Interim Decision. #1236

MASTER OF SZEGEDI

In DEPORTATION Proceedings
A-11575482
Decided by Board Auoust,10, 1960
"Homicide by reckless conduct" in violation of section 940.00, Wisconsin Statutes,
is not a crime involving moral turpitude.
CIWIGE:

Act of 1952—Section 241(a) (4) [8 U.5.0. 1251 (a) (4)1—Convicted of
crime within five years after entry.

Respondent is 34 years old, single, male, a native and citizen of
Hungary, whose only entry into the United States was on February 10,
1959 as a refugee-escapee under the Act of September 11, 1957. He
was convicted on September 17, 1961 for the crime of "Homicide by
Reckless Conduct contrary to the provisions of section 940.06 Wisconsin Statutes", and was sentenced to confinement in the Wisconsin
State Prison for an indeterminate term of five years. At the time of
hearing he was confined in this institution. The special inquiry officer
found that the crime for which respondent was convicted was not a
crime involving moral turpitude, ordered the proceedings terminated,
and certified the case to this Board for final decision.
The District Attorney for Racine County, Wisconsin filed an information against respondent charging that on December 26, 1960 he did
"feloniously cause the death of Ference Pinter' by conduct imminently
dangerous to him and evincing a depraved mind, regardless of human
life, contrary to the form of the statute section 9 ,10.02".1 Respondent
plead not guilty and was tried before a jury which returned a verdict
of guilty of the crime of homicide by reckless conduct. 2
Wis. Stet. Ann. 940.02 provides: "Second-degree murder—Whoever causes
the death of another human being by conduct imminently dangerous to another
and evincing a depraved mind, regardless of human lire, may be imprisoned not

less than 5 nor more than 25 years."
2 Wis. Stitt. Ann. 940.08 provides: "Homicide by reckless conduct: (1) Whoever causes the death of another human being by reckless conduct may be fined
not more than $2,500 or imprisoned not more than 5 years or both. (2) Reckless
conduct consists of an act which creates a situation of unreasonable risk and

28

Interim Decision #1286
It is so well established as not to need elucidation, that this Board
has no authority to retry a criminal case. In making our decision we
may look only to the record, consisting of the information (or indictment), the plea, the verdict, the sentence, and the pertinent statutes,

in determining whether or not the crime for which respondent was
convicted was a crime involving moral turpitude, as that term is inter-

preted by judicial and administrative decisions. Therefore, the special
inquiry officer did not inquire deeply into the circumstances behind
the commission and conviction for this crime, and properly so.
However, the special inquiry officer did. ask respondent what happened that resulted in the death of Pinter Ference (p. 6). Respondent
answered that there were three men in respondent's room : the deceased,
who was respondent's •best friend, respondent, and a third person.

Respondent stated that he was demanding money he had loaned to the
third person, that the third person refused to pay back the money,
that the deceased took respondent's shotgun, and tried to hit respondent
with the gun. "In the scuffle, my hand was also broken, and while we
were arguing and scuffling, the three of us, the gun went off and Pinter
Ferenc was shot. I did not have the gun. in my hand." The record
does not show the evidence developed in the criminal proceeding.
The precise question for determination' y the Board is whether or
not the crime of "homicide by reckless conduct" under the Wisconsin
Statutes is a crime involving moral turpitude. The special inquiry
officer quoted the definition of such &crime from Wing v. United State8,
46 F. 2d 755 (7th Cir. 1931), that it is an act of baseness, vileness or
depravity in the private and social duties which a man owes to his
fellow men, or to society in general, contrary to the accepted and
customary rules of right and duty between man and man. The special
inquiry officer concluded that while a man committing such an act (as
that described by section 940.09 may be guilty of conduct which is
contrary to the accepted and customary rules of right and duty between
man and man, the crime as defined by the statute need not be accompanied by a vicious motive or a corrupt mind. The special inquiry
officer says there need be no intent to cause death or inflict serious
injury, and concluded that the crime for which respondent was convicted did not involve moral turpitude.
Prior decisions of the Board that arose under provisions of the
codes of states other than Wisconsin, are not precisely in point, because
the offense of "homicide by reckless conduct" is a statutory offense
high probability of death or great bodily harm to another and which demonstrates a conscious disregard for the safety of another and a willingness to take
known chances of perpetrating an injury. It is intended that this definition
embraces all of the elements of what was heretofore known as gross negligence
in the criminal law of Wisconsin."

29

Interim Decision #1236
without a counterpart in the common 1;,,w, or in most codes, so far as
we can discover. The leading Board decision is Matter of B—, 2 I. & N.
Dec. 559 November 1946; A.G., July 1047) . The alien therein

was indicted on two occasions for murder in the second degree, the indictments alleging that on each occasion he "unlawfully, purposely
and maliciously killed" another person. On each occasion (first in
1926 and again in 1943) the alien pleaded guilty to the lesser offense
of manslaughter and was sentenced to serve an indeterminate term
of imprisonment. Since the Ohio statute included both voluntary
and involuntary manslaughter within the same section of the law,
making no distinction, the Board decided that the crime should be
taken at its minimum and found that the convictions should be considered as having been for involuntary manslaughter. The Board

found that the acceptance of the plea of guilty to manslaughter removed "the elements of purpose and malice and there remains only
the element of unlawful killing". The Attorney General reversed
the Board, finding that the manslaughter was voluntary because of
the allegations in the indictment (which defined or related to seconddegree murder), and said, "By his plea of guilty to manslaughter,
the alien admitte,d these killings. In the absence of other evidence

in the records of conviction, under the Ohio statute it is reasonable
to conclude that the homicides committed by the alien were voluntary.
Consequently, the crimes involved moral turpitude."
All other Board decisions in this area also concern indictments for
murder, either first or second degree followed by convictions for manslaughter. In Matter of 1—, 2 L & N. Dee. 477 (B.I.A. 1946) , the alien
was convicted of "assault with intent to commit manslaughter" in
Florida. The Board held on the basis of decisions of the Supreme
Court of Florida that this offense could only include voluntary manslaughter, because it required "an intent to commit." the act, and there
could be no intent to commit involuntary manslaughter. It was, therefore, a crime involving moral turpitude.
In Matter of B—, 4 I. & N. Dec. 493 (B.I.A. 1951), the Board found
that the New Jersey statute included both voluntary and involuntary
manslaughter, that the record did not disclose sufficient details or
circumstances surrounding the killing of and that there was no
indication that respondent had been convicted of voluntary, rather
than involuntary, manslaughter. A dissent was recorded on the
ground that the Attorney General's decision in Matter of B—, supra,
2 I. & N. Dec. 559, the Ohio case, should control.
In Matter of .11—B—, 4 I.8rN. Dec. 742 (B.I.A. 1952), the information charged the alien with murder (wilfully, unlawfully, feloniously,
and with malice aforethought having killed a human being) and at
the time of the commission of the offense being armed with an auto30

Interim Decision #1236
made revolver. The court found the alien guilty of manslaughter.
The California Code, section 192, at the time of the alien's conviction
defined murder and two kinds of manslaughter. The alien was
clearly charged in the information with a voluntary killing, and there
was no evidence in the record to support a finding of involuntary
manslaughter. In the light of the Attorney General's decision in.
Matter of S—, we concluded that the homicide committed was voluntary, and therefore involved moral turpitude.
The instant case is not governed by the Attorney General's decision
in Matter of S—, supra, 2 I. & N. Dec. 559, because the offense of which •
Szegedi was convicted was not designated manslaughter, but homicide by reckless conduct, a statutory offense within the Wisconsin
Code. From the maximum penalty provided by the statute, it is apparent that this is a lesser crime than manslaughter. Section 940.05
provides a maximum penalty for Manslaughter of not more than
10 years. Section 940.06 provides a maximum penalty for homicide
by reckless conduct of not more than $2,500 fine, or imprisonment for
not more than 5 years, or both.
At present the Wisconsin Code provides ten degrees of Crimes

Against Life, including Abortion and Assisting a Suicide. There are
three degrees of Murder (sections 940.01-03), and the section on
Manslaughter has four subsections,' Section 940.08 with which we
are concerned is set forth in footnote 2, and requires and defines
"gross negligence."
For first degree murder all the statutory elements must be present:
That is, (1) an act "imminently dangerous to others" and (2) "evincing a depraved mind, regardless of human life," and (3) a "premedi-

tated design to effect the death of the person killed or any human
being."

