MATTER OF W—

In EXCLUSION Proceedings
A-10197638

Decided by Board July 5, 1960
Waiver of excludability—Section 5, P.L. 85-316--Separation from citizen spouse
not "extreme hardship"—Discretionary elements.
(1) Mere separation from citizen spouse does not establish "extreme hardship" within the meaning of bet: Lion 5 of r.L. 86 216 where there are no
children of the marriage (which occurred after comparatively brief acquaintance of the parties) and respondent's wife is not dependent upon him
for support.
(2) Denial of section 5 application is also warranted as a matter of discretion where applicant was. convicted as recently as 1959 of second degree
burglary and grand larceny, has an unsatisfactory employment record, and
obtained his visa without disclosing his criminal record.
EXCLITDA.BLE : Act of 1952—Section 212(a) (9) [8 U.S.C. 1182(a) (9)3—Convicted
of crimes involving moral turpitude—Burglary, second degree;
larceny.
BEFORE THE BOARD

DISCUSSION: The motion seeks reconsideration of the Board's
order of January 29, 1960, which found appellant excludable and
denied him a section 5, Public Law 85 - 216, waiver. The special
inquiry officer excluded him on the ground stated above and denied
the waiver, finding that appellant failed to establish - that his exclusion would result in "extreme hardship" to his wife. The Board
stated that the special inquiry officer had decided correctly that extreme hardship does not exist, and that Congress intended, by use
of the expression "extreme hardship," that there be established more
than the ea,istence of more hardship caused by family separation.
The reargument revolved mainly around the Congressional intent
expressed by the statute and the proper standard to be applied in
granting or denying the waiver.
Appellant is 26 years old, married, male, a native of the British
West Indies and a British subject, married on September 3, 1958,
to a United States citizen who was vacationing in the Virgin Islands.
it is not necessary to completely review this record_ The facts have
been stated repeatedly. Appellant was first given voluntary .depar1

ture at St. Thomas, V.I., on December 15, 1955. He was readmitted

temporarily as a nonimmigrant worker on December 16, 1957. He
was admitted to work for one hotel and he took other employment
without obtaining permission of the Immigration clid Naturalization
Service. He was again given voluntary departure at St. Thomas on
March 25, 1959, because he had failed to comply with the conditions
of the nonimmigrant status in which he was admitted.

On April 8, 1959, appellant was found guilty of burglary in the
second degree and grand larceny, committed on or about March 3,
. The judge of the District Court of the Virgin Islands imposed
1959.
sentence of one year, suspended, and placed appellant on probation

for one year on condition that he make full restitution: At the time
of the imposition and the suspension of sentence, the court found
and recommended that in view of the circumstances of the case the
sentence should not be used as a basis for appellant's deportation
from the Virgin Islands. The judge of the District Court set forth
these facts in a letter addressed to the 'Officer - in - Charge, Immigration and Naturalization Service, at St. Thomas, on April 16, 1959,
and sent a copy of his letter to appellant's attorney.
The special inquiry officer found, and this Board sustained the
finding, that the court's recommendation was not valid, in that the

court did not give the "due notice . . . prior to making such recommendation to representatives of the interested State, the Service, and
prosecution authOrities, who shall be granted an opportunity to make
representations in the matter," as provided by section 241(b) of the
Act. Counsel contends that if the court's recommendation against
deportation fails, it fails. solely by reason of a technicality, and that
it is just such a technicality that Congress and the administration
sought to waive by the enactment of section 5, Public Law 85-316.
It is a case such as this that demonstrates the reason that Congress provided for notice to the Service and other .interested parties
prior to the court's making such a recommendation. There is nothing to show that if the Service had had advance notice and the opportunity of bringing to the court's attention all the unfavorable
factors in the record, that the judge would not have adhered to the
opinion expressed in his letter to the Immigration Service dated
April 16, 1959. Counsel at the criminal prosecution produced friends
of appellant and the minister from his ohurch to testify to his overall good character. However, the character investigation made by
the Immigration Service after the criminal prosecution was completed discloses some unfavorable factors. It shows that appellant
has had a number of different jobs in a brief period in the Virgin
Islands and is described by five of his former employers as bad
tempered, insolent, and hard to get along with. It was stated by
three of them that lie gambled on the job. It is quite possible that
2

appellant would experience difficulty in retaining permanent employment in the United States due to these unfortunate personality
factors. The Immigration Service, had it made representations to
the court, undoubtedly would have pointed out that the criminal
charge was not the basis of appellant's being deported because he
was already under an order to depart voluntarily, in lieu of deportation,.for having failed to comply with the conditions of the nonimmigrant status under which he was admitted.
The provisions regarding recommendations against deportation
by the courts under both section '241(b) (2) of the 1952 Act (8 U.S.C.
1251(b) (2)) and under section 19(a) of the 1917 Act have been
strictly interpreted both by the courts and by us. In addition to
Matter of 1 , 6 126, and Matter of J , 7--580, cited by the special
inquiry officer, there are Matter of B , 7 227, and Matter of L ,
8 389, the latter citing cases. These decisions all conclude that the
provisions of the statutes as to timeliness, notice, etc., must be scrupulously complied with. In deciding the propriety of granting the
waiver, we give the court's opinion substantial weight in conjunction
with other factors.
Appellant departed from the United States on April 18, 1959, at
which time he went to Port of Spain, Trinidad, to obtain the immigrant visa for which he had previously applied. This visa states,
"I am the husband of a United States citizen and the beneficiary of
VP 3-1-135125 filed on September 16, 1958, approved on December
16, 1558, at New York." The visa was is s ued to him April 28, 1959,
and he again arrived at St. Thomas on May 3, 1959. His visa contains the followine . statements: "32 (A) I have been arrested,
charged, indicted, or convicted of a crime. A. No," and "35 (7) I
have been convicted of, or I admit committing, a crime involving
moral turpitude. A. No." Appellant was asked if he gave this information and circled the answers himself, and he answered that he
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talked to a female secretary at, the United States Consulate on April
28, 1959, the date his visa was issued, that he read the application
before he signed it, that he does not recall being asked any of those

questions. Many of appellant's answers do not appear in the record
because the hearing was evidently taken on an electronic dictating
'machine, and many of the answers appear only as "unintelligible."
However, he apparently then stated it was in January that he gave
the information, and that he was not asked for any ,more information when he returned to Trinidad for his visa in April. The
offenses of burglary and larceny took place in March, and the conviction and sentence on April 8, 1055. The epeeial inquiry officer
said to appellant, "And no one asked you whether since Februiry 2,
1959, the date the Department of Public Safety record was given to
you, whether After that date you had ever been convicted of any

3

crime?" Appellant answered, "No." Q. "And you didn't volunteer
that information? In other words, you didn't tell anyone at the consulate that you had been convicted in this court here in St. Thomas
in April? A. (Unintelligible)." It may be assumed that appellant
would not hay: , been given this visa at the time lie received it, had he
disclosed to the American Consulate in Trinidad his recent conviction. He would have been. ineligible to receive a -visa without first
obtaining the waiver for which he now applies.
The most recent oral argument before the Board, and also our last
decision in this matter, went off primarily on a discussion of what
constitutes "extreme hardship" sufficient to satisfy the requirements
of section 5, Public Law 85-316. Again we find that this record does
not establish that appellant's exclusion will result in extreme hardship to his United States citizen wife. There are no children to be
considered, and she is not dependent upon appellant for support.
However, it is our present opinion that the refusal to grant the
waiver primarily on the ground that the appellant has not shown
that his wife would suffer "extreme hardship" by being deprived of
his company was limiting the denial of the waiver to too narrow a
ground.
In addition to a showing that his exclusion would result in extreme
hardship to his United States citizen wife, section 5(1) (B), Public
Law 85-316, requires a positive finding that the admission to the
United States of this alien "would not be contrary to the national
welfare, safety, or security of the United States; and (2) if the
Attorney General, in his discretion, and pursuant to such terms,
conditions, and procedures as he may by regulations prescribe, has
consented to the alien's applying or reapplying for a visa and for
admission to the United States." It is said, in appellant's behalf,
that he had a quarrel with his employer the night before he took the
8600 from the office of the hotel where he was employed, and that he
committed the larceny in anger. Appellant was not a juvenile on
March 3, 1959, being more than twenty-five years old. Sufficient
time has not elapsed for appellant to have demonstrated rehabilitation and reform.
The grant or denial of the waiver does not turn only on the issue
of the meaning of "extreme hardship." We have considered and reviewed the entire record, and it is our decision that appellant does
not merit the exercise of the discretion contained in section 5, Public
Law 85-316. The unfavorable aspects of the investigative report,
the fact that appellant has en illegitimate child, the fact of his conviction for crimes involving moral turpitude, the fact that live
former employers had serious complaints against him, and the fact
that he procured his visa without disclosing a criminal conviction
which had taken place within the some month, most all enter into
4

our decision. In assessing the degree of hardship, it is also proper
to note that appellant and his wife married on comparatively brief
acquaintance, and that he has no other ties, family, business, social
or sentimental, in the United States. On the basis of the entire record, the motion for reconsideration of our order of January 29, 1960,
excluding appellant and denying him a section 5, Public Law 85-316,
waiver is denied.

