Interim Decision #2107

MATTER OF GRANDI
In Exclusion Proceedings
A-47556854
Decided by Board December 1, 1971
(1) Applicant is estopped from contending in exclusion proceedings that he
was brought to the United States against his will where, in criminal proceedings for attempted smuggling of heroin into the United States, the
courts considered the same contention and found applicant came to the
United States voluntarily. Applicant, in possession of a visa for entry into
the United States, destined to the United States, voluntarily arriving in
the United States and submitting his luggage for inspection by Customs
officials, must be considered an applicant for admission.
(2) While it may be desirable for a special inquiry officer to advise an indigent alien who desires counsel about the possibility of obtaining free counsel and afford him the opportunity to explore the possibility if he so desires, the failure of the special inquiry officer to do so in the instant case
did not prejudice applicant since counsel could not have altered the facts
established by the criminal conviction.
(3) An adjudication of admissibility in exclusion proceedings is proper even
though parole of the alien has not been terminated.
EXCLUDABLE: Act of 1952—Section 212(a) (23) [8 U.S.C. 1182(a) (23)]—
Convicted of illegal receiving, concealing, and
facilitating the transportation and concealment of a narcotic drug, in violation of 21
U.S.C., sections 173 and 174.
ON BEHALF OF APPLICANT:
Tracy E. Mulligan, Esquire (argued)
Stephen Bienieck, Esquire
Legal Aid Society of D.C.
666 - 11th Street, N.W.
Washington, D.C. 20001 '
(Brief filed)
Esther M. Kaufman, Esquire (argued)
1823 L Street, N.W., Suite 102
Washington, D.C. 20036
For Association of Immigration and
Nationality Lawyers, amicus curiae
(Brief filed)

798

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney

Interim Decision #2107
The applicant, a 57-year-old male, a native and citizen of
France, appeals from the special inquiry officer's order excluding
him on the ground stated in the caption. The appeal will be dismissed.
The applicant admits that he was convicted of the crime set
forth in the caption. He contends that he was illegally brought to
the United States, that he was never an applicant for admission
to the United States, that he was denied the right to counsel, that
he was not provided with an adequate interpreter, and that the
Service failed to follow its regulations concerning termination of
parole.
On December 13, 1967, the applicant was paroled into the
United States at Rouses Point, New York pursuant to section
212(d) (5) of the Act for an indefinite period in the custody of
United States Customs agents for prosecution as a narcotics
smuggler (Ex. 3). An indictment filed on March 1, 1968, under 21
U.S.C. 173 and 174 charged him with unlawful acts in connection
with a narcotic drug which had been imported into the United
States contrary to law. The applicant entered a plea of not guilty.
On June 14, 1968, he was found guilty after a trial by jury. On
June 28, 1968, he was sentenced to a period of imprisonment (Ex.
2). He is now serving his sentence. The applicant's appeal was
dismissed on April 7, 1970, United States v. Grandi, 424 F.2d 399
(2 Cir., 1970). 1
The opinion of the Court of Appeals reveals the following: The
applicant, a passenger on a train coming from Canada to New
York, was inspected in Canada by a United States Customs officer
on the train. He aroused the officer's suspicions and was told that
he would be further examined upon arrival at Rouses Point, New
York. The officer, who was accompanied by Canadian officers, sat
across the aisle from the applicant. Before entering the United
States, the train stopped at Lacolle, Quebec, where the Canadian
officers left the train. At the criminal trial, the applicant claimed
that at the stop he attempted to get up from his seat and leave
the train, but the United States Customs officer motioned him to
return to his seat. The officer, however, testified that the applicant made no attempt to rise from the seat and leave the train.
Upon arrival at Rouses Point, the officer, directing the applicant
to disembark and carrying some of his luggage, took him to the
United States Customs Office. When an inspection of his luggage
1 At the exclusion hearing, the applicant stated that the legality of his
conviction was still under litigation (p. 5) . He did not elaborate on the
statement.

799

Interim Decision #2107
revealed that heroin was concealed in the false bottom of the suitcase, he was arrested. After his arrest, the applicant, while denying any knowledge of the heroin, agreed to cooperate with Customs officials in the capture of his contact man. He accompanied
the Customs agents to New York City where he was to meet the
contact man. At the trial, applicant contended that since he had
been arrested by the United States Customs official before he entered the United States, and he had entered against his will, the
unlawful importation of the narcotics was done under the direction of the official. The trial court chose to credit the Customs
officer's testimony as to what had happened at Lacolle.
The Court of Appeals found no reason to disturb the finding of
the lower court. The appellate court stated that although the applicant was under surveillance before he entered the United
States, he was not placed in custody and arrested until after his
arrival at Rouses Point.
On December 29, 1970, the Service notified the applicant in
writing to appear before a special inquiry officer for a hearing in
exclusion proceedings to determine whether he was entitled to
enter the United States or whether he should be excluded and deported as one inadmissible under section 212(a) (23) of the Act.
Fie was notified of his right to representation by counsel. The adiice is contained in the body of the notice and is also stamped on
he margin of the notice.
The exclusion hearing was held on January 13, 1971, at the
ederal institution where the applicant is serving his sentence. An
nterpreter in the French language was used. The interpreter
bated that his knowledge of French was sufficient for communiation with the applicant. The applicant was told that if there
as anything he did not understand, he was to advise the special
iquiry officer (p. 1).
The special inquiry officer told applicant that he had the right
counsel. The applicant stated he understood this but he had no
oney to pay for one. When asked whether he was willing to proed without a lawyer he answered, "Yes, there is nothing else I
n do." (p. 3)
The hearing was short. The Service trial attorney stated that
December 13, 1967, the applicant had been detrained by
cited States Customs agents at Rouses Point, New York beuse they believed he was bringing narcotics into the United
ates, that he was then in possession of a visitor's permit, and
it he was paroled in custody of the agents for prosecution (pp.
3). The applicant testified that he had attempted to enter the