Raiej v. State, 152 Wis. 503, 140 N.W. 21 (1013). • The

Wisconsin second-degree murder statute eliminates the "mental purpose to take life." Zenau. v. State, 4 Wis. 2d 655, 91 N.W. 2d 208
'940.05, Manslaughter : Whoever causes the • death of another human being
under any of the following circumstances may be imprisoned not more than
ten years :
(1) Without intent to kill and while in the heat of passion ; or
(2) Unnecessarily, in the exercise of his privilege of self-defense or defense
of others or the privilege to prevent or terminate the commission of
a felony; or
(3) Because such person is coerced by threats made by someone other
than his co-conspirator and which causes him reasonably to believe that \
his act is the only means of preventing imminent death to himself or

another; or
(4)

Because the pressure of natural physical forces causes such person
reasonably to believe that his act is the only means of preventing imminent public disaster or imminent death to himself or another.

31

Interim Decision #1236
(1953), says, the "depravity" referred to in the statutory definition
of second-degree murder is present as well in first-degree murder, the
difference being absence of a. "design" to effect death. Walsh. v. State,
195 Wis. 540, 218 N.W. 714 (1928). The "heat of passion" reduced
what would otherwise be murder to manslaughter in the second or
third degree (usually third). State v. Storteeky, 273 Wis. 362, 77
N.W. 2d 721 (1956) ; Devroy T. State, 239 Wis. 466, 1 N.W. 2d 875
(1942).
The predecessor to section 940.06 was B.S. 4362, amended by Stat.
1898, par. 4863; later Stat. 1929, section 340.26, defining manslaughter
in the fourth degree. The development of this section of the Wisconsin. Criminal Code is set forth in. Bussard v. State, 233 Wis. 11,
288 N.W. 187 (108D). Bussard was convicted of manslaughter in the

fourth degree undersection 340.26, which provided as follows:
Every other killing of a human being by the act, procurement or gross negligence
of another, where such killing is not justifiable or excusable, or is not declared
in this chapter murder or manslaughter of some other degree, shall be deemed
manslaughter in the fourth degree. (Emphasis supplied.)

Prior to the amendment in 1929, the same section, Stat. 1927, 340.26,
was identical with the 1929 version, except that it read, "Every other
killing of a human being by the act, procurement or culpable negligence of another, etc.". (Emphasis supplied.) The amendment in
1929 was adopted following a request of the Supreme Court of
Wisconsin in Clemens v. State, 176 Wis. 289, 185 N.W. 209 (1921),
wherein "culpable negligence" was held to be ordinary negligence in
that state. The court in Bussard said :
It was there pointed out that as a result of mere inadvertence a person might in
this state be convicted of the crime of manslaughter with the necessary serious
consequences to himself and his family. It was suggested that at the earnest

time available such elmages be made in the statutes of our state by the Legislature as will require, in order to convict of manslaughter in the fourth degree,
gross negligence, as defined in the decisions of this court.

Gross negligence had been defined previously by the Wisconsin
Supreme Court in Jorgenson v. C. 6 N.T.B. Co., 153 Wis. 108, 140
N.W. 1088 (1913), as follows:
Gross negligence has received a very certain and definite meaning in the jurisprudence of this state, somewhat different from the meaning given to it in other
states ; it is not inadvertence in any degree ; there must be present either willful
intent to injure, or that wanton and reckless disregard of the rights of others
and the consequences of the act to himself, as well as others, which the law
deems equivalent to an intent to injure.
(Emphasis supplied.)

In Brassard v. State, supra, the Supreme Court said that, while the
defendant had been negligent in a high. degree, it could find no evidence
of wantonness, recklessness, or willfulness. State v. Whatley, 210
Wis. 157, 245 N.W. 93 (1932), says that evidence of gross negligence to
32

Interim Decision #I236
warrant conviction for fourth degree manslaughter under Statute 1929,
section 340.26 had to warrant finding beyond a reasonable doubt that
accused's misconduct was more reprehensible than mere want of ordinary care.
As to what constitutes "gross negligence", State v. Wiclestrom, 14
Wis. 2d 416,111 N.W. 2d 176 (1961), held that to justify a conviction
for causing death by a high, degree of negligence in operation of a
motor vehicle, the risk must be unreasonable and probability high or
greater than ordinary negligence, but not so great as to constitute
"wilful and wanton conduct characterizing gross negligence".
It becomes apparent, therefore, that the view of the Wisconsin courts
and Legislature is that homicide by reckless conduct connotes a degree
of negligence well beyond the "high degree of negligence" and "un
reasonable risk" defined in section 940.08. The Supreme Court of that
state has declared on several occasions that to find gross negligence
"there must be present either a wilful intent to injure, or that wanton
and reckless disregard of the rights of others and consequences of the
act to himself which the laws deem equivalent to an intent to injure."
This might be termed "imputed intent."
Still there must not have been an intent actually to cause a death
or the offense would be raised from manslaughter in the fourth degree.
&hied v. State, 75 Wis. 486, 44 N.W. 509(1890), concerned a killing
by defendant during a fight in a saloon. The court held that
defendant might have been convicted of manslaughter in the fourth
degree, under RS. section 4362. In Doherty -v. State, 84 Wis.
152, 58 N.W. 1120 (1893), the defendant was a policeman who
shot deceased during a, struggle. The officer placed the muzzle
of a pistol against his assailant's body and pulled the trigger. The
defendant officer claimed that his intent was only to disable deceased.
The court found that defendant was presumed to have intended the
natural consequences of his act and to have fired with the intention to
kill deceased. Therefore, he could not be convicted of manslaughter
in the fourth degree under R.S. 4362 which provided that to constitute
the latter offense the killing must be involuntary. A similar case is
Beauregard v. State, 146 Wis. 280, 131 N.W. 347 (1911), which held
that when blows on the head with a gun barrel were inflicted voluntarily, regardless of consequences, although without any specific intent
to cause death, the killing was not involuntary,within the meaning of
Statute 1898, par. 4362, defining manslaughter in the fourth degree.
In the instant case the fact that the jury found respondent guilty,
not of second-degree murder, but of the lesser offense of homicide by
reckless conduct, removed the element of "depraved mind" present
in 940.02, the second - degree murder statute. To recapitulate: prior
Board decisions have held that voluntary manslaughter does involve
-

768-456--65-4

33

Interim Decision #1236
moral turpitude, and involuntary manslaughter does not involve moral
turpitude. However, the Wisconsin Code has taken all the "Crimes
Against Life" out of the common-law pattern (murder, voluntary
manslaughter and involuntary manslaughter). If respondent had
been convicted prior to the 1955 recodification the offense would have
come within section 340.20, 1929 Statutes, defining "manslaughter in

the fourth degree." The crime of homicide by reckless conduct more
nearly resembles the common law offense of involuntary manslaughter
than it resembles the common law offense of voluntary manslaughter.
Respondent was guilty of gross negligence but, necessarily, he was
found not to have had a specific intent to kill, or to do an act the
natural consequence of which was to cause death.

Even if the cases have swung somewhat away from the requirement that a crime to involve moral turpitude must include such baseness, vileness or depravity as to be shocking and offensive, we still
consider that voluntariness or intent to commit the act or some act
must exist before we can find that the crime involves moral turpitude.
We cannot find a case, or think of an instance, wherein the offense has
been held to involve moral turpitude where no intent to commit the
act existed.
The Wisconsin Legislature has by law declared that negligence
so gross as respondent's, and conduct so reckless, implies intent and
malice. Even if we believe respondent to have been in fact grossly
negligent and reckless, does this statute describe a crime involving
moral turpitude as a matter of late? It seems to the Board that -while
a legislature may in a criminal statute "impute" intent or legislate
mans rea", it cannot do so for the purpose of establishing moral turpitude under the immigration laws.
On this record we find respondent was not convicted of a crime
involving moral turpitude as a matter of law. The order of the special
inquiry officer will be sustained.
ORDER: It is ordered that the order of special inquiry officer of
February 12, 1962 be and is hereby sustained.
"

34


Interim Decision 40731

MATTER OF MASCORRO-PERALES

In Deportation Proceedings
A-10720396

Decided by Board May 15,1967
An unconditional nunc pro dune waiver under section 212(g) [now section 212
00], Immigration and Nationality ACt, as amended. of Lhe ground of exclud
ability based on respondent's 1959 conviction of theft, granted in 1961 at a
time when he stood convicted of only one offense did not preclude the subsequent use of such crime to establish deportability under section 241 (a) (4)
of the Act based on conviction of two crimes involving moral turpitude when
respondent thereafter was convicted in 1965 of a second offense involving
moral turpitude.
th/AEGEI:

