Cite as 26 I&N Dec. 814 (BIA 2016)

Interim Decision #3873

Matter of Raul ZARAGOZA-VAQUERO, Respondent
Decided September 23, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of criminal copyright infringement in violation of 17 U.S.C. § 506(a)(1)(A)
(2012) and 18 U.S.C. § 2319(b)(1) (2012) is a crime involving moral turpitude.
FOR RESPONDENT: Pablo Rocha, Esquire, Harlingen, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Associate Legal Advisor; Jose R. Solis, Assistant Chief Counsel

Meggan G. Johnson,

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

In a decision dated March 18, 2015, an Immigration Judge found the
respondent removable under section 212(a)(6)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(A)(6)(A)(i) (2012), pretermitted his
application for cancellation of removal under section 240A(b)(1) of the Act,
8 U.S.C. § 1229b(b)(1) (2012), and ordered him removed from the United
States. The respondent has appealed from the Immigration Judge’s
decision. The panel heard oral argument in this matter on November 19,
2015. The appeal will be dismissed.
It is undisputed that the respondent was convicted on October 31, 2012,
of one count of criminal infringement of a copyright, a felony offense, in
violation of 17 U.S.C. § 506(a)(1)(A) (2012) and 18 U.S.C. § 2319(b)(1)
(2012), for which he was sentenced to 33 months in prison and ordered to
pay $36,000 in restitution. 1 According to 17 U.S.C. § 506(a)(1),
Any person who willfully infringes a copyright shall be punished as provided
under section 2319 of title 18, if the infringement was committed—
(A) for purposes of commercial advantage or private financial gain . . . .

1

Because it is undisputed that the respondent was convicted under 17 U.S.C.
§ 506(a)(1)(A) and 18 U.S.C. § 2319(b)(1), we need not decide whether a violation of
17 U.S.C. § 506(a)(1)(B) or (C) is a crime involving moral turpitude.

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Interim Decision #3873

In turn, 18 U.S.C. § 2319(b) provides as follows:
Any person who commits an offense under section 506(a)(1)(A) of title 17—
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in
this title, or both, if the offense consists of the reproduction or distribution,
including by electronic means, during any 180-day period, of at least 10 copies or
phonorecords, of 1 or more copyrighted works, which have a total retail value of
more than $2,500 . . . .

The Immigration Judge concluded that the respondent was convicted of a
crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act,
which rendered him statutorily ineligible for cancellation of removal
pursuant to section 240A(b)(1)(C).
It is the respondent’s burden of proof to establish that he satisfies the
applicable eligibility requirements for cancellation of removal. See section
240(c)(4)(A)(i) of the Act, 8 U.S.C. § 1229a(c)(4)(A)(i) (2012). Therefore,
to be statutorily eligible for cancellation of removal, the respondent must
demonstrate that his conviction for criminal copyright infringement was not
a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the
Act. Moral turpitude refers generally to conduct that shocks the public
conscience as being inherently base, vile, or depraved, and contrary to
accepted rules of morality and the duties owed between persons or to
society in general. See Cisneros-Guerrerro v. Holder, 774 F.3d 1056, 1058
(5th Cir. 2014); Nino v. Holder, 690 F.3d 691, 694 (5th Cir. 2012). To
determine whether a criminal offense involves moral turpitude, we
ordinarily look to the nature of the crime, rather than the specific conduct
that resulted in the conviction. See Okabe v. INS, 671 F.2d 863, 865
(5th Cir. 1982); Matter of Torres-Varela, 23 I&N Dec. 78, 84 (BIA 2001).
Furthermore, “the nature of a crime is measured against contemporary
moral standards and may be susceptible to change based on the prevailing
views in society.” Matter of Lopez-Meza, 22 I&N Dec. 1188, 1192 (BIA
1999).
The respondent conceded that he has been convicted of reproducing and
distributing infringing copies for commercial advantage or private financial
gain in violation of 17 U.S.C. § 506(a)(1)(A). Criminal copyright law is
distinct from civil copyright law, and not every infringement is a criminal
offense. Criminal copyright infringement under that statute requires the
Government to prove that the defendant willfully infringed the copyright.
See United States v. Goss, 803 F.2d 638, 642 (11th Cir. 1986). The term
“willfully,” as it is used in 17 U.S.C. § 506(a), means that the defendant
committed a “voluntary, intentional violation of a known legal duty.”
United States v. Liu, 731 F.3d 982, 990 (9th Cir. 2013) (quoting Cheek
v. United States, 498 U.S. 192, 201 (1991)). According to 17 U.S.C.
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Interim Decision #3873

§ 506(a)(2), “[E]vidence of reproduction or distribution of a copyrighted
work, by itself, shall not be sufficient to establish willful infringement of a
copyright.”
The willfulness standard is significant because a criminal copyright
infringement prosecution cannot be sustained based on negligence,
recklessness, or even general intent. One reason given for the creation of
this heightened standard was that it would ensure that “an educator who in
good faith believes that he or she is engaging in a fair use of copyrighted
material could not be prosecuted.” 143 Cong. Rec. 26,420–21 (1997).
Certain uses of copyrighted materials are not violations of 17 U.S.C.
§ 506(a)(1)(A) where they involve the “fair use” or “first sale” of a
copyrighted work. 2
We have long held that certain theft offenses are crimes involving moral
turpitude. See, e.g., Matter of Jurado, 24 I&N Dec. 29, 33 (BIA 2006).
Crimes that require intent to defraud are also crimes involving moral
turpitude. Jordan v. De George, 341 U.S. 223, 229 (1951) (observing “that
fraud has consistently been regarded as such a contaminating component in
any crime that American courts have, without exception, included such
crimes within the scope of moral turpitude”). Other crimes that are
inherently fraudulent involve moral turpitude even if the crime does not
require specific intent to defraud. See, e.g., Matter of Tejwani, 24 I&N
Dec. 97, 98 (BIA 2007). In Matter of Flores, 17 I&N Dec. 225, 228–30
(BIA 1980), we held that the offense of uttering or selling false or
counterfeit paper relating to the registry of aliens in violation of 18 U.S.C.
§ 1426(b) (1976) was a crime involving moral turpitude, even though the
Government was not required to prove that the offender had the specific
intent to defraud. 3
2

Both the “fair use” and “first sale” doctrines are statutory limitations on the exclusive
rights of the copyright holder. See generally Dowling v. United States, 473 U.S. 207, 217
(1985); Goss, 803 F.2d at 643–44. The “fair use doctrine” provides that the unauthorized
use of copyrighted works “for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright.” 17 U.S.C. § 107 (2012). Thus, it permits the unauthorized
use of copyrighted material under certain circumstances, such as where there is a useful
or beneficial purpose and the impact on the market for the work is minimal. Additionally,
the “first sale” doctrine entitles “the owner of a particular copy or phonorecord lawfully
made under [title 17 of the United States Code], or any person authorized by that
owner . . . , without the authority of the copyright owner, to sell or otherwise dispose of
the possession of that copy or phonorecord.” 17 U.S.C. § 109(a) (2012).
3
The respondent contends that his conviction for criminal copyright infringement is not
for a crime involving moral turpitude because fraud is not an element of 17 U.S.C.
§ 506(a)(1)(A). However, we have never held that intent to defraud is a required element
for an offense to be a crime involving moral turpitude.

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Interim Decision #3873

We relied on Matter of Flores in Matter of Kochlani, 24 I&N Dec. 128,
131 (BIA 2007), where we held that the offense of trafficking in counterfeit
goods or services under 18 U.S.C. § 2320 (2000), which includes the use of
a “spurious” or “counterfeit mark,” is a crime involving moral turpitude
because it “involves the theft of someone else’s property in the form of a
trademark.” Based on our prior theft and fraud cases, we concluded there
that trafficking in counterfeit goods “is in many ways analogous to the
offense of uttering or selling false or counterfeit papers relating to the
registry of aliens under 18 U.S.C. § 1426(b).” Id. This was so because
both crimes involve traffic in false or counterfeit items; require proof of
intent to traffic, coupled with knowledge that the items are counterfeit; and
result in significant societal harm. Id. We also noted that “trafficking in
counterfeit goods is inherently immoral because it entails dishonest dealing
and deliberate exploitation of the public and the mark owner.” Id.
Under this reasoning, it follows that criminal copyright infringement
under 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(b)(1) must also be a
crime involving moral turpitude. Like 18 U.S.C. § 2320, the provision at
issue in Matter of Kochlani, the respondent’s statutes of conviction were
enacted to protect a form of intellectual property. Also, like an offense
under 18 U.S.C. § 2320, a violation of 17 U.S.C. § 506(a) must be
committed willfully, meaning that a defendant must voluntarily and
intentionally violate a known legal duty not to infringe a copyright. We
therefore conclude that criminal copyright infringement is closely
analogous to the theft and fraud crimes that we have consistently held are
crimes involving moral turpitude. See U.S. Sentencing Guidelines Manual
§ 2B5.3 cmt. background (U.S. Sentencing Comm’n 2015) (treating
criminal copyright infringement “much like theft or fraud”).
Moreover, like the use of a spurious trademark in Matter of Kochlani,
the respondent’s copyright infringement also involves significant societal
harm. Congress has made clear that copyright infringement enforcement is
an important priority and that the risks and costs associated with intellectual
property crime are significant. It therefore expanded the criminal copyright
infringement provisions of 18 U.S.C. § 2319 to include felony provisions in
the Piracy and Counterfeiting Amendments Act of 1982, Pub. L. No.
97-180, § 3, 96 Stat. 91, 92.
As the legislative history to those amendments indicates, Congress
noted that piracy and counterfeiting activities had developed “into a highly
sophisticated, billion-dollar-a-year business” that harmed the film and
recording industries, including actors, artists, and musicians, as well as
consumers who were tricked into purchasing inferior counterfeit products at
full prices. S. Rep. No. 97-274, at 3 (1981). The “theft of intellectual
property” was therefore characterized as “a major white collar crime.”
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Interim Decision #3873