ORDER: It is ordered that the motion for reconsideration be and
is hereby denied.


Interim Decision #2070

MATTER OF VAILLANCOURT
In Visa Petition Proceedings
ATL—N-1311
Decided by Regional Commissioner November 16, 1970

ro qualify for classification as a nonimmigrant intra-company transferee
under section 101(a) (15) (L) of the Immigration and Nationality Act, as
amended, the beneficiary must have been employed abroad continuously for
at least one year immediately before coming to the United States in a capacity that was executive, managerial or involved specialized knowledge,
and must be coming to continue serving the same employer (or a subsidiary or affiliate) in one of those capacities.

The District Director denied the application on the ground that
eneficiary has not been employed abroad for one year by the peitioner in an executive or managerial capacity and then certified
his matter to the Regional Commissioner for review and deciion. Petitioner has submitted a written statement for our consieration.
The petitioner, a division or subsidiary of an American corpoaim], desires to bring the beneficiary to the United States
mporarily to serve in the capacity of Service and Parts ManTr at its location in Georgia. The beneficiary is a native and citan of Canada. He has been employed continuously in Canada by
e petitioner since November 23, 1964.
According to the record, beneficiary's experience and training
s been obtained by his working for the petitioner as a clerk
hipping and receiving), as a sales correspondent and then as
les assistant. The petitioner believes the beneficiary qualifies as
manager under section 101(a) (15) (L) of the Act, as amended
Public Law 91-225 enacted on April 7, 1970, and in any event
the basis that the position he will hold in the United States inIves specialized knowledge.
Petitioner states that no individual, without beneficiary's spelized knowledge, could successfully operate as Service Parts
,

654

Interim Decision #2070
Manager. Petitioner lists beneficiary's responsibilities as a sales
assistant as follows:
1. Reviews optimum retail profile regularly.
2. Obtains wood production data regularly for States and Provinces and applies to it to retail profile.
3. Estimates total market potential.
4. Obtains information on competitive outlets and applies this
to the retail profile.
5. Assists in the distribution of the dealer operating policy
manual.
6. Coordinates and prepares Dealer contracts.
7. Assists in completion of the Plan for Profit program.
8. Prepares financial analysis of Dealers.
9. Assists Dealer Managers in analyzing new and present ter-

ritories.
101 (a) (15) (L) of the Act, as amended, reads as follows:

Section

(L) an alien who, immediately preceding the time of his application for
admission into the United States, has been employed continuously for one
year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in
order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of
any such alien if accompanying him or following to join him.

The record does not show and the petitioner does not claim
that beneficiary has been serving in a managerial or executive capacity for the petitioner in Canada. We believe an issue is presented here which should be resolved. It turns on the interpretation of section 101 (a) (15) (L) . To qualify as an intra-company
transferee, is it required, as a condition precedent, that the subject of the transfer as a manager or executive must be transferring from an executive or managerial position? If so, must the
transferee have served in such a capacity continuously for at
least one year prior to coming to the United States. The same
questions would appear applicable to an individual being transferred to serve in a capacity requiring specialized knowledge.
For guidance at arriving at a conclusion as to the intent of
Congress, we turn to the legislative history of Public Law 91-225
as set forth in the House of Representatives Report, 91-851 (Judiciary Committee) of February 24, 1970. Therein is stated, in
pertinent part, the following:
(L) A nonimmigrant classification for an alien who had been employed
abroad for at least 1 year by a corporation or other legal entity in a capacity that was executive, managerial, or required specialized knowledge

655

;erim Decision #2070
I. who is seeking to enter the United States to continue employment with
. same employer. (Emphasis supplied).

In light of the above-quoted paragraph from the House of Repsentatives Report, it would appear clear that a beneficiary of a
tition filed under section 101 (a) (15) (L), in order to quaiity
ereunder, must have been employed abroad by a corporation or
her legal entity for at least one year in a capacity that was exec,ive or managerial, or required specialized knowledge immedi;ely preceding application for admission to the United States.
In line with the foregoing, we agree with the District Director
tat the beneficiary of the instant petition has not had qualifying
‹perience abroad as a manager or executive. His decision was sint with respect to experience abroad requiring "specialized
nowledge," perhaps because the petitioner was seeking the beneciary's services as a Service Parts Manager.
However, the written representations submitted by petitioner
o the District Director, subsequent to the latter's decision, state
he position beneficiary would be transferred to in the United
itates certainly involves specialized knowledge. The District
Jirector did not believe this factor as worthy of consideration,
stating the knowledge of the beneficiary is not unique and that
my person similarly employed would obtain these qualifications
within six years.
According to Standard and Poor's, the American corporation of
Eaton Yale and Towne is a loading supplier of truck axles, transmissions, engine parts, springs, etc. In 1969, this corporation had
net sales of over one billion dollars. As the petitioner points out,
the transferee of the beneficiary is being sought as Service Parts
Manager at its central Parts Depot for all of the United States.
Based upon the record before us, we find that the beneficiary
has been employed abroad by the petitioner continuously for one
year in a capacity requiring specialized knowledge. We also find
that the beneficiary will be employed in a managerial capacity for
the same employer in the United States in a position for which he
appears qualified by virtue of the specialized knowledge previously
acquired. The beneficiary meets the test of the statute and the
legislative history of (1) having been employed abroad continuously at least one year immediately prior to his coming to the
United States in a capacity that was executive, managerial or involved specialized knowledge, and (2) his entry is sought so that
he may continue serving the same employer in one of those capacities. We, therefore, conclude that he is eligible for classification

656

1

Interim Decision #2070
as a nonimmigrant under section 101 (a) (15) (L) of the Act, as
amended. Accordingly, we shall approve the petition.
ORDER: It is ordered that the petition be and the same is
hereby approved.

657


Interim Decision #1566

MATTER OF LAMM'S PRODUCTIONS
In Visa Petition Proceedings
NYC—N-18805
Decided by Regional Commissioner January

4, 1966

Beneficiaries, members of a British theatrical group-8 members of which
participated in a theatrical tour of American colleges and universities ending in 1965—whose services are desired for a period of 6 months to perform
at Douglass College in New Jersey and at St. Maths Playhouse in New 'York
City, are ineligible for nonimmigrant classification under section 101(a)
(15) (H) (i), Immigration and Nationality Act, since it has not been established that these aliens, either individuauy or as a group, have achieved
sufficient prominence in the acting field or received favorable acclaim by
recognized theatrical experts who have actually witnessed their performances; their competent presentations on college campuses are inadequate
to establish they are actors of distinguished merit and ability and the
services to be performed by them are not of an exceptional nature requiring.
such merit and ability; further, the opinion of the relating organization or
association described the beneficiaries as young amateurs who have not
appeared professionally and decidedly are not of distinguished merit and

ability.

This matter is before the Regional CoMinissioner on appeal from
' the denial of the visa petition to classify the benficiaries as nonilnmigrants under section 101(a) (15) (H) (i) of the Liunigration
and Nationality Act.
The thirteen individuali in whose behalf the instant petition has
been (tied are members of a British theatrical group who entered the
United States on November 17, 1965 as temporary visitors for business. The petition states that their services are sought for a period
of six months at a salary of $65 each per week plus $15 for expenses.
They are to perform at Douglass College in New Brunswick, New
Jersey and at St. Marks Playhouse in New York City. In support
of this petition, there have been furnished eleven undated newspaper

items relating to th9 performances of a predecessor troupe, Theatre
Group 20, in which eight members of the present company participated in a theatrical tour of American colleges and universities which
b84

Interim Decision #1566
terminated in the spring of 1965. The articles reflect that the cast's
repertoire of English plays, highlighted by John Gay's "The Beggar's Opera", received laudatory reviews on the basis of these school
performances. It has been asserted that the character and technique

of that group, exemplifying the approach to modern theater stressed
by Drama Centre, London, have been retained' by the present company.
In connection with the instant appeal, there have been submitted
statements from various college representatives, theatrical personages and other individuals attesting to the artistic ability, dedication and professional quality of the group and urging that they be

permitted to perform in the United States.
Careful consideration has been accorded this matter in the light
of the representations made on appeal. The evidence of record re-fleets generally that the beneficiaries are serious young performers
who are deemed to be worthy of support-and encouragement because
of their enthusiastic dedication to the theater and their unique approach to acting. Flowever, their competent presentations on college campuses are hardly adequate to establish that they are actors
of distinguished merit and ability. It has not been substantiated
that these aliens—either individually or as a group—have achieved
sufficient prominence in the acting field or received favorable acclaim by recognized theatrical experts who have actually witnessed
their performances. In this connection, it is noted that Actors'
Equity Association, an organization which is knowledgeable in
matters relating to legitimate theater productions, has described the
beneficiaries, as young amateurs who have not appeared professionally and who are decidedly not of distinguished merit and ability.
-

Further, we find it has not been substantiated that the services to be

performed by these beneficiaries are of an exceptional nature requiring such merit and ability.
In view of the foregoing, it is concluded the petitioner has failed
to satisfactorily establish that the aliens are entitled to H-1 classification. In the absence of a clearance order from the United States
Employment Service, consideration cannot be given to their eligibility for nonimmigrant classification under section 101(a) (15) (H)
(ii) of the Act. This appeal, therefore, will be dismissed.
ORDER: It is ordered that' the appeal be andsame is hereby
dismissed.

