Interim Decision #2277

MATTER OP CRECA

In Deportation Proceedings
A-20514506

Decided by Board April 11, 1974
Respondent, who is charged with deportability under section 241(a)(1) of the
Immigration and Nationality Act for lack of the required immigrant visa at
entry, and who, on the facts, could equally have been charged with entry
without inspection under section 241(a)(2) of the Act, both independent
grounds for deportation, cannot qualify for the benefits of section 241(1) of the
Act, as amended.
CHARGE:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable as an
immigrant not in possession of valid documents under
section 212(a)(20).
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:
David F. Aberson, Esquire

Reese D. Robertson

1801 Avenue of the Stars, No. 900
Los Angeles, California 90067

Trial Attorney

This is an appeal from an order of an immigration judge finding
the respondent to be deportable, denying his request for termination of the proceedings, and granting voluntary departure. The
appeal will be dismissed.
Respondent is a 31-year-old married alien, a native and citizen of
Ecuador, who entered the United States for the first time on or
about December 24, 1972 for the purpose of working here and who
did not then possess or present the immigrant visa required of
intending immigrants. On December 30, 1972, an Order to Show
Cause was issued in deportation proceedings, charging that he was
deportable under section 241(a)(1) of the immigration and Nationality Act because he was inadmissible at entry under section
212(aX20) of the Act for lack of the required immigrant -visa. At a
hearing before an immigration judge on March 1, 1973, at which
he was represented by present counsel, respondent admitted the
truth of the factual allegations of the Order to Show Cause but
denied that he was deportable as charged.
Respondent, who understands little English, testified through a
Spanish interpreter that he had come from Ecuador to Mexico;
661

Interim Decision #2277
that he was brought to the United States port of entry at San
Ysidro in a car driven by a Spanish-speaking stranger whom he
had met in Mexico; that he had not paid the stranger any money;
that at immigration inspection at the border, the immigrant
inspector had asked respondent if he was Mexican and respondent
had replied in English that he was an American citizen; and that
respondent had been admitted as such. Respondent's alien wife
had preceded him to the United States and had given birth on
September 17, 1972 to a child who is a United States citizen. On
the basis of respondent's visaless admission on an allegedly fraudulent citizenship claim and parentage of a United States citizen
child, counsel asserted that respondent is saved from deportation
by the terms of section 241(f) of the Act.
The immigration judge found respondent's account of the circumstances of his entry incredible and rejected it. The immigration judge found as fact that respondent had entered without the
required immigrant visa, as alleged in the Order to Show Cause,
and found it unnecessary to conjecture at the exact manner of
respondent's entry, e.g., as an alien who had been smuggled in or
who had effected surreptitious entry on his own by crossing the
border without inspection. Respondent was granted the privilege
of voluntary departure.
The charge that respondent entered -without a visa is sustained
by evidence which is clear, convincing and unequivocal Not every
such visaless entry by an alien with the requisite familial ties
triggers termination under section 241(1). In the absence of fraud,
the provisions of that subsection do not come into play. See
Cabuco-Flores v. INS, 477 F.2d 108 at 110, fn. 3 (C.A. 9, 1973), ". . .
'However, the mere fact that the alien claims to have made a
misrepresentation at the time of entry does not excuse him from
deportation validly ordered on another charge, not related to the
misrepresentation.' " Here, the "no visa" charge is not dependent
on any finding of fraud. It would have been just as clearly established if the respondent had, as the immigration judge surmised,
entered surreptitiously without inspection. The two charges, entry
without inspection under section 241(aX2) of the Act and entry
without an immigrant visa in violation of section 212(a)(20) of the
Act, are independent grounds for deportation. Either one will support deportation. Respondent would have gained nothing if there
had been a charge and a finding that he entered without inspection,
for such an entry does not encompass the fraud which is an indispensable ingredient under section 241(1), Monarrez-Monarrez v.
INS, 472 F.2d 119 (0.A. 9, 1972).

On this record, the immigration judge was amply warranted in
662

Interim Decision #2277
rejecting as incredible respondent's account of his entry. Termination under section 241(0 was properly denied.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily within 15 days from the date of this order or any extension
beyond that time as may be granted by the District Director: and
in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.

663


Interim Decision #2337

MATTER OF LEHDER
In Bond Proceedings Pursuant To 8 CFR 242.2(b)
A-13924441

Decided by Board February 7, 1975
While the respondent was confined in a federal correctional institution the Service served
a notice of detainer asking the institution to notify the Service prior to the respondent's
release. At a deportation hearing at the institution the respondent was found deportable. The order of deportation was to take effect only upon his release to the Service by
the custodial authority. Respondent did not appeal the deportation order and remains in
custody for his criminal convictions, which are not related to any immigration process.
The respondent alleges that because of the Service detainer he is restricted in his ability
to participate in prison programs. His request to the Service for the setting of bail was
denied by the district director as premature. Injlismissing the respondent's appeal
from the district director's decision the Board of Immigration Appeals cited: section
242(h) of the Immigration and Nationality Act which provides that an alien shall not be
deported until his imprisonment has been terminated by his release from confinement;
section 242(c), of the Act, which provides that an order of deportation entered against
an alien in legal confinement, other than under immigration process, is effected at the
moment he is released from such confinement; and 8 CFR 242.3(b) which provides that
such alien shall not be accepted into physical custody until an order of deportation has
been made and the Service is ready to deport the alien.
ON BEHALF OF SERVICE:
Irving A. Appleman, Esquire

ON BEHALF OF RESPONDENT:
Ificheal S. Churgin, Enquire

Appellate Trial Attorney:

127 Wall Street
New Haven, Connecticut 06520

The respondent is currently confined in the Federal Correctional
Institution at Danbury, Connecticut serving concurrent two- and fouryear sentences imposed by the United States District Courts for the
Southern District of Florida and the District of Connecticut, respectively. On February 21, 1974 the Immigration and Naturalization Service issued an order to show cause and a warrant of arrest in deportation
proceedings, and a Notice of Action by the Immigration and Naturalization Service in which the United States Marshal in Miami, Florida was
asked to notify the Service 30 days prior to the respondent's release and
to accept the notice as a detainer. After a proceeding which was held at
the Federal Correctional Institution at Danbury, the respondent was
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Interim Decision #2337
found deportable by an immigration judge on June 12, 1974, and was
ordered deported to Columbia. He has not appealed from that decision.
After he was found deportable, the respondent applied to the district
director for bail or its equivalent, alleging that because of the Service
detainer, he was more restricted in his ability to participate in prison
programs at tie Danbury institution than he would otherwise be. The
district director answered the application by letter stating that when
the respondent is released from prison into the actual custody of
the Service, then he will notify the respondent of a decision specifying the
conditions, if any, under which release will be permitted from the custody
of the Service. The respondent then appealed to this Board.
Although he is imprisoned for criminal convictions, the respondent
contends that he is nonetheless in Service custody at the present time
and that the ustrict director must, under the circumstances, exercise
his discretion and render a decision on his application for bond or its
equivalent. Tt e Service asserts that its detainer is only for the purpose
of having the prison authorities turn the respondent over to the Service
for deportation upon his release from prison. The Service does not wish
to cause the respondent to suffer any deprivations while in prison.
The pertinent parts of the Immigration and Nationality Act and the

corresponding regulations provide as follows:
An alien sentenced to imprisonment shall not be deported until such imprisonment
has been terminated by the release of the alien from confinement.'

For the purposes of this section an order of deportation heretofore or hereafter
entered against an alien in legal detention or confinement, other than under an immigration process, stall be considered as being made as of the moment he is released from
such detention or confinement, and not prior thereto.'
An alien confined in an institution or hospital shall not be accepted into physical
custody by the Service until an order of deportation has been made and the Service is
ready to deport the alien.'

Since the respondent has not yet been released from prison, the
district director may not take him into physical custody and has not so
taken him. Therefore, the time is not yet ripe for the district director to
make a determination concerning the conditions, if any, upon which the

respondent may be released from custody. Consequently, the provisions
of 8 CFR 242.2(a) and (b) concerning apprehension, custody, and
detention are not yet triggered. Accordingly, the district director lacks
jurisdiction to consider the respondent's application for bond or its
equivalent, and he correctly declined to consider it. We correspondingly
lack jurisdiction to adjudicate this appeal.
We acknowledge that case law establishes that while the respondent
' Section 242(10, Immigration and Nationality Act.
2

Section 242(C Immigration and Nationality .Aet.

3

8 CFR 242.3(b).
160

Interim Decision #2387
is not yet in the actual physical custody of the Service, still he is in its
"technical custody." Chung Young Chew v. Boyd, 309 F.2d 857 (C.A. 9,
1962). Accord, Slavik v. Miller, 89 F. Supp. 575 (W.D. PA.), affd 184
F.2d 575 (C.A. 3, 1950), cert. denied 340 U.S. 955 (1951). He is currently in the actual physical custody of a federal correctional institution.
In Cooper v. Lockhart, 489 F.2d 308 (C.A. 8, 1973), relied on by counsel,
the issue before the court was whether the custodial state could be

required to remove the harmful consequences which flow from a detainer placed upon the petitioner because of a pending parole revocation
in another state. The court found that the cooperating custodial state

denies a prisoner due process by continuing the effects of a detainer
placed on him solely on the strength of a request for one by a sister
state. It held that the special conditions of confinement brought about
by the filing of the detainer would have to be discontinued in the event
that the detainer-requesting state should not request that the prisoner
be made available for prompt disposition of the parole revocation ,proceeding. In other words, the detainer was based on the possibility that
the prisoner's parole privilege might be revoked. The court held that the
detainer, with its effects, could not continue without an adjudication of
,

the issues underlying it at a prompt parole revocation proceeding.