Id. at 4 (quoting a statement from the Department of Justice). Congress
also stated that “substantial penalties [were] necessary to deter the criminal
and to encourage prosecutors and judges to view these activities as serious
crimes.” Id. at 7. More recently, in the Prioritizing Resources and
Organization for Intellectual Property Act of 2008, Pub. L. No. 110-403,
§ 501, 122 Stat. 4256, 4277–78, Congress ordered a report from the
Government Accountability Office, which determined that intellectual
property crimes cause negative effects on health, safety, and lost
revenue and increase the cost of protecting and enforcing intellectual
property rights. See U.S. Government Accountability Office/GAO-10-423,
Intellectual Property: Observations on Efforts to Quantify the Economic
Effects of Counterfeit and Pirated Goods 9–14 (Apr. 2010).
Finally, the respondent raised concerns at oral argument about the
potential scope of criminal copyright infringement enforcement, arguing
that the statute could extend to a student tutoring other students. The
respondent’s concerns about the breadth of 17 U.S.C. § 506(a)(1)(A) are
misplaced. As previously discussed, criminal copyright law is distinct from
civil copyright law and not every infringement will qualify as a criminal
offense. For example, the “fair use” doctrine would protect a student
tutor’s educational use of copyrighted material. Moreover, as noted above,
§ 506(a)(1)(A) requires the Government to prove beyond a reasonable
doubt that the defendant willfully infringed on the copyright and did so for
commercial advantage or personal financial gain. We are therefore not
persuaded by the respondent’s arguments regarding the scope of 17 U.S.C.
§ 506(a)(1)(A).
For these reasons, we conclude that the offense of criminal copyright
infringement in violation of 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C.
§ 2319(b)(1) is a crime involving moral turpitude. Therefore, the
respondent has not established that he is eligible for cancellation of removal
under section 240A(b)(1)(C) of the Act. Accordingly, the respondent’s
appeal will be dismissed.
ORDER: The appeal is dismissed.

818


MATTER or

K

In DEPOPTATTON Proceedings
A-6782329
Decided by Board A.nril 24. 1959
peportability—Exemption under clause (A), section 7, P.L. 85-316—Effect of
Misrepresentation to evade quota restrictions and commission of perjury in
obtaining visa.
Deportation proceedings are terminated as to an alien who brings himself
within clause (A) of section 7, P.L. 81-316, notwithstanding that his misrepresentation as to place of birth may have been made to evade quota resun:Lions unit notwithstanding ma accession ut the unoullszslou ot perjury
in obtaining his visa by fraud and misrepresentation.
CHARGES°

Warrant: Act of 1924 [8 U.S.C. 213(a) and 214, 1946 ed.]—Visa procured by
fraud or misrepresentation.
Act of 1917 [8 U.S.C. 171(a), 1946 ed.]—Admits crime prior to
entry—Perjury.
Act of 1924 (8 U.S.C. 213(a) and 214, 1946 ed.]—Not of nationality specified in visa.
BEFORE THE nninn

Discussion: On March 16, 1954, we concluded that the respondent was deportable on the three charges stated above. Subsequently,
we granted counsel's motion for reconsideration and reopening. The
special inquiry officer on March 3, 1959, ordered termination of the
proceedings pursuant to section 7 of the Act of September 11, 1957
(71 Stat. 610; 8 U.S.C. 1251a, 1952 ed., Supp. V). The ease is now
before us on certification.
The respondent is a 46-year-old married male, native and last a
citizen of Rumania, whose only entry occurred on October 2, 1947,
at which time he was admitted as a quota immigrant. His correct
name is F K—, but at the time of entry he had assumed the
identity of one A S had falsely stated that he was born in
Germany, and was charged to the quota of that country. He admitted the commission of perjury on July 21, 1947, in connection
with his application for an immigration visa. The sole issue to be
determined is whether the special inquiry officer's order should be
affirmed.
310

Section 7 of the Act of September 11, 1957, provides, in -part, as
follows: "The provisions of section 241 of the Immigration and
Nationality Act relating to the deportation of aliens within the
United States on the ground that they were excludable at the time
of entry as (1) aliens who * * * have procured visas * * * or entry
into the United States by fraud or misrepresentation, or (2) aliens
who were not of the nationality specified in their visas, shall not
apply to an alien otherwise admissible at the time of entry who (A)
is the spouse, parent, or a child of a United States citizen * * *"
The respondent is the spouse of 51 United States citizen, his wife
having been naturalized on April 7, 1953.
When the respondent applied for his immigration visa, he falsely
stated that he had been born in Germany. He was able thus to
obtain a visa under that quota which was then current. The Rumanian quota, to which he was actually chargeable, was oversubscribed. Section 7 of the Act of September 11, 1957 contains a
proviso (not quoted above) that the misrepresentation of nationality
and place of birth must not have been committed for the purpose of
evading the quota restrictions of the immigration laws. This may
have been one of the purposes of the respondent

in making the

misrepresentation. However, the proviso is specifically limited to
aliens described in clause (B) of section 7, whereas, the respondent
I. within the purview of clause (A). Hence, this proviso is inapplicable in his case.
A requirement of section 7 of the Act of September 11, 1957 is
that the alien must have been otherwise admissible at the time of
entry. The respondent had been convicted in 1945 by a Summary
Military Government Court at Munich, Germany. In order to
ascertain the nature of the offense committed, we reopened the deportation hearing on January 19, 1959. A certified copy of the
proceeding relating to that conviction has been made part of the
record. Two of the charges related to the purchase by the respondent during May 1945 of HI packages of cigarettes without surrendering ration coupons or a buying permit and with having paid
more than the ceiling price. The other charge was unlawful possession of the 718 packages of cigarettes and various items of food.
The respondent pleaded guilty and was sentenced to six months'
imprisonment. The ordinance and laws violated were merely regulatory provisions and there was a complete absence of any element
which could be considered to denote baseness, vileness or depravity.
We concur in the special inquiry officer's conclusion that the offenses
did not involve moral turpitude and that the respondent was not
excludable because of this conviction.
The first and third charges appearing in the warrant of arrest are
those specifically waived under section 7 of the Act of September
311

11, 1957. The second charge is that the respondent is deportable
because he admits the commission of a crime involving moral turpitude (periul y) prior to entry. The remaining question in this case
is whether he continues to be amenable to deportatior, on that charge
notwithstanding that the other two charges are waived under section 7.
As we have indicated above, the respondent admitted that on July
91, 1917, he had committed perjury in his application for an immigration visa. That part of section 7 of the Act of September 11,
1957, which was quoted above, does not expressly relate to an alien
whose deportability is predicated on inadmissibility on the ground
that he had admitted the commission of a crime involving moral
turpitude. The last Sentence of Petition 7 relates to future applications for admission to the United States and authorizes the admission of certain aliens who would otherwise be excludable on the
ground that they had procured visas by fraud or had admitted the
commission of perjury in connection therewith. If this respondent
were now outside the United States, it would be possible for him to
be lawfully admitted for permanent residence under the last sentence of section 7 since the perjury, which he admitted having committed, occurred in connection with his application for an immigration visa. Considering section 7 in its entirety, it is our opinion
that an alien within its purview, who is deportable on the ground
that he admitted the commission of perjury in connection with obtaining his visa by fraud or misrepresentation, has been given a
waiver of the commission of that perjury as a ground of deportability or excludability. Hence, we conclude that none of the charges
stated above is sustained and that the special inquiry officer's action
was correct.
Order: It is ordered that the special inquiry officer's order
terminating the proceeding, be affirmed.

319


Interim Decision #2243

MATTER OF ANAYA
In Deportation Proceedings
A-20505711
A-20507231
Decided by Board November 23, 1973
(1) An alien has no "right" to remain indefinitely in the United States in
violation of the immigration laws merely because of the existence of citizen
children.
(2) The granting of the indefinite voluntary departure privilege to natives of
the Western Hemisphere with citizen ties in the United States is a matter
within the sole discretion of the district director and is not reviewable by the
Board of Immigration Appeals.
CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(aX2)J—Entered without
inspection (both respondents).
ON BEHALF OF RESPONDENTS:

ON BEHALF OF SERVICE:

F. B. Godinez, Esquire
P. O. Box 1216
Lubbock, Texas 79408

Paul C. Vincent
Appellate Trial Attorney
Bernabe Q. Maldonado
Trial Attorney

This is an appeal from an immigration judge's order of May 21,

1973 directing the respondents' deportation to Mexico on the
charge contained in the Order to Show Cause. Deportability on the
stated charge is conceded. The appeal is directed to the denial of
an application for voluntary departure in lieu of deportation. The
appeal will be dismissed.
The respondents, husband and wife, are natives and citizens of
Mexico. At the deportation hearing, it was established that they
are the parents of two United States citizen children, and that
they have registered with the United States consul in Juarez and
have received a priority date of April 23, 1973 for the issuance of
immigrant visas. The record also indicates that as of the time of
the hearing no visas were being issued to Western Hemisphere
natives with priority dates after August 1, 1971. For the purposes
of this case, we shall assume that December 1974 approximates
488