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251 (a ) (4)]—Convicted of
two crimes after entry, to wit, theft under $50, and
child molesting.
ON BEHALF OF SERVWE: R A. Vielhaber
Appellate Trial Attorney
(Oral argument)
Stephen hi. Sufiln
Trial Attorney
(Brief submitted)
The Government appeals from a decision by the special inquiry
officer, finding respondent not deportable as charged and terminating
proceedings.
Respondent is a 28-year-old male alien, native and citizen of Mexico,
a widower and the father of five United States born children. He was
lawfully admitted to the United States for permanent residence at
El Paso, Texas on or about June 22, 1959. On September 29, 1959,
he was convicted of the offense of theft under $50, in the County Court
at Law No. 2, El Paso County, Texas and sentenced to 90 days in
the County Jail. This conviction, although for a crime involving moral
turpitude and committed within three months after entry, did not
render respondent deportable under section 241(a) (4) because he was
not sentenced to confinement for a. year or more.
From the time of respondent's admission until sometime in 1962, he
228

Interim Decision #1734
lived in El Paso and made many one-day trips across the border to
Juarez, Mexico. The Government concedes that these trips come within
the holding in Rosenberg v. Fleuti, 374 U.S. 449, and that respondent
lid not make an entry on each return. However, in May 1962, prior to
the Fleuti decision (June 17, 1963) , respondent was made the subject
of deportation proceedings, charged with being deportable for having
been excludable at the time of his last entry in June 1901 as one convicted of a crime involving moral turpitude (section 212(a) (9) ).
This was based on the 1959 theft conviction. That crime, under the
Texas statute, has been held not to be classifiable as a petty offense because the maximum sentence that may be imposed is imprisonment for
up to two years (Matter of H—, 6 I. & N. Dec. 435).
At the deportation hearing, respondent applied for a

171111.6

pro berm

waiver of excludability under section 212(g) (now section 212(h) ).
The special inquiry officer found that the required extreme hardship to
respondent's citizen wife (who died in 1965) and his several citizen
children would be present if respondent were deported, and granted
the waiver in the exercise of discretion. The record shows that the
special inquiry officer, in granting the waiver, did not provide for revocation if a subsequent crime were committed, a condition usually
attached to this and similar waivers (c.f. Matter of P—, 10 I. & N. Dec.
1; Matter of P—, 7 1. & N. Dec. 713 ; Matter of C—A—,7 1. & N. Dec.
274, etc.).

On August 2, 1965, respondent was convicted in the Superior Court
of the State of California, County of Los Angeles, of the felony defined
in section 288 of the Penal Code of California (Crimes Against Children: Lewd and Lascivious Acts) , and was sentenced to the term prescribed by law, which he is presently serving at San Quention. (It
has been determined that this is a crime involving moral turpitude,
Matter of V , 7 I. & N. Dec. 242.)
The second conviction, plus the 1959 conviction, form the basis of
the charge under section 241(a) (4) . From the record, it does not appear
that respondent has ever been convicted of any other crime or crimes involving moral turpitude. The-special inquiry. officer terminated the deportation proceedings upon the following rationale:
—

It has been held that once a waiver of a ground of excludability based upon a
criminal conviction is granted, deportation proceedings cannot thereafter be properly instituted using the same criminal conviction, unless the previous grant
of relief has been revoked. Matter of G A , 7 1. & N. Dee. 274, and Matter of
—

—

T , 10 I. & N. Dec. 1. The crime of theft under
—

to

$ao cannot, therefore, be utilized

support tile charge in the present proceedings. *. • •

We do not consider the cited cases to be proper or sufficient authority for the sedan taken by the special inquiry officer. In neither was the
229

Interim Decision #1734

fact situation nor the legal issue the same as in the case before us. Matter.
of G—A—, supra, concerned a long-time resident convicted of a single
narcotics violation who, five years later, left the United States briefly
and was readmitted without incident, and then, three or four years
after his return, was made the subject of deportation proceedings upon
the ground that he had been excludable at the time of that return. He
applied, for a mow pro tune waiver of excludability under section
212(c). The special inquiry officer denied relief and ordered the alien
deported, on the ground that although the requested waiver would
make the alien's reentry legal, he would still be subject to deportation
under section 241(a) (11) for the same conviction. We stated in that

case

:

We believe that if 8 U.S C. 118.2(c) is exercised to waive a ground or inadmissibility based upon a criminal conviction, a deportation proceeding cannot thereafer be properly based upon the same criminal conviction unless, of course, the
Attorney General has revoked the previous grant of relief. Since we agree with
the special inquiry officer that the respondent's case is meritorious, we perceive no
reason why the authority in 8 U.S.O. 1182 (c) should not be exercised and, when
relief has been granted in accordance with the authorization of Congress, it would
be clearly repugnant to say that the respondent remains deportable because of
the same conviction. * * •

We granted the waiver, subject to the condition that it might be revoked in the discretion of the Attorney General if the alien thereafter
committed any crime. Our holding there was no more than an implementation of the waiver provision, necessary to make it an effective.
remedy. We ruled merely that if a single act can be the basis of both
excludability and deportability, and excludability is waived by the

Attorney General, then that act, without more, cannot be the basis of
a deportation charge. We did not enunciate any ruling as to what signifinance the initial conviction would have if the alien were convicted'
of a second crime after the grant of the waiver.
Matter of T—, supra, dealt with a woman admitted for permanent
residence in 1944, who went to Mexico for a day in 1957, and was made.
the subject of deportation proceedings as one who had been excludableon her return, for conduct engaged in prior to the initial admission as:
an immigrant in 1944. Deportation proceedings were terminated upon•
the granting to her of a nurse pro tune"waiver of inadmissibility, under
the provisions of section 5 of the Act of September 11, 1957, the said'
waiver being subject to revocation in the discretion of the Attorney
General if the alien should thereafter commit any offense. The alien,
without having committed any other offense, returned to Mexico for
a visit and prior to her return to the United States applied for a new
waiver of the same ground of excludability. The application was
denied as being unnecessary, and certified to the Assistant Commis230

Interim Decision #1784
•sioner of the Immigration and Naturalization Service, Examinations
Division, who held:
To require an alien who has been granted a waiver under section 5. 6 or 7
•of the act to reapply on each re-entry after a temporary absence would constitute
an undue burden, curtail the beneficial effects of this remedial legislation, and
unduly hamper travel. It is concluded, therefore, that during such time as the
order granting the waiver remains unrevoked, it be regarded as In full force

and effect as to any subsequent entries if no new grounds for excludability have
arisen, and the alien is complying with the conditions under which the waiver
was granted. * * *

Neither a subsequent offense nor a deportation proceeding was involved, the issue being solely one of whether a new waiver for the same
ground of excludability had to be applied for in connection with each
entry subsequent to the granting of the original wai ver.

The position of the Government on appeal is essentially correct.
Respondent was granted a waiver of excludability on the basis of a
single conviction for crime involving moral turpitude , and that waiver
has been honored. By the waiver, his 1961 return to the United States
was legalized, and he was placed in the same situation as if he had not
left the country. He was not deportable for having been excludable,
and not deportable on the basis of the conviction itself. However, respondent has now become deportable because of his own act, because of
his commission (and conviction of) a second crime involving moral
turpitude. He is not deportable for having committed the original
crime, but for having been convicted of two crimes, both involving
moral turpitude.
We find nothing in either the statute . or its legislative history to in-

that it was the intent of Congress, by providing such a. waiver,
to wipe the underlying crime from the records for immigration purposes (as is done by section 241(b) where there is an executive pardon
or judicial recommendation against deportation) , and to place the
recipient of administrative grace in a status permitting his greater
immunity for a subsequent crime than an alien who committed the
same number and type of crimes but did not leave the country between
convictions. Rather, from the manner in which such waivers and their
predecessor provisions have been administered, and from the wording
of the section here involved, it appears the waiver was intended to be
one conditioned upon the good behavior of the alien, one which might
be revoked if any subsequent crime or offense was committed. It is
dicate

possible that the failure of the special inquiry officer to attach such a

condition in 1962 was an oversight. Had there been a condition, and
revocation, there would be no question that the first conviction could
be used on this charge. However, even without a revocation, for the
reasons set out above, we find that the waiver under section 212(g)
231

Interim Decision #1734
granted the alien in 1959 did not protect him from a future charge of
deportability, based on conviction of two crimes involving moral turpitude, when he was convicted of an additional crime.
The decision of the special inquiry officer will be set aside and an
order entered finding respondent deportable as charged.
ORDER: It is ordered that the decision of the special inquiry
officer terminating these proceedings be and the same is hereby set

aside.
It is further ordered that the respondent be deported from the
United States to Mexico, on the ground contained in the order to show
cause.

232


•

MATTER

Interim Decision 41659

or Woa-orzcsowsxx

In Visa Petition Proceedings
A 14976994
-

Decided by District Director September 19, 1966
of. the professions within the meaning of
section 101(a) (32), Immigration and Nationality Act, as amended by P.L.
89-236, and since beneficiary, who was graduated from the University of
Chile with a diploma as a veterinarian physician, is a qualified veterinarian,
a visa petition is approved to accord him preference classification under
section 203(a) (3) of the Act, as amended.