In the present case the respondent had a deportation hearing. At that
proceeding the issue underlying the detainer, viz. his deportability, was
adjudicated. He does not challenge the deportation order and did not
appeal from the immigration judge's decision finding him deportable. He
simply wishes to be relieved of the deprivations visited upon him by the
prison authorities because of the detainer filed against him. Since the
respondent has not yet been released from nonimmigration legal detention, the deportation order is not considered final. Section 242(e), Immigration and Nationality Aet. Therefore, the respondent does not yet
have a remedy in habeas corpus proceedings against the Service. Section 106(a)(9), Immigration and Nationality Act. If he wishes to be

relieved of the consequences of the detainer, he should seek a remedy
from the present custodial authorities rather than from the Service.
ORDER: The appeal is dismissed.

161


Interim Decision #1379

MATTER

of Beim

In DEPORTATION Proceedings
A-8801025
Deaidedby Board August 5,1964
A. conviction for drawing a check with insufficient funds in violation of section
21-554, Kansas General Statutes (1949), is not a conviction of a crime involving
moral turpitude_

CHARGE:

Order: Act of 1952—Section 241(a) (4) IS U.S.C. 1251(a) (4) (1958)3—Convicted a two crimes involving moral turpitude after entu—Selling
mortgaged property, violation of check law.

This is an appeal from the order of the special inquiry officer finding
respondent deportable upon the ground stated above.
Respondent, a 35-year-old divorced male, a native of Ireland and
citizen of Great Britain, was admitted to the United States for permanent residence on December 14, 1954. On March 7, 1961, he was
convicted of the crime of selling mortgaged property, and on. February 27, 1961, he was convicted of the crime of drawing a check with
insufficient funds in violation of Kan. Gen. Stat. 1949, ch. 21, sec. 554.
The issue before us is whether the check conviction involves moral
turpitude.
The pertinent sections of the Kansas Statutes follow :
It shall be unlawful for any person, corporation, or partnership, to draw, make,
utter, issue or deliver to another any check or draft on any bank or depository
for the payment of money or its equivalent, knowing at the time of the making.
drawing, uttering or delivery of any such check or draft as aforesaid that he
has no funds on deposit in or credits with such bank or depository with which
to pay such check or draft upon presentation. (G.S. 1949, 21-554)
That in any ease where a prosecution is begun under this net the defendant
shall have a right, upon application made for that purpose before trial, to have
said action abated by showing to the court or judge that he has had an account
in said bank upon which cheek or draft was drawn, thirty days next prior to
the time said check or draft was delivered and that said check or draft was
drawn upon said bank without intent to defraud the party receiving the same,
and if the court shall so ilnd, said action shall be abated and the defendant shall

679

Interim Decision 44379
be discharged upon paying into the court the amount of such check and the costs
in said case. (G.S. 1249,21-558)

The special inquiry officer found that moral turpitude was involved
because Matter of M—, 9 L & N. Dec. 743, required him to so find.
Counsel contends that it is well settled that intent to defraud is not
an element of the offense of passing a worthless check. The Service
representative holds that intent to defraud is an element. Both rely
upon State v. Mortis, 372 P. 94 282 (1962). We find the crime does
not involve moral turpitude.
Matter of M—, supra, involved a worthless check conviction in the
Virgin Islands under a law which did not expressly make 'intent to defraud an element of the crime; however, the Board found that such an
intent was an element from the fact that conviction could be obtained

only upon proof of knowledge on the part of the maker that he lacked
funds in the bank to pay the check. The language of the opinion is
broad and will require a re-examination when this section is again
before us; however it is not controlling here since the question as to
whether intent to defraud is an element of the crime before us has been
passed upon by the courts of the jurisdiction involved.
Before we examine the decisional law of Kansas concerning the sections before us, it would be well to consider generally the issue of
moral turpitude as it relates to a worthless check conviction. Moral
turpitude is found when the intent to defraud is a necessary element
of the crime. When conviction for the drawing of a worthless check
is possible without proof of an intent to do evil, moral turpitude is
not present because the conviction is possible even though the drawer
may have intended to pay the check: one who draws a check knowing
he 'has no funds to pay it but who expects to pay it, may be misguided,
overly optimistic, and unsound in his judgment but he need. not act
with intent to cheat, and it is in the intent that moral turpitude lies.
It may be, that in many worthless check cases, an intent to defraud is
actually present; however, if the statute does not require that such
an intent be established, moral turpitude is not involved in the
conviction—it is the moral obliquity of a crime and not of the individual which is the test; if the crime as defined does not inherently
involve moral turpitude, then, no matter how immoral the conduct
which is the basis for the conviction, the crime does not involve moral
turpitude (Matter of Ifirmey, Lit. Dec. No. 1343) .
We may now consider G.S. 1949, 21-555. The cases unanimously
hold that an intent to defraud is not an element of the crime defined
by G.S. 1949,21-555. The crime is committed when a check is wilfully drawn with knowledge at the time that there are no funds on
deposit to meet it. No proof need be made that payment was not in
tended or that there was an intent to deprive a person of his property
680

Interim Decision #1379
(see State v. Avery, 207 P. 838 (1922) ). Despite the unanimity of
the cases, G.S. 1919,21-556 providing for abatement of an action, if
the drawer of a worthless check establishes that "intent to defraud"
was not an element, appears to raise a question as to whether fraud is
not an element of the crime. The apparent inconsistency between the
court cases and the language of 21 556 disappears when it is realized
that the term "intent to defraud" as used in the section, is a term of
art which refers not to proof of an intent to cheat, but to mere proof
that a check was drawn with knowledge of the nonexistence of funds
to pay it.
The two sections are discussed in State v. Morris, supra, cited by
both counsel and the Service representative in support of their respective positions; for this reason, and because it is one of the latest
expressions of the court on the matter we shall set forth in detail the
court's statement.
-

(3] State v. Avery, 111 Ran. 588, 589, 207 P. 838, 23 A.L.R. 458, in the land-

case which construed and applied the statutes under which the defendant
was convicted. It was there held that an intent to defraud was not an element
of the offense and was not essential to the validity of the statute (G.S. 1949, 21-

mark

554). Whatever the state of mind of the defendant may be technically called,

he must have knowledge that he cannot meet the check when presented for
payment and he must act willfully. In the opinion it was said:
"* * * The worthless check must be willfully drawn, knowing at the time
there are no funds on deposit to meet it. Beyond that, the legislature may, for
protection of the public interest, require persons to act at their peril, and may
punish the doing of a forbidden act without regard to the knowledge, intention,
motive, or moral turpitude of the doer. * "
"* * The purpose of the statute was to discourage overdrafts and resulting
bad banking (Saylors v. [ State] Bank, 99 Kan. 515, 518, 163 P. 454) to stop
the practice of 'clieekkiting,' and generally to avert the mischief to trade, commerce and banking which the circulation of worthless checks inflicts. Although
the statute tends to suppress fraud committed by the worthless - check method,

the evils referred to are all quite distinct from those consequent on fraud, and
the statute is to be regarded as creating a new and distinct offense. * * *"
(111 Kan. Lc. 590, 591, 207 P. 1.c. 839).
*
•*
*
In State v. Gillen, 151 Kan. 359, 99 P. 2d 832, the defendant there made the
argument that if intent to defraud was an element of the abatement statute
(G.S. 1949, 21-556), then it must be an element of the insufficient funds statute
(G.S. 1949, 21-554), since, he argued, "that if intent is an element in one instance
It is in another." This court disposed of the contention by saying :
"* * * The question of whether intent was to be an element was for the legislature. We are satisfied the Avery ease correctly disposes of the matter of intent
as an element of the crime of which appellant was charged and convicted."

(151 Kan. 1. c. 363, 99 P. 2d 1. c. 835.)
[5] The purpose of the legislature in passing the abatement statute (21-556)
was to give a right to any person who made an innocent mistake in issuing a
check which is dishonored upon presentation by reason of insufficient funds with

which to pay it, to correct his mistake and thus avoid any record of a criminal
prosecution. Whatever contradiction there may be between the insufficient fund

681

Interim Decision #1379
check statute (21-554) and the abatement statute (21-556), we think it apparent
from the Avery and Gillen decisions that the so-called intent to defraud was
construed to be present whenever money, property or other thing of value was
parted with by the person to whom the check was given, anti that it is incumbent
upon the defendant to negate that intent by showing that he had no intention
to willfully issue the check, knowing at the time he had no funds on deposit
in the bank to pay it upon presentation.

Since it is clear that an intent to defraud, that is, an intent to cheat
or deprive a person of his property, is not an element of the crime for
which respondent was convicted, moral turpitude is not involved
in his conviction. The record does not establish respondent has been
twice convicted for two crimes involving moral turpitude; the appeal
must be sustained.
ORDER: It is ordered that the appeal be and the same is hereby

sustained and that the proceedings be terminated.