Interim Decision #2243
the date when immigrant visas will become available to the
respondents.
The respondents requested that they be granted until December
1974 within which to depart voluntarily, so that they might remain
in the United States until they could obtain immigrant visas. The
trial attorney opposed the respondents' request on the ground
that the amount of time was unreasonable. The immigration judge
offered the respondents voluntary departure if they would agree
to depart within 90 days. Through counsel, the respondents announced their intention to remain in the United States until
December 1974. Counsel argued that the respondents had a
"right" to remain in the United States because of their citizen
children and stated that they would insist on the December 1974
departure date in order to perfect an appeal on that point. The
trial attorney took the position that the respondents' attitude
represented an unwillingness to depart promptly as required by
the regulations governing voluntary departure. The immigration
judge agreed with the trial attorney. After warning counsel that
he was foreclosing a determination that the respondents were
ready and willing to depart promptly, the immigration judge
reluctantly ordered the respondents' deportation.
On appeal, the respondents attack the immigration judge's
refusal to grant them voluntary departure. They contend that
they have a "right" to remain in the United States until December
1974 because their deportation will constructively deport their
United States citizen children, thereby depriving the children of
their constitutional rights. The short answer to this contention is
that "whatever rights the child[renj may have under the Constitution do not authorize the respondents to remain here in violation
of the immigration laws." Matter of Lopez, Interim Decision No.
2224, at 2 (BIA 1973). Furthermore, it is well established that the
parents' deportation will not deprive the minor citizen children any
constitutional rights. U.S. ex rel. Hintopoulos v. Shaughnessy, 353
U.S. 72 (1957); Perdido v. INS, 420 F.2d 1179, 1181 (CA. 5, 1969);
Dayao v. Staley, 303 F. Supp. 16 (S.D. Tex. 1969), affd per curiam,
424 F.2d 1131 (C.A. 5,1970); Mendez v. Major, 340 F.2d 128,131-32 (8
Cir. 1965); Aalund v. Marshall, 461 F24 710, 714 (CA_ 5, 1972);
Application of Amoury, 307 F. Supp. 213, 216 (S.D.N.Y. 1969).
We have held that what is a reasonable time for voluntary
departure must depend on the circumstances of each case. Matter
of Ocampo-Ocampo, 13 I. & N. Dec. 707 (BIk1971). The immigration judge decided that the amount of time requested by the
respondents was unreasonable and that a reasonable period was
90 days. We conclude that this determination by the immigration
489

Interim Decision #2243
judge was based on the proper considerations and was entirely
reasonable.
Insisting upon their "right" to remain until December 1974, the
respondents refused to agree to depart within 90 days. The
regulation governing the grant of voluntary departure states that:
... if the alien establishes that he is willing and has the immediate means
with which to dapaTt promptly from the United States, an immigration judge
in his discretion may authorize the alien to depart voluntarily from the
United States in lieu of deportation.... (8 CFR 244.1 (emphasis added).)

The immigration judge was correct in determining that the
respondents' attitude foreclosed a finding that they were "willing
to depart promptly" as required by the regulation. Thus, his denial
of the privilege of voluntary departure was correct.
The respondents also allege that the denial of voluntary departure was an unconstitutional discrimination. Their counsel has
submitted a letter written by the Associate Commissioner of
Operations of the Immigration and Naturalization Service, dated
April 3, 1973. That letter states in part:
Effective immediately, under the changed policy, a Western Hemisphere
native will, as a matter of discretion, be granted extended voluntary departure if he is admissible to the United Statcb as au immigrant and he is an
immediate relative of a United States citizen as defined in section 201(b) of the
Immigration and Nationality Act, as amended,....
The respondents admittedly do not qualify as immediate relatives, because their citizen children are under 21 years of age.
They maintain, therefore, that they are being discriminated
against solely on the basis of their citizen children's age.
As used in that letter, the term "extended voluntary departure"
means a grant of indefinite voluntary departure, that is, voluntary
departure with no date specified. The policy delineated, in the
letter is not directed to immigration judges, since they do not have

the authority to grant indefinite voluntary departure. Matter of
Chamizo, 13 I. & N. Dec. 435 (BIA 1969). Therefore, the Service
policy mentioned in the letter has no relation to the correctness of
the immigration judge's decision in the present case.
Indefinite voluntary departure is a matter within the sole
discretion of the District Director and may be granted without the
institution of deportation proceedings or upon an application for
an extension of the time initially set by an immigration judge for
voluntary departure. 8 CFR 242.5(b); 8 CFR 244.2. We have no

authority to review such an exercise of discretion by a District
Director. 8 CFR 242.5(b); 8 CFR 244.2; Matter of Geronimo, 13 I. &
N. Dec. 680 (BIA 1971); Matter of Wong, 13 I. & N. Dec. 258 (BIA
1969). Therefore, we have no power to consider the respondents'
challenge to the Service policy laid down in the letter. Further490

Interim Decision #2243
more, we note that federal courts have rejected constitutional
challenges to the age requirement of section 201(b). Perdido v.
INS, 420 F.2d 1179, 1181 (CA. 5, 1969); Faustino v. INS, 432 F.2d
429 (C.A. 2, 1970), cert. denied, 401 U.S. 921 (1971); Application of
Amoury, 307 F. Supp. 213, 216-17 (S.D.N.Y. 1969).
Based on the foregoing, we find that the decision of the immigration judge was correct The appeal will accordingly be dismissed.
ORDER: The appeal is dismissed.

491


Interim Decision *1805

MATTER or

Ft=

In Visa Petition Proceedings
A-14628516
Decided by District Director May 16,1967
Notwithstanding beneficiary's adoption when two years of age, since he and the

United States citizen petitioner are legitimate children of the same parents, he
is classifiable as the brother of the petitioner and, therefore, is eligible for preference classification under section 203(a) (5) of the Immigration and Nationality Act, as amended.

In BP114 ALF OF Purrrtornss: Louis Sampson, Esquire
448 South Hill Street, Suite 518
Los Angeles, California 90018

The petitioner is a 32 year old married female, native and citizen
of the United States.
The bineficiary is a 25 year old single male, native and citizen of
Japan.
The petitioner and beneficiary are the legitimate issue of the same
parents, natives and citizens of Japan.
The beneficiary was legally adopted according to Japanese law
(Articles 846 and 849, Civil Code of Japan) on December 8, 1944 by
the widowed sister in law of the father of the present petitioner and
-

-

beneficiary, the natural parents having agreed to the adoption in his
behalf (Article 843, Civil Code of Japan).
The petitioner, beneficiary and their natural mother have all testified that the beneficiary never resided in the house of the beneficiary's
adoptive mother who is now deceased, but he has since his birth remained in the home of his natural parents.
On the termination of the adoption agreement between the beneficiary, made in his behalf by his natural parents, and his adoptive
mother a notice of restoration of his name to the family register of
the beneficiary's natural father was filed on July 20, 1906 and "accepted and officially so recorded on the same day" (Articles 862 and
865—dissolution of adoption—Japanese Civil Code). Article 875 of

the Japanese Civil Code provides as follows: "By dissolution of
495

Interim Decision #1805
adoption the adopted child recovers the status which he or she possessed in his or her original house . . ."
The issue to be resolved is whether there exists between the beneficiary and the petitioner the relationship required for status under
section 203 (a) (5) of the Immigration and Nationality Act as amended.
The petition was initially denied on the following grounds :
You have failed to establish that the beneficiary is your brother in that the
relationship that existed at his birth was terminated for immigration purposes
as the result of his adoption by Sugano rum on December 8, 1944 The termination of the adoption agreement and restoration of his name on the family register, filed and recorded on July 22, 1966, does not restore the original brothersister relationship that existed at birth.

The matter is now before the District Director for reconsideration.

Section 203(a) provides for the allocations of visas to " (5). . . .
qualified immigrants who are the brothers or sisters of citizens of the
United States". The term "brothers or sisters" as used in section
203(a) (5) of the Immigration and Nationality Act is not defined. The
normal definition is a person having the same parent or parents as
another. Funk and Wagnall's New Standard Dictionary of the English
Language (1947 ed.) ; Bouvier's Law Dictionary (3rd Rev. 1914) ;
Black's Law Dictionary (4th ed., 1951). As previously stated, the
petitioner and beneficiary are the legitimate issue of the same parents.
Section 101(b) (1) (A) defines "child" as used in section 203 and other
provisions of the Act as including "a legitimate child". That definition
is applicable to determine status under section 203 and other provisions
of Title II of the Act.

The petitioner has established the beneficiary is her "brother", the
legitimate child of her parents, and that he has since birth resided with
her parents as part of the same household. It is "the well-established
policy (determined by Congress) of maintaining the family unit
whenever possible" (Matter of IC—S—W---, 9 I. & N. Dec. 396, decided
by the Attorney General 8-7-61).
To conclude without judicial or precedent administrative determination to the contrary (and we find none) that the relationship of brother
and sister created by the legitimate birth of the petitioner and beneficiary to the same parents was destroyed by the subsequent adoption
of the latter would be to place upon the statute a harsher construction
than that intended by Congress.
Although the fact that the beneficiary had been adopted is immaterial for the reasons indicated below, it is noted that the adoption was
legally dissolved under the law of the jurisdiction in which the adoption occurred (Japan) and that, pursuant to such dissolution, the
498

Interim Decision #1805
beneficiary recovered "the status which he . . . possessed in his .. .
original house .. ."
Section 101(b) (1) (E) of the Immigration and Nationality Act, as
amended, contains the proscription that no natural parent of an
adopted child described in that section "shall thereafter, by virtue
of such parentage be accorded any right, privilege, or status under
this Act". However, neither that section nor any other provision of
the immigration laws, contains a similar proscription with regard to
brothers, sisters or other natural relatives of the adopted child. I find
that the petitioner has established that she and the beneficiary are
sister and brother, by reason of their being the legitimate children of
the same parents. Hence, the beneficiary is eligible for the preference
classification sought.

ORDER: The petition is approved for the classification of the bens..
ficiary under section 208(a) (5) of the Immigration and Nationality
Act, as amended.