Since a veterinarian is a member

The petition was filed by the beneficiary, for third preference
classification as a member of the professions based upon his qualifications as a veterinarian.
He is a single, native of Lithuania, and citizen of Chile, presently
residing in Sewell, Chile. In June 1964, ho was graduated from the

University of Chile; Santiago, Chile, with a diploma as veterinarian
physician. He was employed as a veterinarian from June 1964 to
March 1965 by the Cooperative Agricola Lechera, Osorno l Chile;
and as veterinarian from March 1965 to date by the Ministry of
Agriculture, Santiago, Chile. The beneficiary intends to be engaged
in the field of veterinary medicine in the United-States.
A certification pursuant to section 212(a) (14) of the Act, as
amended, has been issued by the Department - of Labor. With the
certification the opinion of that Department was furnished that the
alien is qualified for third preference classification.
Veterinarians are listed among piofessional occupations under
code 07 in the Dictionary of Occupational Titles, Volume II, third
edition, prepared by the Department of Labor. This group includes

occupations concerned with the health care of humans or animals
in the fields of medicine, surgery, and dentistry. .
Section 4741.09 of the State of Ohio Code, Veterinary Practice
Act, requires that a person seeking to engage in practice as a veteri
• 867

Interim Decision #1659
narian in that State, must . provide evidence of • having graduated
from veterinary college.
ruder section 203(a) (3) of the Act, third preference quota status
may be accorded to qualified immigrants who are members of the
professions.
Recognition of professional status normally is attained through
completion of high education. Section 101(a) (32) of the Act, states
the term "profession" shall include but not be limited to, architects,
engineers, lawyers, physicians, surgeons and teachers in elementary
schools, colleges, academies or seminaries.
It is concluded that entry into the field

of veterinary medicine
also requires the. high education that is associated with those occupations termed professions in section 101(a) (32) of the Act, and that
a veterinarian is a member of the professions within the meaning of
the Act. Further, it is found that the beneficiary is qualified as a
member of that profession.
ORDER: It is ordered that the petition be and the same hereby

is approved.

868


Interim Decision 41535

Marrer or Pacueco
In Visa Petition Proceedings
; ‘HHW-N-634
"Decided by Regional Commissioner November 12, 1965

Petition by the owner and operator of a restaurant and night club in Hawail
who desires the sorvices of boneficiarier, professional Japanese female
wrestlers, as a night club entertainment act, is granted to accord them non-
immigrant status as temporary workers under section 101(a) (15) (H) (11),
Immigration and Nationality Act, since domestic persons qualified and will-
ing ta acrent fhe emnlovment offer are not available to petitioner where the ©
Hawaii Employment Service treats beneficiaries as sporting participants and
finds it infeasible to attempt to determine availability, 2 representative of
the relating union considers the beneficiaries to be an extraordinary novelty
act, and a professional wrestling assoclation, although stating there are
sufficient female wrestlers available in the United States, considers the
beneficiaries to be entertainers, 7

Discussiuns This cose is before the Regional Commiscionor on
certification from the decision of the District Director who denied
the petition on the grounds that the petitioner has failed to estab-
lish that unemployed persons capable of providing professional fe-
male wrestling entertainment cannot be found in the United States.

The petitioner is owner and operator of a restaurant and night
club doing business as the Oasis Cafe and Night Club. He desires
tho services of the beneficiaries ns 9 night club entertainment: act.

‘The beneficiaries, all natives and citizens of Japan, presently re-
side in Japan and are engaged as professional wrestlers appearing
both in sports arenas and night clubs.

8 CFR 214.9(h) (2) (ii) states “A United States Employment Serv-
ice clearance order concerning the nonavilability of qualified per-
sons in the United States and stating its policies have been obscrved
shall be attached to avary submitted nonimmigrant visa petition to
accord an alien # classification under section 101(a) (15) (H) (ii) of
the Act unless the petitioner has been informed by the Immigration
and Naturalization Service that a clearanca order for the benefi-
ciary’s occupation is not required.” a 7

427
Interim Decision #1535

The Hawaii State Employment Service, an affiliate of the United
States Employment Service, has declined to issue a clearance order
Jn this case. In arriving at this decision, it stated as follows:

‘We have considered your recent verbal request for four female Japanese
wrestlers to’ perform ax a ‘novelty act’ on the premises of Oasis Cafe and
‘Night Club, Although wrestlers in this situation could possibly be classified as
entertainers, subject: to the usual labor clearance, we prefer to treat these
positions as openings for sporting participants, ‘This is based on the fact
that candidates sought must be members of a professionnl wrestling organisa-
tion, However, since persons in this enategory do not customarily register

swith the lLcal public employment office, and we Imow of no recognized wrestling
ARENcy WIUNIN The SULE, 1b Is Cet Unal Lats io an occupation, tthe natnra af

which makes it unfeasible for the Employment Service to attempt to determine
availability’. (Employment Security Manudl—Part II, Section 1861).

The National Wrestling Alliance in their letter of June 21, 1965
indicated professional girl wrestlers are available in the United

“States, In their letter of June 25, 1965 they state they have found ~

the petitioner is not a legitimate wrestling promoter and that the
henenciaries Were merely tu be cuterlaincss ab the petitioner's night

club. 7 7
In reply to an inquiry by this Service, o representative 6f the
American Guild of Variety Artists replied as follows: :

Please be advised that this office has no objection to the petition submitted
by Bill Pacheco to bring in the following from Japan to work'in the Oasis as
a wrestling act. .

Chlyvay Ocala

Sumiko Yamamoto

Sadayo Ino,

‘Teruko Sato
We doom thia ac an extraordinary novelty act and will Insist thet they be-
come members of A.G.V.A.

‘We are now faced with the following series of events:

J. A petition to‘ classify the beneficlaries as persons of distinguished
merit and as professional wrestlers was denied on the grounds
the “Tokyo Pro Wrestling Association was unknown as a wrestling
association ana therefore their statement did not satisfactorily ¢s-
tablish the ability and experience of the beneficiaries as wrestlers”.

Wi. The Hawai State Employment Service finds the beneficlaries are

- wrestlers rather than entertainers ond bases this, decision on the
fact the beneficiaries must be members of a professional wrestling
organization. - Soe

Ut. The American Guild of Variety Artictu considers the bonoficiaries to
be an “extraordinary novelty act” and will insist they become mem-
bers of that organization. A

IV. The National Wrestling Alliance, although stating there are sufficient
fomale wrortlors availahlo in the Tnited States. considers the bene-
ficiaries “merely to be entertainers”, _

428
Interim Decision #1535

‘V." The petitioner has testified female professional wrestlers are not
available to him as he is not a member of a wrestli giassoclation.

Petitioner has been placed in a precarious position by tho diver-
gent opinions of the various organizations involved. His petition
for status of the beneficiaries as aliens of distinguished merit and
ability was denied hecause of lack of recognition of the organiza-
tion to which they belong, yet, the Hewaii State Employment
Service bases its decision to classify the position the beneficiaries
are to fill ds one requiring sporting participants rather than enter-
tainoro upon the fact that they muct be mombore of a prnfossinnal
wrestling organization. The National Wrestling Alliance states fe-
male professional wrestlers are available yet, refuses to supply them
to the petitioner on the grounds that: he is not a legitimate wrestling
promoter,

‘The Hawaii State Employment Service has found the position in
question is one in which it is unfeasible to attempt to determine
availability of persone in tha Tinited States Tespite allegations
concerning the availability of professional women wrestlers in the
United States, the fact remains the petitioner is not engaged in
wrestling promotion and desires the services of the beneficiaries as
an enterafnment act ina night club. The beneficiaries will not enter
into competition with other athletes and will confine their activities
to the petitioner’s night club.

After careful consideration of all the evidence in this case, it is
concluded that the petitioner has established need for the benefici-
aries’ services and that domestic persons qualified and willing to ac:
cept the employment offer are not available to the petitioner. Ac-
cordingly, the District Director's order will be vacated, and the
petition approved.

ORDER: It is ordered that the District Director’s order denying
the petition on the grounds stated be vacated.

It is further ordered that the petition for the status of the bene-
ficiaries under section 101(a) (15) (H1) (ii) be and the same is hereby
approved.

429


Interim Decision #2287

MATTER OF ORIA

In Deportation Proceedings
A-17860711
A-17778971
Decided by Board May 7, 1974
Neither the immigration judge nor the Board of Immigration Appeals has
jurisdiction in deportation proceedings to review a district director's decision
not to revalidate a third preference visa petition in conjunction with an
application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, as amended.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant
visitor—remained longer than permitted (both respondents) .

