Cite as 26 I&N Dec. 703 (BIA 2016)

Interim Decision #3856

Matter of Henry Javier MENDOZA OSORIO, Respondent
Decided February 9, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of endangering the welfare of a child in violation of section 260.10(1) of
the New York Penal Law, which requires knowingly acting in a manner likely to be
injurious to the physical, mental, or moral welfare of a child, is categorically a “crime of
child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012).
FOR RESPONDENT: Xavier A. Palacios, Esquire, Mineola, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Mele Moreno, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and MANN, Board Members.
MALPHRUS, Board Member:

In a decision dated April 14, 2015, an Immigration Judge ordered the
respondent removed from the United States. 1 The respondent has appealed
from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Ecuador and a lawful
permanent resident of the United States. The record reflects that he was
convicted on December 10, 2013, of endangering the welfare of a child in
violation of section 260.10(1) of the New York Penal Law. On the basis of
that conviction, the Department of Homeland Security (“DHS”) charged the
respondent with removability under section 237(a)(2)(E)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012), as an
alien convicted of a “crime of child abuse, child neglect, or child
abandonment.” The Immigration Judge found that the respondent is
removable as charged and that he did not seek any relief from removal.
1

The Immigration Judge also noted that the respondent’s removability was previously
determined in an order dated March 31, 2015, which was incorporated by reference.

703

Cite as 26 I&N Dec. 703 (BIA 2016)

Interim Decision #3856

II. ANALYSIS
The respondent only contests the Immigration Judge’s finding of
removability, arguing that the offense of endangering the welfare of a child
in violation of section 260.10(1) of the New York Penal Law is not
categorically a “crime of child abuse, child neglect, or child abandonment”
under section 237(a)(2)(E)(i) of the Act. Specifically, he asserts that the
crime defined in section 260.10(1) is broader than the definition of child
abuse that we have previously articulated. We review this question of law
de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2015).
As we first stated in Matter of Velazquez-Herrera, 24 I&N Dec. 503
(BIA 2008),
[we] interpret the term “crime of child abuse” broadly to mean any offense
involving an intentional, knowing, reckless, or criminally negligent act or
omission that constitutes maltreatment of a child or that impairs a child’s
physical or mental well-being, including sexual abuse or exploitation. At a
minimum, this definition encompasses convictions for offenses involving the
infliction on a child of physical harm, even if slight; mental or emotional harm,
including acts injurious to morals; sexual abuse, including direct acts of sexual
contact, but also including acts that induce (or omissions that permit) a child to
engage in prostitution, pornography, or other sexually explicit conduct; as well as
any act that involves the use or exploitation of a child as an object of sexual
gratification or as a tool in the commission of serious crimes, such as drug
trafficking.

Id. at 512 (emphasis added). In Matter of Soram, 25 I&N Dec. 378, 381
(BIA 2010), we further clarified that the term “crime of child abuse” is not
limited to offenses that require proof of actual harm or injury to a child and
that crimes of child neglect and abandonment are included in our definition
of child abuse. In addition, we determined that because States use a variety
of terms to describe the degree of threat required under endangerment-type
offenses, “a State-by-State analysis is appropriate to determine whether the
risk of harm required by the endangerment-type language in any given
State statute is sufficient to bring an offense within the definition of ‘child
abuse’ under the Act.” Id. at 381−83.
The United States Court of Appeals for the Second Circuit, in whose
jurisdiction this case arises, held that our precedent decisions provided a
reasonable interpretation of a statutory ambiguity and accorded them
deference under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Florez v. Holder, 779 F.3d 207, 209,
211−14 (2d Cir. 2015), petition for cert. filed sub nom. Florez v. Lynch,
84 U.S.L.W. 3280, 2015 WL 6774583 (U.S. Nov. 5, 2015) (No. 15-590);
accord Hackshaw v. Att’y Gen. of U.S., 458 F. App’x 137 (3d Cir. 2012);
704

Cite as 26 I&N Dec. 703 (BIA 2016)

Interim Decision #3856

Martinez v. U.S. Att’y Gen., 413 F. App’x 163 (11th Cir. 2011). But see
Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013). The alien in Florez, who
was also convicted under section 260.10(1), conceded that our definition of
the phrase “crime of child abuse” was sufficiently broad to encompass a
violation of that section. Therefore the court did not reach the question
whether such a violation is categorically a “crime of child abuse, child
neglect, or child abandonment.” Florez v. Holder, 779 F.3d at 209−10.
Because this issue has been raised by the respondent, we address it here.
Section 260.10(1) of the New York Penal Law provides:
A person is guilty of endangering the welfare of a child when:
1. He or she knowingly acts in a manner likely to be injurious to the physical,
mental or moral welfare of a child less than seventeen years old or directs or
authorizes such child to engage in an occupation involving a substantial risk of
danger to his or her life or health . . . .

Although contained in a single sentence, section 260.10(1) is phrased in the
disjunctive and defines two discrete offenses: (1) taking action that is likely
to be harmful to a child’s welfare, and (2) allowing a child to work in a
dangerous occupation. See Florez v. Holder, 779 F.3d at 210 (stating that
section 260.10(1) “can be violated in two conceptually distinct ways”);
United States v. Beardsley, 691 F.3d 252, 268 n.11 (2d Cir. 2012) (noting
that “the statute does create two offenses”).
The respondent has not claimed that he was convicted of the second part
of section 260.10(1) or specifically explained how conduct punished under
that part of the statute would fall outside of our definition of a crime of
child abuse. Furthermore, he has not cited to any reported decision where a
defendant was convicted under that part of the statute, and we are unaware
of any decisions that explicitly discuss this aspect of section 260.10(1).
Under these circumstances, we are unpersuaded that the offense of directing
a child to engage in an occupation that involves a substantial risk of injury
or illness does not define a categorical crime of child abuse or neglect. We
therefore focus our inquiry on the first offense in the statute.
In employing the categorical approach to determine if a State crime is
comparable to a removable offense under the Act, we look to whether the
State statute defining the crime categorically fits within the Federal
definition of the corresponding offense. See Moncrieffe v. Holder, 133
S. Ct. 1678, 1684 (2013). The respondent argues that the offense of
endangering the welfare of a child under section 260.10(1) is not
categorically a “crime of child abuse, child neglect, or child abandonment”
under section 237(a)(2)(E)(i) of the Act because the New York statute is so

705

Cite as 26 I&N Dec. 703 (BIA 2016)

Interim Decision #3856

broad that it encompasses conduct that falls outside of that phrase, as it was
defined in Matter of Soram and Matter of Velazquez-Herrera.
However, to establish that the New York offense is not a categorical
crime of child abuse, the respondent must do more than merely invoke the
statute’s breadth in general terms. He must show that there is a “realistic
probability” that the statute is, in fact, applied to punish conduct that does
not qualify as child abuse under the Act. See Moncrieffe v. Holder, 133
S. Ct. at 1684−85 (stating that the “focus on the minimum conduct
criminalized by the state statute is not an invitation to apply ‘legal
imagination’ to the state offense” and that “there must be ‘a realistic
probability, not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition of a crime’”
(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007))). 2
A conviction for endangering the welfare of a child under the first part
of section 260.10(1) requires a showing that the defendant knew that his
actions were likely to result in physical, mental, or moral harm to a child.
People v. Portorreal, 939 N.Y.S.2d 805, 809 (N.Y. Crim. Ct. 2009). To act
“knowingly” under New York law, the defendant must have been “aware”
of the nature of his conduct and of the fact that his actions had the potential
for harm. See People v. Johnson, 740 N.E.2d 1075, 1076 (N.Y. 2000); see
also People v. Simmons, 635 N.Y.S.2d. 373 (N.Y. App. Div. 1995)
(holding that it was error to convict based on what the defendant “should
have known” because section 260.10(1) requires “actual knowledge”).
There must also be proof that the harm was “likely to occur, and not merely
possible.” People v. Hitchcock, 780 N.E.2d 181, 183 (N.Y. 2002).
These elements—a knowing mental state coupled with an act or acts
creating a likelihood of harm to a child—fit within our definition of a
“crime of child abuse, child neglect, or child abandonment” in section
237(a)(2)(E)(i) of the Act. However, the respondent argues that the New
York statute is overly broad because it proscribes a wide range of conduct
that is not specifically delineated, claiming that it therefore criminalizes
actions that were not contemplated to be child abuse or neglect under the
Act. We disagree.
2

This realistic probability standard, which has been applied by the Supreme Court to
determine whether an alien’s conviction was for an “elements-based” aggravated felony
under the Act, also applies in the context of removability under section 237(a)(2)(E)(i) of
the Act. See Matter of Francisco-Alonzo, 26 I&N Dec. 594, 599 (BIA 2015) (stating that
pursuant to Moncrieffe, in the context of the “broadly descriptive class of offenses in the
Act, such as ‘sexual abuse of a minor,’” we now “‘look only to the minimum conduct that
has a realistic probability of being prosecuted’ under the State statute” (quoting Matter of
Esquivel-Quintana, 26 I&N Dec. 469, 472 (BIA 2015), aff’d, Esquivel-Quintana
v. Lynch, No. 15-3101, 2016 WL 192009 (6th Cir. Jan. 15, 2016))).