497


interim Decision #2647

MATTER OF KING AND YANG
In Deportation Proceedings
A-15527215
A-15527216
Decided by Board April 25, 1978
(1) An immigration judge has no authority to grant immunity from criminal prosecution
and he cannot reject a valid Fifth Amendment claim by purporting to bind the law
enforcement agencies in their freedom to prosecute.
(2) The respondents' Oriental appearance, combined with the past history of illegal alien
employment at the particular restaurant where they were encountered, and an
anonymous tip, gave rise to a reasonable suspicion by a Service officer of alienage
sufficient to justify the very limited invasion of privacy engendered by a nondetentional
questioning.
(3) A Service official's knowledge that the respondents were not in possession of their
immigration documents created a reasonable belief that the respondents were in violation of the immigration laws. This belief that a violation of the law has occurred,
together with a reasonable belief that the respondents were "likely to escape," justified
the officer's determination to place the respondents in custody.
(4) Under section 264 of the Immigration and Nationality Act, an alien is required to have
in his possession a certificate of alien registration or alien registration receipt card and
similarly, he is required to produce it to a Service officer engaged in normal and proper
fulfillment of his duties. Therefore, there was no violation of the respondents' Fourth or
Fifth Amendment rights when deportability was based on the information obtained as
the result of a lawful detention and voluntary handing over of their Crewman's Landing
Permits (Forms 1-95).
{5) Inasmuch as the respondents were clearly bona fide seamen at the time of their illegal
entry, they had made previous trips to the United States as seamen and had reshipped
within the allotted time, they had not previously violated the immigration laws, they
manifested an ability and willingness to depart voluntarily and there was nothing to
show a lack of good moral character, they merited voluntary departure in the exercise of
discretion.
■CEARGE:

Order: Act of 1952—Section 241(a)(2), I. & N. Act [8 U.S.C. 1251(a)(2))—Noniminigrant crewman—remained longer [both recrinnripnts)

gitl BEHALF OF RESPONDENTS:

ON BEHALF OF SERVICE:

Martin L. Rothstein, Esquire
Fried, Fragomen & Del Rey
515 Madison Avenue
New York, New York 10022

George Indelicate
Appellate Trial Attorney

"BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

502

interim iiecision IFZ04 I
In decisions dated April 21, 1976, the immigration judge found the
two respondents deportable under section 241(a)(2) of the Immigration
and Nationality Act as crewmen who remained longer than 29 days
authorized by the Service, and denied them the privilege of voluntary
departure. The two cases have been consolidated On appeal. The . respondents challenge the finding of deportability, alleging that they were
based upon evidence obtained in violation of the Fourth and Fifth
Amendments. They also challenge . the denial of voluntary departure.
The appeal will be dismissed as to the finding of deportability, and
sustained as to the denial of voluntary departure.

The two respondents were arrested during a Service operation at a
Chinese restaurant, where they were employed as a waiter and a
dishwasher. Upon being interrogated as to their alien status, both
respondents stated that they were Chinese, and that their immigrations
were at their common place of residence,' an apartment building operated by the restaurant owner. The two respondents were then placed in
detention in a Service vehicle and subsequently transported to the
apartment house where, while still under detention they gave to a
Service officer their Crewman's Landing Permits (Forms I-95). Based
on these forms, the two respondents ware arrested. These documents

were the only evidence offered by the Government at the hearing to
establish deportability.
At the hearings on April 21, 1976, both respondents stood mute,
acknowledging only that the Orders to Show Cause had been served
upon them. They based their refusal to testify upon a claim under the
Fifth Amendment justified by the possibility of criminal prosecution
under sections 252(c) and 264(e) of the Immigration and Nationality Act.
The immigration judge sought to compel the respondents to testify,
stating that the Government would be precluded from prosecution if
they did so. 1 However, it is beyond the power of an immigration judge
to reject a valid Fifth Amendment claim by purporting to bind the law
enforcement agencies in their freedom to presecute. The immigration
judge cannot grant immunity from criminal prosecution. Nonetheless,
since the immigration judge apparently did not rely upon the respondents' justified silence under the Fifth' Amendthent in finding them
deportable as charged, we do not address the issue of whether reliance
upon a respondent's statements, compelled at the hearing in spite of a

valid Fifth Amendment claim, would warrant reversal. The sole issue as
to deportability considered on appeal is whether the two documents, the
An alien can, because of the possibility of criminal prosecution for. violation of the
immigration laws, decline to testify at a deportation hearing on the basis of the Fifth

Amendment. The alien may, however, unlike the criminal defendant, be required to
answer nonincriminatory -questions about his alien status. Lava. v. INS, 422 F.24 807 (7
Cir. 1967).

503

1.4 J.W...L.LLIL AIGt..101.1-111 IrLtrt

I

Forms 1-95 procured from the respondents, should have been suppressed.
The respondents first challenge the constitutional validity of the initial interrogation in the restaurant. At the hearing, the Service officer
who conducted the interrogation testified that he obtained the consent
of the owner of the restaurant to enter the cooking area. The presence of
the officer on the premises, then, was clearly proper. See Schneckloth. v.
Bustantonte, 412 U.S. 218 (1973). The officer testified that he received a
letter, signed by an unknown person and with no return address, stating
that there were illegal aliens employed in the restaurant. The letter was

not produced at the hearing. Nevertheless, the immigration judge was
free to believe the officer's testimony that the letter had been received.
The officer also testified that he had, on three privious occasions, arrested illegal aliens working within the defined area of the kitchen of the
restaurant. He testified further that it was his intent to interrogate any
person of Oriental appearance "between the ages of 15 and 60" (Tr. of
King, p. 17) who was employed at the restaurant. His interrogations of
the respondents, he stated, were not occasioned by any particular actions
or characteristics of the respondents which led the officer to believe that
they were aliens. Rather, the respondents were interrogated because
they were of Oriental appearance, and because they were employed at
the restaurant.
Under section 287(a)(1) of the Immigration and Nationality Act, an
officer of the Service has the power -without warrant to interrogate any
person believed to be an alien as to his right to be in the United States.
However, it is well settled that the powers conferred on Service officers
under section 287(a)(1) are circumscribed by the right of individuals
under the Fourth Amendment to b e free from unreasonable searches
and seizures. United States v. Brigrzoni-Ponee, 422 U.S. 873 (1975). In
Brignoni Ponce, where the defendant challenged a vehicular stop which
took place away from a fixed checkpoint, the Supreme Court held that
Service officers may stop an automobile only "if they are aware of
specifically articulable facts, together with rational inferences from
those facts, that reasonably warrant suspicion that the vehicles contains
aliens who may be illegally in the country." 422 U.S. at 884. Counsel
argues that the standard adopted in_ Brigncnii-Ponce should be applied
in the present situation.
We do not have here the temporary detention of a moving vehicle
involved in Brignoni-Ponce. See United States v. Martinex-Fuerte, 428
U.. S. 543, 560-562 (1976). At the time the aliens were first questioned in
the restaurant no detention was involved. There was a reasonable
suspicion of alienage. The Service officer testified at the hearing that on
three previous occasions he had participated in the arrest of illegal
alters employed by the identical establishment. The respondents' Orien,
-

504

Interim Decision #2647
tal appearance, combined with the past history of illegal alien employment at that particular restaurant, and the anonymous tip, clearly
would give rise to a reasonable suspicion of alienage sufficient to justify
the very limited invasion of privacy engendered by a nondetentional
questioning. Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1069
1071 and n. 10 (7 Cir. 1976), aff'd in part and vacated in part, 548 F.2d
715 (7 Cir. en banc 1977); United States v. Morales Cuevas, 546 F.2d
427 (9 Cir. 1976) (table); Ojeda Vinctles v. INS, 523 F.2d 286 (2 Cir.
1975); Shu Fuk Cheung v. INS, 476 F.2d 1180 (8 Cir. 1973); Cheung Tin,

-

-

-

Wong v. INS, 468 F.26 1123 (D.C. Cir. 1972); Au, Yi Lau v. INS, 445

F.2d 217 (D.C. Cir.), cert. denied 404 US: 864 (19.71); Yam Sang Kwai
v. INS, 411 F.2d 683 (D.C. Cir. 1969), cert. denied 396 U.S. 877 (1970).
See also Marquez v. Kiley, 436 F. Supp. 100 (S.D.N.Y. 1977).
Upon learning that the respondents were aliens, the Service officer
asked them if they were in possession of immigration documents which
could establish their status. When the Service officer was told that the
respondents' documents were at the apaitrnent house, the respondents
were placed in the back seat of a Service vehicle from which the inside
handles had been removed. At this point they were dearly in custody.
Since the officer knew that the respondents were aliens and that they

were not in possession of their immigration documents, the officer had a
reasonable belief that the respondents were in violation of the immigration laws SrP Neda-Vinales, supra, at 288; Cheung Tin Wong, supra
at 1128. However, under section 287(a)(2), in order to make an arrest an
officer must not only have reason to believe that a violation of the law
has occurred, but he must also reasonably believe that the individual is
"likely to escape." Due to the difficulty of making such an on-the-spot
determination, the courts have held, essentially, that an officer's determination will not be upset if there is- any reasonable basis for it. Marquez v. Kiley, supra, at 108. See United States v. Cantu, 519 F.2d 494 (7
-

Cir.), cert. denied 423 U.S. 1035 (1975); United States v. Meza Campos,
500 F.2d 33, 34 (9 Cir. 1974); LaFranca v. INS, 413 F.2d 686, 689 (2 Cir.
1969).
Here, there was plainly a reasonable basis for the arrests not only on
the ground that the aliens might escape, but also for the purpose of
further investigation into their immigration status.
Counsel for the• respondents also argues that they were compelled to
turn over their documents to the Service officer, and that, in view of the
criminal penalties which attach to out-of-status crewmen under section
252(c) of the Act, they were thereby forced to incriminate themselves in
violation of the Fifth Amendment. It has not been shown that there was
any search, or anything other than a voluntary handing over of the
documents. However, in any event, under section 264 of the Act, an
alien is required to have in his possession a certificate of alien registra-