682

,


Interim Decision #2217

MATTER OF NESTOR
In Exclusion Proceedings
A-20181729
Decided by Board August 16, 1978
(1) In the absence of a showing that applicant was prejudiced by her waiver of
counsel at the exclusion hearing, the order for her exclusion is sustained on
appeal since she is clearly inadmissible to the United States.
(2) A claim of political asylum in exclusion proceedings should be addressed to
the district director and not to the Board of Immigration Appeals or immigration judge since parole under section 212(dX5) of the Immigration and Nationality Act, the form of relief available to asylum claimants in exclusion
proceedings, is within the exclusive jurisdiction of the district director.
EXCLUDABLE; Act

of 1952 Section 212(a0(20) . [8
grant

1182(a)(29)]—No immi-

visa.

ON BEHALF OF APPLICANT: Howard W. Dixon, Esquire
Legal Services of Greater Miami, Inc.
395 N.W. First Street
Miami, Florida 33128

This is an appeal from an order of an immigration judge
excluding the applicant from admission to the United States. The
appeal will be dismissed.
The applicant is a 32-year-old unmarried female alien, a native
and citizen of Haiti, who arrived at Miami, Florida on April 5, 1973
and applied for admission. After a hearing before an immigration
judge on April 26, 1973, at which she admitted that she came here
to work and never had a visa to come to the United States, the
applicant was found to be a visaless immigrant and she was
ordered excluded.
On appeal, counsel urges that the applicant did not clearly
understand that she was waiving her right to counsel; that the
Immigration and Naturalization Service should have provided
counsel; and that section 292 of the Immigration and Nationality
Act is unconstitutional insofar as it fails to require free counsel for
indigents. Apart from the fact that we may not consider a
challenge to the constitutionality of the statutes we administer,
counsel has failed to indicate how the applicant was prejudiced by
403

Interim Decision #2217
the absence of counsel. As an alien who concededly lacks any
document authorizing her admission to the United States, the
applicant is clearly inadmissible. The only relief available to her is
enlargement on parole under section 212(dX5) of the Act, and that
relief has already apparently been granted by the Service's District Director. In citing Woodby v. INS, 385 U.S. 276 (1966), counsel
misapprehends the nature of these proceedings. That case dealt

with the burden of proof in deportation proceedings, which is on
the Service. In these exclusion proceedings, on the other hand, the
burden of proving admissibility is on the applicant. See section 291
of the Act.
The argument that the applicant will be endangered for political
reasons if returned to Haiti is addressed to the wrong forum. In
exclusion proceedings, parole under section 212(dX5) of the Act is
the form of relief available to asylum claimants. That power has
been delegated by the Attorney General exclusively to the Service's District Directors, and not to its immigration judges or to this
Board, Matter of Conceiro, Interim Decision No. 2183 (B IA, 1973),
habeas corpus dismissed, Conceiro v. Marks, 360 F. Supp. 454, (S.D.
N.Y., 73 Civ. 697, June 25, 1973).
ORDER: The appeal is dismissed.

404


Interim Decision #1428

Miiir.At OF LEE

In Deportation Proceedings
.

A-12575376

Decided by Board February 12; 1965
Respondent Is ineligible for the creation of a record of lawful admission for
permanent residence, pursuant to section 249, Immigration and Nationality
Aet, as amended, because the continuity or ills residence in the -united
States since prior to June 28, 1940, was broken by his absence to China
from April 1947 to August 1951, during which he maintained no personal
Property, business or financial interests in the United States and, following
the death of his wife ebortly after ida arrival in China, remarried, went into

business there and intended to remain had not the communists overrun that
country.
Cacaos:
Order: Act of 1952—Section 241(a) (1) 18 U.S.C. 1251(a) (1)7—Excludable
at entry—Immigrant, no visa.
'•

The case comes forward on appeal from the order of the special
inquiry officer dated October 30, 1964 denying the respondent's application for adjustment of his immigration status under section 249
of the immigration and Nationality Act, but ordering that the deportation of respondent be suspended under section 244(a) (1) of the

Immigration and Nationality Act, as amended.
The record relates to a native and citizen of China, 66 years old,
male, married, who last entered the United States at the port of an
Francisco, California on August 24, 1951 upon presentation of a
United States passport issued to-nim in a name other than his own.
He had first entered the United States in 1922, returned to China
in 1928, remained there until 1986 when he returned to the United
States and again departed April 23, 1947 to China again returning
the date of his last entry as set forth above. At the time of. his last
entry he intended to remain in the United States indefinitely and
to seek employment but was not in possession of a valid immigrant
visa. Deportability on the charge stated in the order to show cause .
bas been established.

Interim Decision 401428
.
The respondent has been granted the discretionary relief of suspension of deportation pursuant to section. 244(a) (1) of the Immigration and Nationality Act, as amended. The appeal, however, is
from the denial of registry pursuant to section 249 of the Immigration and Nationality Act. The discretionary relief of registry is
preferred because the respondent could immediately proceed to file
a petition for naturalization, whereas he is required to wait for five
years after the establishment of the date of lawful entry pursuant
to suspension of deportation proceedings.
The reason for denial of the application for adjustment of status
pursuant to section 249 of the Immigration and Nationality Act is
the conclusion that the respondent's absence from the United Statai
from May 1947 to August 1951 interrupted his continuous residence
from June 28, 1940 and thereby rendered him ineligible for adjustment of status pursuant to section 249 of the Immigration and Nationality Act. The respondent, however, claims continuous residence
in the United States since May 13, 1936. He contends that his
absence from the United States during the period from May 1947
to August 1951 did not interrupt his residence for the purpose of
establishing eligibility under section 249 because he alleges that at
the time he left the'United. States in 1947, he did not intend to give
up his residence in this country but went •abroad because his wife
.was seriously ill; that he decided to return to the United States when
the communists began to invade China in 1949 but was unable to
return because his adopted son. was ill and because of the illness of
this adopted son he remained in China until 1951.' Counsel relies
upon the case of Mendelsohn v. Dulles, 207 F.2d 37 (D.C. Cir., 1953),
which held that a person who had involuntarily resided in a foreign
country for more -than five. years due to financial inability to buy
passage and because of his wife's illness did not forfeit United States.
nationality wider section 101(o) of the Nationality Act of 1940 and
section 406(c) • and (e) of the Immigration and Nationality Act
(8 U.S.C. 804(c), 806(e) and (e)). The court interpreted. such absence as not being voluntary and equated "duress of devotion" and
"coercion of marital affection" with physical restraint to render such
absence involuntary.
The term "residence" is defined in section 101(a) (33) of the Immigration and Nationality Act (8 U.S.C. 1101(a) (38)) to mean the
place of general abode; the place of general abode of a person means
his principal, actual dwelling place in fact, without regard to intent.
l As argued by counsel. In fact, to accomplish this result residence must be
shown from prior to 1924 (section 249).

85

Interini decision #1428
Without stressing the higher standard of proof required in establishing a forfeiture of United States citizenship as against the standard
of proof required in deportation proceedings, we believe the cases
may be differentiated on factual grounds.
In a sworn statement made before an immigration officer in connection with a previous application for adjustment of status under
section 249 of the Immigration and Nationality Act (which was
denied, by the Regional Commissioner, Southeast Region) the
respondent stated that the purpose of his trip to China in 1947 and
1951 was because his-wife was real sick, he had a.paper business in

Toishan City, China and had an idea of staying in China but when
the communists came in he returned here. At that time he left no
property in the United States, his wife died a month after his return
to China in 1947, ho married a second wife in 1947 and two children
were horn in May 1948 and December 1950. Not until the communists took over China in 1949 did he decide to return to the United
States (Ex. B of Ex. 7, p. 10): In a subsequent sworn statement an
January 9, 1962 the respondent was questioned about his residence,
in China from 1947 to 1951. He stated thit when he left the United
States in 1947 he had not made up his mind to return, that he owned
no property in the United States at that time, that later on he went
into lnisiness at Toishan City, Canton, China; that when the communists started invading China he decided to leave that country and
some back, that his intention was to remain. in China if the communists had not invaded and he would have remained there until his
sons caught on to the business and then he would have come back.
He stated during the four years he spent in China from 1947 to 1951
he had not maintained a. residence in the United States, having sold
his business when he made his trip back to China, and intended, if
he came back, to look for a new •business and start again. The ages
of his sons, Lee Toi Kew and Lee Ben Kung, whom hestated were
not his blood sons, were 20 and over 30, respectively. It may be
noted that the respondent has not during previous proceedings mentioned that his continued stay in China was due to the illness of an
adopted son.
R is believed that the case is govemed . by the decision in Chan
Wiwi Chung v. Hamilton, 298 F.241 450 (1st Cit., 1962). In that
case the alien, an applicant for creation of a record of lawful tubas .
sion tor permanent residence under section 249 of the Immigration
and Nationality Act, had entered the United States before 1940 and
returned to China in March 1947. In July 1947 while in Hong Kong
he married and resided there in his mother's apartment with his
-

86

Interim Decision 4fr1428
wife, until August 1950. During that time he and his wife had three
children and during the latter part of his stay in Hong Kong he was
employed. The alien contended that by various evidence relating to
his continuous financial interest in the United States and the payment of rent upon his apartment here, where he left his clothing

and furniture during his absence, and by an affirmative statement
that he- "intended to continue residence indefinitely in the United
States", it could be found that he had been a continuous resident
since his original entry. The court, making reference to the definition of residence in section 101(a) (33) of the Immigration and
Nationality Act (8 U.S.C. 1101(a) (33)), held that residence within

that definition was not the equivalent of domicile and that it could
not be found that the alien's "principal, actual dwelling place in
fact" was "continuously" in the United States throughout the period
1947 to 1950 when he was living in China.
The instant case does not present as many favorable factors as
were present in the C1eung case, supra. Here, the respondent
admittedly gave up all his business connections in the United. States,

did not maintain an apartment, and did not leave any personal property or have any financial interest in this country. .The illness of his
wife lasted but one month. Thereafter, he ramarried, went into business in _China, had two children., ond.would have continued to reside
there had not the communists overrun the country. We conclude
that the respondent's "principal, actual dwelling place in fact" was
not continuously in the United States during 1917 to 1951. The
respondent has been granted suspension of deportation. The appeal
will be dismissed.
- ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

87


Interim Decision #1344

MAITiat or GRAHAM

In EXCLUSION Proceedings
A-12132200

Decided by Board May 7,1964
A United States citizen who was aware of his acquisition of citizenship by reason
of birth in this country but who, relying on erroneous information supplied
by a Canadian government official to the effect he had already lost such citizenship, voluntarily voted in politicial elections In Canada between 1944 and 1948,
thereby lost his United States citizenship under section 401(e), Nationality
Act of 1940.
EXOLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1192(a) (20)1—No
immigrant visa.