706

Cite as 26 I&N Dec. 703 (BIA 2016)

Interim Decision #3856

The respondent claims that various New York cases support his
argument that section 260.10(1) criminalizes conduct that is not within our
definition of child abuse because it does not constitute maltreatment of a
child. He mentions leaving a child unattended for a short period, driving
with a suspended license in the presence of a child, and committing petit
larceny in the presence of a child, but he has not provided citations to any
cases involving these circumstances. He did cite cases that he claims fall
outside our definition, but none of them resulted in a successful
prosecution because the defendant’s conduct did not constitute
endangering the welfare of a child under the New York statute. 3 Since
there was no conviction in any of these cases, they are unpersuasive in
establishing that there is a realistic probability that section 260.10(1) would
be successfully applied to conduct outside our definition of child abuse. 4
3

Farkas v. Barry, 335 F. Supp. 681 (E.D.N.Y. 1972) (accepting assurances by the
prosecuting attorney in a related case that section 260.10(1) is inapplicable to a parent
bringing a minor child to a lecture on birth control); People v. Kanciper, 954 N.Y.S.2d
146 (N.Y. App. Div. 2012) (finding insufficient evidence to support a conviction where
the defendant injected a dog with a tranquilizer in a child’s presence, but the child, who
was familiar with such medical treatments, was not upset by it and was unaware that it
was in preparation to euthanize the dog); People v. Campbell, No. 570557/01, 2003 WL
1907680 (N.Y. App. Term Apr. 3, 2003) (vacating the conviction where there was no
basis for the jury to conclude that the defendant created a likelihood of harm to children
seated in a stationary vehicle when he spun his car wheels as he drove past them); People
v. Cruz, 809 N.Y.S.2d 850 (N.Y. Crim. Ct. 2005) (finding a complaint to be facially
insufficient where a mother left her infant son in the care of a responsible adult neighbor
for about 20 hours); People v. Smith, 678 N.Y.S.2d 872 (N.Y. Crim. Ct. 1998) (granting a
motion to dismiss as facially insufficient an accusatory instrument alleging that the
defendant left four children between the ages of 5 and 13 home alone for 2 hours without
adult supervision or food); People v. Weyrick, 287 N.Y.S.2d 715, 716 (N.Y. City Ct.
1968) (dismissing an information charging the defendant with having a beer party with
minors present where nothing alleged that he “did anything to actually cause or permit
the life or limb of the minors to be endangered”); see also People v. Duenas, 742
N.Y.S.2d 468 (N.Y. App. Term 2002), aff’d sub nom. People v. Hitchcock, 780 N.E.2d at
184 (holding that the evidence was legally insufficient to conclude that the defendant was
aware that his conduct would likely be injurious to a child where he made a significant
effort to conceal a handgun and was unaware that a child knew it was in the house).
4
In arguing that there is a “realistic probability” that a defendant could be convicted for
conduct that violates section 260.10(1) but that does not constitute a “crime of child
abuse,” the respondent has also submitted copies of redacted complaints and charging
documents issued by the State of New York. We are not persuaded that a realistic
probability of a successful prosecution may be shown by looking only to a charging
document that did not necessarily result in a conviction. To be relevant to this inquiry,
there must be more than just a charging document, because a judge or jury may have
found that the facts as charged were insufficient to support a conviction.

707

Cite as 26 I&N Dec. 703 (BIA 2016)

Interim Decision #3856

See Matter of Francisco-Alonzo, 26 I&N Dec. 594, 601 (BIA 2015)
(finding neither support for the contention that the State statute “could be
successfully applied to conduct” outside the Federal definition of a crime of
violence nor evidence of “any such successful prosecutions”); Matter of
Ferreira, 26 I&N Dec. 415, 420 (BIA 2014) (finding no support for the
contention that the State statute was “actually used to successfully
prosecute” offenses involving antique firearms).
The fact that there are numerous reported cases finding the offender’s
conduct insufficient to support a conviction shows that the breadth of
section 260.10(1) has significant limits. People v. Hitchcock, 780 N.E.2d
181, a case involving guns decided by the highest court of New York,
illustrates that while section 260.10(1) potentially covers a broad range of
conduct, acts that risk harm or actually result in harm to a child may still
not meet the statute’s threshold requirement that the offender knowingly
acted in a manner likely to be harmful to a child’s welfare. 5
The case involved two defendants, Hitchcock and Duenas, both of
whom were charged with endangering the welfare of a child following
accidents in which one child used the defendant’s gun to shoot another
child. Hitchcock had 23 firearms in his home, including semiautomatic
weapons and an assault rifle, most of which were openly accessible. At
least one weapon was loaded, and ammunition for the others was nearby.
Hitchcock testified that he had shown a 14-year-old living in his home how
to load and shoot the guns and that he suspected they had been tampered
with in his absence. The court took these facts into consideration in
concluding that the evidence was legally sufficient to convict Hitchcock
because it was reasonable for the jury to infer that he knowingly kept guns
in a manner likely to be injurious to children living in or near his home.
In contrast, Duenas had only one gun in his home and had made a
significant effort to conceal it. There was no evidence that anyone else in
the household knew about the gun, and Duenas was unaware that his
younger brother had secretly seen him cleaning it in his bedroom. In these
circumstances, the court found that the evidence was legally insufficient
to conclude that Duenas was aware that his conduct would likely be
injurious to a child. Thus, although both defendants possessed handguns
5

Other cases that illustrate limits on the reach of section 260.10(1) involve the
possession of marijuana in the presence of children. Compare People v. Alvarez, 860
N.Y.S.2d 745, 749 (N.Y. Crim. Ct. 2008) (concluding that the factual allegations were
facially sufficient where there was a reasonable inference from the strong, pervasive odor
of marijuana in an apartment that it was recently used illegally in the presence of young
children), with People v. Grajales, 686 N.Y.S.2d 608, 609 (N.Y. Crim. Ct. 1999)
(granting a motion to dismiss, finding that merely having marijuana in an apartment with
a child present was not sufficient to sustain the charges).

708

Cite as 26 I&N Dec. 703 (BIA 2016)

Interim Decision #3856

that resulted in harm to a child, Duenas’ conduct did not meet the
legal requirements for conviction under section 260.10(1). This case
demonstrates that there are, in fact, significant limits to the sweep of the
statute, contrary to the respondent’s assertion.
Prior to our decision in Matter of Soram, the Second Circuit issued an
unpublished opinion, noting that the statute was broad and remanding for us
to clarify whether the minimal conduct encompassed by a conviction under
section 260.10(1) constitutes a crime of child abuse or neglect. Guzman
v. Holder, 340 F. App’x 679 (2d Cir. 2009). The court listed a number of
New York cases, some of which the respondent has also cited. In our view,
each of the cases cited in Guzman involved conduct that the defendant
knew would pose a substantial risk of harm to a child in the totality of the
circumstances and would therefore qualify as a crime of child abuse or
neglect. See, e.g., People v. Manon, 640 N.Y.S.2d 318 (N.Y. App. Div.
1996) (sustaining the conviction of a mother who kept her infant son in
extremely unsanitary conditions without necessary medical attention, which
resulted in his death from malnutrition and dehydration); People v. Afia,
843 N.Y.S.2d 906 (N.Y. Crim. Ct. 2007) (convicting a school minibus
attendant who was responsible for the safety of special needs children and
knowingly failed to check for sleeping students, as instructed, which left a
7-year-old passenger alone on the bus for several hours in an unfamiliar
location miles away from school). 6
6