505

interim Decision #2647
tion or alien registration receipt card. The Form 1-95 issued to crewman
is such a certificate of alien registration, and is subject to the requirements of section 264. Matter of Yau, 14 I. & N. Dec. 630 (BIA 1974). A
necessary corollary to the duty to carry this document is the duty to
produce it to a Service officer engaged in the normal and proper fulfillment of his duties. Matter of Yau, supra. The information content of the
Form 1-95 is completely determined by the Government; a duplicate
copy of the Form 1-95 is kept by the Immigration and Naturalization
Service in its records.
We note that this is a civil deportation proceeding, not a criminal

prosecution for violation of section 252(c). No such prosecution has been
instituted. However, even in the context of a criminal prosecution, the
respondents' argument would be questionable under the "required records" doctrine. Shapiro v. United States, 335 U.S. 1 (1948). See also
Marchetti v. United States, 390 U.S. 39, 57 (1968). In the context of a
criminal prosecution for violating sections 262, 265, 266(a) and 266(b) of
the Act, it was held that the alien registration statutes are "essentially
noncriminal and regulatory provisions" which come within the "required
records" doctrine. United States v. Sacco, 428 F.2d 264, 271 (9 Cir.
1970), cert. denied 400 U.S. 904. See also United States v. CamposSerrano, 430 F.2d 173 (7 Cir. 1970), aff'd on another ground, 404 U.S.
293 (1971); Matter of Yau, supra; Matter of Chen, Interim Decision 2440
(MIA 1975), affd Chen v. INS, 537 F.2d 566 (1 Cir. 1976). See further
Fisher v. United States, 425 U.S. 391 (1976); Andresen v. Maryland,
427 U.S. 463 (1976). We do not find any violation of the respondents'
Fourth or Fifth Amendment rights.
The respondents also appeal from the decisions of the immigration
judge denying them the privilege of voluntary departure. In denying
voluntary departure, the immigration judge relied upon the fact that
the respondents had been illegally in the United States for a period of
one and one-half years in one case and two years in the other.
In Matter ofM--, 4 I. & N. Dec. 626 (BIA 1952), we sat out the
standards which should govern the grant of voluntary departure to
crewmen. Once the requisite good moral character has been established, the immigration judge should consider previous violations of the
immigration laws, the ability and willingness of the respondent to depart from the United States, and whether the alien was a bone fide
seaman at the time of entry. See also Matter of Tsang, 14 I. & N. Dec.
94 (BIA 1973); Matter of Ocampo - Ocampo, 13 I. & N. Dec. 661 (BIA
1971). The fact that an alien is presently in the United States illegally is
clearly not a factor in determining his eligibility for voluntary departure. To so hold would lead to the anomalous result of rendering
v-oluntary departure unavailable to all except those not subject to deportation.
506

inLernu

.L.Mt.7.1,b1V11

We have reviewed the record in both cases, and find that the two
respondents were clearly bona fide seamen at the time of their illegal
entry. Both had made previous trips to the United States as seamen and
had reshipped within the allotted time. Similarly, there is no evidence
that either respondent has previously violated the immigration laws.
Both have manifested an ability and willingness to depart from the
United States if voluntary departure is allowed. There have been no
suggestions that either of the respondents lack the requisite good moral
character. We shall therefore sustain the respondents' appeal from the
denial of voluntary departure, and grant them 20 days in which to
depart voluntarily from the United States.
ORDER: The appeals are dismissed as to the finding of deportability.
The appeals are sustained as to the denial of voluntary departure.
FURTHER ORDER: The respondents are permitted to depart from
the United States voluntarily within 30 days from the date of this order
or any extension beyond that time as may be granted by the District
Director; and in the event of failure so to depart, the respondents shall
be deported as provided in the immigration judge's orders.

507


Interim Decision #1885

MAL

•Lit

OF STIN

In Visa Petition Proceedings
A-17203702

Decided by Regional Commissioner July 8, 1968
preference classification as a domestic filed by a petitioner who is an alien against whom an order of deportation is outstanding, is denied since the status of petitioner is not settled or
stabilized and, consequently, the offer of employment, which is without any
basis of permanency, does not meet the requirement of section 203(11)(6) of
the Immigration and Nationality Act, as amended, that it be "not of a temporary
or seasonal nature."
ON ItBazar or Parrriossa Peter D. Bogart. Esquire
6404 Hollywood Boulevard
Los Angeles, California 90028

A vibd, petition to accord a beneficiary sixth

The petitioner (File All 914 577 relates), a national of China, was
admitted as a nonimmigrant student on September 10, 1960 until
June 15, 1961, with subsequent extensions of stay until June 4, 1962.
At a deportation hearing on December 23, 1963, a special inquiry officer
granted. petitioner voluntary departure within the time and conditions
directed by the District Director, with an alternate order of deportation that if the petitioner failed to depart as so directed, the privilege
of voluntary departure shall be withdrawn and his deportation ordered
without further hearing. On the same date, the petitioner was advised
that his departure was not required at that time but that he would be
notified at a later date concerning voluntary departure requirements.
On May 13, 1966 the petitioner was advised that he was required to
depart from the United States voluntarily on or before June 3, 1966.
The petitioner did not do so but remained in this country. To date,
the order of deportation remains outstanding.
On September 30, 1966 a petition for sixth preference classification
was filed in the petitioner's behalf, which was denied by the District
Director on July 25, 1967 and on appeal remanded to the District Director by the Regional Commissioner for the introduction of further

800

Interim Decision #1885
evidence. Since the Regional Commissioner's order of October 9, 1967,
a further decision has not been made by the District Director on the
petition, nor has it again come forward to the Regional Commissioner.
The record further shows that the petitioner in the instant case married

his alien spouse in New York City on December 23, 1961. They have
three children, all born in this country.
The beneficiary is a 64 -year - old widowed Chinese national, who was
admitted as a visitor on October 22, 1966 until April 20, 1967 with a
subsequent extension to October 21, 1967. A further application for
an extension of stay was denied 'by this Service on October 20, 1967
and the beneficiary granted until November 30, 1967 to depart voluntarily. In that application, the beneficiary stated that her reasons for
requesting an extension of stay for another half-year with the petitioner's family were because of her old age and the fact that she might
not see them again. She also stated therein that she had not been
employed. She has been residing with the petitioner since her admission. The instant petition was submitted in her behalf on October 27, 1967. The petition was returned for signature and upon receipt
it was held to have been filed on or about January 25, 1968.
The file shows that the petitioner seeks the beneficiary's services as
house mother (mother's helper) ; that the beneficiary is to work 44
hours a week at $175.00 a month plus room and board. The duties to be
performed are described as follows :
General.housework, supervise children, care for newborn baby, feed baby, some
washing, ironing, taking children for walk.

The only requirements for the position are "practical experience-know Chinese."
Supplement I to Form ES-575B states that the number of persons
residing at the place of employment is two adults and three children;
that the gross family income of all adult members domiciled therein

is $800.00 (plus) ; that only the petitioner is presently employed, as
his spouse takes care of the chldren; that the petitioner is buying
a home with four bedrooms and two bathrooms; and that the persons
for whom the alien will be required to give special care and attention
are the children, ages 31/2, 21/i and 5 months, all Chinese-speaking. The
Supplement further states that the alien beneficiary is the petitioner's
mother.
The petitioner with attorney present was interviewed on March 28,
1968 in connection with the instant petition. The Service at that time
'as advised that the petitioner has never previously employed a live-in
domestic; and that as the petitioner's wife sometimes works with him,
the petitioner needs a domestic. The petitioner stated that other
domestics want too much money; and that he requires a domestic with

801

Interim Decision #1885
the ability to cook Chinese food and speak that language.. He claimed
that the offer is definite; that the petition is not an accommodation, as
he really needs a domestic and that he would accept another person if
conditions of salary, language and other aspects were the same as in
the instant case. At the time of that interview, the petitioner presented
a copy of his federal income tax return for 1967, reflecting a total income that year of $10,008.00, and that he is self- employed_ The petitioner stated at that time that although his tax return shows he is
self-employed, he actually is employed by and does tailoring work and
is paid on a, commission basis for a Los Angeles, California clothing
firm. Also submitted at time of interview was a certificate signed by
the beneficiary in which she states that she has been employed in the
petitioner's home as -a "homemaker and general helper" for almost a
year, has her own room, can take all the food she wants and since
July 1, 1967 has been receiving $175.00 a month.
Oral argument was granted and heard on June 11, 1968.
Counsel on appeal urges that the instant petition be approved, and
lists several points in support of his position. In summary, counsel sets
forth the following: (1) The petition was duly filed with supporting
documents including a certification issued by the Department of Labor;
(2) the beneficiary was previously employed abroad for some 20 years,
and for approximately a year in the United States in the occupation
for which her services are now sought; (3) although the petitioner is
seeking a benefit by having the beneficiary in his employ, his minor
children will actually benefit more from her care than anyone else; (4)
the District Director's finding that the petitioner's status in this country is only temporary is in error for he is within the relief found in
section 241(f) of the Act, therefore not deportable; (5) the petitioner,
by reason of the length of his presence in the United States, is also
eligible for suspension of deportation (section 244 of the Act) ; (6) the
petitioner is financially able to employ a housekeeper, even though
such employment is restricted to a person with linguistic, culture and
cooking abilities; (7) the petitioner has the facilities to employ and
house household help; (8) the beneficiary literally pulled up stakes
and came out of semi-retirement to come to this country to be of assistance to her son (the petitioner) and his family; (9) section 203(a) (6)
of the Act is cited and the District Director found to have misapplied
the statute; (10) a shortage of household help in this country is emphasized; (11) it is pointed out that even if the beneficiary cannot be
employed by the petitioner, she can readily find employment in the
household of others in this area; (12) while the sixth preference -visa
requirements are designed to screen out "unemployables", the bene-

802

Interim Decision #1885
ficiary is not within this group, since she is a qualified employable;
(13) the petitioner is a "person" as described in section 201(a) of the
Act, and as such is entitled to make a visa petition; to preclude discrimination, counsel finds that a citizen, resident alien and non -resident
aliens may file petitions; (14) since the statute permits a person to
file a visa petition, the "status" of the petitioner is wholly irrelevant;
(15) after appropriate consultation and a finding that the facts presented in a petition matter are true, the Attorney General must approve

the petition; (16) since the three United States citizen children are the
ones who will benefit most from the beneficiary's services, the petition
should be approved, notwithstanding the petitioner's or his wife's
status in this country; (17) again it is held that since the petitioner
has been in this country for a. sufficient period of time, he is eligible to
seek suspension of his deportation and also is not subject to deportation

in view of section 241(f) of the Act. He is thus not a deportable alien,
and in view of the latter section, the outstanding order of deportation
is void_ Based on these factors, the petitioner is a permanent resident,
and the employment offered is not of a temporary nature; (18) it is
pointed out that the Immigration Pool and quotas of quota areas
terminated on June 30, 1968 and for those reasons a holding that an
immigrant visa is not immediately available for the beneficiary is an
improper holding.
We have carefully reviewed this record, including representations
made on,appeal and during oral argument, and have also considered
the petitioner's record (INS File A 11 914 577). We are in accord
with counsel and advance no argument on some of the points he raises
for his appeal. We do not concur with him on other points set forth

in the brief. That the petition was filed, adjudicated, appealed is quite
evident; otherwise this decision would not be written. That the beneficiary is the petitioner's mother lends support to the statement that
she is acquainted with and experienced in household work and child
care. Whether or not a bona fide employer/employee relationship exists
in this case between son and mother is a point not too well covered or
settled by this record. The record does contain a certification issued
by the Bureau of Employment Security. As to the minor children being
the actual persons receiving the benefits of the beneficiary's services, the
fact remains that they are not the petitioners, and were they such it
would be highly unlikely that they could meet the terms of the petition
and relating documents submitted in support thereof. As to the petitioner being within the relief found in section 214(f) of the Act, and
thus not deportable but a resident alien—the petitioner entered the
United States as a nonimmigrant student on September 10, 1960. Entry