A special inquiry officer directed that the applicant be admitted to
the United States as a citizen, and the case is before us pursuant to
certification. The Service urges that the decision of the special inquiry
officer be reversed.
The applicant is a 53-year-old married male, native of the United
States, who applied for admission to this country as a citizen. At
birth, he acquired United States citizenship and appears also to have
become a British subject, both. of his parents having been British subjects born in Canada. The applicant has lived in Canada since he

was about one year old but entered the United States as a citizen on
many occasions until about 1944 after which he entered as an alien.
The sole issue to be determined is whether the applicant has lost his
United States citizenship.
We have carefully reviewed the entire record. The applicant voted
in a political election in Canada between 1944 and 1948 and also in
political elections in June 1961 or 1962 and on April 8 and April 22,
1963. Section 401(e) of the Nationality Act of 1940 (8 U.S.C. 801(e),
1946 Ed.], which was in effect from January 13, 1911, to December 21,
1958, provided that a national of the United States "shall lose his
nationality by: * * (e) Voting in a political election in a foreign
state * * s." Since the applicant admits that he voted voluntarily,
533

Interim Decision #1340
expatriation would have occurred under this statutory provision and
in accordance with the decision in Perez v. Brownell, 356 U.S. 44
(1958).
There is one remaining aspect of the case which requires consideration. Exhibit It--4 shows that on January 29, 1944, the applicant
executed a form of the Canadian Immigration Service by virtue of
which he became a landed Canadian immigrant as of that date. The
form indicates that he was born in the United States of Canadian
parents; that he accompanied them on their return. to Canada in September 1911; that he has continued to reside in Canada since that time;
and that it had not been possible to find any record of a prior legal
landing in Canada. Another record has been found showing him as a
Canadian landed immigrant on October 20, 1930. The applicant testified that in 1914 the Canadian immigration officer told him it was necessary for him to sign this form and, after it was executed, told him he
would no longer have any rights as a United States citizen. It is
clear, of course, that the applicant did not actually lose his United
States citizenship by signing this form. He stated that, because he
thought he was no longer a United States citizen, he voted in the
Canadian elections previously mentioned.
The special inquiry officer stated that there were no cases precisely
analogous to that of the applicant, but he relied on Rogers v. Patokoski,
271 F. 2d 858 (9th Cir., 1959) ; Matter of S—, 8 L & N. Dec. 226
(1958) ; and Int. Dees. Nos. 1175 and 1218. The two latter are Matter
of C—A—, 9 I. & N. Dec. 482 (1961), and Matter of C—S—, 9 I. & N.
Dec. 670 (Atty. Gen., 1962) .

Matter of B — involved an individual who was informed by an
American consular officer that he had lost his United States citizenship
and he thereafter voted in a political election. The information given
by the eonsnlar officer was correct at the time. By reason of subsequent developments, the individual was actually a citizen when he
voted and we held that he did not become expatriated. When an
official of the United States Government, having the duty of passing
upon citizenship questions, informs a person that he is no longer a
citizen of the United States and the individual, relying on this information, then votes in a foreign political election, it is logical to hold
that expatriation did not occur where the individual had actually been
a citizen of the United States when he voted. To hold otherwise would
be contrary to every equitable concept. However, we do not consider
that there would be any justification for ignoring the statutory provision in section 401(e) of the Nationality Act of 1940 merely because,
as alleged by the applicant, he was erroneously informed by a Canadian officer that he had lost his.United States citizenship. In Matter
of S—,ewpra, at pages 232 233, it was specifically stated that our hold-

534

Interim Decision #1340
ing there was to be limited to certain specified situations such as the
one just indicated.
In the three other decisions mentioned, the individuals had not been
born in the United States and had not known they had acquired United
States citizenship through a parent until sometime after they had performed the act which was alleged to have caused expatriation. On
the other hand, this applicant has always known that he acquired
United States citizenship by reason of his birth in this country, and
these three decisions are of no assistance to him.
There is nothing in the language of section 401(e) of the Nationality
Act of 1940 nor in any of the decided cases which would require any
conclusion other than that flowing from the statutory language itself.
Under the language of the statute, we hold that the applicant 11 At his
United States citizenship when he voted in a political election in Canada between 1944 and 1948 and that he will require an immigrant
visa if he desires to enter as an immigrant. Accordingly, we will
sustain the appeal of the Service.
ORDER: It is ordered that the special inquiry officer's Orders
dated May 14, 1963, November 13, 1963, and February 10, 1964, be
-

withdrawn and that the applicant be held not entitled to admission

to the United States as a citizen.

535


Interim Decision #2587

MATTBR OF GU'lltalRE

In Deportation Proceedings
A-31404629

Decided by Board May 26, 1977
(1) Where the record showed that the immigration judge took scrupulous care to inform
respondent of his right to be represented by counsel and old the availability of Legal Aid
counsel at no charge to respondent and the immigration judge offered to adjourn the
hearing to enable respondent to obtain counsel but respondent nonetheless desired to go
ahead with the hearing, the respondent was sufficiently informed of his right to be
represented by counsel at the hearing in compliance with 8 C.F. R. 242.16(a) and 8 C.F.R.
242.10.
(2) Where respondent's statements revealed en ennfecine ny• misunderstanding about the

nature of the proceedings or of his right to be represented by counsel and there was no
evidence that the respondent lacked a clear understanding of his right to be represented, the availability of Legal Aid counsel free of charge, or the consequences of
Proceeding without counsel, respondent's waiver of CO, 171SPi was keewingly, intelligently and competently made.
(3) Where respondent's waiver of counsel was an effective arid competent waiver, respondent's contention that failure of the immigration judge to appoint counsel at Government expense was a denial of due process, is without merit.
CHARGE:

Order: Act of 1952---,Section 241(a)(11) [S U.S.C. 1251(a)(11)]--Convicted of any law or
regulation relating to the illicit possession ur trafficking in

marihuana
011 BEHALF OF RESPONDENT: Robert Guerra, Esquire
Legal Aid Foundation of Los Angeles
5228 Whittier Boulevard
Los Angeles, California 90022
Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

The lawful permanent resident respondent, a native and citizen of
Mexico, was found deportable under section 241(a)(11) of the Immigratiom and Nationality Act, as an alien convicted of a crime relating to the
illicit possession of marihuana, at a hearing before the immigration judge
on December 9, 1976. Upon finding that no relief from deportation was
a-vailahle, the immigration judge ordered the respondent deported to

Yiexico. The

respondent now appeals the finding of deportability, alleg226

Interim Decision #2587
ing that his lack of counsel at the hearing resulted in a denial of due
process of law. The appeal will be dismissed.
The respondent was admitted for permanent residence as the spouse
of a United States citizen on January 25, 1972. This marriage apparently
ended in divorce. On March 1, 1976, the respondent was convicted in
United States District Court for the Southern District of California
upon a plea of not guilty to the offense of possession of 30 pounds of
marihuana with intent to distribute. He was sentenced to imprisonment
for a period of one year, and was required to serve a special parole term
of five years. On appeal to the United States Court of Appeals for the
Ninth Circuit, this judgment was affirmed on August 5, 1976. On October 22, 1976, the respondent was served with an Order to Show Cause
charging him with deportability under section 241(a)(11) of the Act. At
the December 9, 1976 hearing, the respondent waived the right to
counsel, despite being advised by the immigration judge of the availability of Legal Services counsel at no charge to the respondent and despite
the immigration judge's offer to continue the hearing to allow the
respondent to seek legal assistance. The respondent conceded all the
allegations in the Order to Show Cause, but denied deportability. The
immigration judge found him deportable, and found that he was ineligible for any form of discretionary relief. The immigration judge therefore
ordered the respondent deported to Mexico.
On appeal, the respondent, through counsel, contends that the immigration judge failed to advise him of his right to counsel, in violation of 8
C.F.R. 242.16. He also contends, that the waiver of his right to counsel
was not voluntary, understanding or competent. Last, he claims that
the failure of the immigration judge to appoint counsel at the Government's expense denied him a fair hearing. The respondent argues that
these deficiencies, taken separately or together, resulted in a denial of
his right to procedural due process of law under the Fifth Amendment
to the United States Constitution.
A deportation hearing is not a criminal proceeding. Zakonaite v.