ON BEHALF OF RESPONDENTS:

Earle M. Brooks, Esquire
189 West Madison Street
Chicago, Illinois 60602

The alien respondents, husband and wife, are natives and
citizens of the Republic of the Philippines. Through counsel they
have admitted the factual allegations contained in the Orders to
Show Cause, and they have conceded deportability as nonimmigrant visitors who have remained beyond the authorized length of
their stays. At their -hearing before an immigration judge they
applied for, and were accorded, the discretionary relief of voluntary departure. The female respondent. also renewed an earlier
application for adjustment of status under section 245 of the
Immigration and Nationality Act. The record does not indicate
that the male respondent formally applied for acljnatme.nt .of

status; however, it appears that he would have so applied had the
female respondent been granted section 245 relief. In his decision,
dated December 4, 1973, the immigration judge denied the female
respondent's request for adjustment of status. Both respondents
have appealed, although the only issue on appeal involves the
691

Interim Decision #2287

denial of the female respondent's application under section 245.
The appeal will be dismissed.
The female respondent has sought adjustment of status as a
preference immigrant under section 203(a)(3) of the Act. Her
section 245 application was filed in January of 1969, and since that
time sixth preference and nonpreference immigrant visas have
remained unavailable to aliens from the Philippines. The female
respondent had been the beneficiary of an approved third preference visa petition. Approval of that petition expired on January 19,
1969, and the petition has not been revalidated. Her basic contention is that she should now be granted section 245 relief because a
lengthy and unexplained delay in the processing of her case
deprived her of an earlier opportunity for adjustment of status.
This claim in essence relates to an apparent failure on the part of
the Department of Labor to respond promptly to a Service request
for a decision as to whether the female respondent's labor certification should be revalidated.
As the case stands before us, the female respondent must either
qualify as a third preference immigrant or be precluded from
receiving adjustment of status. Neither the immigration judge nor
this Board has jursidiction to review a District Director's decision
not to revalidate a third preference visa petition. Matter of Fiatfora, 11 I. & N. Dec. 592 (BIA 1966). The female respondent does
not now qualify as a third preference immigrant; accordingly she
is statutorily ineligible for adjustment of status. Since we have no
authority to determine the female respondent's eligibility for
classification as a third preference immigrant, there would be no
point in our assuming jurisdiction to adjudicate her claim that she
has been prejudiced through a delay in the processing of the
request for a revalidation of her labor certification.
There is, however, one aspect of the female respondent's claim
which deserves clarification. She has asserted that until February
4, 1971 she was eligible for labor certification under Schedule C,
Group II of 29 CFR Part 60, 1 but that during the processing of her
case the regulations were changed to eliminate a basis upon which
she could have received labor certification. This contention is
incorrect.

In order to simplify the labor certification procedure, the Secretary of Labor has devised several schedules which cover certain
occupations, and which aid in determining whether a given alien
satisfies the requirements of section 212(aX14) of the Act. Schedule
C, which was initially incorporated into 29 CFR Part 60 on
February 1, 1967,2 contained two groups, one of which set forth a
1
2

See 32 Fed. Reg. 867 (January 25, 1967).
32 Fed. Reg. 867 (January 25, 1967).

692

Interim Decision #2287
list of occupations found to be in short supply generally, but not
nationwide. An alien qualifying under Schedule C could receive an
individual labor certification from the Department of Labor without the requirement of a specific job offer. Group I of Schedule C
contained the actual list of qualifying occupations. Group II was
not a list. It basically obviated the job offer requirement for "[a]ny
person qualified as a professional or who has exceptional ability in
the sciences or arts and whose occupation is not listed on Schedule
A." 29 CFR Part 60, Schedule C (1968).
Schedule C was revoked after due notice and the Schedule CPrecertification List was established in place of Schedule C, Group
I. 29 CFR 60.3(c) (1970), 34 FR 1018 (January 23, 1969); Notice of
Proposed Rule Making, 33 FR 17244 (November 21, 1968). Thereafter, the essential elements of Schedule C, Group H were no
longer contained in any schedule, but instead were incorporated in
29 CFR 60.3(b). 34 FR 1018 (January 23, 1969). This portion of the
Department of Labor's regulations has not been substantially

altered, and the basic provision, earlier embodied in Schedule C,
Group II, has remained in effect throughout the period of time
involved in this case. 3 Consequently, the regulation under which
the female respondent sought labor certification was not eliminated by the February 4, 1971 revision of 29 CFR Part 60, a
revision which did eliminate the Schedule C—Precertification List.
Although the functional provisions under which the female

respondent sought labor certification have not been removed from
the pertinent regulations, the delay in processing her application
remains unexplained by the record in this case. Nevertheless, this
is not the proper forum for a resolution of the female respondent's
claim.
ORDER; The appeal is dismissed.
Futher order: Pursuant to the imigration judge's order, the
respondents are permitted to depart from the United States
voluntarily within 62 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 order.

3 The Service twice requested a redetermination by the Department of Labor
regarding the female respondent's labor certification. The initial request for
what amounted to a revalidation determination was dated October 1, 1969 and
alluded to Schedule C, Group II at a time when Schedule C. Group IL as such, no
longer existed. Proper identification of the female respondent's labor certification application, however, was contained elsewhere on the form.

693


Cite as 27 I&N Dec. 795 (BIA 2020)

Interim Decision #3979

Matter of W-E-R-B-, Respondent
Decided March 6, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An Interpol Red Notice may constitute reliable evidence that indicates the serious
nonpolitical crime bar for asylum and withholding of removal applies to an alien.
(2) The respondent’s violation of article 345 of the Salvadoran Penal Code, which
proscribes participation in an illicit organization whose purpose is the commission of
crimes, was “serious” within the meaning of the serious nonpolitical crime bar.
FOR RESPONDENT: Allison J. Heimes, Esquire, Omaha, NE
FOR THE DEPARTMENT OF HOMELAND SECURITY: Bobbie C. Masters, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, Acting Chairman; COUCH, Board Member;
NOFERI, Temporary Board Member.
NOFERI, Temporary Board Member:

In a decision dated August 16, 2019, an Immigration Judge denied the
respondent’s applications for asylum, withholding of removal, and protection
under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature Dec.
10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”), determining that there are
serious reasons to believe that the respondent had committed a serious
nonpolitical crime prior to arriving in the United States. The respondent has
appealed from this decision.1 The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of El Salvador who entered the
United States in 2012. The Department of Homeland Security (“DHS”)
1

On appeal, the respondent does not challenge the Immigration Judge’s denial of his
application for deferral of removal under the Convention Against Torture, so that
application is not before us. See Matter of Y-I-M-, 27 I&N Dec. 724, 729 n.2 (BIA 2019).

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Interim Decision #3979

placed him in removal proceedings, charging that he is removable under
section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(A)(i) (2018), as an alien who is present in the United States
without admission or parole. He conceded removability and applied for
asylum and withholding of removal under sections 208(b)(1)(A) and
241(b)(3)(A) of the Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A)
(2018), and for protection under the Convention Against Torture.
The DHS submitted an Interpol Red Notice dated July 10, 2018,
reflecting that a warrant had been issued on March 31, 2016, by the
Magistrates Court of San Salvador, for the respondent’s arrest regarding a
violation of article 345 of the Salvadoran Penal Code, which proscribes
participation in an “illicit organization.” The Red Notice indicates that,
according to an investigation conducted in 2010, the respondent is a
“gatillero,” or “hit man,” with the MS-13 gang. The Immigration Judge
found that there are serious reasons to believe the respondent had committed
a serious nonpolitical crime prior to his entry into the United States. The
Immigration Judge further found that the respondent had not met his burden
to prove by a preponderance of evidence that the serious nonpolitical crime
statutory bar does not apply to him. Accordingly, the Immigration Judge
determined that the respondent was ineligible for the requested relief.

II. ANALYSIS
A. Legal Standard
An alien is barred from obtaining asylum and withholding of removal
when “there are serious reasons for believing that the alien committed a
serious nonpolitical crime” before arriving in the United States. Section
208(b)(2)(A)(iii) of the Act (asylum); see also section 241(b)(3)(B)(iii) of
the Act (withholding of removal); 8 C.F.R. § 1208.16(d)(2) (2019)
(withholding of removal under the Convention Against Torture). See
generally INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (deferring to the
analytical framework we outlined for evaluating the applicability of the
serious nonpolitical crimes bar in Matter of McMullen, 19 I&N Dec. 90 (BIA
1984), aff’d, McMullen v. INS, 788 F.2d 591 (9th Cir. 1986), overruled on
other grounds by Barapind v. Enomoto, 400 F.3d 744, 751 n.7 (9th Cir. 2005)
(per curiam)).
We most recently articulated the framework for evaluating whether this
statutory bar applies in Matter of E-A-, 26 I&N Dec. 1 (BIA 2012). We
interpreted the “‘serious reasons for believing’ [standard] to be equivalent to
probable cause, as have the circuit courts that have considered this question.”