Other cases cited in Guzman involved pretrial motions to dismiss the charges as
facially insufficient, asserting that the factual allegations did not provide reasonable cause
to believe that the defendant committed the offenses charged. See N.Y. Crim. Proc. Law
§§ 100.15, 100.40 (McKinney 2015). Under this standard, a guilty inference can be
drawn based on the facts alleged and the reasonable inferences that logically flowed from
them. See People v. Deegan, 509 N.E.2d 345 (N.Y. 1987) (stating that the legal context
for a motion to dismiss concerns “whether the facts, if proven, and the inferences that
logically flow from those facts supply proof of every element of the charged crimes” and
whether “the Grand Jury could rationally have drawn the guilty inference”). We
conclude that these cases also involved child abuse or neglect because serious, potentially
harmful conduct was alleged, particularly when considering the reasonable inferences
that could be drawn from the facts. See, e.g., People v. Ambers, 840 N.Y.S.2d 533 (N.Y.
Crim. Ct. 2007) (denying a motion to dismiss because it could be reasonably inferred
from the factual allegations that the defendant knowingly permitted her children to live in
a home so filled with garbage, rat feces, insects, and rotten food that it was likely to be
injurious to their health); People v. D’Ambrosia, 746 N.Y.S.2d 556 (N.Y. Just. Ct. 2002)
(finding that the allegations supported the charge where the defendant drove while
intoxicated at a speed well over the limit, creating a serious risk of an accident that would
likely result in injury to a child in the car); People v. Suquisupa, 637 N.Y.S.2d 302 (N.Y.
Sup. Ct. 1996) (finding that allegations the defendant sold fireworks to an unsupervised
13-year-old child were sufficient to support the charge).

709

Cite as 26 I&N Dec. 703 (BIA 2016)

Interim Decision #3856

The respondent raises issues that were noted in Guzman, arguing that
because section 260.10(1) does not require that there be any actual harm to
a child or that the conduct be directed toward the child, the statute prohibits
conduct that is broader than the Federal crime of child abuse defined by our
precedent decisions. This argument is unavailing, however, because we
addressed the question of harm subsequent to Guzman and held that our
definition of child abuse is not limited to offenses that require proof of
harm or injury to the child. Matter of Soram, 25 I&N Dec. at 381.
Furthermore, the Second Circuit has approved our conclusion in this regard.
Florez v. Holder, 779 F.3d at 212.
In Florez, the court noted that Guzman had questioned whether our
definition of child abuse was broad enough to include child endangerment
statutes like section 260.10(1), which criminalize conduct that did not
actually harm a child. Id. at 211. The court observed that this definition
is intentionally expansive, “consistent with the legislative purpose behind”
section 237(a)(2)(E)(i) of the Act. Id. at 213. However, it explained
that under Soram, the definition is not unlimited because “a state
child-endangerment statute qualifies as a ‘crime of child abuse’ under the
[Act] only if it requires, as an element of the crime, a sufficiently high risk
of harm to a child.” Id. at 212. The court upheld our definition because it
includes the required level of risk of harm to a child, recognizing that this
limitation ensures that our treatment of such statutes “remains within the
realm of reason.” Id.
Although Florez did not specifically address the issue of conduct that
was not directed at a child, we have reviewed New York cases that
involved defendants who were convicted under section 260.10(1) for
committing acts that were not directed at a child. See, e.g., People
v. Johnson, 740 N.E.2d at 1075−76 (children witnessed the defendant
knock their mother down in the street and drag her home, then listened to
him beat and yell at her for 10 hours while she screamed); People
v. Meseck, 860 N.Y.S.2d 263 (N.Y. App. Div. 2008) (children witnessed
the defendant confine their mother for 4 hours while he yelled at her, called
her names, and threatened to kill her with a baseball bat); People
v. Spickerman, 762 N.Y.S.2d 470 (N.Y. App. Div. 2003) (children
witnessed the defendant beat their mother, breaking her jaw and rupturing
her eardrums); People v. Brooks, 705 N.Y.S.2d 349 (N.Y. App. Div. 2000)
(defendant stabbed his estranged wife in the presence of their 3-year old
son); People v. Parr, 548 N.Y.S.2d 121 (N.Y. App. Div. 1989) (defendant
forcibly sodomized a 5-year-old child’s mother in the child’s presence). In
these cases the defendant was aware of the presence of the child when he
committed severe acts of violence against the child’s mother. Witnessing
such acts of domestic violence is likely to cause serious psychological and
710

Cite as 26 I&N Dec. 703 (BIA 2016)

Interim Decision #3856

developmental damage to children, even if they are not themselves
subjected to physical abuse. People v. Johnson, 740 N.E.2d at 1077.
Therefore, even though the defendant’s conduct was not directed at a child,
we would consider it to be child abuse within our definition, given the high
risk of harm to the child.
We recognize that there are child endangerment statutes that do not
require a sufficiently high risk of harm to a child to meet the definition of
child abuse, neglect, or abandonment under the Act. For example, the child
endangerment statute at section 273a(b) of the California Penal Code
criminalizes conduct that places a child “in a situation where his or her
person or health may be endangered.” (Emphasis added.) In Fregozo
v. Holder, 576 F.3d 1030 (9th Cir. 2009), the Ninth Circuit held that this
statute did not categorically define a “crime of child abuse” within the
meaning of the Act. The court observed that the statute does not “require
that the circumstances create any particular likelihood of harm to a child”
and punishes “conduct that creates only the bare potential for nonserious
harm to a child.” Id. at 1037−38. In this regard, the court cited as an
example of facts that did not meet our definition of child abuse the case of a
parent “placing an unattended infant in the middle of a tall bed without a
railing, even though the child was never injured.” Id. Based on the facts as
construed by the court, we would agree that they do not, alone, define a
crime of child abuse or neglect.
A conviction under section 260.10(1) at issue here requires that the
defendant “knowingly engaged in conduct likely to be injurious to a child.”
People v. Hitchcock, 780 N.E.2d at 184. In reviewing this statute, we have
considered the totality of the circumstances presented in each case, rather
than viewing certain facts in isolation. 7 The New York cases that resulted
in a successful prosecution under the statute are those where the defendant
7

For example, Guzman cited two cases involving children left alone by the defendants
who sought to dismiss the charges of child endangerment under section 260.10(1).
People v. Watson, 700 N.Y.S.2d 651, 655 (N.Y. Crim. Ct. 1999) (denying a motion to
dismiss where a 7-year-old child was left alone for 2½ hours by a defendant entrusted
with his care in a locked apartment in the Bronx where “a wide range of dangers” could
befall the scared child); People v. Cenat, 671 N.Y.S.2d 578 (N.Y. Crim. Ct. 1997)
(denying a motion to dismiss where a mother left her two young children unsupervised in
a car on a New York City street for more than 2 hours). In these cases, there were
aggravating circumstances that exacerbated the risk of harm to the child, including the
child’s young age, the location where the offense occurred, and the length of time the
child was left alone. When viewed in the totality of the circumstances, particularly in the
context of a pretrial motion to dismiss where it is appropriate to consider reasonable
inferences that can be drawn from the facts alleged, these cases involve more than simply
leaving a child alone for a short period of time.

711

Cite as 26 I&N Dec. 703 (BIA 2016)

Interim Decision #3856

had an awareness that his conduct posed a sufficiently high risk of harm to
a child to qualify the offense as a crime of child abuse or neglect under
section 237(a)(2)(E)(i) of the Act.
Thus, while there are child
endangerment statutes that do not meet our definition, we conclude that
section 260.10(1) is not one of them.