535


Interim Decision #2511

MATTER OF BERKER

In Deportation Proceedings

.1

A-11780841

Decided by Board August 2, 1976
(1) Under the provisions of the Federal 'Youth Corrections Act (18 U.S.C. 5005, et seq.),
no distinction is drawn between narcotics offenses relating to simple possession of
marijuana and narcotics offenses involving more serious drug violations. For that
reason, distinctions as to the relative gravity of narcotics offenses should not be made in
applying the benefits of the Federal Youth.Corrections Act to immigration cases.
(2) Expungement of respondent's conviction for conspiracy to possess marijuana with
intent to distribute in violation of 21 U.S.C. 1346, under the provisions of the Federal
Youth Corrections Act (18 U.S.C. 5021(b)), opeAted to remove that conviction as a
basis for deportation under section 241(a)(11) of the Immigration and Nationality Act.
CHARGE:

Orden Act of 1952—Seetiou 241(a)(11) [8 U.S.C. 1251(a)(11)J—Convicted of any law
relating to illicit possession of marijuana
ON BEHALF OF RESPONDENT:

A. Kendall Wood, Esquire
3232 Fourth Avenue
San Diego, CA 92103

In a decision dated October 30, 1975, the immigration judge found the
respondent deportable as charged and ordered his deportation to Germany. The respondent has appealed from that decision. The appeal will
be sustained and the proceedings will be terminated.
The respondent, a native and citizen of Germany, was admitted to the
United States for permanent residence in 1958. On July 30, 1975 he was
convicted in the United States District Court for the Southern District
of California of the offense of conspiracy to possess marijuana with
intent to distribute in violation of 21 U.S.C. 846 and was sentenced
pursuant to the Federal Youth Corrections Act, 18 U.S. C. 5005, et seq.
(Hereinafter referred to as "FYCA".) On.December 19, 1973 the imposition of sentence was suspended and the respondent was placed on
probation. Prior to the expiration of the period of his probation, on
August 22, 1975, the court discharged the respondent from probation
and set aside the respondent's conviction pursuant to the expungement
provisions of FYCA. 18 U.S.C. section 5021(b).
725

Interim Decision #2511
The immigration judge found the respondent deportable as an alien
who has been convicted of a conspiracy to violate a law relating to the
illicit traffic in marijuana under section 241(a)(11) of the Immigration
and Nationality Act. Counsel for the respondent, however, contends
that under our decision in Matter of Zingis, 14 L & N. Dec. 621 (BIA
1974), the respondent is not deportable.
In Zingi6 we held that the setting aside of a conviction under FYCA
eliminates the conviction as a basis for deportation under section
241(a)(11) of the Act. I See also Mestre Morera v. INS, 462 F.2d 1030

(1 Cir. 1972).
However, from dicta in Matter of Espinoza, 15 I. & N. Dec. 328 (BIA
1975), it is reasonable to infer that our holding inZingis limits recognition
of expungernents under FYCA to offenses involving simple possession of
marijuana. Inasmuch as the respondent was convicted of the offense of
conspiracy to possess marijuana with intent to distribute, the immigration judge held that the expungement does not wipe out the conviction as
a basis for deportation under section 241(a)(11).
Notwithstanding dicta to the contrary in Espinoza, our holding in .gintris applies to all convictions which have been set aside
under the FYCA. In Zingis it is stated that the alien had been convicted
of a "narcoics violation," to wit, violation of a law relating to illicit
traffic in marijuana.
Furthermore, in Zingis we declared that, in enacting FYCA, Congress expressed its objective as the rehabilitation of youthful offenders
to enable them to become useful citizens in our society. Under FYCA no
distinctions were drawn between the offense of simple possession of
marijuana and offenses involving more serious drug violations. In view
of the Cong:essional policy in this area, distinctions should not be made
in the applic ation of FYCA benefits in immigration cases. Any language
in Espinoza-Rodriguez which suggests a contrary interpretation is
hereby disapproved.
We note -hat the interpretation of Zingis set out above is in accord
with the mcst recently stated position of the Service.
Accordingly, the appeal will be sustained and the proceedings will be
terminated.
ORDER: The appeal is sustained; the.proceedings are terminated_

1 T71 Mottitr of Andrade, 14 I. & N. Dec. 651 (BIA 1974). we accorded like treatment to
expungements state convictions by youths who were sentenced under a state provision
similar to FYCA.

726


• Interim Decision #1431

MATFER OF GAFO-GATO
In Deportation Proceedings
A-11010261
Decided by Board February 23, 1905
A conviction under 18 U.S.C. 871 of conspiracy to violate 18 U.S.C. ,A546
(false statements in immigrant visa) is not tantamount to a conviction under
18 U.S.C. 1546 within the purvieW of section 241(a) (5), Immigration and
Nationality Act.
Cs/inane;

Order : Act of 1952-:-Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry—Not nonquota immigrant.
Act of 1952—Section 241(a) (5) [8 U.S.C. 1201(a) (5)1—Convicted
under Title 18, U.S.C., section 1546.

Respondent appeals from the order of the special inquiry officer
finding him deportable on. the first charge set forth above. The
trial attorney appeals from the order of the special inquiry officer
finding that the respondent was not deportable upon the second
charge set forth above. Both appeals will be dismissed.
Respondent, a 82-year-old married male, a native and citizen of
Spain, entered the United States on March 31, 1956 in. transit to
,Spain; but failed to depart. On June 16, 1956 he married Milagros
Rivera. He was apprehended by the Service on December 19, 1936
and on December 22 was returned to Spain. His wife filed a visa
petition for him in January 1958; the petition was approved; the
respondent entered the United States on March 16, 1958 with a nonquota, visa. issued to him as the husband of an American citizen.
The Service claims that the marriage was one entered into with
the understanding by both parties that it would be one in name
only, that it would not be consummated, and that it would be
terminated when it had served its purpose of securing respondent's
admission for permanent residence. Respondent contends that he
married for love, that the marriage was consummated, that he lived
46

Interim Decision *1481
with his wife, and that he left her only when he found that she had
been unfaithful to him. The special inquiry officer found the parties
had not entered into a one fide marriage relation:
The Service case is based on the testimony of Milagros Rivera and
prehearing admissions against interest made by respondent. Counsel
attacks Rivera as a person who was untruthful, of questionable
character and whose testimony was induced by fear that she might
otherwise be prosecuted for perjury since her unfavorable testimony
was in conflict with a prehearing statement she had made. - He antends that her testimony, contradicted as it is by that of respondent,
a stable person, who has proven a good husband and provider. (he
remarried), is not credible. The conflicting testimony of Rivera
has been set forth by the special inquiry officer and need not be repeated. We find as did the special inquiry officer that Rivera's.
testimony is corroborated by prehearing admissions against interest
made by the respondent. We find that respondent's admissions were
neither made under duress nor made to conform with testimony of

Rivera. The information he furnished goes far beyond hers. We
believe that the record adequately supports the first .cliarge. The
respondent's appeal will be dismissed.
Counsel contends the special inquiry officer was unduly influenced
by the fact that the respondent was convicted on a criminal charge
in connection with his marriage. The special inquiry officer stated
that the criminal proceedings were such that the doctrine of collateral
estoppel could not apply to the charge in question. There is no
evidence that he was improperly influenced by the court decision;
the reasons for his findings are fully set forth. There is:no reliance •
upon the criminal proceeding. The Service appeal will now be 'considered. On March 6, 1962,
respondent, along with two others, was Indicted for conspiracy to •
violate the immigration laws of the United States. The indictment
contained four counts. Respondent was convicted and! sentenced on
count one. The count laid under 18 U.S.C. 871 charges that from
about May 1956 to May 1959, the respondent and two others conspired to•violate 18 . U.S.C. 1001 (false statements) and 1546 (false
statements in immigration visa) and to defraud the Government is
the exercise of its governmental function of administering the immigration: laws. In Pursuance of the'conspiracy five overt acts relating
to the respondent's marriage to Rivera, his obtaining a visa, and his
entry with a nonquota visa are set forth.
Respondent's deportation is sought under the ;underlined portion
47

Interim Decision *1431
of section 241(a) (5) of the Act (8 U.S.C. 1251(a) (5)) ; the section
provides for the deportation of an alien who—
boa failed to comply with tho provisions of section 285 unless he establishes

to the satisfaction of the Attorney General that such failure was reasonably
excusable or was not willful, or has been convicted under section 266(c) of
this title, or under section 36(c) of the Allen Registration Act, 1940, or has
been convicted of violating' or conspiracy to violate any provision of the Act
entitled "An Act to require the registration of certain persons employed by
agencies to disseininate propaganda in the 'United States, and for other
purposes"; approved June 8, 1938, as amended, or has been convicted under
section 4546 of title 18 of the United States Code; (Emphasis supplied.)