803

Interim Decision #1885
as a nonimmigrant does not bring an alien within that section. See
Matter of Cadiz, Int. Dec. No. 1824, holding that benefits of section

241(f) are not available to waive deportability based on entry as a
nonimmigrant, and also Matter of West, Int. Dec. No. 1850, holding
that since a nonimmigrant is deportable on an overstay charge, the
benefits of section 241(f) are not available to such alien. The petitioner
herein was found deportable on a "remained longer" or "overstay"
charge. As to the petitioner being a lawful resident alien since he is
eligible to seek suspension of deportation (section 244), there is no
evidence of record that he has applied for or been granted such relief.
He is, therefore, an alien whose deportation has been ordered, and
since he is neither a citizen of this country, a lawful resident alien,
or a lawful nonresident alien, his status is very much temporary or unsettled at the moment. We quarrel not with his financial stability and

that he is purchasing a house in this country. To the fact that the beneficiary may be employable elsewhere if not by the petitioner, we take
no exception. However, the petition was submitted by petitioner seeking her services by him in his household and on that basis the Department of Labor certification was issued. For her to be employed elsewhere would be contrary to the intent of the statutes (Matter of Plaitler, Int. Dec. No. 1706). Again, that the petitioner was considered as
a "person" (section 204(a) ) is established in that his petition was accepted, adjudicated, appealed and this decision rendered.. The contention that a petition he approved after appropriate consultation and
a finding that the facts are true is a matter of law and with which we
do not disagree. The petition in this case is to fill a permanent position
in the petitioner's household. Since the petitioner's status is neither
permanent nor settled, it is within the District Director's judgment to
find that the position to be filled on these records is less than permanent
and to deny on that basis (section 203 (a) (6) of the Act, .. performing specified skilled or unskilled labor, not of a temporary nature or
seasonal nature . . . ). On these records, we do not find that the petitioner's status in this country is in any manner settled or stabilized,
therefore any offer of employment made by him is without any basis
of permanency. We are quite aware of counsel's statement that the
"immigration pool" and quota system of yesteryear terminated on
June 30, 1968 and that there may be some problems encountered in acquiring immigrant visas or numbers on and after July 1, 1968. In visa
petition proceedings, the burden of proof to establish eligibility sought
for the benefit conferred by the immigration laws rests upon the petitioner. Matter of Brantigan,111. & N. Dec. 493.) As heretofore stated,

804

Interim Decision #1885
we have carefully reviewed both these records and all the material
submitted. The petitioner has not sustained that burden. It is concluded that the petition was properly denied. The District Director's
order will be affirmed.
ORDER: It is ordered that the appeal be and the same is herewith
dismissed.

s05


Interim Decision #2003

MATTER OF LEJ M AN
In Section 212(e) Proceedings
A-13382356
Decided by Regional Commissioner August 7 ,..1969
An exchange visitor is granted a waiver of the foreign residence requirement of section 212(e) of the Immigration and Nationality Act of 1952, as
amended, since compliance therewith would result in exceptional hardship
to his United States citizen child where applicant and his family, because
of applicant's Jewish background, would be subject to social and economic
persecution in the country to which they must depart (Poland).
ON BEHALF OF APPELLANT:

Donald L. Ungar, Esquire
517 Washington Street
San Francisco, California 94111

This case comes before the Regional Commissioner on appeal
from the decision of the District Director San Francisco, -who on
June 20, 1969, denied the application in that the appellant had
not established that compliance with the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as amended, would impose exceptional hardship of
his minor United States citizen child.
The appellant is a 26-year-old married male, a native and citizen of Poland who was admitted to the United States as an exchange visitor under section 101 (a) (15) (J) of the Act on October 6, 1965, and received extensions of stay in that status to June
30, 1968. He was sponsored by the Department of State under
Exchange Program G—I-1 destined to the University of California for graduate study in English and English Literature. He has
earned a Master's degree and is presently working for his Ph.D.,
which he expects in 1970. He is on a University of California Regents Fellowship Grant of $2,666.66 a year ; he works as a library
assistant earning approximately $120.00 a month and helps manage the apartment house where he lives, for which he receives a
reduced monthly rental. The appellant's wife, age 28, also a native and citizen of Poland, was admitted as a visitor on July 3,

379

Interim Decision #2003
1966 and following their marriage on August 31, 1966, in Berkeley, was changed to "J-2" status as the wife of a "J-1" principal
exchange alien on November 17, 1966, and granted extensions of
stay in that status to June 30, 1968.
The appellant and his wife have a United States citizen child,
born July 23, 1967, in Oakland, California. Evidence of their lawful marriage and the birth of the child has been presented. The
family lives in Berkeley, California. The present application was
filed January 22, 1969, and alleges that compliance with the twoyear foreign residence requirement would impose exceptional
hardship on the minor citizen child.
Section 212(e) of the Act, in pertinent part, provides as follows:
That upon favorable recommendation of the Secretary of State, pursuant to
the request of an interested United States Government agency, or of the
Commissioner of Immigration and Naturalization after he has determined
that departure from the United States would impose exceptional hardship
upon the alien's spouse or child (if such spouse or child is a citizen of the
United States or-a lawfully resident alien), the Attorney General may waive
the requirement of such two-year foreign residence abroad in the case of
any alien whose admission to the United States is found by the Attorney
General to be in the public interest.

The appellant alleges that if he is required to depart from the
United States and go to Poland, he, his wife and child would be
subject to persecution because of his Jewish background. His father, who is one-half Hebrew, was held in a concentration camp
during the last world war, which contributed to his broken
health, and is now retired. His mother, who is one-fourth Hebrew, manages a small government-owned store. They live in Poland. The appellant alleges that the present anti-Semitism practiced by the Polish government and condoned by the majority of
the population constitutes social and economic persecution which
would impose exceptional hardship on himself, his wife and child.
In support of his contentions of anticipated persecution, he has
presented various newspaper articles from United States newspapers which verify his claim that the people of Jewish background
are subject to social and economic persecution in Poland. A New
York Times article dated December 30, 1968, under the heading
"Leaving or Staying, the Jews of Poland Find the Road Hard",
illustrates numerous incidents of the persecution of people of
Jewish background and states: "Rarely in its long history in
Eastern Europe has indigenous anti-Semitism been so blatantly
well-organized as in Poland this year."
A San Francisco Chronicle article dated April 22, 1969, under

380

Interim Decision #2003
the heading "Forced Emigration" also describes incidents of persecution of Jews in Poland and contains the statement: "Polish
citizens of Jewish origin who are no longer welcome in their
homeland are crowding the refugee camps of . "
Counsel in his appeal, describes an article from "New Repub:ic" dated January 18, 1969, where it tells the story of how a
young journalist was forced from the Communist Party, forced
from his job, and finally from Poland itself because of the Jewish
ancestry he scarcely remembered. That he had a non-Jewish wife
and children made no difference to the Polish authorities.
Counsel also quotes from the comments of Congressman
Feighan regarding the Matter of Kovac v. Immigration and Naturalization Service, 407 F. 2d 102, where the Congressman said
"Techniques of persecution are not limited to bodily violence
alone, tyranny over the mind and spirit of a person has been
demonstrated as more fearsome than the ancient methods of torture which characterized the Communist takeover of many countries of Central and East Eueope."
The record also contains a letter dated March 26, 1969, to the
District Director San Francisco from the Chief, Field Operations
Division, Visa Division, Department of State, which in part
states:
Despite the general policy of the Department of State to insist that exchange visitors, especially those receiving State Department grants, fulfill
the two year foreign resident requirement, the circumstances in this case
appear to justify an exception. The fact that Mr. Lejman's coming to the
United States in 1965 was privately arranged minimizes any negative effect
his adjustment to immigrant status would have on the present exchange program, and the welfare of his American citizen child is also important consideration supporting the waiver application.
The Department of State, would, therefore, interpose no objection to favorable action in Section 212(e) waiver applications submitted by the
Lejmans.

The appellant alleges that the unavailability of employment, because of persecution, to adequately support his family coupled
with the fact that his family would be ostracized from social life
would constitute exceptional hardship and that he did not want
his daughter to grow up in an anti-Semitic environment and
Communist dominated society. The Matter of Cruikshank, 11 I. &
N. Dec. 558, holds that persecution because of nationality and religion establishes exceptional hardship and the Matter of Courpas, 11 I. & N. Dec. 647, holds that economic discrimination also
establishes exceptional hardship.
In view of the foregoing, it is found that the appellant's corn381

Interim Decision #2003
pliance with the foreign residence requirement of section 212 (e)
of the Act would impose exceptional hardship upon his United
States citizen child. The case will therefore be remanded to the
District Director, San Francisco, to prepare an appropriate letter
for submission to the Chief, Facilitative Services Division, Bureau of Educational and Cultural Affairs, Department of State,
requesting the recommendation of the Secretary of State.
ORDER: It is ordered that the case be remanded to the.District Director in line with the above.