III. CONCLUSION
Having considered the respondent’s arguments and the New York cases
he cited, we are unable to agree that he has shown a “realistic probability”
that section 260.10(1) would successfully be applied to conduct falling
outside our definition of child abuse or neglect. Moncrieffe v. Holder, 133
S. Ct. at 1693 (stating that an alien must “demonstrate that the State
actually prosecutes the relevant offense” in cases outside the Federal
definition). The respondent has also not relied on his own case to show
such a realistic probability, even though the record contains information
regarding his conviction. See Gonzales v. Duenas-Alvarez, 549 U.S. at 193
(stating that an alien must “at least point to his own case or other cases in
which the state courts in fact did apply the statute in the special
(nongeneric) manner for which he argues”). We therefore conclude that the
crime of endangering the welfare of a child in violation of section
260.10(1) of the New York Penal Law is categorically a “crime of child
abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i)
of the Act. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

712


MATTER

or N-

IA DEPORTATION Proceedings
A-12281979
Decided by Board March 13, 1962
Adjustment of status—Section 245, Immigration and Nationality Act—Effect
of savings clause, Federal Register of December 19, 1961.
Denial on October 23, 1961, by the district director of an application for adjustment of status under section 245 of the Act became final when applicant failed to anneal therefrom. Such application may not be renewed
before, or considered by, a special inquiry officer in deportation proceedings
under regulations effective January 22, 1962, in the absence of new evidence
which could not have been discovered and presented for consideration at
the time of the prior adjudication (Par. preceding 8 CFR 103, 26 F.R. 12111,
December 19, 1961).
CHARGE :

Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2 ) ]—Remained
longer than permitted after nonimmigrant admission (temporary

visitor).
BEFORE THE BOARD

DISCUSSION: This is an appeal from the order of the special
inquiry officer finding respondent deportable upon the ground
stated above and granting her voluntary departure. Briefs have
been filed by counsel for respondent and by the examining officer.

The appeal will be dismissed.
Respondent, a 55-year-old single female, a native and citizen of
Germany, was admitted to the United States as a visitor for
pleasure on July 7, 1961. Her stay was extended to September 6 1
196.Shefaildtoprwnheidfocsa
been admitted and is clearly deportable upon the ground stated
above.
Counsel contends that there was a denial of due process at the
deportation hearing in that an unqualified interpreter was used in
the deportation hearing_ The record reveals that at the respondent's hearing on January 2, 1962, she was advised that an official
German interpreter (who is elsewhere shown to be J—U—) would
translate all questions and matters and that if she did not understand him she was to advise the special inquiry officer (p. 2, hear581

in; January 2, 1962). The same interpreter was used at the continued hearing on January 5, 1962. After several questions were
addressed to the respondent which were apparently answered responsively, counsel objected to the use of the interpreter on the
ground that he did not believe a proper interpretation was being
given. The special inquiry officer asked the interpreter whether
he understood the respondent and whether the respondent understood him and the interpreter replied that he was satisfied that
this was the case. The objection of counsel was overruled and
nothing further appears in the record concerning the nature of the
interpretation. Attached to the appeal is an affidavit from the
respondent's nephew stating that he was present at the hearing; that
he is well qualified in the German languasee; that, numerous questions and answers were incorrectly interpreted; and that it is his
belief that ,Ite interpreter was not competent. No specific instance
of misinterpre t ation is set forth. No possible defense to the deportation proceeding based upon what the respondent "intended"
to say is offered, nor is any ground given for finding , respondent is
not deportable. Respondent's testimony at the hearing is consistent
with her affidavit made before. the Service using a different interpreter on December 14, 1961. We, believe the contention is without
merit.
Counsel contends that respondent was not given adequate notice
of the deportation hearing. The order to show cause was served
on December 26, 1961; counsel received a copy the following day.
Hearing was scheduled for January 2, 1962, and adjourned until
January 5, 1962, to enable counsel to be present. At the hearing
on January 5, 1962, the special inquiry officer offered counsel an
opportunity to consult with his client for several hours before proceeding with the case if counsel felt it was advisable, but the offer
was refused. We believe the record establishes that respondent
and counsel had adequate notice of the deportation hearing. Moreover,. as the examining officer points out, counsel had represented
respondent before the Service since prior to October 23, 1961.
Counsel contends that there was a denial of due process in that
respondent was not granted a continuance to prepare a defense and
to prepare application for discretionary relief. Since it is apparent from this record that the respondent who was admitted as a
visitor has remained longer than the time which was granted, it is
difficult to see what kind of defense could have been offered had
more time been made available and, in fact, at this late date counsel
offers nothing to show that a possible defense exists. The facts
previously outlined concerning the notice given respondent and
opportunities for presenting a defense adequately dispose of the

contention that she was not given an adequate opportunity to prepare a defense.
582

We find nu denial of due process in failure to grant a continuance

for respondent to prepare an application for discretionary relief.
At the time of the hearing on January 5, 196, counsel moved for a
continuance to January 22, 1962, or sometime thereafter when new
regulations would become effective which, in his opinion, would
have, enabled the respondent to make an application for adjustment
of status under section 245 of the Immigration and Nationality
Act (8
1255) or section 245(h) of the Immigration tied
Nationality Act (8 U.S.C. 1253), and for voluntary departure. The
;examining, officer objected to a continuance on the ground that
relief under section 245 had already been applied for and denied
(October 23, 1061) and that no appeal was taken from such denial
although oee could have been taken (within la days). (Counsel
explains that no appeal was taken because of his belief that under
the new regulations he would have an opportunity to obtain a new
consideration of the application with an appeal to the Board
rather than to a representative of the Service.)
Failure to appeal from the denial of the application under section 245 in the hope that respondent would be able to make. a new
application for such relief before a special inquiry officer with an
appeal to the T3card under the preliminary proposals published
in Volume 26 of the Federal Register, pages 9858-9860, was not
justified by anything expressed in the proposals, nor did the proposals carry the implication that such relief would be available.
The purpose of the new regulations was not to provide an additional review of a decision denying an application under section
245 but to substitute review by the Board for review by the regional commissioner. Respondent could have had review of the
denial by the regional commissioner. On January 5, 1962, when
the motion for continuance was made, it was quite clear from the
regulations which were to become effective on January 22, 1962,
that an alien who had obtained a final decision on an application
under section 245 of the Act would not be entitled to a hearing
upon a new application and would not be entitled to reconsideration
of the application which had been denied, in the absence of proof
to the Board that the alien was in possession of evidence which was
material and which by due diligence could not have been discovered
and presented for consideration at the time of the prior adjudication
(par. preceding 8 CFR 103, 26 F.R. 12111, December 19, 1961).
Respondent's failure to seek review by the regional commissioner
neither gives him the right to obtain review by this Board nor the
right to have a de novo hearing upon his application. The decision
of the district director achieved finality before January 22, 1962.
It became the decision of the Board and will not be reconsidered
in the absence of proof that reconsideration is required because
583

there exists evidence which is material and was not available and
could not have been discovered or presented at the prior hearing
(8 CFR 3.2, 27 F.R. 96-7, January 5, 1962). As to other discretionary relief, the application for voluntary departure made at the
hearing has been granted. The appeal reveals no desire to file an
application for relief under section 243(h) of tho Acf. However,

we shall permit such an application to be filed at a reopened hearing, if request is made for such action within seven days after
the date of this order. This action is not to be taken as an expression of opinion as to the desirability of filing such an application
nor as an expression of opinion upon the merits of an application
if one is filed. The action is taken solely as an administrative
measure of an impersonal nature to provide a procedure for application for relief without the necessity of having an application for

this purpose made to the Board.
We find no necessity for going into the issue of the voluntariness
of the nature of Communist Party membership respondent had in
Germany since deportation is not sought upon this ground and the
Service does not oppose the grant of voluntary departure.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

It is further ordered that upon request made to the special inquiry
officer within seven days of the date of this order, he shall reopen

proceedings solely to provide respondent an oppertunity to file an
application for relief under section 243(h) of the Act and the special inquiry officer shall thereafter take such further action as he
may deem appropriate.

584


Interim Decision #1240

MAXIMIl

or

BVICOWSSA

In DEPORTATION Proceedings

A-12213022
Decided by Board August 4,190

While respondent, a native and citizen of Poland, might be unable to obtain employment as a teacher in Poland because of her refusal to abandon her religious
beliefs and to join the Communist Party, physical perseoation under motion

243(h) of the Immigration and Nationality Act is not established since she
is a trained typist and the record fails to establish that she would be unable
to obtain employment in other areas of the economic life of Poland.
CHABOE :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Nonimmigrant, remained longer than permitted.

The appeal is from the special inquiry officer's denial of the respondent's application for withholding of deportation to Poland under
section 243 (h) of the Immigration and Nationality Act. The special
inquiry officer found respondent deportable on the ground stated
above and granted her voluntary departure with the proviso that she
be deported to Poland if she failed to depart voluntarily. The appeal
will be dismissed.