The ;pedal inquiry officer dismissed the charge. based on section
241(a) (5) of the Act, finding that the section. required a conviction
under 18 U.S.C. 1546 whereas the conviction in the instant case had
been under 18 U.S.C. NU. The special inquiry officer felt that had
Congress who made conviction for a violation of 18 U.S.C. 1546 a
ground of deportability intended to also make conviction for a conspiracy to violate 18 17.S.C. 1546 a ground of deportation, they
would have provided as they had elsewhere in section 241(a) (5) of
the Act for the deportation of an alien "convicted of violating or
conspiracy to violate" the law in question. The special inquiry
officer also pointed out that in other sections relating to the deportation of aliens, Congress specified that it was both the conviction of
the law and the conviction of a conspiracy to violate that law. that
would subject the alien to liability to deportation. (sections 241(a)
(11) and (1'0, of the Act).
•
The Service representative contends that Congress intended by
means of section 241(a) (5) of the Act to deport persons guilty of
fraud and misuse of visas and that since reference to•the overt acts
listed in the conspiracy- count reveals that respondent's conviction
was for acts of fraud and misuse of a visa, respondent should be held
deportable under section 241(a) (5) of the Act. No authority is
cited for the contention that it was the intent of Congress` to make
liable to deportation by means of section 241(a) (5) of the Act any
person who committed acts of fraud or misused a visa but had not
been convicted under 18 1546. The contention must be rejected. The contention is made in face of the fact that by other
provisions of the Act Congress, without requiring a conviction, provided for the deportation of an alien who was guilty of fraud or
misuse of a visa (sections 212(a) (19), 241(a) (1), 241(c) of the Act) ;
reliance upon 241(a) (5) of the Act is, therefore, unnecessary to
deport an alien guilty of acts of .fraud of the nature present in the
instant case. 'Furthermore, the contention is made in face of the fact

Interim Decision *1431
that Congress made deportability under section 241(a) (5). dependent
upon the existence of a conviction under 18 U.S.C. 1546 and a conviction is not present in the instant case.
The Service representative contends that Congressional failure to
provide that conviction for conspiracy to violate 18 U.S.C. 1546, as
well as conviction under the section itself, would make an alien deportable may well have been due. to the fact that Congress, realizing
that in the normal situation the conspirators would be outside the
United States, did not think that a conspiracy charge would be used.
No historical basis for the Service belief is given. If it is a. fact that

Congress considered making conviction for a conspiracy a ground of
deportability and decided not to it is not our function to remedy the
omission; it is a matter for Congress. Moreover, the Service contention appears to be without any foundation. The predecessor of
18 U.S.C. 1546 had been the basis of conspiracy prosecutions (U.S. v.
Rubenstein, 151 F.2d 915 (C.A. 2, 1945) ; U.S. v. Birnbaum, 55 F.
Supp. 356 (S.D.N.Y. 1944) • Sh.imi Mao v. U.S., 57 F.2d 491 (CA.
9, 1932)). In section 241(a) (17) of the Act Congress provided for
the deportation of aliens convicted of conspiracy to violate certain
laws which, as much as 18 U.S.C. 1546, can involve actions by persons
abroad. Also, Congress was well aware that the conspiracy section
of the Penal Code "can fiequently be utilized effectively concerning
conspiracies to violate various provisions of the immigration laws"
S. Rep. No. 1515, Slat °mg., 2d Sass, 649 (1950).

Finally, the Service contends that a. conviction of a conspiracy to
violate 18 U.S.C. 1546 is actually a conviction wader 18 U.S.C. 1546.
It is the Service contention that by use in section 241(a) (5) of the
word "under" when referring to a conviction where conspiracy is
-not specified, and use of the word "of" when referring to a conviction •
where a conspiracy is specified, Congress intended to give these words
separate meanings : "of" relating to the source of the conviction, and
"under"' to that which is encompassed within the range or bounds of
the specific law. The simple answer appears to be that if Congress
intended to attach the deportation liability to a person convicted of
a conspiracy ;to violate a statute when they referred to a conviction
"under" that statute, there would have been no need to specify in that
very section in reference to another law that a conviction of that law
and a conviction of a conspiracy to violate that law would carry the
same penalty. Before this fact contentions based on ambiguous
grammatical constructions must fall (Matter of Marinho, Int. Dec.
No. 1273).
The Service representative cited several cases as authority for the
utilization of the overt facts set forth in the conspiracy count to de49

Interirim Decision *1481 ,

•
termine what acts the respondent had actually committed. Inasmuch
as the -alien's deportation on the charge in question must be based
upon a conviction and not upon the nature of his acts, the point made
is immaterial and the cases cited are not applicable. The fact that

the acts could presumably have been the basis for a conviction under
18 II.S.0 1516, is also immaterial.
ORDER: It is ordered that the appeals be and the same are hereby
dismissed.

50


Interim Decision #1644

MATTER OP KoNxszu
In Section. '248 Proceedings.
-.A.-14805878

Decided by Regional Commissioner September f, .1966
Application for change of nonimmigrant classification under section 248,
Immigration anti Nationality Act, as amended, from visitor for pleasure
to that of treaty trader under section 101(a) (15) (E) (i) of the Act, as
executive assistant to an assistant vice president of a Japanese owned
import-export business, is denied since it has not been established, as
-

required by 22 CPR 4140, that applicant will be performing duties of .a

supervisory or executive nature; no documentary evidence as to her educational and employment background has been submitted to substantiate her
qualifications to perform such duties; the mere designation of the position
as "executive assistant" rather than "secretary" does not establish the
employment is to be other than in a "minor capacity," and it cannot be
found solely by reason of applicant's knowledge of Japanese that she has
"special qualifications" as contemplated by the regulations.

This matter is before the Regional Commisioner on appeal from
the denial of the application for change of nonimmigrant status.
The appellant is an unmarried Japanese subject, born August 81,
1937, at Kobe, Hyogo, Japan. She was admitted to the United
States at Honolulu, Hawaii, on April 27, 1966, as a temporary visitor
for pleasure until July 27, 1966. The instant request for change of
nonimmigrant classification to that of a treaty trader was filed by
her on June 24, 1966. There has been submitted with the application a letter dated June 20, 1966, from the Comptroller of Kanematsu New York, Inc., a Japanese-owner concern, which states that
the applicant will be employed as secretary to the assistant vice president whose duty is to supervise the export and import of the fitm's
metals department to and from Japan; that it is felt because of
her knowledge of Japanese and training in general business, she
will be of great assistance.
The application was denied by the District Director on July 28,
MO, on the ground that the nature of the alien's proposed employ815

Interim Decision #1644
ment does not satisfy the requirements for treaty trader status. It
has been asserted on appeal that Kaneanatsu. New York, Inc., is one
of the largest treaty-trader Japanese firms in New York City; that
it averages more than $100,000,000 per year in gross business volume;
that the concern has many departments among which are those for
textiles, machinery, metals, grain, foodstuffs, cameras, seeds, petroleum, woolen piece goods, raw materials and various other merchandise; that each department requires a sizeable staff of executive
personnel, including not only a manager but assistants as well to
handle the large volume of business; that the term "secretary" is
not intended to mean a simple office worker; that the alien's ability

to use Japanese is highly essential to the company's operation; that
needed as executive assistant to the assistant.
' vice president in charge of the metals department.
To be eligible for change of nonimmigrant status to that of a
-treaty trader, the applicant must meet the requirements of section
101(a) (15) (E) (i) of the Immigration and Nationality Act as well
as § 41.40 of Title 22, Code of Federal Regulations. In this connection, the applicable regulations require, in part, that: .
. he will be engaged in duties of a supervisory or executive character, or,
she is a specialist who is

If he is or will be employed in a minor capacity, he has special qualifications
that will make his services essential to the efficient operation of the employer's enterprise and will not be employed solely in a manual capacity.

In the matter at hand, no definitive information has been furnished, to show that the duties which the appellant will be called upon
to perform actually are of a supervisory or executive nature. Additionally, no documentary evidence has been submitted with- regard
to her -educational and empioynient background to substantiate that
she is•qualified to function on such level. The more designation of

the position to be filled as that of an "executive assistant" rather
than a "secretary" does not satisfactorily establish that she will be
employed other than in a minor capacity. It cannot be found solely
by reason of her knowledge of Japanese that she has the "special
qualifications" contemplated by the regulations as being necessary
to her employer's operations. This appeal, therefore; will be dismised.
ORDER: It is ordered that the appeal be and same is hereby dismissed.
,

816


Interim Decision #2857

MATTER OF LAM
In Deportation Proceedings
A-16032555

Decided by Board March 24, 1981
(I) An alien may qualify for asylum under the Refugee Act of 1980 if he establishes that he

is a "refugee'? within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(42)(A), that is, that he has a well-founded fear of persecution in the country of his nationality, or the country where he last resided, on account of
race, religion, nationality, membership in a particular social group, or political opinion.
(2) Where a finding has been made that an alien's life or freedom would be threatened in a
given country, and that his deportation to that country should thus be withheld under
section 243(h) of the Act, 8 U.S.C. 1253(h), then it should also be found that this
alien has a well-founded fear of persecution in that country for asylum purposes.
(3) An alien granted asylum may, after one year, apply under section 209, 8 U.S.C. 1159,
for adjustment of status, but an alien who has been granted withholding of deportation
has no such means for becoming a permanent resident.
(4) "Firm resettlement," although not specifically provided for in the statutes prior to the
1980 Refugee Act, is a concept which has long been part of our laws relating to refugees.
See Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971).
(5) An important distinction between withholding of deportation and asylum is that the
concept of firm resettlement is not relevant to section 243(h) applications, as a grant of
that relief bars deportation to only a single country, while finn resettlement is crucial to
asylum applications, as asylum in the 'United States will not even be granted if an alien
has been firmly resettled in a third place.
(6) Where the evidence of firm resettlement in Hong Kong is, ambiguous, in view of the

births of the alien's children in the People's Republic of China subsequent to his flight
from

that country to Hong Kong, and where the question of firm resettlement was not

reached at the hearing below, the recordjs remanded to the immigration judge to enable
the parties to present evidence on that issue.
(7) The fear of a Communist takeover of Hong Kong is purely speculative, and where this
was the only basis for the respondent's withholding application as to Hong Kong, withholding from that place was properly denied.

