 1621), and the validity of
the deportation order can and must be examined.
Inasmuch as we are compelled to the finding that respondent made
no entry in June 1942, we must find that respondent was not at the time
of his deportation properly deportable on the warrant charge, as one
excludable for having been convicted of a crime prior to entry. Respondent was convicted of a second crime, abducting a female under the
age of 18 for the purpose of sexual intercourse or marriage without
consent of her legal guardian. We did not make any finding, in our
ltIf this intercoastal voyage had continued without interruption, it is clear
that be would not have made an "entry" when be landed at its termination. United
States ea rel. Criassasen v Dam tam (279 U.S. p. 401, 78 L. ed. 759.49 S. Ct. 354).]

472

Interim Decision #1797
decision of November 12,1946, as to whether this was a crime involving
moral turpitude, since it was then unnecessary to do so. We address
ourselves to this point now.
We must look to the elements of this crime, as defined by the statute,
to determine whether it involves moral turpitude. Matter of B- 2 6
I. & N. Dec. 98. Under the laws of the State of Washington, the crime
of abduction is committed when the female is under the age of 18 years
and is taken, with or without her consent, for the purpose of sexual
intercourse or, without the consent of her parent or legal guardian, for
the purpose of marriage. In the information filed against respondent,
both purposes are alleged, in the disjunctive, with no specification as
to which was his actual purpose. There was no trial, respondent having
pleaded guilty, and the record is bare of any facts to show what respondent's purpose actually was. As we have previously held :
We are not permitted to go behind the record to determine just what trans.
aired. Ifvlitts v. UM. 203 Fed. 152 (S.D.. N.Y.. 1918). We must determine in each
case that which must be shown to establish the guilt of the alien. Accordingly,
the definition of the crime must be taken at its minimum. * * * Matter of B—,
4 I. & N. Dec. 493.
We consider, therefore, whether the crime of abduction for the pur-

pose of marriage is a crime involving moral turpitude. A crime
involving moral turpitude has been defined as an act of baseness, vileness and depravity which is morally reprehensible and intrinsically
wrong, malum in se (see Matter of P—, 6 3. & N. Dec. 795, and cases
therein cited). We do not believe that the taking of a female under
the age of 18 for the purpose of marriage, without the consent of her
legal guardian, is an essentially depraved, base or vile act, repugnant
to natural moral standards. That it is not inherently wrong is demonstrated by the fact that the same act is rendered moral and legal
by the consent of the female's parent or guardian. We hold that respondent was not convicted of a second crime involving moral turpitude, and was not, by virtue of his convictions, rendered deportable

under any section of law in force at the time of his deportation in
1950.

Although we now find that respondent was not properly subject
to deportation, he was nevertheless deported and reentered as a
nonimmigrant without receiving permission from the Attorney General to reapply for admission after deportation. Also, it might be
urged that he would now be excludable on the basis of ids conviction
for burglary in 1936. Had he not been deported, his status as a resident alien would have continued and none of these disabilities could
be urged. We shall therefore exercise our authority to grant to him,
473

Interim Decision 4t1797

nuns pro tune, such waivers as may be necessary to make his entry
in September 1966 the lawful return of a permanent resident alien.
We grant to respondent, glum pro tunic, the following:
Permission to reapply for admission after deportation;
Waiver of excludability under section 212 (c), as a returning
resident alien, for any possible grounds of excludability arising
out of the two convictions of crime herein referred to;
ration visa, reentry permit or other
Waiver of passport, immigration
documentation, under section 211(b), with regard to respondent's entry of September 9, 1966.
With the granting of the above, respondent is not deportable, and
these proceedings will be terminated.
ORDER s It is ordered that the decision of the Board, dated November 12, 1946, finding respondent deportable and ordering him deported, be and the same is hereby set aside.
It is further ordered that the decision of the special inquiry officer
under date of December 28, 1966, finding respondent deportable as
charged, be and the same is hereby set aside.
It is further ordered that the instant proceedings be and the same
are hereby terminated.

474