Respondent, a. 28-year-old divorcee, a native and citizen of Poland,
was admitted to the United States as a visitor on. October 6, 1961, for
a period to end on December 9, 1961. Three days after her entry,
she took employment as a nurse's assistant. She was apprehended
4)11 November 24, 1961 ; a statement was taken from her; she was placed
under deportation proceedings by the issuance of an Order to Show
Cause on January 8, 1962. No issue is taken with the finding of
&portability. Respondent requests that she be permitted to remain
in the United States under section 242(h) of the Immigration and

Nationality Act because she will face physical persecution if she is
returned to Poland.
The facts, based upon statements made by the respondent, have been
fully set forth by the special inquiry officer. Briefly, the respondent
49
08-45665—.1

Interim Decidion #1240
married in 1954; a son was born about 1955. Respondent had 11 years
of elementary school and four years of lyceum. In September 1955
she was given a job as a substitute teacher in an elementary school.
Although there was a shortage of teachers, she was not given a perma
nent job because of her refusal to join the Communist Party. She
refused to join the Party because, as a Communist Party member, she
could not have continued to attend church as it was her custom to do.
Respondent attended. church while teaching although she was asked
to stop because, in the eyes of the party, she was setting a bad example
to the children. .Although asked by the party to teach the children
that religion is superstition and that the Soviet Union is the best friend
of Poland, she could not bring herself to do so. In 1958 she was given
training for a year at a teachers college. She graduated and continued
teaching until June 1961. At this time she was asked to join the
Communist Party; upon her refusal she was dismissed from her teaching job.
Respondent applied for a Polish passport in January 1961 since she
planned to come to the United - States. She was not issued one until
June 15, 196L In the interval between the time of her application
and the time of issuance, she was subjected to questioning concerning
her reason for leaving Poland and her reason for refusal to join the
Communist Party. She left Poland in August of 1961. The passport was extended in the United States on. January 29, 1962, to June 9,
1963.
While teaching respondent belonged to the teachers union. She
'never joined. the Communist Party_ Respondent was trained to be a
typist. She could not secure employment as a typist while she was
a substitute teacher because of a prohibition against holding more than
one job. For a short period of time, before she became a teacher, she
was tnployed as-an assistant to a clerk.
Respondent continued to attend church until immediately prior to
coming to the United States. She was never arrested. No member of
her family had been arrested while she was in Poland. Respondent
was divorced in 1958 and received custody of her son, now six years
of age. The son resides with her parents in Poland and receives support from her. Respondent's father is not employed in Poland and
cannot obtain employment because he is opposed to the Communist
regime. Government officials have made inquiry of her parents concerning her failure to return to Poland and her parents have advised
her not to return.
Respondent alleges that if she is returned to Poland, she would be
put in jail immediately and she could not get any other employment.
The basis for this belief is her personal knowledge of conditions in
Poland and the fact that local Communist Party officials were after
50

Interim Decision #1240
her constantly to join the Communist Party. She is convinced that
she will be unable to obtain any employment in Poland because of the
suspicion with which she is regarded for her failure to join the Party
and because priority in hiring is given to those who are Party members.
The respondent in a pre-hearing statement on November 24, 1961,
stated she was "willing and able to go to Poland from the United
States voluntarily by paying her own expenses." While she stated
she did not wish to return to Poland on the next crossing of a boat
leaving for Poland, the implication is given that she would not object
to leaving on another crossing (Ex. 2). At the hearing, respondent
stated she did not understand the question and that she never wanted
to return to Poland (p. 26) .
In deciding that respondent would not be faced with physical per .,

secution in Poland, the special inquiry officer took administrative notice
of the fact that about only one out of every 30 persons in Poland is a
member of the Communist Party, that respondent did not occupy it
position of prominence in Poland and that while in the United Status
she had not engaged in political activity against the Polish Government. The special inquiry officer concluded that respondent might be
unable to obtain a teaching position if she is returned to Poland, and
that while a complete withdrawal of employment opportunities would

constitute physical persecution, the record did not establish that such
a bar would be applied to respondent.
In deciding that respondent has not established that she will be
faced with physical persecution in Poland, we note that she has not
been subjected to physical persecution despite her religious beliefs and
her refusual to join the Communist Party, that she was regularly
employed from the time she was 21 in a sensitive area, she was given
advanced training, and she was permitted to leave Poland for the
United States.

While it may well be that respondent will be unable to obtain employment as a teacher because of her refusal to abandon religious beliefs and her refusal to join the Communist Party, the record fails
to establish that she, a trained typist, will not be able to obtain employment in other areas of the economic life of Poland. Her belief
that she will be unable to obtain employment must be measured by the

fact that before she lost her employment as a teacher, she had applied
for a passport to come to the United States indicating to some extent
a lack of interest in securing immediate employment, and by the fact
that she did come to the United States within about two months after
obtaining her passport. Moreover, some issue is raised as to respond-

ent's credibility by reason of the coincidence between the date respondent became free to come to the United States (June 1961 when she
received her passport) and the date her employment ended. Further51

Interim Decision #1240
more, it appears odd that if respondent was questioned at length from
January to June 1961, as she testified she had been, that she would have
been issued a passport at the same time she was either discharged or
about to be discharged from her employment as a teacher because of
her attitude to the Party.
Our decision that respondent's return to Poland would not result
in physical. persecution is based upon facts of record only. However,
under the authority contained in 8 CFR 242.17(c) (Supp. 1962) providing that information not of record may be utilized under certain
circumstances, we, out of an. abundance of caution, and to insure that
all available information concerning the possibility of physical persecution would be considered, have examined certain confidential information the disclosure of which would in our opinion be prejudicial
to the interests of the United States. This information of a general
nature relating to living and political conditions in Poland which
would affect deportees to Poland, collected by officials of the Government in. carrying on their assigned duties and transmitted to the Board
through official channels through another Government agency, has been
carefully considered. We find nothing in it which would establish
that our conclusion based upon the record is erroneous.
Respondent's representative contends that since refugees and escapees from Poland are being admitted to the United States, the
respondent should be considered in. this category because of the persecution she suffered in attempting to maintain her political and religious
beliefs and that she should therefore be permitted to remain in the
United States utilising the provisions of section 243(h) of the Act.
Whether or not the respondent is a refugee-escapee within the Act of
July 14, 1960, as amended, (74 Stat. 504) is not a matter for determination in this proceeding (8 OFR 212.5(b) (Supp. 1962) ).
The respondent's representative contends that under the regulations

relief under section 243(h) of the Act is granted only after an order
of deportation has been entered, and that no order of deportation
having been entered against respondent, the adjudication of the application filed under section 213(h) is premature. Respondent has been
found deportable and the application for relief under section 243(h)
of the Act was properly considered (8 OFR 242.17(e) (d) (Supp.
1962)). The appeal must be dismissed.
,ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

52


Interim Decision #17I 1

MATTER or MARCH /SI
In Deportation Proceedings
A 15835625
-

Decided by Board March, 17,1967
Respondent, whose cleportability is established within the purview of section
241(e) of the Immigration and Nationality Act, as amended, having entered
the United States in 1962 with a nonquota immigrant visa obtained as the
beneficiary of an approved visa petition based on a marriage found later to
have been contracted to evade the immigration laws, is not precluded from
establishing he is "otherwise admissible" for the purposes of a waiver of the
grounds of deportation pursuant to section 241(f) of the Act, as amended, notwithstanding respondent, but for the marriage, would have been chargeable
at the time of entry in 1962 to the nonpreference portion of the quota for Italy
which was then unavailable because overscribed. [Matter of 1TR:one, 10-11T,
overruled.]
CHARGE :
Order: Act of 1952—Sections 241(a) (2) and 241(e) [8 U.S.C. 1251(a) (2) and
1251 (c))—In United States in violation of law—
Obtained visa by fraud, •based on marriage entered into
less than 2 years before entry and annulled less than
2 years subsequent to entry.
ON BEHALF OF SERVICE:

ON BEHALF OP RESPONDENT:

Irving A. Appleman
Appellate Trial Attorney

Ralph P. Messano, Esquire
591 Summit Avenue
Jersey City, H.J. 07806

Thomas W. Winnerman
Trial Attorney
(Filed reply brief)

This is an appeal from the decision of the special inquiry officer,
finding respondent deportable as charged; holding him ineligible for
the fraud waiver in section 241 (f) as one who was not "otherwise

admissible"; and granting voluntary departure with an alternate order
of deportation to Argentina if respondent should fail to depart when
and as required.
Respondent is a 37-year-old twice married male alien, a native and
citizen of Italy. He first entered the United States as a crewman in
May 1956 and jumped ship. Soon after that arrival, he met Claire Tarquinio, a native born citizen of the United States, and they dated each