800

Interim Decision #2107
United States on December 13th (p. 4), that he was paroled into
the United States (p. 4), that he believed he was brought into the
country illegally (p. 5), and that he used another name when he
attempted to enter (p. 6).
The special inquiry officer, relying on applicant's admission
that he had attempted to enter the United States and that he had
been paroled (p. 2, special inquiry officer's opinion), held that
the applicant was inadmissible by reason of the conviction. The
special inquiry officer ordered applicant's exclusion and deportation.
Counsel and amicus curiae contend that an independent evaluation of the facts would show that applicant had been brought to
the United States against his will by the United States Customs
officer. Amicus curiae requests that the hearing be reopened to
explore this issue. Since the courts considered applicant's claim
that he had been arrested in Canada and brought to the United
States against his will, and since the courts found that the applicant came to the United States voluntarily, we are bound by the
finding, Matter of Campos, Interim Decision No. 1942 (BIA,
1969). Applicant, in possession of a visa which would permit his
entry into the United States, destined to the United States, voluntarily arriving in the United States, submitting his luggage for
inspection by the Customs officials, must be considered an applicant for admission. All arriving aliens must be examined by an
immigration officer, 8 U.S.C. 1225. On the basis of these facts, we
must conclude there was an actual or at the least an implicit application for admission which is sufficient to warrant an adjudication of admissibility in exclusion proceedings. Since the special
inquiry officer had jurisdiction of the application, and since the
record established the applicant is clearly inadmissible, we see no
reason to change the special inquiry officer's decision.
Title v. United States, 322 F.2d 21 (9 Cir., 1963), is not inconsistent with our reliance on the binding effect of the courts' findings in the criminal case. In Title, supra, the Service sought to
deport Title on the ground that he had been a member of an organization which sought the overthrow of the Government by
force and violence. To establish the organization was one seeking
the overthrow of the Government by force and violence, the Service relied upon the fact that Title had been denaturalized in a judicial proceeding in which his membership in the organization
and its nature had been established. The court reviewing the deportation order held that the Service could not rely on the judicial determination in the denaturalization case, but had to prove

801

Interim Decision #2107
in the deportation case that the organization was one which
sought the overthrow of the Government by force and violence.
There are several important distinctions: Title was a deportation
case—one where the burden of proof was on the Service; the case
before us is an exclusion case—one where the burden of establishing admissibility is on the applicant for admission. Title did
not present evidence in his denaturalization case. The applicant
did. Title was bottomed on the specific wording of a statutory
provision (section 242 (b) of the Act) which is not involved in the
instant case. Finally, as the court pointed out, after the denaturalization, the Supreme Court held the quality of membership in
the organization was an important factor—this aspect had not
previously been deemed of importance and the Service had not
shown the existence of this factor in the denaturalization case.
Counsel's contention that applicant's presence in the United
States is in violation of the diplomatic protocols of the United
States and Canada and Article 2 of the United Nations Charter
because he was brought here by force need not be discussed in
view of the position we have stated in the previous paragraphs. 2
Amicus curiae contends that the applicant was denied his right
to counsel at the exclusion hearing. She states that the special inquiry officer, having knowledge of the applicant's desire to be
represented and his financial inability to pay for counsel, should
have advised him that it might be possible to obtain representation even though he had no funds and should have given applicant time for that purpose. She points out that there was no
pressing need for an immediate hearing since the applicant was
serving a sentence with many years to go. She cites Ka Cheung
rp v. INS, unreported (1 Cir., No. 7802, February 18, 1971). She
states that if applicant had been represented, the involuntariness
)f his presence in the United States would have been established
st the hearing. We agree with counsel that the special inquiry officer could well have informed the applicant about the possibility
if obtaining free counsel and could well have given him the op)ortunity to explore the possibility if he so desired. However, we
to not find that the special inquiry officer's failure prejudiced the
2 A person who presents himself at a port of entry, "whether voluntarily
ar otherwise" is amenable to the exclusionary proceedings prescribed in the
kct, D'Agostino v. Sahli, 230 F.2d 668, 671 (5 Cir., 1956). Once an applicaion for admission is made, the applicant cannot withdraw the application as
matter of right. Administrative authorities may permit a withdrawal as a
liscretionary matter, Matter of Vargas-Molina, Interim Decision No. 2069
BIA, 1971).