Wolf, 226 U.S. 272 (1912). Therefore, any right to counsel derives not
from the Sixth Amendment, but from the Fifth Amendment right to a
fair hearing. Barth°ld v. INS, 517 F.2d 689 (5 Cir. 1975). 8 C.F.R.
242.10 and 8 C.F.R. 242.16(a) provide that an alien shall have the right
to counsel in a deportation proceeding at no expense to the Government,
and that the immigration judge shall inform him of that right.
Counsel contends that the immigration judge's conduct at the hearing
represented only a "feeble attempt" to inform the respondent of his
right to be represented by counseL We disagree. We note first that the
Order to Show Cause served on the respondent contained a notification
of the right to counsel at the deportation hearing. Murgia-llifelend-rez -v.
INS, 407 F.2d 207 (9 Cir. 1969). Second, even a cursory reading of the

227

Interim Decision #2587
transcript of the hearing reveals that the immigration judge took
scrupulous and commendable care to inform the respondent of his right
to be represented, the availability of legal counsel from Legal Aid at no
charge to the respondent, and his willingness to adjourn if the respondent desired to secure Legal Aid counsel (Tr. p. 1). The respondent,
however, expressed his desire to "go ahead with the hearing" (Tr. p. 2).

We find that the respondent was sufficiently informed of his right to be
represented at the hearing.
Counsel next alleges that the immigration judge did not "attempt to
ascertain whether the respondent was competent to make the waiver"
of counsel (Respondent's Brief, p. 5). The right to counsel outlined in 8
C.F.R. 242.10 may be waived by the alien_ Milian Garcia v. INS, 343
F.2d 825 (9 Cir. 1965); Dentico v. INS, 280 F.2d 71 (2 Cir. 1960); see
Appleman, I., "Right to Counsel in Deportation Proceedings," 14 San
Diego L.R. 130 (1976). However, since the right to counsel is an important right often essential to the fundamental fairness of a hearing,
meticulous care must be exercised to insure that a waiver of this right is
competently and understandingly made. De Souza v. Barber, 263 F.2d
470 (9 Cir.), cert. denied 359 U.S. 989 (1959); Bridges v. Wison, 326
U.S. 135 (1945). It is the duty of the immigration judge to insure that a
waiver of the right to counsel is competently and understandingly made.
Kovac v. INS, 407 F.2d 102 (9 Cir. 1969); U.S. ex rel. Castro-Lonzan v.
Zimmerman, 94 F. Supp. 22 (E.D. Pa. 1950). The criteria for determining whether the right to counsel .has been competently waived are
identical to those employed to determine the competency of a confes
sion. Murgia Melendrez v. INS, supra. Therefore, in assessing the
competency of a waiver of the right to counsel, the respondent's age,
intelligence, education and ability to comprehend must be considered.
Murgia Melendrez v. INS, supra.
We have reviewed the record transcript, and find no evidence that the
respondent lacked a clear understanding of his right to be represented,
the availability of Legal Aid counsel free of charge, or the consequences
-

-

-

-

of proceeding without counsel. The respondent is 28 years old and has

lived and worked in the United States for four years. Although he has
had only four years of education, the hearing was conducted in the
respondent's native Spanish, and the respondent's statements reveal nn
confusion about or misunderstanding of the nature of the proceedings or
of this right to be represented. The immigration judge is not required to
state for the record that he finds the respondent competent to waive
counsel. Our review of the record satisfies us that the respondent's
waiver of counsel was knowingly, intelligently and competently made.
Rurquez v. INS, 513 F.2d 751 (10 Cir. 1975). We therefore find that the
riepondent's second contention is without merit.

Counsel's last contention, that the immigration judge's failure to
228

Interim Decision #2587
appoint counsel at the Government's expense, is also without merit in
this forum.. While the validity of the rule in Section 292 of the Act that
counsel in a deportation hearing shall be at no expense to the Government has been recently questioned, Aguilera-Enriquez v. INS, 516
F.2d 565 (6 Cir. 1975); Barthold v. INS, supra; Rosales-Caballero v.
INS, 472 F.2d 1158 (5 Cir. 1973); Henriques v. INS, 465 F.2d 110 (2 Cir.
1972), we are precluded from entertaining constitutional challenges to
the Act itself. Moreover, the respondent's effective and competent
waiver of any right he might have had to counsel renders any such claim
insubstantial in this case. In Barthold v. INS, supra, the court, in a case
involving similar facts, stated: "Lack of counsel in this case does not
constitute a denial of due process because (the respondent) was offered
an opportunity to obtain counsel he could afford . . . [W]hatever the
scope of an alien's right to counsel (the respondent) by his actions
effectively waived such right." 517 F.2d at 691-692. We find that the
respondent's waiver of his right to counsel negates any claim of a denial

of due process through lack of appointed counsel at the deportation
hearing. Our review of the record satisfies us that the hearing was fair,
that deportability was established by clear, convincing, and unequivocal
evidence, and that the respondent's waiver of his right to counsel was
knowingly- , intelligently, and competently made. We therefore shall
dismiss the appeal.
ORDER: The appeal is dismissed, and the respondent is ordered
deported to Mexico in accordance with the terms of the immigration

judge's decision.
Regardless of the enclosed decision, you may be allowed to stay in the
United States because of a recent court ruling if you registered with an
American consul for an immigrant visa before January 1, 1977, and
entered the United States prior to March 11, 1977. The court ruling
relates to the case of Silva v. Levi, 76 C 4268 (N.D. Ill.). Please contact
your attorney or authorized representative or an INS office for further
information.
Irrespectivamente de la decisio'n que se incluye, usted puede estar
autorizado a permancer en los Estados Unidos a causa de una reciente
determinacion judicial si usted se registro con un consul Americano
para una visa de inmigrante antes del primer° de Enero de 1977, y
entro' a los Estados Unidos previo al 11 de Marzo de 1977. La determinacio'n judicial se refiere al caso de Silva v. Levi, 76 C 4268 (N.D.
Favor de comunicarse con su abogado, o su representante autorizado o una oficina del Servicio de Inmigracidn y Naturalization
para mas information.

229


Interim Decision #1713

3/Lirma OF BENGT:031A. Y .RODRIGTIE3

In Adjustment of Status Proceedings
A-13367535

Decided by Regional Commissioner March, 14, 1967
To be eligible for the benefits of section 2 of the Act of November 2, 1966, an
applicant therefor must also come within the purview of section 1 of that
Act; hence, applicant, whose only arrival in this country subsequent to January 1, 1959 occurred on September 26, 1965 at which time be was in possession of an immigrant visa and was inspected and admitted for permanent
residence, is ineligible for the benefits of section 2 of the Act of November 2,
1966, since he never "originally arrived in the United States as a nonimmigrant
or as a parolee" subsequent to January 1, 1959.

DISCUSSION: The District Director denied the application and
certified the case to this office for review and final decision. The applicant is a native and citizen of Cuba, born July 12, 1923. He married a
citizen of the United States on September 24, 1966.
Applicant was'admitted to the United States at Laredo, Texas for
permanent residence on September 26, 1965 upon presentation of an
immigrant visa issued to him by the Vice Consul at the American
Embassy of the United States at Mexico, D. F. on September 1'7, 1965.
This was his first arrival in the United States subsequent to
January 1, 1959.
In denying the application, which was filed with our Service on
December 7, 1966, the District Director stated, in part, that applicant's
first arrival in the United States occurred when he was admitted at
Laredo, Texas on September 26, 1965. We notice his application for
the immigrant visa states he was in the United States as a student from
October 1939 to August 1942 and that he resided in Cuba from August
1942 to June 1965. However, for the reasons set forth below, the applicant's stay in the United States as a nonimmigrant student during this
period is not relevant to the adjudication of this application.
On November 2, 1966, Public Law 89-732 was enacted. It is an. Act
to adjust the status of Cuban refugees to that of lawful permanent
residents of the United States, and for other purposes. Section 1 of
this Act reads as follows:
143

Interim Decision #1713
"Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That, notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act, the status of any alien who
is a native or citizen of Cuba and who has been inspected and admitted or paroled
into the United States subsequent to January . 1, 1959 and has been physically
present in the United States for at least two years, may be adjusted by the Attorney General, in his discretion and wider such regulations as he may prescribe,
to that of an alien lawfully admitted for permanent residence if the alien makes
an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Upon
approval of such an application for adjustment of status, the Attorney General
shall create a record of the alien's admission for permanent residence as of a
date thirty months prior to the filing of such an application or the date of his last
arrival into the United States, whichever date is later. 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."

Section 2 of this same Act reads as follows :
"In the case of any alien described in section 1 of this Act who,

prior to the
effective date thereof, has been lawfully admitted into the United States for permanent residence, the Attorney General shall, upon application, record his admission for permanent residence as of the date the alien originally arrived in the
United States as a nonimmigrant or as a parolee, or a date thirty months prior

to the date of enactment of this Act, whichever date is later."