132

Interim Decision #1711
other for several months, ending' ither in 1956 or early 1957. They met
occasionally at family gatherings in the next four or five years. In June
1961 respondent met Carmela Rotondo, a lawful permanent resident
who had been in the United States for slightly more than a year. He
also dated her; it is not clear from the record when, if ever, this relationship ended.
In April 1962 respondent was apprehended by the Immigration and
Naturalization Service. He was visited in detention by Carmelo Rotondo and her brother; Claire Tarquinio was.not notified by respondent or his friends of his apprehension. The hearing, on April 5, 1962,
was attended by Carmela and her brother; in answer to the special
inquiry officer's request to identify the young lady, respondent stated:
"We are from the same town and we are friends.—She is my girlfriend, in
other words, and we are more than just friends." (Tr:. p. 5)

Respondent•was granted voluntary departure at the hearing. That
evening he visited Claire Tarquinio at her home. She testified that he

then, for the very first time, mentioned marriage and proposed to her.
Respondent claimed he had proposed in January 1962, before his
apprehension. • Respondent and Claire agreed they would be married

civilly before respondent's departure; that Claire .would execute the
necessary ,papers to bring him back to the United States; that upon
his return and admission for permanent residence they would be
married in the 'Evangelical Church (Claire's faith) ; and • that. the
marriage- would not be consummated until the church wedding: They
were married on April 23, 1962. There was no wedding trip, honeymoon,
or living together in any fashion after the marriage.
Claire's petition for her husband was executed on April 24th, submitted with • supporting documentation to the Immigration and
Naturalisation Service on April f25th approved by the District Director on April 80th; and forwarded to the United States Consulate

General in Naples, Italy, where it was received on May 54962,
Respondent -left the United States under the grant of voluntary
departure in the first week of May. There was considerable correspondence between him and Claire which, on his part, consisted
almost entirely of complaints that•visa issuance was taking such a long
time, and inquirief as to whether Claire has taken care of the various,
facets of the procedure. he had asked her•to see to: On August 20, 1962,
he was issued a nonquota immigrant. visa, and on : the basis thereof
was admitted for permanent residence at New York, -New York on

August 23, 1962. , • - • •
Respondent -gave his. -wife no advance notice. of the date of the
arrival and appeared at her home at about 9 p.m. on the evening of

133

Interim Decision #1711
his return. His wife, who was out visiting, was summoned home by
telephone. After she arrived, he spent some time in conversation with
her, at her parents' home and in their presence, and then left for his
own apartment, with no specific arrangement as to when they would
next see each other. There were several meetings between them after
that time, all of Claire's seeking, but they all ended in disagreement,
with the parties returning to their separate abodes.
Respondent and Claire each testified that the other was responsible
for the breakdown of the relationship, that the other was unwilling to
behave as a spouse should, to make arrangements for the church wedding, etc. There is no dispute that husband and wife never entered into
a normal husband-wife relationship, never were married in the church,
never consummated the marriage, and never lived together for ss much
as a day under the same roof. On October 4, 1062, six weeks after his
return to the 'United States, respondent's wife filed a complaint against
him in the Superior Court of New Jersey, Chancery Division, asking
for an annulment of the marriage. Respondent contested the action, but
after trial a Judgment Nisi, granting the annulment, was filed on
June 27, 1963. Respondent took an appeal but was unsuccessful. The
lower court's judgment was affirmed, and a final judgment of the
nullity of the marriage was entered on August 10, 1964.
On October 31, 1964, respondent married Carmelo, Rotondo in the
Catholic Church. The couple have lived together as husband and
wife ever since that time, and there is an American citizen child born
of that marriage in October, 1965. Carmela Rotondo Manchisi is now
a naturalized citizen of the United States.
Charges herein are brought under subsection (1) of section 241(c).
The statute provides that when the facts in the alien's situation are as
specified in the statute (marriage less than two years prior to entry;
admission documentation procured on basis of marriage; termination
of marriage less than two years after entry), the alien shall be deported as having procured a visa or other documentation by fraud,
unless the alien shall establish to the satisfaction of the Attorney
General that such marriage was not contracted for the purpose of evading the immigration laws. In other words, upon a showing by the
Government that the three facts exist, a presumption arises that the
alien's visa was obtained by fraud, and the burden then shifts to the
alien of overcoming the prima facie case by showing that the marriage
was not contracted for that purpose. See Matter of V—, 7 I. & N. Dec.
460; Matter of T--, 7 1. & N. Dec. 417; Todaro v. Pederson, 205 F.
Supp. 612 (1961), 305 F. 2d 377, cert. den. 371 U.S. 891. That burden
can be met by a bare.preponderance of the evidence; Matter of V—,
Sums.
134

Interim Decision #1711
Upon a careful and thorough consideration of the record, we conclude that the respondent has not even approached a showing that he
entered into the marriage with Claire Tarquinio in good faith, or for
any reason other than the immigration advantage it brought him. In
this, we agree with the special inquiry officer who has set out in his
opinion, in considerable detail, his reasons for such a finding.
Is respondent deportable under section 241(c), or is he, by virtue of
his relationship to his American citizen wife and child, saved from
deportation by section 241(f), which states:
"The provisions of this section relating to the deportation of aliens within
the United States on the ground that they were excludable at the time of entry
as aliens who have sought to procure, or have procured visaS or other documentation, or entry into the United States by fraud or misrepresentation shall not
apply to an alien otherwise admissible at the time of entry who is the spouse,
parent, or a child of a United States citizen or of an alien lawfully admitted
for permanent residence".

The special inquiry officer ruled that respondent was not "otherwise
admissible" at the time of entry, and could not benefit from this section. The underlying rationale was that because respondent's marriage
to Claire Tarquinio was not valid for immigration purposes, he was
not entitled to nonquota status and to the nonquota visa on which he
entered. He would, but for the marriage, have been chargeable to
the nonpreference portion of the quota for Italy which at the time he
entered was so oversubscribed as to be unavailable, and under which
he could not have obtained a visa. The special inquiry officer cited as
authority Matter of Slade, 10 I. & N. Dec. 128; Matter of Frisone, 10
I. & N. Dec. 117; and Scott v. Immigration and NaturaZieation Service,

850 F. 2d 279 (C.A. 2).
In Matter of Friame, the fact situation was virtually identical with
the instant ease, and we there held that the alien was not otherwise

admissible and, therefore, ineligible for the benefits of section 241(f).
Matter of Slade and Scott v. Immigration and Naturalization Service each involved a woman who entered into an admittedly sham marriage and on the basis thereof gained admission to the United States
as the spouse of a citizen. In each case, the woman later gave birth to
a child in the United States, out of wedlock, and in deportation proceedings claimed the benefits of section 241(f) as the parent of an
American citizen. In each case, the woman was from an area whose
quota was oversubscribed and unavailable, so that she could not have
obtained a visa without the marriage. In each ease, we held that the
-

alien, who was not entitled to the nonquota visa, without which she
could not have entered, was not "otherwise admissible", and, therefore,
not eligible for relief under section 241(f).
135

Interim Decision #1711
A petition for review of the Board's decision in the Scott case was
brought, pursuant to section 106 of the Immigration and Nationality
Act, in the United States Court of Appeals for the Second Circuit,
and that court, upon reconsideration of its prior decision in the case,
and with one member dissenting, upheld the Board's decision, stating:
"We therefore agree with the Board of Immigration Appeals that Mrs. Scott
was not 'otherwise admissible at the time of entry', within the meaning of section 241(f), because the British subquota for Jamaica was oversubscribed when
she obtained her visa and when she entered this country." Supra, at p. 284.

The special inquiry officer's decision was in accordance with the
controlling legal authorities when made. However, before the time of
the argument of the appeal in this case, the Supreme Court had granted
ointiorari in the case of Scott v. Immigration and Naturalization &mice, supra, and in Errico v. Immigration and Naturalization Service,
349 F. 2d 541, where the Ninth Circuit had reached an opposite result
in its determination of the meaning of "otherwise admissible" within
the context of section 241(f). Decision on the appeal in this case was
held in abeyance pending the ruling of the Supreme Court in the
Enrico and Scott cases. The Supreme Court decision was handed down
on December 12, 1966 and is reported at 385 U.S. 214. It is discussed
at some length in Matter of Cordero-Santana, decided February 13,
1967, Interim Decision No. 1694. It affirmed the Enrico decision, in
which the lower court had held the alien otherwise admissible even
though lie had fraudulently obtained a quota preference for which
he was not eligible, and reversed the lower court's holding in Scott,
described above.