382


Interim Decision #2339

MATTER OF ALLMON

In Visa Petition Proceedings
A-20284228
Decided by Board January 16, 1975
Petitioner is a United States citizen who sought immediate relative status for his alleged
adopted son under section 201(b) of the Immigration and Nationality Act. Beneficiary
was adopted in Matamoros, Tamaulipas, Mexico. Article 400 of the Civil Code of
Tamaulipas provides for adoption only by persons "who have no descendants." Petitioner
had two natural children. Therefore the adoption was not valid and the petition was
properly denied because the beneficiary does not qualify as the child of the petitioner
under section 101(b)(1)(E) of the Act.
ON BEHALF OF PETITIONER: Pro se

The petitioner is a United States citizen who sought immediate relative status for his alleged adopted son under section 201(b) of the
Immigration and Nationality Act. The petition was denied by the district director in a decision dated November 15, 1973. The petitioner
appealed from that denial. The appeal will be dismissed.
The petitioner presented a decree of adoption, dated December 5,
1970, issued by the Civil Registry of the City of Matamoros in the
Mexican State of Tamaulipas, according to which he and his wife
adopted the beneficiary.
The district director denied the petition nn the ground that the
adoption was not valid inasmuch as the petitioner and his wife have two
natural children. As the district director pointed out, Article 400 of the
Civil Code of Tamaulipas provides for adoption only by persons "who
have no descendants." We have secured a translation of Article 400 from
the Library of Congress. It reads as follows:
Art. 400. Persons over 30 years of age, in the full exercise of their rights and who
have no descendants, may adopt a minor or an incompetent, even if he is of legal age,
provided the adopter is 17 years older than the person adopted, and that the adoption is
beneficial to the latter.

We were advised by the Library of Congress, in a memorandum
dated December 13, 1974, that Article 400 of the Civil Code of
Tamaulipas is equivalent to Article 390 of the Civil Code of the Federal
District and Territories of the Republic of Mexico, which apparently has
been adopted verbatim by a number of Mexican states.
165

Interim Decision #2339
We accordingly agree with the district director's conclusion that the
beneficiary does not qualify as the "child" of the petitioner under section
101(b)(1)(E) of the Immigration and Nationality Act.
The appeal accordingly will be dismissed.
ORDER: The appeal is dismissed.

166


Interim Decision #1724

3/TATTER

Or

TALAW0A

In Deportation Proceedings
A-13550300
Decided by Board April 17, 1967
Whore roapondont'e business failure was reasonebly contemporaneous (within

a period of less than 90 days) with the hearing in which he had the burden
of establishing he was entitled to an exemption from the labor certification
requirements of section 212(a).(14) of the Immigration and Nationality Act.
no amended, motion to reopen proceedings is granted for the introduction of

evidence material to the issue of whether respondent, in conjunction with his
application for adjustment of status under section 245 of the Act, qualifies
pursuant to 8 OPR 212.8(b) (4) for an exemption from obtaining a labor
certification as one engaged in a commercial or agricultural enterprise.

CHARGE:

Order: Act of 1952—Section 241(a) (9) [8 U.S.O. 1251(a) (9)j—Nonimmigrant—Failed to comply with conditions of nonimmigrant status.
ON BEHAIS or RESPONDENT : Donald L. 'Ungar, Esquire
220 Bush Street
San Francisco, California 94104

An order entered by the Board of Immigration Appeals on February 10, 1967 dismissed an appeal by the trial attorney at San Francisco from a decision of the special inquiry officer adjusting the
respondent's status to that of a permanent resident alien pursuant
to the provisions of section 245 of the Immigration and Nationality
Act. The order entered by the special inquiry officer terminated the
proceeding. The case is again before us on a motion filed by the Immigration and Naturalization Service on March 13, 1967 requesting
a reopening of the proceeding for the introduction of evidence alleged
to be material to the issue of whether the respondent qualifies for an
exemption from obtaining a certification from the Secretary of Labor
pursuant to the provisions of 8 CFR 212.8(b) (4). Counsel for the
respondent has submitted a brief in opposition to the motion.
The respondent, a native and citizen of Tonga, has been found
821-654-69----14

187

Interim Decision #1724
deportable under the provisions of section 241(a) (9) in that he is a
nonimmigrant who failed to comply with the conditions of his nonimmigrant status. The respondent is a married male alien, 40 years of
:age. He was admitted to the United States at the port of Honolulu,
Hawaii on January 15, 1968 as a student. Thereafter, his status was
changed to an industrial trainee and he was authorized to remain in
that status until March 6, 1964. The special inquiry officer in a decision
.dated September 21, 1966 concluded that the respondent was not required to have a certification from the Secretary of Labor as a prerequisite for the issue of an immigration visa inasmuch as he was
:exempted by the provisions of 8 CPR 212.8(b) (4). We affirmed the
:conclusion reached by the special inquiry officer in our decision of
February 10, 1967.
Supporting the Service motion is an affidavit executed by the Chief,

General Investigations Section of the Immigration and Naturalization Service on March 6, 1967. It states in substance that the respondent no longer operates a mobile nursery and gardening service and
since December 12, 1966 has been employed by Pan American Airways
as a "fleet serviceman" working a 5-day, 40-hour-week schedule. The
Service maintains that since the respondent ceased to be an independent contractor prior to the Board's decision of February 10, 1967 this
factor "casts serious doubt on the finding that the business in which he
i( respondent) was engaged ... was a 'commercial or agricultural enterprise' of a substantial nature within the meaning of 8 CFR 212.8
-( 3) (4)."
Counsel in his reply to the Service motion concedes that the respondent's commercial venture was not successful. He opposes a reopening
of the proceeding on the ground that "no ironclad guarantee of business success can be demanded of an alien who seeks the labor certification exemption." Counsel relies on a statement by the Board in its
opinion of February 10, 1967, to wit, "The test of an alien's ability and
resources to carry on the contemplated enterprise cannot be measured

by hard and fast rules or by the amount of capital he invests in the
undertaking. It will vary with the nature of the enterprise. Whether
:the contemplated enterprise will be one that has a reasonable chance
of success cannot be tested in every case by the alien's ability or resources. There are certain risk facts associated with the establishing of

any commercial or agricultural enterprise."
Counsel maintains that the respondent has met the burden imposed
:by the statute on one occasion and that subsequent events have no bearing on the issue because "all that is required is a showing of the alien's
good faith intention of carrying on the contemplated enterprise and a
•reasonable chance of success, based upon his abilities and resources."
188

Interim Decision #1724
We said in our opinion of February 10, 1967 that an alien "who seeks
an exemption from the labor certification requirement of section 212
(a) (14) has the burden of establishing his good faith intention of
engaging in a stated enterprise and his ability and resources to carry
on the stated enterprise." The hearing in the instant case was concluded
on September 21, 1966. Within a period of less than 90 days the respondent found it impossible to continue with the commercial venture
which he had established. The respondent, on the very day that his
counsel argued his case before this Board, accepted employment with
Pan American Airways as a "fleet serviceman." The affidavit supporting the motion states that the respondent's telephone at his place of
business (1528 Noe Avenue) was discontinued in November of 1966.
Since the failure of the respondent's business venture was reasonably

contemporaneous with the 'hearing in which he had the burden of
establishing that he was entitled to the exemption provided by 8 CFR
212.8(b) (4), we conclude that there is a sound basis for the Service
request for a reconsideration of the respondent's eligibility for adjustment of status under section 245 (supra). This rule should apply to

any case in which the adjustment of status has not been granted.
Counsel during oral argument before this Board on December 12,
1966 raised the issue of whether Public Law 89-781, 1 enacted subse-

quent to the special inquiry officer's opinion of September 21, 1966,
exempted the respondent from the labor certification requirement.
Counsel also urged the Board to rule that the Service should be estopped from invoking the provisions of section 212(a) (14) because
respondent's application for relief under section 245 was ready for
adjudication in May of 1965 before the present statute became effective.
This issue was raised by counsel in Matter of Hoeft, A-14127754,
Int. Dec. No. 1723, BIA, April 14, 1967. -We found that Congress
intended the amendment to section 245(c) enacted on November 2,
1966 (P.L. 89 732, 80 Stat. 1161) to benefit only persons whose appli-

cations were on file before December 1, 1965 and could not be previously considered because of the provisions of section 245(c). We
concluded that the amendment of section 245(e) created an exception only for those mentioned in the section, i.e. natives of the Western Hemisphere and adjacent islands, who had filed
,
applications for
adjustment of status before December 1, 19a. The respondent herein
filed his application for adjustment of status in February of 1964
but he is not a native of the Western Hemisphere or adjacent islands.
'Public Law 89-782 provides, inter olio, that Western Hemisphere natives may
adjust their immigration status under section 245 provided they had tiled their
applications prior to December 1, 1965. It also exempts such applicants from
the labor certification provided of section 212(a) (14).

189

Interim Decision #1724
Accordingly, no benefit accrues to the respondent by reason of the
amendment to section 245 of the Act of November 11, 1966 (supra). An
appropriate order will be entered.
ORDER: It is directed that the case be remanded to the special
inquiry officer for the introduction of evidence material to the issue
of the respondent's eligibility for relief under section 245 of the Immigration and Nationality Act and to permit the respondent an opportunity to testify and slibmit evidence in his own behalf on this

issue.
It is further ordered that the Board's order of February 10, 196T
be and the same is hereby withdrawn.