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Interim Decision #3979

Id. at 3 (citing Go v. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011); Khouzam
v. Ashcroft, 361 F.3d 161, 165–66 (2d Cir. 2004)). We also explained that
“[i]n evaluating the political nature of a crime, we consider it important that the
political aspect of the offense outweigh its common law character. This would not
be the case if the crime is grossly out of proportion to the political objective or if it
involves acts of an atrocious nature.”
Thus, we first consider whether the criminal conduct is of “an atrocious nature.”
If not, we balance the seriousness of the criminal acts against the political aspect of
the conduct to determine whether the criminal nature of the applicant’s acts
outweighs their political character.
. . . The evaluation of a serious nonpolitical crime is conducted on a case-by-case
basis considering the facts and circumstances presented.

Id. (alteration in original) (quoting Matter of McMullen, 19 I&N Dec.
at 97–98) (citing INS v. Aguirre-Aguirre, 526 U.S. at 429–31).
B. Serious Reasons for Believing
We first conclude that there are “serious reasons for believing” that the
respondent committed a serious nonpolitical crime. Since the respondent
is seeking relief from removal, he has the burden to establish that he
satisfies the applicable eligibility requirements for his applications. See
section 240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A). Because the
commission of a serious nonpolitical crime is a mandatory bar to asylum and
withholding of removal, if the DHS establishes that the “evidence indicates
that one or more of the grounds for mandatory denial of the application for
relief may apply, the alien shall have the burden of proving by a
preponderance of the evidence that such grounds do not apply.” 8 C.F.R.
§ 1240.8(d) (2019); see also 8 C.F.R. § 1208.16(d)(2) (applying same
burden-shifting framework to applications for withholding of removal); cf.
Aguirre-Aguirre, 526 U.S. at 432 (citing with approval a prior regulatory
burden-shifting framework, which is substantively similar to the one outlined
in 8 C.F.R. § 1240.8(d)). In Matter of M-B-C-, 27 I&N Dec. 31, 36–37
(BIA 2017), we made clear that the DHS need not meet an “onerous
standard” to shift the burden of proof to the respondent under 8 C.F.R.
§ 1240.8(d) and may do so by presenting “some evidence from which a
reasonable factfinder could conclude that one or more grounds for mandatory
denial of the application may apply.”
The DHS submitted an Interpol Red Notice showing that the respondent
is wanted in El Salvador based on allegations that he violated article 345 of
the Salvadoran Penal Code for participating in an “illicit organization” and
is a “hit man” for a gang organization. The DHS also submitted background
information regarding Interpol Red Notices. Based on the evidence in the
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Interim Decision #3979

record, the Immigration Judge found that a Red Notice is a request to locate
and provisionally arrest an individual pending extradition, which the General
Secretariat of Interpol issues at the request of a member country or an
international tribunal based on a valid national arrest warrant. 2 The
Immigration Judge further noted that a Red Notice may be published only if
it fulfills all conditions for processing information, which include the criteria
that the offense concerned is a serious ordinary law crime and, if the person
is sought, the conduct constituting an offense must be punishable by a
maximum deprivation of liberty of at least 2 years. The Immigration Judge
noted that several crimes, such as offenses relating to “family/private
matters,” cannot be the basis of a Red Notice.
The DHS additionally submitted a Record of Deportable/Inadmissible
Alien (Form I-213) dated February 25, 2019. Based on the Form I-213, the
Immigration Judge found that the DHS notified Interpol when processing the
respondent, that Interpol confirmed to the DHS that a match exists between
the Red Notice and the respondent, and that the Red Notice was active. The
Immigration Judge further explained that the Form I-213 indicated that the
biographical information in the Red Notice matched the respondent’s full
name, date of birth, and place of birth, and it contained a photograph of the
respondent identical to one on his El Salvadoran identification card. The
Immigration Judge also properly noted that a Form I-213 is presumptively
trustworthy and may not be excluded unless there is a showing that it is
unreliable or contains incorrect information. See Matter of Gomez-Gomez,
23 I&N Dec. 522, 524 (BIA 2002) (en banc).
The respondent argues that the Red Notice does not have any probative
value because such a notice is insufficient to establish probable cause for an
arrest in the United States under the Fourth Amendment, and thus it does not
have any probative value. U.S. Dep’t of Justice, INTERPOL Washington
FAQ, https://www.justice.gov/interpol-washington/frequently-asked-questions
(follow “Can a person be arrested based on an INTERPOL Red Notice?”
hyperlink) (last visited Mar. 3, 2020).3 We disagree.
2

The respondent argues that the DHS did not submit evidence of a current arrest warrant
for him in El Salvador. However, the Red Notice indicates that the General Secretariat of
Interpol has a copy of the arrest warrant. Cf. Tatintsyan v. Barr, No. 18-71056, 2020
WL 709663, at *1 (9th Cir. Feb. 12, 2020) (concluding that a “red notice [that] indicated
that there was no ‘Copy of Arrest Warrant Available at the General Secretariat’” did not
support a finding of “serious reasons to believe” for purposes of the serious nonpolitical
crime bar).
3
The respondent also argues that the Red Notice in his case does not establish that he
was convicted of a crime, only that he has been accused of committing one. However, the
serious nonpolitical crimes bar requires only commission of, not conviction for, a crime.
See McMullen, 788 F.2d at 596 (affirming our conclusion that the serious nonpolitical
crime bar applies to an “individual [who] has committed a criminal act”).

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Interim Decision #3979

As the Immigration Judge properly noted, a Red Notice is not a formal
international arrest warrant. Interpol, Red Notices, https://www.interpol.int/
How-we-work/Notices/Red-Notices (last visited Mar. 3, 2020). However,
guidance from the United States Department of Justice also provides that a
Red Notice “is the closest instrument to an international arrest warrant in use
today.” U.S. Dep’t of Justice, Criminal Resource Manual § 611 Interpol Red
Notices, https://www.justice.gov/archives/jm/criminal-resource-manual-611
-interpol-red-notices (last visited Mar. 3, 2020); see also Guan v. Barr, 925
F.3d 1022, 1029 n.2 (9th Cir. 2019).
In sum, the Immigration Judge found the Red Notice to be reliable for
what it purports to be—namely, a request by a member country (here, El
Salvador) to provisionally arrest a specifically identified person (here, the
respondent) pending extradition based on a valid national arrest warrant for
a crime that is not political in nature. We affirm the Immigration Judge’s
determination that on this record, the DHS has met its burden to show that
the serious nonpolitical crime bar may apply to the respondent pursuant to
8 C.F.R. §§ 1208.16(d)(2) and 1240.8(d). Matter of M-B-C-, 27 I&N Dec.
at 36–37; cf. Marroquin-Retana v. Att’y Gen. U.S., 675 F. App’x 216, 219
(3d Cir. 2017) (per curiam) (concluding that there were “serious reasons for
believing” that that the alien had committed a serious nonpolitical crime
based on an “Interpol Notice” and other evidence).
Thus, the burden shifted to the respondent to prove by a preponderance
of the evidence that the serious nonpolitical crime bar does not apply—in
other words, to show that there are not serious reasons for believing that he
committed a serious nonpolitical crime. 8 C.F.R. §§ 1208.16(d)(2),
1240.8(d); see also Matter of M-B-C-, 27 I&N Dec. at 36–37. Considering
the respondent’s testimony credible, the Immigration Judge found that he
was arrested in El Salvador following a melee in 2010 that resulted in injury
to a police officer. The respondent was also shot and had a gun on his
person.4
The respondent submitted a letter from an attorney in El Salvador, which
indicated that the charges stemming from this incident were dismissed in
October 2018. The Immigration Judge found that this letter, standing alone,
was insufficient to show that the criminal charges against the respondent had
4

The respondent argues that because the Immigration Judge found his testimony credible,
he established by a preponderance of the evidence that the serious nonpolitical crime bar
does not apply. We disagree. The findings regarding the respondent’s testimony about his
criminal conduct in 2010, in conjunction with the Immigration Judge’s findings regarding
the Red Notice and the Form I-213, are sufficient to determine that the respondent has not
met his burden. For this reason, his attempt to distinguish his case from others where
additional evidence accompanied a Red Notice is unavailing. See Marroquin-Retana, 675
F. App’x at 220.