We believe it is evident from the above two quoted sections of the
Cuban Refugee Act of November 2, 1966 that an applicant cannot be
eligible for the benefits of section 2 if he first does not come within the
purview of section 1 of this Act. Here the applicant has stated, and
the record so shows, that his first arrival in the United States subsequent to January 1, 1959 occurred at Laredo, Texas on September 26,
1965 as described above.
Section 1 obviously refers to those Cuban refugees who were
inspected and admitted as nonimanigrants or parolod into the United
States. (Emphasis supplied). If this were not correct, then the provision in this section permitting adjustment of status to that of an
alien lawfully admitted for permanent residence would be without
purpose.
Section 2 of this Act begins with the phrase "In the case of any alien
described in section 1" and goes on to include the language ". . . as of

the date the alien originally arrived in the United States as a nonimmigrant or as a parolee . . .". (Emphasis supplied).
According to the record, the only arrival by this applicant subsequent to January 1, 1959 was as an immigrant in possession of a valid
immigrant visa. He has never "originally" arrived in this country as a

144

Interim Decision #1713
nonimmigrant or parolee subsequent to January 1, 1959 as set forth
in the statute.
The applicant did not submit a brief or other written statement for
our consideration. After careful examination of the entire record, we
find the facts in this case do not bring it within the purview of section
1. Hence, the applicant is not eligible for the benefits of section 2.
Accordingly, we shall enter the following order :

It i8 ordered that the application be and the same is hereby denied.

145


Interim Decision #1818

MaWEB Or SAMUEL

In Visa Petition Proceedings
A-17729882

Decided by District Director September 14, 1967
Beneficiary, who has the equivalent of a master's degree in psychology (the

minimum educational requirement for professional employment in clinical
psychology) plus four years of experience as a clinical psychologist, is a
member of the professions within the meaning of section 101(a) (32) of the
rmmigration and Nationality Act, as amended, and is eligible for preference
classification under section 203(a) (3) of the Act, as amended, as a clinical
psychologist.

Discussion: The petition was filed to accord third preference classification to the beneficiary as a. member of the professions based upon
his qualifications as a clinical psychologist. The beneficiary is a male,
native and citizen of Pakistan, age 40, presently residing in Downsview, Ontario, Canada, with his wife and five children.
The beneficiary received a master's degree in psycholOgy in 1051
from the University of the Panjab, Lahore, Pakistan, and was also.

awarded a diploma in psychology from the University of Glasgow,
Glasgow, Scotland in 1963. He was employed as a clinical psychologist
at the Glasgow Royal Mental Institute, Glasgow, Scotland from August 1963 to July 1964 at the Warlingham Park Group of Hospitals,
Warlingham, England from August 1964 to February 1966 and at the
Clarke Institute of Psychiatry, Toronto, Canada from February 1966
to date. The beneficiary has stated his intention to engage in his profession as a clinical psychologist in the United States.
It has been determined that the beneficiary has the equivalent of
a master's degree in psychology from an accredited college or university in the United States plus four years of experience as a clinical
psychologist. A Labor certification pursuant to section 212(a) (14)
of the Act, as amended, has been issued by the Secretary of Labor.
Clinical psychologists are listed among professional and kindred
occupations under code 045.108 in the Dictionary of Occupational
Titles, Volume I, Third Edition, prepared by the Department of Labor. Clinical psychologists diagnose mental and emotional disorders

.

542

Interim. Decision #1818
of individuals, administer programs of treatment, and interview patients in clinics, hospitals, prisons and other institutions. They study
medical and social case histories and formulate plans of treatment.

They treat psychological disorders to effect improved adjustments
utilizing various psychological techniques, such as milieu therapy,
psychodrama, and play therapy. Psychologists may collaborate with
psychiatrists and other specialists in developing treatment programs
for patients. Clinical psychologists may serve as consultants to social,
welfare, educational and other agencies on individual cases or in
evaluation, planning, and development of health programs. The Occupational Outlook Handbook, 1966-1967 Edition, of the United
States Department of Labor, states that, generally, the master's degree
with a major in psychology is the minim um educational requirement
-

for professional employment in the field.
Section 101(a) (32) of the Act, as amended, sets forth that "The
term 'profession' shall include but not be limited to architects, ,en-

gineers; lawyers, physicians, surgeons, and teachers in elementary or
secondary schools, colleges, academies, or seminaries." A clinical psychologist is not specifically named in section 131(a) (32) of the Act as
a member of the profession.
However, the high education required for entry into this field is
comparable to the degree of education required for the professions
named in section 101(a) (32), supra. Accordingly, it is concluded that
the beneficiary as a clinical psychologist is a qualified member of the
professions.
ORDER: It is ordered that the petition be approved and the beneficiary accorded third preference classification under section 203 (a)
(3) of the Immigration and Nationality Act, as amended.


Cite as 27 I&N Dec. 462 (A.G. 2018)

Interim Decision #3937

Matter of S-O-G- & F-D-B-, Respondents
Decided by Attorney General September 18, 2018
U.S. Department of Justice
Office of the Attorney General
(1) Consistent with Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), immigration
judges have no inherent authority to terminate or dismiss removal proceedings.
(2) Immigration judges may dismiss or terminate removal proceedings only under the
circumstances expressly identified in the regulations, see 8 C.F.R. § 1239.2(c), (f), or
where the Department of Homeland Security fails to sustain the charges of removability
against a respondent, see 8 C.F.R. § 1240.12(c).
(3) An immigration judge’s general authority to “take any other action consistent with
applicable law and regulations as may be appropriate,” 8 C.F.R. § 1240.1(a)(1)(iv), does
not provide any additional authority to terminate or dismiss removal proceedings
beyond those authorities expressly set out in the relevant regulations.
(4) To avoid confusion, immigration judges and the Board should recognize and maintain
the distinction between a dismissal under 8 C.F.R. § 1239.2(c) and a termination under
8 C.F.R. § 1239.2(f).

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I direct the Board of
Immigration Appeals to refer these cases to me for review of its decisions.
For the reasons set forth in the accompanying opinion, I affirm the Board’s
decision in Matter of S-O-G- and vacate the Board’s decision in Matter of
F-D-B-. I remand Matter of F-D-B- to the immigration judge for further
proceedings in accordance with the opinion.
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I directed the Board of
Immigration Appeals (“Board”) to refer to me its decisions in these matters.
In each of these matters, the Board considered an immigration judge’s order
ending removal proceedings. In one case a motion to dismiss was filed by
the Department of Homeland Security (“DHS”), and in the other a motion to
terminate was filed by the respondent. I granted review of these two cases
to provide guidance on the appropriate standard by which immigration
judges and the Board should evaluate such motions. Because the relevant
regulation is clear, I concluded that additional briefing was unnecessary.
For the reasons set forth in the accompanying opinion, I affirm the
Board’s July 23, 2018, decision in Matter of S-O-G-, and I vacate the Board’s

462

Cite as 27 I&N Dec. 462 (A.G. 2018)

Interim Decision #3937

July 18, 2018, decision in Matter of F-D-B- and remand that matter to the
immigration judge for further proceedings.
There is no question that immigration judges have authority to dismiss
and terminate removal proceedings under certain defined circumstances.
I hold, however, that consistent with my opinion in Matter of Castro-Tum,
27 I&N Dec. 271 (A.G. 2018), immigration judges have no inherent authority
to terminate or dismiss removal proceedings. Accordingly, they may not
terminate or dismiss those proceedings for reasons other than those expressly
set out in the relevant regulations or where DHS has failed to sustain the
charges of removability.

I.
In each of the referred matters, the Board considered an immigration
judge’s order ending removal proceedings. These orders reflect the divergent
approaches the immigration courts have taken in reviewing motions to
dismiss or terminate pending cases. In S-O-G-, the Board held that the
immigration judge correctly concluded proceedings after finding the
regulatory standard for “termination” had been met. In F-D-B-, the Board
held that, “[u]nder the particular facts and circumstances of [the] case,” the
immigration court had “appropriate[ly]” invoked its crowded docket and its
“discretion” to terminate removal proceedings, slip op. at *1 (BIA July 18,
2018). I certified these matters to resolve the division of authority, correct
legal error, and confirm the proper legal standard for dismissal or termination
of removal proceedings.
A.
DHS initiated the certified proceedings against Respondent S-O-G-, a
citizen of Mexico, by a Notice to Appear, dated March 15, 2015, charging
removability pursuant to section 212(a)(6)(A)(i) of the Immigration and
Nationality Act (“INA”). S-O-G- conceded removability and indicated her
intention to file an application for relief or protection from removal. No such
applications were filed with the immigration judge. During the course of
subsequent removal proceedings, DHS learned that S-O-G- had previously
been subject to an in absentia removal order, which had become final on July
29, 2002. Consequently, on July 26, 2017, DHS moved “to dismiss the case”
without prejudice. Matter of S-O-G-, Hearing Transcript at 24 (Immig. Ct.
July 26, 2017). The immigration judge granted DHS’s motion—which he
referred to as a “motion for termination of these proceedings”—because the
respondent was already the subject of a final order of removal. Id. at 25−27.