190


Interim Decision #2488

MATTER OF CHIANG
In Deportation Proceedings
A-18504376
Decided by Board July 30, 1075
Respondent, an applicant for adjustment of status under section 295 of the Immigration
and Nationa:ity Act, as amended, who seeks exemption from the labor certification
requirement of section 212(a)(14) of the Act under the provisions of 8 CFR 212.8(b)(4) as
an investor in one company, and who holds with another company an unrelated full-time
job for which he has not obtained a labor certification, would be ineligible for exemption
from the labor certification requirement as an investor even if he could submit adequate
proof of his iivestment since a grant of "investor" status to such an alien who holds an
unrelated full-time job in competition with American labor would.circumvent the labor
certification :-equirements of the statute.
CHARGE:

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

Hiram W. Ewan, Esquire
840 North Broadway, Suite 200
Los Angeles, California 90012

In a decision dated December 14, 1972, the immigration judge found
the respondent deportable as charged, denied his application for adjustment of status under section 245 of the Immigration and Nationality
Act, and granted him the privilege of departing voluntarily from the

United States in lieu of deportation. The respondent has appealed from
that decision. The appeal will be dismissed.
The alien respondent is a native and citizen of China. At the hearing,
he conceded deportability. The only issue on this appeal concerns the
respondent's application for adjustment of status as an alien who is
exempt from the labor certification requirements of the Act by virtue of
the "investor" exemption contained in 8 CFR 212.8(b)(4).
The respondent entered the United States in 1969 as a nonimmigrant
student. Shortly thereafter, in violation of his student status, he took
employrriFolt with the Global Marine Company as an accountant. The
respondent was still employed by the Global Marine Company at the
time of the :nearing, earning $805 per month. No labor certification for
such employment was obtained.
656

Interim Decision #2488
The respondent claims to have invested in an enterprise known as the
California Herb Tonic Company. The exact nature of this business is
somewhat unclear from the record. The only evidence of the alleged
investment is an unaudited balance sheet, prepared by the respondent
himself, and a City of Los Angeles Business Tax Statement. 1

The respondent formally presented his "investor" claim prior to the
1973 amendment of 8 CFR 212.8(b)(4). He is therefore entitled to have
his claim judged by whichever formulation of the regulations is more
favorable to him. Matter of Heitland, 14 L & N. Dec. 563 (BIA 1974);
Matter of Ko, 14 I. & N. Dec. 349 (Dep. Assoc. Comm. 1973). However,
the respondent's "investor" claim is patently inadequate to qualify
under either form of the regulation.
With respect to the pre-1973 regulations, the respondent has not
established either that his investment tends to expand job opportunities
or that the investment is of an amount adequate to insure that the
alien's primary function will not be as skilled or unskilled laborer. See
Matter of Heitland, supra. With respect to the present form of the
regulations, the respondent has not met the standards of proof set forth
in Matter of Ahmad, 15 I. & N. Dec. 81 (BIA 1974), nor has he
demonstrated any likelihood that he could meet them.
Finally, even if the respondent could submit adequate proof of his
investment, we would still find him to be statutorily ineligible for
adjustment of status, because of his employment with Global Marine
Company for which no labor certification has been obtained. InMatter of
Pfahler, 12 I. & N. Dec. 114 (BIA 1967), we held that where an alien
applicant for admission was, coming to the United States with labor
certification for one job, but was planning on obtaining a second job, it
was incumbent upon him to obtain labor certification for the second job
as well. We believe that the same rationale should be applied to one
seeking the "investor" exemption from the labor certification requirement- of the Act. We have stated that the "the 'investor' exemption
contained in 8 CFR 212.8(b)(4) should not become a means of circumventing the normal labor certification procedures for an ordinary skilled

or unskilled laborer." Matter of Ahmad, supra. To grant "investor"
status to an alien who holds an unrelated full -time job in competition
with American labor would be to countenance the very type of evasion
of the labor certification procedures that we were concerned with in
Matter of Ahmad.

The immigration judge's decision was correct. The appeal will be
dismissed.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the re' The latter has the respondent's name written in over the crossed out name of his
"partner's" former spouse.

657

Interim Decision #2488
spondent is permitted to depart from the United States voluntarily
within 90 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.

658


Interim Decision #1863

MATI.ER OF

briomioAri STATE Urrivisuarrr

In VISA PETITION Proceedings
DET—N-1580

Decided by Acting Regional Conzardesioner June 14, 1963 .
An alien of distinguished merit and ability coming to a university as a research
associate to prepare and establish course material for a new program leading
to the B.A. degree in Chinese language and literature is eligible for nonimmigrant status under section 101(a) (15) (H) (1), Immigration and Nationality
Act, since the position is temporary in nature and will be abolished after
organization of the new program which will become a permanent part of the
university curriculum.

This case is before me on appeal. The District Director denied the
petition to classify the beneficiary as a nonimmigrant under section
101(a) (15) (H) (i) of the Immigration and Nationality Act on the
ground that the position to be filled by the beneficiary is permanent in
nature.
The requirement for the classification sought is that the beneficiary

be an alien of distinguished merit and ability who is coming for a temporary period as a nonimmigrant to perform duties which are themselves temporary in nature. It is conceded that the qualifications of
the beneficiary meet the high requirements of the Act. The question
to be resolved is whether the duties to be performed are themselves
temporary in nature?
The petitioner is initiating a program leading to a B.A. degree in
Chinese language and literature in the Department of Foreign Languages. The services of the beneficiary are sought for a temporary
period. to prepare course outlines, bibliographies, and teaching materials for the new program. The position will be that of a Research

Associate, which position will be abolished after the new program is
organized. The Chairman of the Department of Foreign Languages

states that this will be within a year or so. The new program in Chinese language and literature will become a permanent part of the cur1

Matter of M—S—H, 8 I. & N. Dec. 480.

642

Interim Decision. #1363
ricula of the petitioning institution. However, the position to be
filled by the beneficiary is temporary in nature. After the program is
established, her services will be required no longer. The beneficiary,
according to the petitioner, is eminently qualified to create the course
material for the program. It is concluded that the position to be filled
by the beneficiary is temporary in nature. Accordingly, the appeal will
be sustained.
ORDER: It is ordered that the appeal in the above cited case be
and the same is hereby sustained.

(;43


Interim Decision #2241

MATTER OF POLANCO

In Deportation Proceedings
A-17559060
Decided by Board November 8, 1973
A native of the Western Hemisphere who entered the United States in possession of an immigrant visa issued to him as the unmarried child of a lawful
permanent resident exempt from the labor certification requirements of
section 212(a)(14) of the Immigration and Nationality Act, but who, in fact,
was married between the date of visa issuance and the date of his entry, is
deportable as one excludable at entry. This is true notwithstanding the
absence in his visa of Form FS-548 (Statement of Marriageable Age Applicant)
and notwithstanding he was admitted by an immigrant inspector upon
application for admission (Matter of Khan, Interim Decision No. 2215).
CHARGE:

Order: Act of 1952—Section 241(aX1) (8 U.S.C. 1251(a)(1)]—Excludable at time
of .entry—no valid certification by Secretary of Labor
ON BEHALF OF RESPONDENT: Antonio C. Martinez, Esquire
324 West 14th Street
New York, New York 10014

This is an appeal from an order of deportation entered by the
immigration judge finding the respondent deportable, and granting him the privilege of voluntary departure. The appeal will be
dismissed.
The record related to a married male alien, 23 years of age, a
native and citizen of the Dominican Republic, who entered the
United States December 16, 1967, in possession of an immigrant
visa, classified as a native of the Western Hemisphere, exempt
from the provisions of section 212(aX14). Pursuant to section 212(a)

(14), aliens seeking to enter the United States for the purpose of
performing labor are excludable unless the Secretary of Labor has
issued a certification that their employment will not adversely
affect employment conditions in the United States. The exclusion
does not apply to special immigrants who are children of aliens
lawfully admitted to the United States for permanent residence. A
child is defined by section 101(bX1) as an unmarried person under

21 years of age.
483

Interim Decision #2241
The respondent's visa, issued on November 30, 1967, shows that
he was found to be exempt from the labor certification requirement because he was the child of a lawful permanent resident. On
December 9, 1967 he married a Dominican woman. On December
16, 1967 he entered the United States with the above visa. At the
time that he entered the United States, he was not of the status
accorded by the visa. Thus, he was not then eligible to enter the

United States because, being married, he was not a "child" of a
lawful permanent resident as defined by section 101(b)(1).
The respondent contends that because the immigrant inspector
admitted the respondent at the time of entry without questioning
him as to his marital status, the Government is estopped from
deporting him inasmuch as the admission was based on the
Government's own error. This same contention was rejected recently by this Board; we held that the Immigration and Naturalization Service is not bound by an error committed by an immigrant inspector at the time of admission, Matter of Khan, Interim
Decision No. 2215 (BIA July 26, 1973), and cases cited therein.
The respondent further contends that the Government is estopped from deporting him because the consular official who
issued the visa failed to notify him of the immigration consequences of marrying prior to applying for admission to the United
States. The respondent cites regulation 22 CFR 42.122 which
directs that a consular officer shall, when appropriate, warn an
alien that he will be inadmissible if he is not unmarried at the time
of application for admission. A procedural note implementing the
regulation provides that an alien of marriageable age issued a visa
on the basis of his status as a "child" should be required to sign
Form FS-548 (Statement of Marriageable Age Applicant) in duplicate, one copy of which should be attached to the immigrant visa.
The statement informs the alien in writing of the fact that he will
be ineligible for admission to the United States should he marry
prior to entry. No Form FS-548 was attached to the respondent's
visa.

The respondent contends that the consul had a duty, imposed by
State Department regulations, to inform him of the law and to
have him sign a statement acknowledging that he had been so
notified. He argues that the fact that the form is not attached to
the visa overcomes the presumption of regularity which usually
attaches to acts by Government officials. He then argues that the
consul's failure to perform his duty estops the Government from
deporting him.
The effect of the respondent's argument would be to permit
Government officials to modify the law by their errors; they do not
have that power. "[W]e know of no case where an officer or agent
484

Interim Decision #2241
of the government ... has estopped the government from enforcing a law passed by Congress. Unless a law has been repealed or
declared unconstitutional by the courts, it is a part of the supreme
law of the land and no officer or agent can by his actions or
conduct waive its provisions or nullify its enforcement,"Montilla v.
United States, 457 F.2d 978, 986 (U.S. Court of Claims 1972). The
estoppel doctrine has been successfully invoked against the Government when the Government has supplied misinformation. That

is not the case here. The Government did not misinform the
respondent.
Failure to inform raises estoppel, generally, only when the party
maintaining silence knew that the other party was acting or about
to act as he would not have done had the truth been told because
he thought the facts were otherwise. The consular official who
issued the respondent's visa did not know that the respondent was
planning to marry. Thus the consul's silence on the subject of the
immigration consequences of marriage by respondent prior to
entering the United States was not with the intention of misleading the respondent to his detriment. Therefore it is not the type of
silence which raises estoppel.
The respondent was not of the status accorded by his visa.
Accordingly, he was excludable at the time of entry, as charged.
ORDER: The appeal is dismissed.
Further order; Pursuant to the immigration judge's order, the

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

485