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Interim Decision #3979

been dismissed.5 The Immigration Judge noted that the respondent did not
submit official court documents regarding these criminal charges. See
Marroquin-Retana, 675 F. App’x at 220 (noting that a letter from an alien’s
attorney stating that criminal proceedings against him were “suspicious” was
“not compelling evidence” and was insufficient to establish that the alien had
“been found not guilty”). As noted, moreover, the Immigration Judge found
that the Red Notice is still active, and the information on the Form I-213 is
presumptively trustworthy. We discern no clear error in the Immigration
Judge’s factual findings. See Matter of A.J. Valdez and Z. Valdez, 27 I&N
Dec. 496, 501 (BIA 2018) (holding that an Immigration Judge is “entitled to
make ‘reasonable inferences from direct and circumstantial evidence of the
record as a whole’ and [is] not required to interpret the evidence in the
manner advocated by the respondents” (citation omitted)).
We will therefore affirm the Immigration Judge’s determination that the
respondent has not met his burden to establish by a preponderance of the
evidence that the serious nonpolitical crime bar does not apply. See 8 C.F.R.
§§ 1208.16(d)(2), 1240.8.
C. Serious Nonpolitical Crime
The respondent has conceded, below and on appeal, that his crime in
El Salvador in violation of article 345 of the Salvadoran Penal Code was
nonpolitical. Accordingly, we need not analyze this crime’s political nature.
See Matter of E-A-, 26 I&N Dec. at 4 n.2 (determining whether a crime is
nonpolitical “is a much easier task when there is no clear political motive
to criminal conduct”). Thus, the only remaining issue is whether the
respondent’s crime was “serious” for purposes of sections 208(a)(2)(A)(iii)
and 242(b)(3)(B)(iii) of the Act.

5

In a case unlike this, where an alien has put forth evidence of the political nature of his
crime to meet his burden, an Immigration Judge should consider evidence in the record
that the foreign country issuing the Red Notice abuses them for political reasons. See
Tatintsyan, 2020 WL 709663, at *1 (concluding that a Red Notice from Russia was
insufficient to establish “serious reasons for believing” that the serious nonpolitical crime
bar applied where an alien presented evidence that the Russian Government abuses Red
Notices for political reasons and credible testimony that the Russian Government had
persecuted that respondent); see also United States v. Mohamud, 843 F.3d 420, 424 n.5
(9th Cir. 2016) (“Although Interpol will not publish requested Red Notices that violate
Interpol’s Constitution, which prohibits the organization from undertaking any activities
of a political, military, religious or racial character, Interpol does not independently vet the
governmental request for a Red Notice for its factual and legal justification.” (citation
omitted)).

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Cite as 27 I&N Dec. 795 (BIA 2020)

Interim Decision #3979

We conclude, as did the Immigration Judge, that the nature of the
respondent’s alleged criminal conduct is serious. In determining the
seriousness of the respondent’s crime, a relevant consideration is whether his
conduct involved “a substantial risk of violence and harm to persons.” Id.
at 5 n.3. The Immigration Judge concluded that a violation of article 345 of
the Salvadoran Penal Code involves a substantial risk of violence and harm
to persons. 6 This conclusion is based on the finding that article 345
criminalizes participation in “a grouping, association or illicit organization”
whose “purpose or one of them is the commission of crimes,” and which uses
“violent means.”7 The Immigration Judge’s finding in this regard contradicts
the respondent’s argument that this crime is nothing more than “loitering.”
We discern no clear error in the Immigration Judge’s factual finding
regarding the content of article 345. Additionally, the record reflects that the
maximum term of imprisonment for a violation of article 345 is 9 years,
which is also indicative of the serious nature of this offense.
We will therefore affirm the Immigration Judge’s conclusion that the
respondent’s crime is “serious” within the meaning of sections
208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) of the Act. See Zheng v. Holder, 698
F.3d 710, 714 (8th Cir. 2012) (affirming that a nonpolitical crime was

6

To the extent the respondent argues his criminal conduct was not “atrocious,” and
therefore cannot be “serious,” he misstates the law. As the Supreme Court has explained,
although “atrocious acts provide a clear indication that an alien’s offense is a serious
nonpolitical crime,” we “need not give express consideration to the atrociousness of the
alien’s acts in every case before determining that an alien has committed a serious
nonpolitical crime.” Aguirre-Aguirre, 526 U.S. at 430 (“The [Board’s] approach . . . does
not equate every serious nonpolitical crime with atrocious acts.”).
7
Specifically, the Immigration Judge found that article 345 of the Salvadoran Penal Code
provides:
Anyone who takes part in a grouping, association or illicit organization, will be
punished with imprisonment of three to five years. The organizers, leaders, directors,
or ringleaders will be punished with imprisonment of six to nine years. The
groupings, associations, or organizations, temporary or permanent, of two or more
persons with some degree of organization, whose purpose or one of them is the
commission of crimes, as well as those who carry out acts or use violent means for
admission of its members, permanence, or departure from them, shall be considered
illegal. If the author or participant is a public authority, agent of authority, official
or public employee, the penalty shall be increased to one third of the maximum and
absolute disqualification of the charge, for equal time.
The content of foreign law is a question of fact. Matter of A-G-G-, 25 I&N Dec. 486, 505
n.19 (BIA 2011).

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Cite as 27 I&N Dec. 795 (BIA 2020)

Interim Decision #3979

“serious” on a record that included evidence of the alien’s assault on a
government official and the issuance of an “ambiguous” arrest warrant).8
Because the Immigration Judge properly determined that the respondent
is subject to the serious nonpolitical crime bar, he is statutorily ineligible for
asylum and withholding of removal under the Act and the Convention
Against Torture. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

8

The respondent argued below and on appeal that he committed the offense under duress,
citing only Matter of Negusie, 27 I&N Dec. 347 (BIA 2018), and arguing that it should
apply to his case. The Board concluded there that “duress is relevant in determining
whether an alien who assisted or otherwise participated in persecution is prevented by
the . . . ‘persecutor bar’ from establishing eligibility for asylum and withholding of
removal.” Id. at 348. Subsequently, the Attorney General certified the case to himself for
review, which automatically stayed our decision and rendered it without effect. Matter of
Negusie, 27 I&N Dec. 481 (A.G. 2018); see also Matter of E-L-H-, 23 I&N Dec. 700, 702
(A.G. 2004) (stating that “if a Board decision has been certified to the Attorney General, it
is neither final nor effective during the pendency of the Attorney General’s review”).
Given that our decision in Negusie regarding the persecutor bar is without effect, we
decline to hold that it applies to the different statutory bar to asylum and withholding from
removal for serious nonpolitical crimes. Because the respondent has not developed this
argument further, we will not address it further. He has also not argued below or on appeal
that he committed his crime in self-defense. See Matter of E-A-, 26 I&N Dec. at 7 n.6.

802


Interim Decision #2529

MATTER OF CONCEPCION
In Visa Petition Proceedings
A-34106980
Decided by Board September 8, 1976
The provision of section 204(c) of the Immigration and Nationality Act which provides that
a visa petition shall not be approved for a beneficiary who has previously been accorded
a nonquota or preference status based on a marriage entered into to evade the immigration laws is not applicable to a beneficiary who had previously been accorded immediate
relative status as the spouse of a United States citizen on the basis of a marriage which
never took place but which in fact was a fiction based on falsified documents. Under the
circumstances the beneficiary cannot be said to have entered into a marriage for the
purpose of evading the immigration laws, notwithstanding the fact that the Service
approved the prior immediate relative petition.
ON BEHALF OF PETITIONER: Gerald L. McVey, Esquire
Fallon, Hargreaves, Bixby & McVey
30 Hotaling Place
San Francisco, California 94111

The lawful permanent resident petitioner applied for preference
status for the beneficiary as his spouse under section 203(a)(2) of the
Immigration and Nationality Act. In his decision of October 28, 1975, the
Acting District Director denied the petition on the basis of section 204(c)
of the Act.

The petitioner and the beneficiary were married on May 9, 1975. The
present petition was filed on June 3, 1975. The beneficiary had previously been accorded immediate relative status as the spouse of a United
States citizen when a visa petition in her behalf was approved on
September 21, 1972, and she entered the United States with an immigrant visa on October 30, 1972. It was determined subsequently, in
deportation proceedings, that the marriage upon which the visa petition
was based was a fiction and had never taken place, and the beneficiary
was found deportable as an alien who was excludable at entry under
section 212(a)(19) and section 212(a)(14).

Section 204(c) of the Immigration and Nationality Act reads, in pertinent part, as follows:
. .. [No petition shall be approved if the alien has previously been accorded a nonquota
or preference status as the spouse of a citizen of the United States or the spouse of an

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Interim Decision #2529
alien lawfully admitted for permanent residence, by reason of a marriage determined by
the Attorney General to have been entered into for the purpose of evading the immigration laws. (Emphasis supplied.)

The beneficiary has previously been accorded immediate relative
status as the spouse of a United States citizen. However, she was
accorded that status on the basis of falsified documents. No marriage
was entered into, and therefore it cannot be determined that she obtained immediate relative status on the basis of a marriage entered into
for the purpose of evading the immigration laws.
Although the beneficiary profited from the previous Service determination that a marriage existed in the same way as if she had entered into
a sham marriage, still the fact is that the marriage did not exist and
therefore section 204(e) does not apply to the farts of this case.