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S-O-G- appealed to the Board, challenging DHS’s reliance on its
prosecutorial discretion and arguing that the termination violated her due
process right to apply to the immigration judge for relief or protection from
removal. The Board affirmed, explaining that DHS “is afforded broad
prosecutorial discretion to initiate removal proceedings, to cancel a[] Notice
to Appear prior to jurisdiction vesting with the [i]mmigration [j]udge, and to
seek dismissal after jurisdiction has vested.” Matter of S-O-G-, slip op. at *1
(BIA July 23, 2018).
Once jurisdiction has vested, “[a]n immigration [j]udge may terminate
proceedings where the DHS moves to dismiss the Notice to Appear on the
basis of one of the grounds contained in the regulations, and the
[i]mmigration [j]udge finds dismissal appropriate.” Id. The Board found
that “DHS’s motion comports with the governing regulations which provide
that, after commencement of proceedings, counsel may move for dismissal
if the Notice to Appear was improvidently issued . . . or if for other reasons,
the DHS has decided that continuation is no longer in the best interest of the
government.” Id. at *2. The Board rejected S-O-G-’s argument that the
immigration judge’s order had violated her due process rights.
B.
Respondent F-D-B-, a citizen of Brazil, entered the United States illegally
in 2004. DHS placed her into removal proceedings and charged her with
removability under section 212(a)(6)(A)(i) of the INA. She failed to appear
for her proceedings as required in 2004, and the immigration judge ordered
her removed in absentia. On December 9, 2013, F-D-B- filed an unopposed
motion to reopen and rescind her in absentia order. After the immigration
judge reopened, F-D-B- conceded removability. In 2016, after she had
obtained a visa as an alien relative, her case was administratively closed
pending the adjudication of her application for a provisional unlawful
presence waiver.
After obtaining the provisional waiver and the recalendaring of her case
before the immigration judge, F-D-B- moved on December 14, 2017, to
terminate the removal proceeding. She explained that she intended to
complete the necessary consular processing abroad. DHS opposed the
motion, arguing that removability had been established and that F-D-Bshould seek voluntary departure or other relief within the removal
proceeding. The immigration judge granted the motion and terminated
without prejudice.
The immigration judge did not dispute that F-D-B- had no legal right to
remain in the United States; that her voluntary departure would end the
removal proceeding; and that she could apply at a United States consulate in
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Brazil to obtain an immigrant visa and return. Nevertheless, the immigration
judge terminated the proceedings without requiring her departure—stating in
a written order that there “appears [to be] no apparent reason why this case
should remain on the court[’s] busy docket when she is simply waiting for
an interview abroad”—enabling her to remain in the United States illegally
while awaiting her consular interview in Brazil. Matter of F-D-B-, Order on
Motion to Terminate Proceedings at *1 (Immig. Ct. Dec. 14, 2017).
DHS appealed. On July 18, 2018, the Board affirmed the immigration
judge’s order, citing F-D-B-’s concern that “voluntary departure could result
in the revocation of her provisional waiver or . . . an additional ground of
inadmissibility that cannot be waived by the provisional waiver.” F-D-B-,
slip op. at *1 (BIA July 18, 2018). Consequently, based on “the particular
facts and circumstances of [the] case,” the Board concluded that “termination
of the respondent’s removal proceedings without prejudice was appropriate.”
Id.

II.
The INA vests DHS with the exclusive authority to place aliens in
removal proceedings. Castro-Tum, 27 I&N Dec. at 289; see also Matter of
W-Y-U-, 27 I&N Dec. 17, 19 (BIA 2017). DHS initiates removal
proceedings by issuing, serving, and filing a Notice to Appear identifying the
charges against a respondent. INA § 239(a), 8 U.S.C. § 1229(a); 8 C.F.R.
§ 1003.14(a) (removal proceedings “commence” when DHS files the Notice
to Appear with the immigration court). DHS may unilaterally cancel a
Notice to Appear under certain enumerated circumstances before jurisdiction
vests with the immigration judge. See 8 C.F.R. § 239.2(a).
Once jurisdiction vests, however, the statutory power to supervise
immigration proceedings resides with the Attorney General. See INA
§ 103(a)(1), (g), 8 U.S.C. § 1103(a)(1), (g). And as I recently reiterated,
immigration judges may “exercise only the authority provided by statute or
delegated by the Attorney General.” Castro-Tum, 27 I&N Dec. at 283
(emphasis added). This is particularly so in the context of dismissal and
termination, dispositions that implicate both the carefully defined
jurisdictional scheme set forth by the INA and the inherent prosecutorial
discretion of DHS. See Matter of Roussis, 18 I&N Dec. 256, 257−58 (BIA
1982) (explaining that immigration judges may not simply cede their
jurisdiction “when practical and equitable considerations dictate”).
As the Board has explained, “[i]t is well settled that an [i]mmigration
[j]udge may only ‘terminate proceedings when the DHS cannot sustain the
charges [of removability] or in other specific circumstances consistent with
the law and applicable regulations.’” Matter of J-A-B- & I-J-V-A-, 27 I&N
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Dec. 168, 169 (BIA 2017) (quoting Matter of Sanchez-Herbert, 26 I&N Dec.
43, 45 (BIA 2012) (second alteration in original)). As relevant here, on
motion by DHS, an immigration judge may dismiss the proceedings where
“[t]he [N]otice to [A]ppear was improvidently issued” or the
“[c]ircumstances of the case have changed after the [N]otice to [A]ppear was
issued to such an extent that continuation is no longer in the best interest of
the government.” 8 C.F.R. §§ 239.2(a)(6)−(7), 1239.2(c). The regulations
also allow immigration judges to terminate removal proceedings “to permit
the alien to proceed to a final hearing on a pending application or petition for
naturalization when the alien has established prima facie eligibility for
naturalization and the matter involves exceptionally appealing or
humanitarian factors,” but provide that, “in every other case, the removal
hearing shall be completed as promptly as possible.” 8 C.F.R. § 1239.2(f)
(emphasis added). 1
Apart from these circumstances, the relevant statutes and regulations do
not give immigration judges the discretionary authority to dismiss or
terminate removal proceedings after those proceedings have begun. See, e.g.,
INA § 240, 8 U.S.C. § 1229a; 8 C.F.R. § 1239.2. An immigration judge’s
general authority to “take any other action consistent with applicable law and
regulations as may be appropriate,” see 8 C.F.R. § 1240.1(a)(1)(iv), is no
exception. Given that the provision does not permit the immigration judge
to suspend indefinitely a respondent’s removal proceedings, see Castro-Tum,
27 I&N Dec. at 285, the provision similarly cannot be read to provide the
authority to end removal proceedings entirely. Such an action would both
exceed the authorized bases for dismissal or termination in the regulations
and conflict with the limited authority to dismiss or terminate removal
proceedings under 8 C.F.R. § 1239.2. The INA requires that “[a]t the
conclusion of the proceeding the immigration judge shall decide whether an
1

Department of Justice regulations also confer authority on immigration judges to
dismiss or terminate proceedings in other circumstances. See, e.g., 8 C.F.R. §§ 1216.4(a)(6)
(authorizing termination of removal proceedings after an alien obtains lawful permanent
residence on a conditional basis on joint motion by the alien respondent and DHS),
1235.3(b)(5)(iv) (“If the immigration judge determines that the alien was once so admitted
as a lawful permanent resident or as a refugee, or was granted asylum status, or is a U.S.
citizen, and such status has not been terminated by final administrative action, the
immigration judge will terminate proceedings and vacate the expedited removal order.”),
1238.1(e) (permitting termination, upon DHS request, in “any proceeding commenced
under section 240 of the [INA] which is based on deportability under section 237 of the
[INA], if it appears that the respondent alien is subject to removal pursuant to section 238
of the [INA]”; thereafter, DHS “may commence administrative proceedings under section
238 of the [INA]”), 1245.13(l) (instructing immigration judges to “deem terminated”
certain removal proceedings involving nationals of Nicaragua or Cuba if their application
for adjustment of status is granted). The record does not indicate that the parties here
moved to dismiss or terminate under any of these provisions.

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alien is removable from the United States.” INA § 240(c)(1)(A), 8 U.S.C.
§ 1229a(c)(1)(A) (emphasis added). Consistent with that authorization, the
immigration regulations give enforcement officials, not immigration judges,
general discretionary authority to cancel a Notice to Appear before removal
proceedings commence or to move for the dismissal of removal proceedings
after they have begun. See 8 C.F.R. § 1239.2(a), (c); see also 8 C.F.R.
§ 1239.1.
In S-O-G-, the immigration judge’s order and the Board’s opinion both
describe the relevant DHS motion as one to “terminate” the removal
proceeding, see 8 C.F.R. § 1239.2(f), but the record indicates that the parties
understood the motion to be one to dismiss pursuant to 8 C.F.R. § 1239.2(c)
and 8 C.F.R. § 239.2(a). Although “dismissal” and “termination” have
distinct meanings and different requirements under the regulations, they are
similar concepts in the context of concluding removal proceedings, and it is
not uncommon for immigration judges and the Board to use them
interchangeably or to conflate them under a common heading of
“termination.” To avoid confusion, immigration judges and the Board
should recognize and maintain the distinction between dismissal and
termination in the future. Nevertheless, I proceed here upon the parties’
understanding that DHS had moved to dismiss. 2
Indeed, both the immigration judge and the Board applied the appropriate
regulatory standard for dismissal of a removal proceeding. The immigration
judge granted DHS’s motion because S-O-G- was already subject to a
removal order, a fact that DHS did not know when it served the Notice to
Appear. As the Board later found, dismissal was appropriate either as (1) an
occasion where the subsequent Notice to Appear was improvidently issued
because similar proceedings had already concluded, see 8 C.F.R.
§ 239.2(a)(6), or (2) an instance where DHS had demonstrated that moving
forward in this proceeding, duplicating its previous efforts, was not in the
best interests of the Government, see id. § 239.2(a)(7). I agree that either
theory was sufficient to affirm.
In F-D-B-, the immigration judge did not identify any statutory or
regulatory basis to justify terminating the removal proceedings. Instead, she
cited only the facts of the matter, the court’s “busy docket,” and her own
“discretion” to terminate the case. Similarly, the Board cited no legal basis
2

To the extent the immigration judge or the Board erred by invoking incorrect
terminology, that error was harmless. Evidence in the record establishes that both the
immigration judge and the Board correctly applied the legal standard for dismissal set forth
in 8 C.F.R. § 1239.2(c), and the Board cited the appropriate regulation for dismissal despite
using the term “termination.” See generally Matter of Pollon-Rivas, A098 357 092, 2016
WL 1357925, at *2 (BIA Mar. 21, 2016) (invoking harmless error doctrine where an
apparent scrivener’s error did not prejudice the respondent).