802

Interim Decision #2107
alien because we do not see how counsel could have altered the results here. The applicant's conviction is a fact. It exists. The voluntariness of applicant's application for admission, as we have
pointed out, is an issue foreclosed by decisions in the criminal
matter. Moreover, applicant's general level of understanding is
such that he clearly understood the purpose of the exclusion hearing and what was happening at it. Finally, there is no requirement that the Service provide counsel for the applicant at Government expense, Aalund v. Marshall, 323 F. Supp. 1380 (E.D.
Tex., 1971). In view of these factors, we do not think that Ka
Cheung Ip, supra, requires a reopened hearing at which applicant
will be represented.
Amicus curiae contends that the applicant was denied his right
to effectively present evidence on his own behalf because of the
inadequacy of the interpreter. We have carefully examined the
record in light of the contention. The record on a whole reveals
that the applicant's answers were responsive, that they were specific, and that they consisted of more than categorical answers.
The applicant has furnished no specific instance of a misunderstanding of a question or of an answer improperly set forth in
the record.
Amicus curiae contends that this exclusion proceedings is premature because applicant's parole was not terminated in accordance with the regulations. She points out that the applicant was
paroled into the United States, that 8 CFR 212.5 (a) requires that
parole shall be terminated upon written notice to the alien when
the purpose for which parole was authorized has been accomplished, and that there is no showing that the parole was so terminated. She contends that the parole status still continues and it
is therefore premature to hold an exclusion hearing.
Even if applicant's parole has not been terminated, an adjudication of his admissibility in exclusion proceedings is proper.
Parole is merely an alternative to detention at the border. It "is
simply a device through which needless confinement is avoided
while administrative proceedings are conducted," Leng May Ma
v. Barber, 357 U.S. 185, 190 (1958). Parole bestows no additional
rights upon an alien, Matter of Dabiran, Interim Decision No.
2051 (BIA, 1970). A person detained at the border can be given
an exclusion hearing. A person who has been ordered excluded
may be paroled while his appeal is being considered. We see no
reason why a parolee cannot be given an exclusion hearing. In
the instant case there is good reason to continue applicant in his
status as a parolee. He is serving a prison sentence. He will be in
803

Interim Decision # 2107
the United States for some time to come whatever the outcome of
the exclusion case. The status of a parolee is the only one legally
available. 3
ORDER: The appeal is dismissed.

3 Service v. Dulles, 354 U.S. 363 (1957), and Accardi v. Shaughnessy, 347
U.S. 260 (1954), cited by counsel on the necessity of an administrative
agency following its own regulations are inapposite. In the cited cases, the
alleged deviations from the regulations were prejudicial. This is not the case
here.

804


Interim Decision #1978

MATTER OF Monciw

In Exclusion Proceedings
A-18186391
Decided by Board May 22, 1969
Absent evidence of fraud on her part, an applicant for admission who,
subsequent to issuance of her immigrant visa supported by a Labor certification as a live-in domestic, learned that she was to be employed by another employer, but who did not inform the visa-issuing consul of the
change, relying on the travel agent's statement everything was all right
and she could properly proceed to the United States, and who, following
arrival was found excludable under section 212 (a) (14) of the Immigration
and Nationality Act, as amended, but during the course of an appeal to
the Board in exclusion proceedings was issued a Labor certification covering her present employment, is admissible since her application for admission is a continuing one and her visa is now supported by a valid Labor
certification.
EXCLUDABLE: Act of 1952

—

Section 212(a) (14) [8 U.S.C. 1182] Coming to
perform skilled or unskilled labor—no valid
Labor certification.
—

The record relates to a 32-year-old single female alien, a native
and national of Jamaica, who applied for admission for permanent residence on May 12, 1968. She presented an immigrant visa
supported by a certification from the Secretary of Labor. The latter document showed she was destined to a Mrs. Volkerding,
Louisville, Kentucky, for employment as a "live-in" domestic.
However, she told the examining immigration officer she was en
route to Columbus, Ohio, to work for a Mrs. Moore as a "live-in"
domestic.
Because of the different destination and new employer, the applicant's inspection was deferred to Cincinnati, Ohio, and was accorded on June 21, 1968. It resulted in the referral 'of her case
for an exclusion hearing before a special inquiry officer who, on
July 9, 1968, ordered her excluded and deported from the United
States, on the above-stated ground. Her appeal from that decision, which brings the case before this Board for consideration,
will be sustained and her admission authorized.
283

Interim Decision #1978
Section 212 (a) (14) of the Immigration and Nationality Act
provides that, with stated exceptions not here applicable, an alien
shall be ineligible to receive a visa and/or for admission into the
United States unless in possession of a certification issued by the
Secretary of Labor. 29 CFR 60.5 states that the requisite labor
certification is invalid if the representations upon which it is