Because the Acting District Director based his decision on section
204(c), he does not appear to have considered or reached a decision as to
whether the marriage between the petitioner and the beneficiary was
entered into in good faith. Accordingly, we shall remand the record for
further proceedings along these lines and so that the District Director
may enter a new decision.
ORDER: The appeal is sustained and the record is remanded to the
District Director for further proceedings in accordance with the above
opinion.

11


Interim Decision .#1835

MAIVIGR of SONZGAWA

In Visa Petition Proceedings
A-14616469
Decided by Regional Commissioner August 14, 1967
Approval of a visa petition filed by the owner and proprietress of a custom dress
and boutique shop to accord beneficiary preference classification under section
203(a) (6) of the Immigration and Nationality Act, as amended, as an assistant
clothes designer, is not precluded by the fact that petitioner's net profit for
the previous year is not commensurate with the salary specifications of the
labor certification where it is found that petitioner's business has increased ;
that her expectations of continued increase in business and profits are res.
sonable expectations; and it has been establighed that she has the ability to

meet the wages stipulated in the labor certification.
ON BEHALF or PzwgzIONER: Sidney M. Kaplan, Esquire
Room 818
756 South Broadway
Los Angeles, California 90014

Discussion: This case comes forward on appeal from the decision
of the District Director, Los Angeles who denied the petition on May
31, 1987 in that it had not been established that the petitioner could
meet the wage requirements of the position certified by the Secretary
of Labor.
Oral argument was requested and granted. Petitioner appeared
with counsel as scheduled.
The petitioner is the owner and proprietor of a fashionable "custom
dress and boutique" shop in Pasadena, California, specializing in
women clothes of oriental fabric and design. The shop was established in 1956 and does an annual gross business of about $100,000. In
addition to the petitioner, there are four regular employees and from
one to four part-time employees. Petitioner has been doing her own
designing and creations and now seeks the services of the beneficiary
as an "assistant designer for oriental arts". Form ES-575B, "Job
Offer for Alien Employment", describes the duties of the position as
follows: "Has to be able to do embroidery, beading, speeial handwork,
designing, pattern work cutting, fitting, and finishing. She will be
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Interim Decision #1835
working in an air conditioned shop, working with modern equipment,
and in nice surroundings." The education and training requirements
for the position are described as, "She has to have at least five years
experience in dress designing, pattern making, and cutting. Must also
be able to do embroidery and fitting." The salary offered is $3.00 an
hour for a 40 hour week.

The certification required by section 212(a) (14) of the Immigration and Nationality Act, as amended, as to the availability of like
labor in the United States has been issued by the Department of Labor,
which titled the poition certified as "clothes designer" with a code
142.081.
The beneficiary is a 35-year-old single female, a native and citizen of
Japan. She was admitted to the United States at Honolulu, Hawaii
as a visitor for business on February 6, 1965 as a representative of
a Japanese import firm to research United States markets for products attractive to Japanese business. She subsequently applied for a
change of nonimmigrant status to that of a student which was denied
and beneficiary returned to Japan in September 1966.
Evidence presented shows that the beneficiary graduated from high
school in Japan in 1951 and that she attended the Musashino Dress
Making Women's College in Tokyo from October 1955 to September
1957 completing a course in professional techniques of dress making,
cutting and embroidery and also fitting, and was awarded a graduation diploma on March 31, 1958. On March 31, 1957 she was awarded a
certificate of merit for outstanding work by the school. She also presented a certificate showing completion of a "designers course" from
the Dress Makers Women's College, Tokyo on March 30, 1959 and a
diploma showing completion of a two-year course in oriental interior
design from Nippon Design College in Tokyo on March 25, 1964. She
was issued an instructor's license in dress making on March 28, 1959 by
the Japanese Department of Labor in Tokyo.
From 1957 to March 1962 she was a part-time instructor in. dress
making at the Pair Dress in Tokyo, from April 1959 to August 1962
she was also employed by Shinobu Dress Making in Tokyo as chief
designer where she was employed in designing, cutting and fitting
custom made clothes. From September 1962 to January 1965 she was
employed by K. K. Esu in Tokyo as a consulting executive designer
for ready made manufactured clothes. Here she did original designing
and pattern making and worked as a supervisor and trainer of other
employees. From the evidence submitted it is well established that the
beneficiary is qualified for performance of the duties of the position.
Section 203(a) (6) of the Immigration and Nationality Act, as
amended, provides for the availability of visas to qualified immigrants
,

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Interim Decision #1835
who are capable of performing skilled or unskilled labor, not of a
temporary or seasonal nature, for which a shortage of employable amd
willing persons exist in the United. States.
Section 204(a) of the Act provides that any person desiring and
intending to employ within the United States an alien entitled to classification as a preference immigrant under section 203(a) (6) may file
a petition with the Attorney General for such classification.
The term "desiring and intending to employ" contemplates not only
the physical facilities to utilize such services but the financial ability
to meet the wage requirements of the certified job offer.
The District Director in his denial order stated :
Tour 1906 income tax return indicates a net business profit of $280. In your
application to the Secretary of Labor for the certification required by section
212 (a) (14) you alleged that the beneficiary will be employed eight hours per day,
40 hours per week, at a salary of $3.00 per hour. Ton will then be obliged to
pay the beneficiary a yearly wage of $6,240 which is considerably in excess of
the net profit for 1986.

Petitioner has been in business in a competitive field for over 11
years. There is no evidence that she will not continue in business for
many more years. The fact that she is seeking the services of an oriental clothes designer is in itself evidence that she plans to continue in
the business. Petitioner has been making a living for herself and
employing from four to eight employees without any evidence of financial difficulties. She has admitted that 1966 was not a good year. In
that year petitioner changed to a better location, and for five months
paid double rent; on her old place and on her new place. There were
large moving costs and also a period of time when she was unable to-

do regular business. She has presented a financial statement prepared
by an accounting firm in Pasadena date& May 31, 1967 which shows•
that the petitioner from January 1, 196/ to May 31, 1967 has made a
net profit of $4,774. Petitioner states that with the addition of an
authentic oriental designer from Japan she will substantially increase
her business not only in the actual number of clients but also to the
type of customer who is willing to pay a higher price for authentic
Japanese designs and patterns. The petitioner's shop is well recognized in Pasadena. The dress shop was the subject of a news article
in a fashion magazine which stated in part :
It's exciting to discover a new designer, and if you've never driven to 606
Colorado Blvd. in Pasadena, you have a treat in store. This is the headquarters
of Sow Kaneko, couturiere designer, master craftsman, and good friend of her
hundreds of patrons.
How Kaneko began her fashion career doing free lance designing for Saks
Fifth Avenue, Marshall Fields and Bullock's Wilshire, but now devotes herself
exclusively to her custom stndio in Pasadena. She uses the Oriental concept

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Interim Decision #1835
of Shibui as the theme of all her designs. Shibui is a Japanese word with nuances
of meaning . . . lovely, understated, beautiful . . . and, certainly, these adjectives apply to her work.

On appeal petitioner presented her income tax returns for 1966
showing that she paid over $19,000 in wages to four regular employees
and four part-time employees. She presented evidence in the form of a
scrapbook showing that she is well known for her designs and fashions
and outstanding in her field. Time and Look magazines have published
full colored pages of her creations as has the Fashion Service Review as
well as numerous other fashion magazines. Petitioner has made most of
the gowns for the Miss Universe of the Long Beach beauty pageant. She
has as clients movie actresses and society matrons. Her clients have
been inoluded in the lists of the best dressed California women. Petitioner makes numerous .appearances at design and fashion shows

throughout the United States lecturing on fabric, design and techniques. She also lectures at colleges and universities in California and
at home economic institutes on these subjects. She received fees for the
appearances which are not included in the income of her store. Her
reputation as a fashion designer and couturiere makes her in demand.
Petitioner states that because she must on occasion be away from her
business, she is in urgent need of the services of the beneficiary. Her
business has increased at the new location and she is unable to keep up
with the demands of the work.
The fact that petitioner was able to show only a net profit of $280
for the calendar year of 1966 does not in itself preclude the beneficiary
from establishing that she will be able to meet the conditions of the
certification in the "Job Offer". After careful consIderation of all the
above circumstances, we find that the petitioner,' S expectations of continued increase in business and increasing profits are reasonable
expectations and that it has been established that she has the ability
to pay the beneficiary the stipulated wages and meet the conditions
of the certification. We find that the beneficiary is eligible for the
classification sought. The appeal will be sustained and the petition
granted.
ORDER: It is ordered that the appeal be sustained and the petition granted.

615