Ch ans:
Order: Act of 1952—Sec. 241(a)(2)18 U.S.C. 125101(2)1—Nonimmigrant—remained longer
than permitted
ON BEHALF OF SERVICE:

Oh BEHALF OF RESPONDENT:

Jules Coven, Esquire

Gerald S. Hurwitz

Lebenkoff and Coven

Appellate Trial Attorney

One East 42nd Street
New York, New York 10017
15

Interim Decision #2857
Br: Milhollan, Chairman; Maniatis, and Maguire, Board Members. Concurring and Dissenting Opinion: Appleman, Board Member

In a decision dated September 24, 1979, an immigration judge found
the respondent deportable as charged, granted his application for withholding of deportation from the People's Republic of China, pursuant to
section 243(h) of the Immigration and Nationality Act, 8 U.S.C. 1253(h),
denied a 243(h) application from Hong Kong, and denied asylum. The
respondent's application for voluntary departure was also denied, and
he was ordered deported to Hong Kong.' This appeal followed. Oral

argument was heard before the Board on December 2, 1980. The record
will be remanded.
The respondent is a 41-year-old native of the People's Republic of
China, born in Foochow, China. According to his 1-589 "Request for
Asylum in the United States," he "fled from the Mainland of China to
Macau and entered Hong Kong secretly in 1961." The application further reflects that his wife was born in and still lives in Foochow, China,
and four children, born in 1960, 1964, 1966, and 1969, all were born in
and now live in Foochow. The respondent entered the United States'on
June 15, 1974, as a nonimmigrant crewman, with a gong Kong seaman's

book. He was authorized to remain in this country until his vessel
departed, but in any event no longer than 29 diys. An Order to Show
Cause was issued against the respondent on June 20, 1977, charging him
with deportability as an overstay under section 241(a)(2) of the Act, 8
U.S.C. 1251(a)(2).
At a deportation hearing held on September 21, 1979, the respondent,
through counsel, admitted the allegations in the Order to Show Cause.
He was found deportable based on these admissions. He declined to
designate a country of deportation. The immigration judge named the
People's Republic of China as the country of deportation, and the trial
attorney for the Immigration and Naturalization Service designated

Hong Kong. The respondent thereupon applied for withholding of
deportation and for asylum. The Service did not oppose withholding of
deportation from the People's Republic, and withholding from that country wan accordingly granted by the immigration judge. 2 However, the
' The immigration judge's first order was an order of deportation to the People's Republic of China, the respondent's place of birth. However, as withholding from that country
was granted, the effective order of deportation was to Hong Kong.
2 We have been informed by the Service that the government will now attempt to
deport aliens to the People's Republic of China, and that applications for withholding of
deportation from that country should not, under Service policy, be conceded by the
Service trial attorneys. A grant of section 243dd relief is merely a stay of deportation.
Should substantial changes occur in the country from which such relief is granted, or if, for
other reasons, the grant should need to be reevaluated, the Service can move for reopening.
16

Interim Decision #2857
immigratipn judge found no clear probability of persecution in Hong
Kong, so he denied withholding from that place. The immigration judge's
orders further reflect that the requests for political asylum as to both

the People's Republic and Hong Kong were denied. The decision does
not discuss the asylum applications, however.
By granting the respondent's application for withholding of deportation from the People's Republic of China, the immigration judge acknowledged that the respondent's "life" or freedom would be threatened in
such country on account of race, religion, nationality, membership in a
particular social group, or political opinion." Section 243(h)(1) of the
Act, as amended by the Refugee Act of 1980. His application for asylum,
for the same country, is therefore given stature as based on an apparent
well-founded fear of persecution. The immigration judge's failure to set
forth the reasons for denying asylum in this case leaves the Board
without guidance as to his findings and makes even more essential our
own careful analysis of the record. See Dolenz v. Shaughneley, 206
F2d 892 (2 Or. 1953).
An alien may qualify for asylum under the Refugee Act of 1980 if it is
determined that he is a "refugee" within the meaning of section
101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)
(42)(A). That section defines a refugee as
any person who is outside any country of such person's nationality or, in the case of a
person having no nationality, is outside any country in which such perton last habitually
resided, and who is unable or unwillingto return to, and is unable or unwilling to avail
himself or herself of the protection ot 'hat
•
country because of persecution or a well
founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.

Thus, as a first step in establishing eligibility for relief, an alien must
show persecution on account of one or,more of these same five reasons,
whether he is applying for asylum or for withholding. 3 We note also that
the form used to apply for asylum, the 1-589, is often used for withholding applications as well. Moreover, the regulations provide that asylum
requests made after the institution of exclusion or deportation proceedings "shall be considered as requests for withholding . ." 8 C.F.R.
A more change of "policy," however, unsupported by a statement of reasons or supporting
evidence, would not ordinarily warrant ieopening. Were it not for other considerations,
reopening of this case would not be warranted.
Although section 243(h) was amended by the Refugee Act to Substitute "life or freedom would be threatened" for "persecution," we have, after -examining the legislative
history of the new Act, held that this broader choice of words hi the Refugee Act was not
intended to change the prior law requiring persecution by the government in the country
to which the alien is returnable (or persecution at the hands of an organization or person
from which the government cannot or will not protect the alien). See M fter'of
17 I&N Dec. 542 (BIA 1980). Similarly, we do not believe that the use of We wor d
"persecution" in section 101(a)(42)(A), instead of "life or freedom would be threatened," as
in section 243(h), is a significant distinction between withholding of deportation and asylum.

17

Interim Decision #2857
208.3(b) (effective June 1, 1980). Given these considerations, we hold
that where a finding has been made that an alien's life or freedom would
be threatened in a given country, and that his deportation to that country should thus be withheld, then it should also be found that this alien

has a well-founded fear of persecution in that country for asylum
purposes.
This holding, however, does not mean that any alien who has been
granted 243(h) relief will also be granted asylum. Despite the similarities between these two forms of relief, and despite the fact that the two
terms have often been used interchangeably, there remain some differences between asylum and withholding of deportation.' For example, an
alien granted asylum may after 1 year apply for adjustment of status
under section 209 of the Immigration and Nationality Act, 8 U.S.C.
1159, whereas an alien who has only been granted withholding of deportation has no such means available for becoming a permanent resident.
A distinction which is very important in the present case is the fact
that the concept of firm resettlement is a crucial issue with regard to
asylum applications, but is not relevant to 24:3(h) applications. This is so
because withholding of deportation is country-specific, barring deportation only to a single place.' Thus, if theie is any other place to which an
alien may he deported under section 243(a), such deportation may be
effected without regard to whether or not he may have resettled in that
other place. Asylum will not even be granted, however, where the alien
has been firmly resettled in a third place.
A showing that an alien will be persecuted in a given country will not
necessarily result in his being granted asylum. There are several reasons why an alien with a valid persecution claim might be denied asylum.
Asylum could be denied if the alien comes within one of the undesirable
groups described in section 243(h)(2) and 8 C.F.R. 208.8(0(1)(iii)-(vi).
Prior to May 1979, neither immigration judges nor this Board were required to address
exclusively with
the District Directors. Previously, then, we were not called upon to discuss the differ.
ences between asylum and 243(h) relief: we needed only to concern ourselves with applications for withholding of deportation. Effective May 19, 1979, however, the regulations
gave authority to immigration judges and this Board to consider asylum applications made
after the commencement or completion of deportation proceedings. See 8 C.F.H. 108.3.
Interim regulations promulgated pursuant to the Refugee Act of 1980 similarly provide
that asylum applications made after the institution of exclusion or deportation proceedings
shall be considered by immigration judges. See 8 C.F.R. 208.3(h) (effective June 1, 1980).
As we have only quite recently acquired jurisdiction over asylum claims, we are only just
now beginning to resolve some of the Problems caused by this addition to our jurisdiction,
including the problem of determining exactly how withholding of deportation and asylum
are to fit together.
6 Section 245(h)(1) provides that an alien shall not be deported or returned "to a country
if the Attorney General determines that such alien's life or freedom would be threatened
in such country . ." (Emphasis added.)
4

asylum claims, as jurisdiction to adjudicate asylum applications then lay

18

Interim Decision #2857
Or, as referred to above, an alien can be denied asylum if he has been
firmly resettled in another country. ,See section 207(c)(1) of the Act; 8
C. F.R. 20$.8(0(1)(ii); 8 C.F. R. 208.14.
"Firm resettlement," although, not specifically provided for in the
statutes prior to the 1980 Refugee Act, is a concept which has long been
part of our laws relating to refugees. The predecessor statute, for
instance, section 203(a)(7), 8 U.S.C. 1153(a)(7) (repealed by section