based are incorrect, and that it covers only the position described
in the request therefor. Application of the following facts of record in the light of the pertinent provisions of the law and the related regulations convinces us that the special inquiry officer's decision to exclude the applicant should be reversed.
The applicant learned she was to work for Mrs. Moore, not
Mrs. Volkerding, only after she had obtained her immigrant visa.
She did not then inform the visa-issuing consul of the change because the "arranging" travel agent told her everything was all
right and she could properly proceed to the United States. In this
connection, the special inquiry officer has found absolutely no evidence of fraud on the applicant's part, and he is of the opinion
she had no reason to doubt the information she was given.
Accordingly, we are confronted only with the problem of the
validity of the applicant's labor certification at the time of her
application for admission. Under the circumstances outlined
above, hers is a continuing application, which persists to the
present moment. It is not definitively affected by the special inquiry officer's ruling. See 8 CFR 3.6. Thus, the facts as they now
exist are determinative of the issue raised here, Klapholz v. Esperdy, 302 F.2d 928 (2 Cir., 1962), cert. denied 371 U.S. 891; cf.
Matter of Pfahler,12 I. & N. Dec. 114 (B.I.A., 1967) .
As the special inquiry officer pointed out, the applicant has

been employed as a "live-in" domestiC, the type of work she was
"cleared" to perform in this country, since the day after her
arrival. 1 On July 15, 1968, six .days after the special. inquiry
officer rendered his decision and this appeal was filed, she was issued a labor certification covering that employment. 2 Clearly,
therefore, the applicant's employment in this country has always
been in the same category of work for which she was originally
.

The circumstances of her employment, while extremely sympathetic, are
by this case.
2 Ordinarily, we would remand the case to have that document introduced
into the record and considered by the special inquiry officer, but we will not
do so here because of the unavoidable administrative delay; because the validity of the document is not subject to contest; and because the only question it raises is strictly legal in nature.
1

not dispositive of the strictly legal problem presented

284

Interim Decision #1978
issued a labor clearance; the Department of Labor has found
there exists a shortage of qualified workers in this field in the
area involved; the protection section 212(a) (14) of the Immigration and Nationality Act seeks to give American labor has in no

way been compromised by the applicant; and the technicalities of
29 CFR 60.5 have now been complied with, while the applicant is
still knocking at the gate.
Strictly speaking, it might be argued that the applicant's visa
is invalid because it was not based on the present labor certification. The legislative history of section 212 (a) (14) provides no
definitive clue to resolution of this problem. But our perusal
thereof convinces us that the Congress never intended the absurd
results which would flow from such a ruling in this case. On the

record before us, we think it would be superorogatory to require
the applicant to proceed abroad to obtain a new visa. We so hold.
ORDER: It is ordered that the appeal be sustained; that the

special inquiry officer's decision of July 9, 1968 be withdrawn;
and that the alien be admitted for permanent residence.

285


Cite as 26 I&N Dec. 922 (BIA 2017)

Interim Decision #3886

Matter of Rogelio FLORES-ABARCA, Respondent
Decided March 3, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The crime of transporting a loaded firearm in violation of title 21, section 1289.13 of
the Oklahoma Statutes is categorically a firearms offense under section 237(a)(2)(C) of
the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2012), even though the
term “transporting” is not included in the Act, because section 237(a)(2)(C) is broadly
construed to encompass all types of firearms offenses.
FOR RESPONDENT: Arthur Campbell Cooke, Esquire, Tulsa, Oklahoma
FOR THE DEPARTMENT OF HOMELAND SECURITY: Lynn G. Javier, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, WENDTLAND, and GREER, Board Members.
PAULEY, Board Member:

In a decision dated December 1, 2015, an Immigration Judge found the
respondent removable under section 212(a)(6)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as an alien who is
present in the United States without being admitted or paroled after
inspection, and denied his application for cancellation of removal under
section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012). The
respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of Mexico who entered the
United States without inspection in 1988. The record reflects that he was
convicted on January 20, 2004, of transporting a loaded firearm in violation
of title 21, section 1289.13 of the Oklahoma Statutes. That section
provides in relevant part that “it shall be unlawful to transport a loaded
pistol, rifle or shotgun in a landborne motor vehicle over a public highway
or roadway.”
At a hearing before the Immigration Judge, the respondent conceded
that he is removable, but he applied for cancellation of removal. The
Immigration Judge determined that the respondent is ineligible for that
relief pursuant to section 240A(b)(1)(C) of the Act because he has been
convicted of a firearms offense under section 237(a)(2)(C) of the Act,
8 U.S.C. § 1227(a)(2)(C) (2012).
922

Cite as 26 I&N Dec. 922 (BIA 2017)

Interim Decision #3886

Section 237(a)(2)(C) of the Act provides as follows:
Any alien who at any time after admission is convicted under any law of
purchasing, selling, offering for sale, exchanging, using, owning, possessing, or
carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange,
use, own, possess, or carry, any weapon, part, or accessory which is a firearm or
destructive device (as defined in section 921(a) of title 18, United States Code) in
violation of any law is deportable.