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to affirm the termination, relying solely on “the particular facts and
circumstances of [the] case” to support its decision.
As discussed above, however, immigration judges have no inherent
authority to terminate removal proceedings even though a particular case
may pose sympathetic circumstances. The authority to terminate under
8 C.F.R. § 1239.2(f) is specific and circumscribed. Neither the immigration
judge’s order nor the Board’s opinion in F-D-B- evidences any effort to apply
that legal standard or cites any other relevant standard. Because the
immigration judge did not purport to exercise any specific regulatory or
delegated authority to terminate, and no such authority is apparent in the
record, her action cannot be sustained on appeal.
There is no question that immigration judges have the authority to dismiss
and terminate removal proceedings under the circumstances identified in the
regulations. 3 See 8 C.F.R. § 1239.2. Immigration judges also possess the
authority to terminate removal proceedings where the charges of
removability against a respondent have not been sustained. See 8 C.F.R.
§ 1240.12(c); Sanchez-Herbert, 26 I&N Dec. at 44 (“If the DHS meets its
burden, the [i]mmigration [j]udge should issue an order of removal; if it
cannot, the [i]mmigration [j]udge should terminate proceedings.”). But the
authority to dismiss or terminate proceedings is not a free-floating power an
immigration judge may invoke whenever he or she believes that a case no
longer merits space on the docket. Rather, 8 C.F.R. § 1239.2 constrains
immigration judges’ discretion to ensure respect for the jurisdictional scheme
set forth by the INA and DHS’s role in initiating and prosecuting removal
cases. 4 See Roussis, 18 I&N Dec. at 258 (“It has long been held that when
enforcement officials of the Immigration and Naturalization Service [now
DHS] choose to initiate proceedings against an alien and to prosecute those
proceedings to a conclusion, the immigration judge is obligated to order
deportation if the evidence supports a finding of deportability on the ground
charged.”).
Accordingly, I hereby affirm the Board’s July 23, 2018 decision in
S-O-G-and vacate the Board’s July 18, 2018 decision in F-D-B-. I remand
F-D-B- to the Board with instructions to remand to the immigration judge for
further proceedings consistent with this opinion.
3

There is, however, reason to doubt whether the Board also possesses the authority to
terminate removal proceedings pursuant to section 1239.2(f) given the plain text of that
regulation. See 8 C.F.R. § 1239.2(f) (stating only that “[a]n immigration judge may
terminate removal proceedings” (emphasis added)). This question is beyond the scope of
this opinion, and I do not address it here.
4
This decision does not foreclose respondents, in appropriate circumstances, from
requesting that DHS file an unopposed motion to dismiss proceedings under 8 C.F.R.
§ 1239.2(c).

468


Interim Decision. #1320

Mama or EUSAPH
In DEPORTATION Proceedings
A-12049409
Decided by Board January 53,1964

Respondent has not established that because a political disagreement exists
between the Governments of Pakistan and India on the territorial question of
lroolsmir, be would be subject to physical persecution within the meaning of
section 248(h), Immigration and Nationality Act if deported to India, a predominantly Hindu country, since he is a native of Pakistan and a Moslem.
Onenoz:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ]—Nonimmigrant (crewman)—Remained longer.

The special inquiry officer, in a decision dated October 2, 1963: (1)
found the respondent ineligible for voluntary departure; (2) directed
his deportation from the United States to India on the charge contained in the order to show cause; and (3) denied his application for
temporary withholding of deportation. to India. The appeal from
that decision, which brings the case before this Board for consideration, will be dismissed.
The record relates to a male alien, approximately 47 years of age,
who asserts that he is a native and citizen of Pakistan. He last entered the United States on or about May 26, 1957. He was then
admitted as a nonimmigrant crewman for the period of time his vessel
was to remain in port, but in no event to exceed 29 days. He has
remained in this country since the expiration of the temporary period
.of his admission without authority.
The foregoing establishes the respondent's deportability on the
.charge set forth in the order to show cause, and this is conceded. The
respondent has stated that he will not leave the United States voluntarily so that the special inquiry officer properly found him ineligible
for voluntary departure, and this finding is unchallenged. The country of deportation designated by the respondent (British Guiana) and
the country of his asserted nativity and citizenship (Pakistan) have
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Interim Decision #1320
both refused to issue documents for the respondent's admission thereto,
and the Service has submitted evidence of the willingness of India
to issue an emergency certificate valid for the respondent's deportation
to that country; so that the procedural aspects of the case on this
point require no further comment. Thus, the only issue presented for
our consideration is whether the special inquiry officer's denial of the
respondent's application for temporary withholding of his deportation
to India constituted an abuse of discretion. Our answer is in the
negative, for the reasons hereinafter set forth.
Generally speaking, physical persecution, the likelihood of which
authorizes a stay of deportation under this section of the law, means
confinement, torture, or death inflicted on account of race, religion or
political viewpoint (Masina v. Bouchard, 286 F. 2d 507). The main
thrust of the respondent's argument here is that he will be subjected
to persecution in India, which is predominantly Hindu, because he is
a native of Pakistan and a Moslem. Specifically, he bottoms his
claim on the fact that there is a political disagreement between the
Governments of Pakistan and India on the territorial question of
Kashmir, and that he will be persecuted because of this.
The respondent has been unable to furnish any documentary evidence to support his claim (Ex. Rs-2). It is patently general in
nature rather than on an individual basis. The "press releases" on
which he relies are general in nature and deal solely with the general
disagreement between the governments of Pakistan and India over
Kaslmiir. He has made no elaim or showing that the Government
of India is engaged in a program of persecuting individuals who are
Pakistanians and Moslems. There is no showing that the Government
of India tolerates violence by Hindu Indians against Pakistani=
Moslems, either individually or collectively, and that the police powers
of the government have degenerated to the point where it is unable to
take proper measures to control individual cases of violence in this
respect which arise. The reports of various committees of the Congress to which counsel referred in the course of oral argument relative
to a dispute'between Pakistan and India are, from his very observations, concerned solely with the broad problems involved rather than
the individual cases of aliens such as the one now under consideration.
Accordingly, Ewe find the respondent's general allegations in this respect do not meet the burden resting upon him to establish persecution
(Matter of B—, A-15801391, BIA, 8/28/63; Int. Dee. #1298)
It has also been judicially determined that economic proscription
so severe as to deprive a person of all means of earning a livelihood
may amount to physical persecution (Dunat v. Burney, 297 F. 2d 714;
and Boric v. Flagg, 303 F. 2d 289). However, we do not think that
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Interim Decision #1320
the record supports the respondent's contention that his case comes
within the scope of the courts' rulings in this respect.
According to the record, the respondent proceeded from Pakistan
to Bombay, India, when he was about 16 years of age, in 1931. From
then until 1942 he worked in the ship yards of Bombay. Thereafter,
and until 1956, he sailed as a crewman, signing on and off at Bombay,
India. The respondent's past record, then, does not support his present claim, and he advances no good reason why the situation would be
different after his return to India than it was prior to 1956. As a
matter of fact, he admitted that if the Indian consulate had granted
him documents to enter India in 1960 he would have willingly and
voluntarily returned there. Under these circumstances, we do not
think that the respondent's claim to persecution in this respect is
supported.
This same factor negatives the respondent's argument that he would
be physically persecuted because prior to 1956 and subsequent to
India acquiring its independence some people hit him and told him to
go back to Pakistan. Again, in this connection, there is no evidence
of record that conduct in this respect is the result of a program
sponsored or tolerated by the Government of India, or resulting from
incidents by Indians, individually or collectively, which the Government of India condones.
We find completely lacking in merit the respondent's assertion that
his life would. be endangered if he returned to India because approxiraately two years ago, when he was detained by the Immigration
Service, he called the Indian consulate and was told that as a Pakistani= the Indian Government would have nothing to do with him.

In the first place, it is only natural that the Indian Government would
be concerned with its own natives and nationals. Secondly, any adverse inference which the situation might otherwise have given rise
to is negatived by the fact that India has now evidenced its willingness
to issue the respondent an emergency certificate_ valid for his deportation thereto. Thirdly, the special inquiry officer, who had the benefit
of observing the respondent, was of the opinion that he was willing
to make any rash declaration which would suggest the possibility of
his continued presence in this country; and counsel in the course of
oral argument characterized some of the respondent's statements as
"incoherent and unintelligible." (par. 1)
Finally, respondent's contention concerning adverse living conditions in Bombay may explain his desire to remain in this country
where living standards are better. However, this is not dispositive
of the issue presented.
ORDER: It is ordered that the appeal be dismissed.
455