In the instant case, the fact situation and the type of inadmissibility
urged by the Government (and found by the special inquiry officer)
came clearly within the Supreme Court ruling, and we must, therefore, find the respondent not deportable, and order these proceedings
terminated.
The Service, in its memorandum submitted in support of the special
inquiry officer's position argues thus :
"The respondent is further precluded from the exemption of section 241(f)
on the basis of his (2nd) marriage to a lawful permanent resident (Carmela)
because of the prohibitory provisions of section 205(c) of the Immigration and
Nationality Act. (8 U.S.C. 1155 (C) ).
See. 205(e) provides in part :
'Notwithstanding the provision of this subsection, no petition shall be approved if the alien previously has been accorded, by reason of a marriage
determined by the Attorney General to have been entered into for the purpose of evading the immigration laws • •
(2) A preference quota status under section 203(a) (3) as the spouse of an
alien lawfully admitfed for permanent residence • • •

136

Interim Decision #1711
The respondent entered into a fraudulent first marriage by means of which
he was accorded a nonquota status. He cannot take advantage of a second but
bona fide marriage to obtain a preference quota status." (Service Answering
Memorandum Before the Board of Immigration Appeals, pp. 6-0.)

We are not directly confronted with the question of how or whether
section 205(c), now a part of section 204(c), is affected by the Supreme
Court ruling

in

tho Errioo and Soott oases: No one here seeks to file a

petition to obtain immediate family or preference quota status for the
respondent, nor do we see that such a petition would be necessary. By
the holding that respondent was "otherwise admissible" at the time
of his entry, and that his fraud in gaining such entry has been excused
under section 241(f) (cf. Errioo v. Immigration and Naturalization
Service, supra), that entry has been cleared of illegality, and respondent must still be considered to be an alien who has been lawfully admitted for permanent residence. 2 That this was the status intended to
be accorded the alien given the benefits of section 241(f) seems to us
obvious from the provisions of its counterpart, section 212(i), relating

to aliens still abroad, who may be admitted to the United States for
permanent residence•f•they can meet the requirements of the waiver
provision.

ORDER: It is ,ordered that the appea•herein be and the same is
hereby sustained, and that the proceedings herein be terminated.
Such a situation might arise for as alien who has been previously deported,
br foimd deportable and 'left on voluntary 'departure, and who must have immediate family or preference quota status in order to obtain an immigrant visa. It
might also arise in the case of allerson adjusted under the'provisions of section
246, wnere there has been a revocation of both the adjustment and the underlying
petition. '
° Matter of Frioone, eupra, must be considered overruled in its entirety.

137


Interim Decision #1260

MATTER OF ROSENBLATT

In DEPORTATION Proceedings
A-10588440
Decided by Board January 18, 190
Neither the Board of Immigration Appeals nor the special inquiry officer, in
deportation proceedings, has jurisdiction to grant or to review the denial of a
waiver of the foreign-residence requirements of section 212(e) of the Immigration and Nationality Act, as amended. (Reaffirmed, Matter of Iris,
Dec. No. 1304.)
°BARGE:

Order : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2)3—Nonimmigrant
remained longer.

The case COMBS forward on appeal from the order of the special inquiry officer dated October 8, 1962, denying the respondent's application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, denying the application of the respondent
for suspension of deportation pursuant to section 244 (a) (5) of the
Act but granting the respondent's application for the privilege of
voluntary departure in lieu of deportation, with the further order
that if respondent failed to depart as required, the privilege of voluntary departure would be withdrawn and the respondent would be deported from the United States to the Republic of the Philippines on
the charge contained in theorder to show cause.
The record relates to a native and citizen of the Philippine Islands
83 years old, female, who last entered the United States through the
port of Honolulu, Hawaii, on January 10, 1955, at which time she
was admitted as an exchange visitor to receive training as a medical
doctor. Her last extension of temporary stay in the United States
expired December 4, 1961, but she, has failed. to depart from the United
States. Deportability on the charge contained in the Order to Show
Cause is established.
The respondent has made application for adjustment of status to
that of a permanent resident pursuant to the provisions of section 245
154

Interim Decision. #1260
of the Immigration and Nationality Act. The respondent was originally admitted as an exchange visitor to receive training as a medical
doctor. She therefore comes under the provisions of 9 CFR 245.1
which provides in pertinent part :
Pursuant to section 212(e) of the Act, an alien who has or has had the status
of an exchange alien or of a nonimmigrant under section 101(a) (15) (.1) of the

Act is not eligible for the benefits of section 245 of the Act unless he has complied with the foreign residence requirements of section 212(e) of the Act or
has been granted a waiver thereof.

Section 212 (e) of the Immigration and Nationality Act, as added by
the Act of September 21, 1961 (P.L. 87-256), the Mutual Educational
and Cultural Exchange Act of 1961, provides as follows :
No person admitted under section 101(a) (15) (.7) or acquiring such status
after admission shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a) (15) (PO until
it is established that such person has resided and been physically present in the
country of Ills nationality or his last residence, or in another foreign country
for an aggregate of at least two years following departure from the United
States : Provided, That such residence in another foreign country shall be considered to have satisfied the requirements of this subsection if the Secretary of
State determines that it has served the purpose and the intent of the Mutual
Educational and Cultural Exchange Act of 1961: Provided further, That upon
the favorable recommendation of the Secretary of State, pursuant to the request
of an interested United States Government agency, or of the Commissioner of
Immigration and Naturalization after he has determined that departure from
the United States would impose exceptional hardship upon the alien's spouse
or child (if such spouse or child is a citizen of the United States or a lawfully
resident alien), the Attorney General may waive the requirement of such twoyear foreign residence abroad In the case of any alien -whose admission to the
United States is found by the Attorney General to be in the public interest: And
provided further, That the provisions of this paragraph shall apply also to those
persons who acquired exchange visitor status under the United States Information and Educational Exchange Act of 1048, as amended.

The respondent submitted an application for a waiver to the Immigration and Naturalization Service and on June 11, 1962, was
informed by the District Director, Los Angeles District, that the
application for a waiver had been denied (Ex. 5). The special inquiry
officer has concluded that the granting of the waiver wider section
212(e) lies within the jurisdiction and the discretion of the District
Director and that the authority to grant such a waiver has not been
delegated to a special inquiry officer; therefore, he has no authority
either to act in connection with such an application for a waiver or to
review any decision made by the District Director upon an application
for a waiver.
Counsel contends that the provisions of section 235 (a) of the Immigration and Nationality Act (8 U.S.C. 1225 (a) ) and of the regulations 8 CFR 242.17(a) are broad enough to allow the special inquiry
155

Interim Decision #1260
officer to examine every aspect of the respondent's eligibility for adjustment of status. He summarizes his argument by stating that the
Board has been granted jurisdiction to review the decision of the

special inquiry officer as to eligibility for adjustment of status under
section 245 of the Act and, unless there is a specific statute or regulation to the contrary, the question of eligibility must also include a
determination of the applicant's eligibility for a waiver of the two-year
residence requirements.
The nonimmigrant status of the respondent is defined in section
101 (a) (15) (J) of the Immigration and Nationality Act as added by
section 109 (b) of the Act of September 21, 1961 (The Mutual Educational and Cultural Exchange Act of 1961) as an alien having a residence in a foreign country which he has no intention of abandoning
who is a bona fide student, scholar, trainee, teacher, professor, research
assistant, specialist, or leader in a field of specialized knowledge or
skill, or other person of similar description, who is coming temporarily
to the United States as a participant in a program designated by the
Secretary of State, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training, * * *.
The legislative history dealing with this amendment discloses that
a special new nonimmigrant -visa was designed to serve solely the purposes of the Mutual Educational and Cultural Exchange Act of 1961
(H.R. 8666). By administrative arrangement a type (J) visa had
been issued pursuant to authority in section 201 of the Educational
Exchange Act. The main purpose of this new language is to reserve
the (F) visa for students other than exchange students and made the
new (J) type nonimmigrant available solely to nonimmigrants selected
under the exchange program. The placing of exchange aliens in a
separate category (J) would also simplify the administration of the
two-year foreign residence requirement contained in the new subsection
(b), which reenacts and amplifies P.L. 84 555 but contains one important change in existing law, namely, the requirement of the finding
by the Secretary of State that the 2-years' residence abroad of an
exchange alien, if not occurring in the country from which he came to
the United States, was in accord with the basic purpose of the exchange
program. The purpose of this modification of the existing requirement was to avoid a situation where an exchange alien trained in the
United States prefers to spend the required two years in a country well
supplied with the skills which he acquired in the United States to the
obvious detriment of his own country or other areas where his skills
could be better utilized? To make available the services of exchangees
-