(Emphases added.) The respondent argues that the crime of transporting a
firearm does not include “possessing” or “carrying” and that Congress did
not intend the transportation of a loaded firearm to be an offense within the
scope of section 237(a)(2)(C). Whether transporting a loaded firearm under
Oklahoma law is a firearms offense under the Act is a question of law that
we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016).
Section 237(a)(2)(C) uses the expansive term “any” and sets forth a
“comprehensive list of gerunds [that] captures all varieties of conduct
relating to firearms transactions.” Hall v. INS, 167 F.3d 852, 855 (4th Cir.
1999). A plain reading of the statute makes “clear that Congress intended
[it] to embrace the entire panoply of firearms offenses.” Valerio-Ochoa
v. INS, 241 F.3d 1092, 1095 (9th Cir. 2001).
The United States Court of Appeals for the Fifth Circuit, in whose
jurisdiction this case arises, has not addressed the breadth of section
237(a)(2)(C). However, other Federal courts of appeals have expressed the
view that “Congress intended the provision to apply broadly.” Malilia
v. Holder, 632 F.3d 598, 602 (9th Cir. 2011); see also Awad v. Gonzales,
494 F.3d 723, 725−27 (8th Cir. 2007) (approving the Board’s broad
interpretation of section 237(a)(2)(C)). Specifically, the Second and Fourth
Circuits have concluded that section 237(a)(2)(C) “is ‘exceedingly broad’
and ‘evinces an expansive purpose—to render deportable those aliens that
commit firearms offenses of any type.’” Kuhali v. Reno, 266 F.3d 93, 103
(2d Cir. 2001) (quoting Hall, 167 F.3d at 855).
Further, the terms “possessing” and “possess” in section 237(a)(2)(C) of
the Act include constructive possession of a firearm. Aybar-Alejo v. INS,
230 F.3d 487, 489 (1st Cir. 2000) (“Constructive possession of an object
occurs when an individual exercises dominion and control over such object
even though it is not within his immediate physical possession.”). The
respondent knowingly and willfully transported a firearm in his vehicle.
Okla. Unif. Jury Instructions CR 6-37A (stating that a person must
“knowingly” and “willfully” transport a loaded firearm to be convicted
under section 1289.13). Therefore, he necessarily had constructive
“possession” of the firearm for purposes of section 237(a)(2)(C). See
United States v. Bass, 404 U.S. 336, 340 (1971) (noting that “virtually all
923

Cite as 26 I&N Dec. 922 (BIA 2017)

Interim Decision #3886

transportations . . . involve an accompanying possession”); United States
v. Richards, 967 F.2d 1189, 1195 (8th Cir. 1992) (stating that “the ordinary
meaning of the term ‘transport’ . . . involv[es] an element of possession”);
cf. Malilia, 632 F.3d at 604 (stating that possession of a firearm “is a
necessary part” of its delivery); Kuhali, 266 F.3d at 104−05 (holding that
exporting firearms “necessarily entails some degree of possession”).
Moreover, it would be illogical to hold that unlawful possession of a
loaded firearm would fall within the scope of section 237(a)(2)(C) but that
unlawfully transporting the same weapon would not. See Malilia, 632 F.3d
at 604 (“Congress did not write the law so that an alien who unlawfully
possesses a firearm may be removed while an alien who possesses a firearm
and then unlawfully delivers that firearm may not be removed.”); Kuhali,
266 F.3d at 103 (stating that “it would be incongruous to read the statute to
encompass” the possession of firearms but not their illegal export). See
generally Matter of Fajardo Espinoza, 26 I&N Dec. 603, 606 (BIA 2015)
(stating that the statutory scheme as a whole may require the unambiguous
language of the Act to “yield . . . where absurd or bizarre results would
otherwise ensue”). We therefore conclude that Congress intended the crime
of transporting a loaded firearm to fall within the scope of section
237(a)(2)(C) of the Act.
The legislative history of section 237(a)(2)(C) of the Act supports our
conclusion in this regard. Under former section 241(a)(14) of the Act,
8 U.S.C. § 1251(a)(14) (1988), only the crimes of “possessing or carrying”
a firearm were a basis for deportation. Subsequent legislation expanded the
deportable offenses to the current extensive list of crimes, as well as
attempts and conspiracies to commit them. Immigration and Nationality
Technical Corrections Act of 1994, Pub. L. No. 103-416, § 203(b), 108
Stat. 4305, 4311; Immigration Act of 1990, Pub. L. No. 101-649, § 602(a),
104 Stat. 4978, 5080. As courts have noted, these revisions “stretched the
scope of deportable firearms offenses” and expanded the statute’s “reach.”
Malilia, 632 F.3d at 602−03; see also Hall, 167 F.3d at 856 (stating that the
“obvious goal of each revision was to expand” the firearms-related grounds
for deportation).
In light of the “expansive text and history” of section 237(a)(2)(C) of
the Act, we conclude that the crime of transporting a loaded firearm under
Oklahoma law is categorically a firearms offense under the Act. Kuhali,
266 F.3d at 103. We therefore agree with the Immigration Judge that the
respondent’s conviction renders him ineligible for cancellation of removal
under section 240A(b)(1)(C) of the Act. Accordingly, the respondent’s
appeal will be dismissed.
ORDER: The appeal is dismissed.