203(e)(3) of the Refugee Act), failed to specifically mention the "firmly
resettled" concept. The Supreme Court, however, when faced with the
issue, found that this was a proper factor to consider in determining
whether an alien was fleeing persecution and entitled to refugee status
under section 203(a)(7). The Court noted that the doctrine of firm resettlement was inherent in the "central theme of 23 years of refugee
legislation—the creation of a haven for the world's homeless people."
Rosenberg v. Yee Chien Woo, 402 U.S. 49, 55 (1971). See also Chinese
American Civic Council v. Attorney General of United States, 566
F.2d 321, 325 (D.C. Cir. 1977); Shen v. Esperdy, 428 F.2d 293 (2 Cir.
197(1); Kai Fung Chan v. Kiley, 454 F.Supp. 34 (S.D.N. Y. 1978). Thus,
the inclusion in the new legislation of the firm resettlement doctrine is
consistent with past recognition of the doctrine and its importance.
The question remaining, then, is whether the respondent in the present case has been firmly resettled in Hong Kong. The regulations give
some guidance in this area.' However, the question of firm resettlement
is one of fact. The respondent has requested reopening so that he may
litigate this issue before the immigration judge. His request has not
been accompanied by any substantial offer of proof. However, despite
his flight to Hong Kong in 1961 and his possession of a Hong Kong
crewman book, his children were not born there, but were born in
Mainland China, and his wile appears not to have joined him in 'Hong
Kong. Thus, we are unable on the record before us to determine whether
or not he has been firmly resettled in Hong Kong. The issue does not
appear to have been reached at the hearing below. A remand is therefore necessary to enable the respondent and the Service to present

evidence on the question of fret resettlement. In addition to the guidelines provided by the regulations relating to the , 1980 Refugee Act,
there is a considerable body of case law regarding firm resettlement
under previous statutes, which should be of some help in reaching a
decision on this issue.
The applicable regulations provide:
A refugee is considered to be "firmly resettled" if he has been offered resident status,
citizenship. or some other type of permanent resettlement by another nation and has
traveled to and entered that nation as a consequence of his flight from persecution,

unless the refugee establishes, to the satisfaction of the United States Government
officer reviewing the case, that the conditions of his residence in that nation have been
19

Interim Decision #2857
We note for the record that the immigration judge's denial of withholding of deportation from Hong Kong was correct. The respondent has
appareiatly lived there off and on for a number of years, and there is
nothing to show that he was ever in any way persecuted in Hong Kong.
The respondent's asylum/withholding application reflects that he fears
returning to Hong Kong only because, "I am afraid Hong Kong will be
taken over by the Communists." This fear is purely speculative, and is
insufficient to warrant a grant of 243(h) relief as to Hong Kong. If,
therefore, it. is found that the respondent has been firmly resettled in
Hong Kong, there is nothing to prevent his return to that place.

For the reasons stated above, we will remand the record to the immigration judge for further proceedings.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion.
CONCURRING AND DISSENTING OPINION: Irving A. Appleman, Board
Member
I dissent from that portion of the majority decision which holds that
where a finding has been made that an alien's life or freedom would be
threatened in a given country, so that deportation to that country should

be withheld, it automatically follows that the alien has established a
well-founded fear of persecution in that country for asylum purposes.
Experience has shown that with respect to deportation to Mainland
China (PRC), it has been common practice for the Service to concede
"persecution" under section 243(h) for purposes of disposing of a case,
because the Government had neither the ability nor the intention at the
time to deport to the People's Republic of China. See footnote 2, majority,
this case; see also Matter of Funs, 17 I&N Dec. 354 (BIA 1980). This is
precisely what happened in this case. There was no exposition or exploration whatsoever of the facts bearing on the relief. Under these
circumstances, I would not give the finding of persecution the conclusive effect on this aspect of the asylum application it was accorded by
the majority. While it obviously is entitled to some weight, it is conceivso substantially and consciously restricted by the authorities of that country that he has
not in fact been resettled. In making this determination, the officer shall consider, in
light of the conditions under which, other residents of the country live, the type of
housing, whether permanent or temporary, made available to the refugee, the types
and extent of employment available to the refugee. and the extent to which the refugee
has received permission to hold property and to enjoy other rights and privileges(such
as travel documentation, education, public relief, or naturalization) available to others
resident in the country. S C.F.R. 207.1(b). See also 8 C.F.R. 208.14 (effective June 1,
1980).

20

Interim Decision #2857
able that in another case, the evidence may clearly show the finding to
have been unwarranted.
With respect to resettlement, if the record in a case were reasonably
clear, I would not be disposed to remand solely for evidence on this
issue, in the absence of at least an offer of proof of a useful purpose to be
served by such a remand. However, if this respondent's children were
born in Mainland China as a result of his visits there, it not only raises a
question as to the reality of the threat to his life or freedom in the
People's Republic of China, but also whether he was firmly settled in
Hong Kong despite residence since 1961. Because of the obvious ambiguities of the record, I am willing to go along with the remand in this case.

21


Interim Decision #2156

MATTER OF BALBIN
In Section 245 Proceedings
A-19725973

Decided by Regional Commissioner June 22, 1972
Since applicant has established only a temporary need for his services as a
minister by a religious denomination in the United States, he is ineligible for
classification as a "special immigrant" under section 101(a)(27)(DX0 of the
Immigration and Nationality Act and, accordingly, has failed to establish visa
availability as required for adjustment of status under section 245 of the Act.
Consequently, his application for adjustment of status is denied without
prejudice to reconsideration if he can establish that his services as a minister
are needed within the meaning of section 101(aX27)(D)(i) of the Act.

W. Lowery, Esquire
77 W. Washington Street
Chicago, Illinois 60602

ON BEHALF OF APPLICANT: Richard

The District Director on May 23, 1972 certified this case to me
for review and decision.
A careful review of the record of proceedings discloses that the
applicant is eligible pursuant to section 245 of the Immigration
and Nationality Act, as amended, for adjustment of status to that
of a lawful permanent resident of the United States if "an
immigrant visa is immediately available to him. at the time his

application is approved."
The District Director has denied this application on the ground
the applicant does not qualify for "special immigrant" status as
contemplated by section 101(a)(2'7)(D)(i) of the Act. His decision
states that the applicant has not furnished "sufficient evidence
that your services are needed in the United States. The letter on
your behalf submitted by Cardinal Cody indicates your appointment to Our Lady of Lourdes Rectory is only temporary in
nature."
The determination that the applicant's services were of a temporary nature is based upon a letter dated June 29, 1971 from the
Archdiocese of Chicago reading in part as follows:
...faculties of the Archdiocese of Chicago, in accordance with Canon Law and
the regulations of this Archdiocese, are hereby granted you during your

165

Interim Decision #2156
under the direction of the
residence at Our Lady of Lourdes Rectory,
Reverend Thomas J. Goldrick, Pastor, until June 30, 1972." (Emphasis supplied.)

Section 101(a)(27)(DA) of the Act classifies the following as a
"special immigrant":
an immigrant who continuously for at least two years immediately preceding
the time of his application for admission to the United States has been, and who
seeks to enter the United States solely for the purpose of carrying on the
vocation of a minister of a religious denomination, and whose services are
needed by such religious denomination having a bona fide organization in the
United States ...

The applicant received his Bachelor of Theology during May of
1965 and was ordained a priest on the 9th of that month. From the

time of his ordination until he departed for the United States in
1970 he served as a minister of religion in the Philippines. Since
his arrival in this country he has continued his religious education, and has served as an assistant pastor at Our Lady of Lourdes
Church. He clearly meets the requirement of the statute regarding
carrying on the vocation of a minister for the requisite period
immediately prior to his admission; and there is every indication
that the applicant intends to carry on that vocation in the United
States for his religious denomination.

The remaining question is whether his "services are needed by
such religious denomination having a bona fide organization in
the United States", as specified in section 101(a)(27)(D)(i) of the
Act. Counsel for the applicant points out that this section does not
require that the minister's services be urgently needed, but merely
that they be needed by the religious denomination. This the
Service concedes. Counsel goes on to state that there is a shortage
of priests in the United States and that, therefore, the statutory
requirement regarding "need" has been met. We disagree with
that contention. The statute clearly indicates that in order to
qualify for "special immigrant" classification as a minister, the
alien must be "an immigrant who" .possesses certain specified
qualifications "and whose services are needed" by the religious
denomination. Thus the statute is geared to the qualifications and
the need for the services of an individual. Even if it were conceded
that a general shortage of priests exists, this does not establish
the need for the applicant's services as a priest.