1 Volume 2, U.S. Code Congressional and Administrative News
(87th Cong.
1st Sess. 1961) 2774 .

156

Interim Decision #1260
who possess talents required by our universities, foundations and other
institutions, the language of the House Bill was modified to permit
the waiver of the foreign residence requirement on the request of an
interested United States Government agency; the language was also
modified to permit an interested United States Government agency to
request a waiver in other special circumstances. Its terms were extended to include those who acquired exchange visitor status under the
Educational Exchange Act of 1918. 2
While section 242.17(a) of Title 8, Code of Federal Regulations,
gives the special inquiry officer authority to hear applications for suspension of deportation under section 244(a) or for adjustment of
status under section 245 of the Act, such applications are made subject
to the requirements contained in Parts 244 and 245. The special inquiry officer has the duty of informing the respondent of his apparent
eligibility to apply for any of the benefits enumerated therein and to
afford him an opportunity to make application therefor during the
hearing. However, nothing in this section gives the special inquiry
officer authority to grant the waiver provided for by section 212(e)
of the Act. The authority to waive, on the basis of personal hardship
to the alien, his citizen or resident alien spouse or child, is specifically
delegated under section 212(e) to the Commissioner of Immigration
and Naturalization who has in turn delegated such authority to the
District Director. The regulations of the Department of Health Education and Welfare provide in 45 CFR 50.5 that the responsibility in
connection with applications for a waiver based on the personal hardship provisions of the Department of State regulations, 22 CFR 63.6,
are under the jurisdiction of the Immigration and Naturalization
Service and inquiry should be directed to the appropriate district
office of that Service: the regulation points out the same is true of
applications for extension of visas. The State Department regulations, 22 CFR 63.6(f), provides that an exchange visitor who wishes
to apply for a waiver under the personal hardship provisions of that
section may apply to the District Director of the Immigration and
Naturalization Service having administrative jurisdiction over his
intended place of residence in the United States.
From the foregoing, it must be concluded that the authority to grant
the waiver contained in section 212(e) of the Act, like the authority
to grant extensions of visas, lies within the jurisdiction of the Immigration and Naturalization Service and not with the special inquiry
officer.' The Board's jurisdiction as described in 8 CFR 3.1(b) includes appeals from decisions of the special inquiry officer in exclusion
= Mein, 2180.
'Motu r of Han. Int. Dec. No. 1241 (13.I.A.., August 10, 1962).

157

Interim Decision #1260
cases as provided in Part 236 and in deportation proceedings as provided in Part 242 of the Act, but does not extend to decisions of the
District Director in the granting of the waiver under section 212(0. 4

We agree with the conclusion of the special inquiry officer that he has
no jurisdiction to grant the waiver provided by section. 212(e) nor to
review the denial of such waiver. Accordingly, the application for
adjustment of status under section 245 was properly denied.
In connection with respondent's application for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality
Act the special inquiry officer concluded that the respondent was not
statutorily eligible under that section because she does not have the
required 10 years' residence. That conclusion is obviously correct.
Even under the provisions for suspension of deportation in section
244 (a) as amended by the Act of October 24, 1962 (76 Stat. 1247) the

respondent would not be eligible because of the limitation contained.
in section 244(f) which provides that no provision of the amended
section 244 shall be applicable to an alien who was admitted to the
United States pursuant to section 101(a) (15) (J) or has acquired such
status after admission to the United States. The special inquiry
officer has granted the respondent the privilege of voluntary departure
which appears to be the only discretionary relief available to her.
ORDER : It is ordered that the appeal be and the same is hereby
dismissed.
' Cf. Matter of

De G—et al., Int. Dec. No. 1036 (A.G., 1959).

158


Interim Decision #2807

MATTER OF KNUDSEN

In Visa Petition Proceedings
A.-2918489
Decided by Regional Commissioner January 5, 1979
A petitioner seeking to classify an H-2 beneficiary for the issuance of an immigrant visa
under section 203(a)(6) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(6),
must establish that the job in which the beneficiary will be employed differs from the
one for which the H-2 petition by the same employer had been approved previously.
ON

BEHALF

or PE-11110mm Leon Wildes, Esquire

515 Madison Avenue
New York, New York 10022

The petition was denied by the District Director, San Antonio,
Texas, and is now considered on appeal.
The petitioning firm is engaged in the tanning and processing of
sheepskins, employs 45-50 persons, and is one of four such firms left in

the United States. The position offered to the beneficiary is that of

Master Tanner-Dyer, a position which has been certified by the
Department of Labor.
The petition was denied on the basis that the position previously had
been accorded classification as a nonimmigrant temporary worker
(H-2) position, and, therefore, it could not now qualify as being a
permanent position.
On appeal, it is pointed out that the nature and duties of the position

have changed since the entry of the beneficiary as a temporary worker,
and, thus, the sixth-preference petition is approvable as being a
permanent position.
Section 101(a)(15)(H) of the Act relates to:
"an alien having residence in a foreign country which he has no intention of abandoning (ii) who is coming temporarily to the United States to perform temporary
services or labor, if unemployed persons capable of performing such services or labor
cannot be found in this country...."

The beneficiary was previously accorded temporary worker classification for the same petitioner. The nonimmigrant petition reflects that

Interim Decision #2807
the temporary position offered was that. of Technical Consultant—Master Tanner-Dyer, for a period of six months. The job to be
performed was: "to establish a sueded shearling and double face department and to train a specially designated employee to carry on and
direct this operation upon his departure . . . Goal is to plan, design and
establish a fully operational sueded shearling and double face department." (Emphasis supplied.)
The position now offered to beneficiary, which has been certified by
the Department of Labor, is that of Master Tanner-Dyer. The job to be
performed is that of
"Using specialized knowledge in art of tanning, dyeing, and processing of sueded
sheepskin, is responsible for face sheepskin department. Supervise processing and
dyeing of wool side and then the processing finishing of leather side. Devise and adapt
complicated chemical formulas as required depending upon quality and characteristics of the unprocessed sueded sheepskins and the desired finished product. Also will
he involved in the purchase of equipment and machinery which is necessary depending upon contracts and job orders received."
A close comparison of the two position descriptions reflects that the
job titles differ, and the beneficiary was originally brought to the
petitioning company "to plan, design, and establish a fully operational
suoded shearling and double face department," whereas at present, the

position description is completely different. According to the brief
eubhlitted on appeal, the purpose of the temporary position was accomplished; and what is now being petitioned for is a position requiring the services of the beneficiary on a day to day basis, for an indefinite period of time. (Emphasis supplied.)
It is evident that in these cases we must look beyond the fact that a
temporary worker is petitioned for by his nonimmigrant petitioner on
a permanent basis. Provision for this is found in Operations Instructions 204.4(b)(2), which states in part
-

-

"When the petitioner establishes that the beneficiary be employed in a job which
differs from the one for which an H-2 petition by the same, employer had previously
been approved, the new petition may be approvedfar sixth-preference classification if
otherwise approvable." (Emphasis supplied.)

The entire record in this case, including the material submitted on
appeal, has been carefully considered. It is concluded that the sixthpreference position differs from the 11-2 position which brought the
beneficiary to the United States, and, therefore, the petition is approvable. However, it is noted that the labor certification presently requires the person filling the job being offered, must have had one year
of training, and evidence of the required training and experience. The

decision of the District Director will be withdrawn, and the matter
remanded, to afford the petitioner an opportunity to satisfy the training and experience requirements of the labor certification. Thereafter,
.40A

Interim Decision #2807
if the requirements are satisfied, the petition will be approved.
ORDER* The decision of the District Director is withdrawn, and
the matter is remanded for action in accordance with the foregoing.