924


Interim Decision #1312

MATTER

or Matrru∎rse-Lorne

In. DEPORTATION Proceedings
A-12050471

Decided by Board August7,1962
Reconsidered by Board December 20,1962
Decided by Attorney General January 6,1964
As inquiry would not have resulted in a proper determination of inadmissibility,
respondent's willful presentation of a spurious offer of employment in connection with his application for an immigrant visa, even though such misrepresentation resulted in his conviction of conspiracy to violate 18 U.S.C. 1001, is not
a material misrepresentation under section 212(a) (19), immigration and
Nationality Act, and, consequently, does not vitiate the visa for the purposes
of section 212(a) (20).
CHARGES :
Order : Act of 1952—Section 241(a) (1) 18 U.S.C. 1251(a) (1)1—Excludable at
time of entry—procured visa by fraud or by willfully misrepresenting material fact (section 212(a) (19) of the Act).
Act of 1952—Section 241(a) (1) [8 II.S.C. 1251(a) (1) 1—Excludable at
time of entry—immigrant, no valid visa (section 212(a) (20) of the
Act).
BEFORE THE BOARD

This is an appeal by the examining officer from the order of the
special inquiry officer terminating proceedings. The appeal will be
dismissed.
ed.
The respondent, a 23-year-old single male, a native and citizen of
Mexico, was admitted for permanent residence on May 1, 1961, upon
surrender of an immigrant visa. The Service claims that this visa
was invalid since it was obtained by wilful misrepresentation concerning an offerof employment.
When the respondent applied for a visa, he was told to furnish an.
affidavit of support and an offer of employment. He obtained the affidavit of support from his brother, a legal resident of the 'United States,
and through-correspondence with relatives in the United States, obtained a letter offering him employment as a farm hand. However,
409

.Interim Decision #1312
respondent was told by his relatives that the letter for which he had
agreed to pay $350 was one for the record only and that no actual
employment should be expected. The letter was in fact a forgery.
The respondent states he knew he could not expect employment from
the writer of the letter, but did not know it was a. forgery. He thought
the writer had given the letter as a favor. Respondent was convicted
on January 10, 1962, in the United States District Court at Sacramento,
California, for conspiracy to violate 18 U.S.C. 1001, by making false
statements or knowingly using false writings. (He was sentenced to
five years' imprisonment with all but 30 days of the sentence
suspended.)
The special inquiry officer sustained neither charge; he ruled that
although the forged offer of employment cut of inquiry, it did not
relate to a material matter because inquiry would not have resulted in
a proper determination that the alien was one likely to become a public
charge. The Service Representative contends that since materiality
- was an element of the crime for which the respondent was convicted,
the Board should hold that the misrepresentation was material in the
obtaining of the visa. The contention must be dismissed. The Board
is not bound by the decision in the criminal case, for there are different
tests for materiality in the criminal case and the immigration case.
In the immigration. case the test of materiality is whether the matter
concealed concerned a ground of inadmissibility or a probable inadmissibility (Matter of S— and B-C-, Int. Dec. No. 1168). In the

criminal case (in those jurisdictions where materiality is required)
the test is merely whether the false statement "could affect or influence
the exercise of a Governmental function" (United States v. Allen, 193
F. Supp. 954 (S.D. Cal, 1961) ) .
An analogous situation exists in regard to false statements amounting to perjury in visa, and immigration matters. A. person could be
convicted for perjury for making a material false statement under
oath although the same false statement would not necessarily constitute a material misrepresentation in determining whether a visa
had been obtained by fraud (Matter of
7 I. & N. Dec. 76, 90).
Since the standards of materiality in criminal and civil immigration
matters differ, the existence of the conviction here does not preclude
the Board from making its own determination as to the materiality
of the . misrepresentation. (Neither does the letter of the Consul stating that the Vice Consul would testify that the misrepresentation was
material preclude the Board from making its own conclusions in the
matter. See In re Field's Petition, 159 F. Supp. 144,146 (S.D.N.Y.,
1955).)
Would the inquiry which was cut off by the submission of the offer
of employment have resulted in a proper determination that the alien
410

Interim Decision. #1312
was excludable as one likely to become a public charge? We think
not. When respondent applied for a visa he was 22 years of age. He
was sound of body and had about ten years of farming experience.
He had no specialized training, but had five years of schooling and
apparently planned to seek work for which he was qualified. He
spoke no English, but this was no handicap for he would work among
people who spoke Spanish. He had about $50 in assets. He had a
brother gainfully employed in the United States and he had other
close relations who were interested in his welfare and who worked to
bring him to the United States. The brother was making $85 a week
in permanent employment; he was unmarried; he had been sending
money to his family in Mexico, and he was interested in helping his
brother. Respondent had previous experience in the United States,
having spent about three months here as a contract worker. At that
time he worked both in the fields and in a cannery. His services appear
to have been satisfactory for he was retained here until his contract
was completed. Respondent had no criminal record. (After admission for permanent residence, he secured employment in the United
States which was interrupted only by civil and criminal matters connected with his efforts to come to the United States as a permanent
resident.)
The examining officer contends that the likelihood of becoming a
public charge is not the only ground which must be considered in

determining whether the respondent was ineligible for the issuance
of a visa and inadmissible to the United States. The examining officer
is of the belief that the respondent would have been excludable from
the United States as one who admitted the essential elements of a
crime involving moral turpitude, for he had conspired to impair the
lawful function of a department of the United States in violation of
18 U.S.C. 371, a crime involving moral turpitude (Matter of E