Counsel also points to a letter issued by the pastor of Our Lady
of Lourdes Church describing the ministerial assistance which the
applicant has been rendering to him and that church, and expressing the pastor's desire that the applicant's effort to become a
permanent resident be facilitated. Counsel states that this also
establishes that the applicant's services are "needed", and charges
that the District Director's request that the applicant present a
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Interim Decision #2156
letter from the Archdiocese concerning the need for his services is
improper under the circumstances. He alleges that this would not
be done with respect to other religious denominations which do not
have a "church structure" similar to the Catholic Church.
The need for the applicant's services must be established by the
appropriate religious authority. As indicated above, the Archdiocese has informed this Service that its "faculties" have been
granted to the applicant only until June 20, 1972. The fact that the
Catholic Church has a hierarchy cannot be ignored. Faced with a
statement from the ecclesiastical superiors of the pastor to the
effect that the applicant is authorized to perform his ministerial
functions within the Archdiocese only until June 30, 1972, it is our
view that the District Director's request for a statement from the
Archdiocese concerning the continuing need for the applicant's
services is not an unreasonable one, for, if the applicant's authorized services are to be finished by June 30, 1972, it is concluded
that the requisite need for his services has not been established
within the meaning and intent of the statute. Furthermore, it may
be noted, in passing, that the Immigration and Nationality Act
contains a provision whereby an organization seeking the temporary services of certain qualified aliens, including a bona fide
religious organization seeking the temporary services of a qualified minister, may petition under section 214(c) of that Act for his
importation as a nonimmigrant under section 101(a)(15)(H)(i) of the
Act.

It is concluded that the applicant is ineligible for classification as
a "special immigrant" within the meaning of section 101(aX27)(D)(i) of
the Act. He has not established that an immigrant visa is immediately available to him as a preference or nonpreference immigrant, or otherwise. Accordingly, he is statutorily ineligible for the
adjustment of status which he seeks. His application will be denied,
without prejudice to reconsideration in the event he is able to establish satisfactorily that his services as a minister are needed by his
religious denomination within the United States.
It is ordered that the decision of the District Director denying

the application for status as a permanent resident be and the
same is hereby affirmed.

167


Interim Decision #172t

MAPPER

or ADAMSICA

Application for Classification as Refugee
A-11515308

Decided by Regional Commissioner April R6, 1962'
of
refugee classification under the proviso to section 203 (a) (7), Immigration and
Nationality Act, as amended, that she Zed from Poland because of fear of
persecution on account of political opinion when she came to the United States

Applicant, a native and eitirAn of Poland, has established for the purpose

as a nonimmigrant visitor in June 1959, where her known conduct after

arrival—did not register with the Polish Embassy, sent back her peturn-trip
ticket, and in proceedings in July 1959 conceded her deporta.bility as an immigrant at entry without an immigrant visa isconsistent with her allegations
that bemuse of her repeated refusals to join the Communist Youth Organization she experienced many difficulties in her daily life in Poland, including

employment and obtaining living quarters, and that as an employee of the
American Embassy in Warsaw beginning in 1957 and as a person of known
anti-Communist beliefs she was under strict surveillance by Polish officials.
and was in fear of persecution.
ON

BzatAxr or

APPLICANT:

Francis Sarnowiec, Representative, Polish American
Immigration and Relief Committee, Inc.
158 Fifth Avenue
New York, New York 10010

This matter is before the Regional Commissioner on certification
of the decision of the District Director denying the application for

preference immigrant classification under the proviso to Section. 203
(a) ('t) of the Immigration and Nationality Act, as amended.
The applicant is an unmarried 39-year-old native and citizen of
Poland. She was admitted to the United States on June 8, 1959 as a
visitor for pleasure until Decemher 15, 1959. An order to show cause
in deportation proceedings was served July 21, 1959. On November 2,
1966 she applied to the District Director for refugee classification in
conjunction with an application for adjustment of status under section
245 of the Act to be considered by the special inquiry officer in a reopening of the deportation proceeding.
An application for temporary withholding of deportation under
section 2,43(h) of the Immigration and Nationality Act was denied
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Interim Decision #1727
January 26, 1960. That subsection then authorized the Attorney General to withhold the deportation of any alien to any country in which
in his opinion the alien would be subect to "physical persecution." The
statutory standards for refugee status under section 203(a) (7), with
which we are immediately concerned, are substantially broader, namely
that "(1) because of persecution or fear of persecution on account of
race, religion, or political opinion they have fled (I) from any Communist or Communist-dominated country or area. . . . and (ii) are
unable or unwilling to return to such country or area on account of
race, religion or political opinion. . . ." (emphasis supplied). The
holding in 1960 that the applicant would not be subject to "physical
persecution" in Poland is not determinative of the issues in the present
application. Similarly we find not applicable Matter of Bukoweka,
10 I. & N. Dec. 49, decided by the Board of Immigration Appeals,
August 24, 1962, holding "physical persecution" had not been established. by a native and citizen of Poland who might be unable to obtain
a particular type of employment (teaching) in Poland because of her
refusal to abandon her religious beliefs and to join the Communist
Party. We shall proceed to examine the present application on its
merits.
In her application, Form 1-590, Miss Adamska alleges she fled from
Poland on May 22, 1959 because she was under strict surveillance by
the Polish Security Office as a person of known anti-Communist beliefs
and as an employee of the American Embassy in Warsaw; that she
had experienced many difficulties in her daily life and feared persecution sooner or later; and that she is unable and unwilling to return to
Poland because she would be liable to persecution there. She added that
since her arrival in this country she has expressed her feelings openly
and that she has been blacklisted by the Polish Secret Police.
On February 14, 1967, the applicant executed an affidavit before an

officer of this Service in which she stated that when she obtained her
Polish passport and her visitor's visa (issued in Warsaw on March
26, 1959 and May 11, 1959, respectively) she intended to visit the
United States and return to Poland but that about one month after her
arrival here she decided not to return to Poland. The District Director
found she had failed to establish that she fled from Poland because
of persecution or fear of persecution on account of race, religion, or
political opinion.
We are immediately confronted with an apparent discrepancy between the applicant's testimony of Februray 14, 1967 and her statements in the deportation proceeding conducted in 1959. In a sworn
statement of July 14, 1959 she stated that although she obtained the
passport and the visitor's visa, it was her real intention to COMES to
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Interim Decision *1727
the United States and remain; that it had been her intention to do so
for many years; that even while a student she desired to get out of
Poland by applying for a summer course at Oxford for which she had
been accepted by the British Consul but refused by the Polish authorities; and that she had hoped by coming to the United States
she could live without fear and could work out her "papers" here.
At the deportation hearing of July 28, 1959 after being placed on notice that her alleged deportability was based on her intention at the
time of her admission on June 8, 1959 to remain in the United States
permanently for which she did not have the appropriate entry documentation, she admitted these allegations in the order to show cause
and conceded her deportability under section 241(a) (1) of the Immigration and Nationality Act in that at the time of her entry she was
an iinmigiant not in possession of a valid immigrant visa. She did not
then apply for any form of discretionary relief and specified England
as the country to which she wished to be deported in the event deportation is required by law. Clearly she was aware at the deportation
hearing that her testimony was against her own interest. Her statement of July 18, 1959 appears to have been freely and frankly given
and was made at a time when the pertinent events and facts were
fresh in her mind. That statement is consistent with background information discussed below and with her known conduct subsequent to her
arrival. Her 1959 statements were accepted by this Service and the
special inquiry officer as establishing deportability. We accept them
here.
Miss Adamslra's application for withholding of deportation filed

August 13, 1959 may be summarized as follows :
In 1945 she began her studies at the University of Krakow, taking English
as a major and German as a minor. The Polish Government then considered
that anyone who studied English was opposed to the Government. It harassed
and persecuted students and faculty in the English language program to the
extent that a professor was imprisoned, the English faculty disbanded, and the
students were required at their expense and inconvenience to attend classes
and to take elemmtnations at various locations. She was requested at the University to join the Communist Youth Organization and her refusnal to do so
marked her as an enemy of the regime. In 1949 the Polish Government refused

to allow her to take a summer course at Oxford. She completed her studies in
English in 1950 but continued in the School of Law until 1951. The normal
procedure would then have been an internship at the Ministry of Foreign Affairs
but she was refused the internship because she was not a member of the Communist Youth Organization and because she refused to join that organization.
She was then required to apply for employment through a Government Commission which assigned her to a teaching position in a remote community. She,
however, was informed by the community that it had no opening for her. She was
able to obtain employment as a technical editor for the Polish Radio in Warsaw

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Interim Decision #1727
but did not turn out any political material. She was repeatedly requested to
join the Communist Youth Organization but refused. She skipped many compulsory ideological sessions which brought reprimands. She was criticized for
programming too much Polish music. She was released from that position in
1954 because of her failure to prove her sympathy to the cause. She attempted to
obtain a position as an airline stewardess in the hope of escaping, but was refused because of her lack of Communist affiliations. She became a proofreader
and part-time secretary at a publiabitig house until 1957. She suft'ered similar
experiences to those at the radio station. From 1951 to 1957, she was required to
live in remote and crowded living quarters at rents which consumed a large part
of her salary so that she was hungry at times and contemplated suicide. She
learned she was to be discharged from the publishing house because of her
absences from the ideological courses. In April 1957 she applied for and obtained a clerical position at the United States Embassy. For seventeen months
she was without a regular home, as no one would rent to her because of her
employment at the Embassy. In September 1958 she was able to lease a room
until May 1959. There her telephone was tapped, her mail censored, and she
was followed to and from her work. Upon her arrival in the United States she
did not register at the Polish Embassy and she sent back her return trip ticket.