—

,

Int. Dec. No. 1164).
It may well be that as an original proposition, the test for determining whether a visa has been obtained by fraud could have been
made dependent upon whether there had been an obstruction of Governmental functions; however, this has not been the test which has
resulted from the years of adjudications both administrative and
judicial. Historically, the rule has been stated without reference
to the obstruction of the Government functions which exist, of course,
in each case where there is a misrepresentation concerning a matter
within the lawful functions of the Government. The rule which is
applied holds that wilful misstatements of an alien made in attempting to obtain a visa bar him from admission (1) if they were material,
in which case he is barred because the visa had been obtained by fraud,

or (2) if perjury were committed in the attempt to obtain the visa;
411

Interim Decision #1312
in which case he is barred because he had committed a crime involving
moral turpitude. Misstatements which did not amount to perjury
(although they did impair the lawful function of a department of the
United States) would not serve to make an alien inadmissible (37
Op. A.G. 293, 1938). Congress has not questioned the rule.
We shall continue to determine materiality of misrepresentation
and the admissibility of an alien who had made a misrepresentation
in immigration matters, not by his liability to prosecution for impairing the lawful functions of a department of the Government, but by
the standards set down by the Attorney General in Matter of Band B—C—, supra.
ORDER: It is ordered that the appeal of the examining officer be
and the same is hereby dismissed.
BEFORE THE BOARD

The special inquiry officer terminated proceedings; appeal by the
examining officer was dismissed by the Board on August 7, 1962.
The Service believes that both charges are sustained and requests that
the Board reconsider its dismissal. The motion will be denied.
Respondent, a 23-year-old single male, a native and citizen of Mexico, was admitted to the United States for permanent residence on
May 1, 1961.
Respondent was convicted on January 10, 1962 in the United States
District Court for conspiracy to violate 18 U.S.C. 1001 for making
false statements or knowingly using false writings (in connection
with an application for a visa) and given a five-year sentence to imprisonment; he served 30 days, the remainder of the sentence was
suspended. The Service contends that since materiality was an element of the crime for which respondent had been convicted, materiality should be found present in the deportation proceeding in
considering the nature of the misrepresentation which had been made
in obtaining the visa. We pointed out in our previous order that the
test for materiality is different in the criminal case from the test in
the deportation case. The test for materiality in deportation cases,
insofar as it relates to the instant case, has two elements—first, did
the misrepresentation cut off a material line of inquiry Second, if it
did, might an inquiry have resulted in a proper determination that the
alien was inadmissible to the United States. Both elements must
exist before a misrepresentation may be found material (Matter of
B—and B—C—, Int. Dec. No. 1168). On the other hand, in a prosecution under 18 U.S.C. 1001, if only the first element of the test in
deportation proceedings is present, materiality exists and can support

a conviction. Since the second element is not a factor in the criminal
412

Interim Decision #1312
case, a finding of materiality there cannot be controlling in the
deportation case where the second element is of equal importance with
the first in determining materiality.
The motion enumerates the federal laws which could have been
violated when respondent made false statements before the consul
and points out that had the consul lmown the true facts, he might
have obtained an admission of the commission of crime from respondent who would thereby become inadmissible to the United States.
Apart from this, the Service contends, the consul, if in possession of
the true facts, would have made at least a temporary refusal of the
visa. The test for materiality laid down by the Attorney General in
Matter of S— and B—C—, supra, does not concern itself with possible
violation of federal laws or the possibility of a temporary refusal.
B—C— had made willful misrepresentations when he applied for a
visa; he probably violated the same federal laws which are mentioned
in the motion. And, it is obvious, that had the consul been aware that
B—C— made misrepresentations, he would have been justified in
ranking a temporary refusal. Nevertheless, the Attorney General's
test as to materiality made no reference to the possible violation of
federal laws or to the fact that a temporary refusal was possible.

While the Attorney General did. not discuss possible violations of
federal law or temporary refusals, Matter of S— C--, 7 L & N. Dec.
76, one of the two precedents relied upon in the Board's order concerning Le— C— dealt with possible violations of law (p. 86) ; and U.S.
reZ. Jankowski v. Shaughnessy, 186 F. 2d 580, 582, 2d Cir. (1951),
cited by the Attorney General, indicates the use of a temporary refusal
as a test; moreover, the fact that the Attorney General made the
existence of materiality dependent upon what an investigation might
have shown, would seem to rule out the possibility of using a temporary refusal as a test.
Examination of Matter of L — D-1,-1?— , Int. Dec. No. 1207, cited
by the Service as support for the proposition that materiality exists
for immigration purposes if there is a reasonable possibility that an
alien would have made admissions concerning participation in crime
which would have made him inadmissible, reveals that the misrepresentation there was material because it involved the concealment of
conviction of a crime involving moral turpitude. The existence of the
conviction made the alien ineligible for the issuance of a visa.
The motion takes issue with our finding that respondent was not
one likely to become a, public charge at the time he applied for admission. Our determination was made upon the state of the record
as it existed when the respondent applied for his visa. After careful
review of the. Service e.ontention we see no reason to change our conclusion. Reference in our order, to events occurring after respond-