In support of her application for withholding deportation under
section 243 (h), the applicant presented a witness on December 30,
1959. This witness, a native and citizen of Poland, had resided in Poland from 1913 until September 1958. The witness had been in the
employ of the United States Embassy at Warsaw from 1926 to 1939,
from 1945 to September 1950, and July 1957 to August 1958. She was
arrested in September 1950 and imprisoned for a period of ten months
without a formal charge. She believes the imprisonment was because
of her employment at the United States Embassy and after her release from her imprisonment she was advised not to return to the Embassy. Following the advent of Gomulka to power in Poland in
October 1956, this witness filed a formal complaint with the Polish
authorities, received an apology for the mistreatment and was informed there was no objection to the resumption of her employment

at the United States Embassy. The witness was able to obtain an immigrant visa in 1958 and, although questioned by the Polish authorities, was not prevented from leaving Poland. She expressed the opinion
that the many changes made by Gomulka were being revoked and
that there was a return to the political oppression which existed before October 1956. The witness expressed the opinion that the applicant, if returned to Poland, would be persecuted. This opinion was
based in part on the personal knowledge of the witness that the applicant had refused to join the Party in Poland and the applicant's
association with the American Embassy. The applicant herself testified
on the same date that she had received letters from her sister in Poland
containing statements which the applicant understood to mean that
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Interim Decision #1727
members of the Polish Security Police had been attempting to interview her at her last place of residence in Poland.
Also presented in support of the application for withholding of deportation were a series of five articles from the "New York Times"

datelined Vienna, November 29, 30 and December 1, 2, and 3, 1959,
written by A. M. Rosenthal who had just been expelled from Poland
where he had been the correspondent of the "Times". These articles
indicated that Gomulka was invoking strict disciplinary measures and
pointed out that men previously taken for granted as destroyed in
1956 were returning to places of influence. Specific mention was made
of Julian Tokarski, "the Stalinist target of the workers' wraith in
1958", now recalled from obscurity to the post of Deputy Premier,
and General Kazimiers Witaesowelzi, until recently a diplomatic exile,

a pro-Soviet Communist who had regained favor and had been made
Chief of the Army Intelligence in Poland. Particularly pertinent in
point of time is a statement that "At the last party congress in March
1959, official history was rewritten to make the Soviet Union the inspiration of 1956 instead of the main opponent of it."
After careful consideration of the entire record we find that the applicant fled from Poland because of her fear of persecution on account
of her political opinions and that she is unwilling to 'return to that
country because of her political opinions. As she meets the requirements of the proviso to section 203 ( a) (7) of the Immigration and Nationality Act, as amended, her application for refugee status will be
approved.
ORDER : It is ordered that the application for refugee status under
the proiiso to section 203(a) (7) of the Immigration and Nationality
Act, as amended, be approved.

205


Interim Decision #1998

MATTER OF KORYZMA

In Deportation Proceedings
A-14238613
Decided by Board July 31, 1969
In the absence of a waiver of the foreign residence requirement of section
212 (e) of the Immigration and Nationality Act, an alien who was last
admitted to the United States as an exchange visitor under section
101 (a) (15) (J) of the Act and thereafter attended school for two years
during which time he received scholarships on the basis of such status, is
ineligible for adjustment of status under section 245 of the Act, as
amended, notwithstanding he was stateless at the time of admission and
alleges he objected to exchange visitor status when it was assigned to him.
:HARGE:
Order: Act of 1952—Section 291 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Exchange
visitor—remained longer.
)N BEHALF OF RESPONDENT:
A. W. Hargreaves, Esquire
30 Hotaling Place
San Francisco, California 94111
(Brief filed)

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

The case comes forward on appeal from the order of the speal inquiry officer dated March 17, 1969 ordering that the re)ondent's application for status as a permanent resident under
le provisions of section 245 of the Immigration and Nationality
ct be denied, further ordering that he be granted voluntary detrture on or before April 16, 1969, and further ordering that if
Le respondent failed to depart when and as required, he be de)rted from the United States to Chile on the charge stated in
e order to show cause.
The respondent is a native of Austria, born of parents who
ere citizens of Poland, 24 years old, male, married, who resided
Chile since he was approximately four or five years of age. In
64 the respondent came to the United States on a student visa.
June 1966 he returned to Chile in order to visit his parents.

358

Interim Decision #1998
The college had changed its policy and had supplied or sent to the
respondent an exchange student form in place of the student
form. The respondent last entered the United States at Los Angeles, California on or about September 11, 1966 destined to Covell
College and was admitted as an exchange visitor under section
101 (a) (15) (J) of the Immigration and Nationality Act. At the
time of his entry he presented a travel document issued by the
Chilean Government which contained the legend "valid only to
leave the country." The respondent was authorized to remain in
the United States until June 9, 1968. On July 30, 1968 his application for a waiver of the foreign residence requirement applicable to exchange visitors was denied and he was granted until September 30, 1968 to depart voluntarily from the United States. He
failed to depart. The respondent has admitted deportability on
the charge contained in the order to show cause.
The respondent has applied for status as a permanent resident
under the provisions of section 245 of the Immigration and Nationality Act. He married a citizen of the United States on August 26, 1967 and a petition according him immediate relative
status was approved on February 5, 1969. His parents and a
brother are citizens and residents of Chile. The respondent expects to obtain his Master's Degree in August 1969. He lost his
residence status in Chile because he did not apply for a renewal
prior to one year's uninterrupted absence from that country.
Section 212(e) of the Immigration and Nationality Act provides in pertinent part: "No person admitted under section
101 (a) (15) (J) or acquiring such status after admission shall be
eligible to apply . . . for permanent residence . . . until it is established that such person has resided and been physically present in
the country of his nationality or his last residence, or in another
foreign country, for an aggregate of at least two years following
his departure from the United States . . ." The respondent has
been denied a waiver of the foreign residence requirement applicable to exchange visitors and does not have the required foreign
residence. However his attorney contends that the respondent
was improperly issued a "J" visa because he was not in possession of a passport which would permit him to enter any country;
was stateless; was not a citizen or permanent resident of Chile,
where the exchange student visa was issued, so there was no
country which could be classed as an exchange or participating
country; and because the purpose to return home and be of benefit in raising the standard of living in such country, and he does
not have such a country to which he could go.
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Interim Decision #1998
The respondent's testimony indicates that when he returned to
Chile to visit his parents in July 1966 he requested documentation
from the school which he was attending so that he could return to
the United States and was given a "certificate of eligibility for
exchange visitor status." He presented this to the consul and a
"J" visa was placed in his travel document. He had no discussion
with the consul concerning the validity of this travel document.
The respondent objected to receiving a "J" visa but testified that
he was told he could either take the visa or stay in Chile. Faced
with this choice, he took the visa.
When the respondent returned to the United States, he inquired from the college as to why he had been classified as a "J"
student and was told that it was the policy of the college to grant
further scholarships to foreign students only if they had such a
status. He continued to attend school for two years during which
time he received further scholarships. At the time of his return
to the United States, he intended to remain here permanently.
The exchange visitor visa which the respondent presented disclosed the name of the sponsor as Elbert Covell College, University of the Pacific, Stockton, California that it was issued under
Exchange Visitor Program No. P—I-3099 (amended) designated
by the Secretary of State on June 8, 1965, which was still valid,
and was described as a program to provide courses of study, practical training, lecturing, research, or a combination thereof, in the
various fields of instruction and research conducted by the University, for qualified foreign students, trainees, professors, and specialists, to promote the general interests of international exchange (Ex. 9).
Section 212(e) of the Act, 8 U.S.C. 1182(e), provides that no
person admitted as an exchange visitor may have his status adjusted, or apply for an immigrant visa, until such person has
been physically present in the country of his nationality or last
residence, or in another foreign country, for an aggregate of at
least two years, unless such requirement is waived by the Attorney General. Absent such a waiver, an exchange visitor is without eligibility for adjustment under section 245. Thus, the Congress has spoken with such clarity that all who read may
understand. The language is not susceptible of interpretation by
resort to legislative history or otherwise.' It has also been held
that a release by the Philippine Government from the obligation
to return to the Philippines did not exempt the respondent from
Tuazon v. INS, 389 F.2d 363 (7 Cir., 1968) ; Carriage v. INS, 368 F.2d
337 (7 Cir., 1966) cert. denied, 386 U.S. 942.

360

Interim Decision #1998
the requirement of the two year return. Abinoja v. INS, 462
F.2d 788 (7 Cir., 1968).
Counsel's argument, Nv hile attractive, does not permit us to
overlook the fact that the respondent last entered the United
States as an exchange student under section 101 (a) (15) (J) of
the Immigration and Nationality Act and that neither the law
nor the regulations render an exchange visitor visa void for the
reasons set forth by him. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director ; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special
inquiry officer's order.

361