413

Interim Decision #1312
east's entry was to meet the Service contention at oral argument that
respondent's work record in the United States demonstrated his inability to find employment.
The motion now raises the contention that respondent's visa was
not valid because he did not furnish full and correct information on
his visa application as required by the Immigration and Nationality
Act and State Department regulations concerning the issuance of a
visa. We do not concur in this conclusion. In B—C—, supra, there
was a failure to furnish full and truthful information; the Attorney
General touched on whether the visa, was a valid one (footnote on
p. 6), but there was no finding that the visa was invalid. To accept
the Service position that any failure to furnish full or correct information regardless of the nature of the information results in an
invalid visa, would in effect make every misrepresentation a material
one; this approach would have made unnecessary the Congressional
provision for the exclusion of a alien for obtaining a visa because of
a material misrepresentation (section 212(a) (19) of the Act; see
Matter of 8— and B-0—, supra, p. 4). It appears best to use the
visa charge in situations where the visa, is actually invalid; for example, where a visa has been issued without specific authority or by
an improper source, or it has been altered, procured by fraud, or
presented after the period of validity has expired. This approach
will give effect to both the provision concerning validity of visas and

the provision concerning procurement of a visa, by fraud. In view of
this conclusion we need not enter into an elaborate analysis of the
Service position other than to mention briefly two matters. Regulations and laws requiring complete and correct information in visa
applications have been in existence since 1924 and have not been utilized as the basis for declaring visas invalid (See, Inn Field's Petition,
159 F. Supp. 144, 146, 3d full para., S.D.N.Y. (1958) ). The fact that

the misrepresentation charge is now a separate charge although prior
to the Immigration and Nationality Act it was coupled with a visa
charge, appears to be irrelevant. It was true before the Act, as it is
true now, that a visa charge could be sustained even though the misrepresentation charge could not. There is, therefore, no significance
to be drawn from the fact that the law now specifically provides for
a misrepresentation charge (See, U.S. ex rel. Fink v. Reimer, 96 F.2d
217 (2d Cir., 1938) ; U.S, ex rel. Perms v. Karma, 28 F. Supp. 597,
W.D.N.Y. (1939) ).
ORDER: It is ordered that the motion be and the same is hereby
denied.
BEFORE THE ATTORNEY GENERAL

The decision of the Board of Immigration Appeals in this case
holding the respondent Saturnino Martinez-Lopez not deportable has

414

Interim Decision #1312
been certified to me by the Board for review, pursuant to 8 CFR 3.1
(h) (1) upon motion of the Commissioner of Immigration and
Naturalization. The Commissioner has requested review because of
the possible impact of the Board's decision on other cases. The decision raises several problems concerning the application of the criteria
enunciated in my opinion in Matter of AS— and B--C—, 9 L & N. Dec.
136, for determining the materiality of a misrepresentation in cases
involving section 212(a) (19) of the Immigration and Nationality
Act, 8 U.S.C. 1182 (a) (19) .
The respondent's deportation is being sought on the ground that
he was excludable at the time he entered the United States as an
immigrant because he had procured his visa by willfully misrepresenting a material fact (§ 212(a) (19) ) and because he was not hi
possession of a valid unexpired immigrant -visa as required by section
212 (a) (20) of the Immigration and Nationality Act, 8 U.S.C. 1182 (a)
(20) 1 The record shows the following.
In the winter of 1960-61, the respondent planned to immigrate to
the United States. At that time, he was a citizen and resident of
Mexico, in his early twenties and unmarried. He had about 5 years
of schooling and had begun to work on the family farm when he was
12 or 13. He had worked in the United States for. 3 months as a
laborer in 1958. His brother, Salvador Martinez-Lopez, who had
emigrated to the United States, lived in Los Angeles and was employed
by a. furniture company at an annual salary of $4,000. In the past,
Salvador had contributed to .the support of his relatives in Mexico;
the respondent had several other relatives living in the United States.
When the respondent inquired at the United States Consulate it
Monterrey, Mexico, concerning the papers required for an immigration
visa, he was advised that he needed, among other things, an affidavit
of support and an offer of permanent employment in the United States.
Having heard from neighbors that work offers could be obtained
from one Jose C. Miranda of Stockton, California, for $350, the respondent asked his brother Salvador to get one for him. Because of
Section 241(a) (1) of the Act, 8 U.S.C. 1251(a) (1), subjects to deportation
aliens who were excludable, inter alter, under sections 212(a) (19) and (20).
Paragraphs (19) and (20) respectively make excludable:
(19) Any alien who seeks to procure, or has sought to procure, or has pro-

cured a visa or other documentation, or seeks to enter the United States, by
fraud, or by willfully misrepresenting a material fact;
(20) * * * any immigrant who at the time of application for admission is
not in possession of a valid unexpired immigrant visa, reentry permit, border
crossing identification card, or other valid entry document required by this
chapter, and a valid unexpired passport, or other suitable travel document, or
document of identity and nationality, if such document is required unaer the
regulations issued by the Attorney General pursuant to section 211(e).

415

Interim Decision #1812
the distance from Los Angeles to Stockton, Salvador asked one Reyes
Fragoso, the husband of a cousin, who resided in Oakland, to talk to
Miranda. Fragoso did so, and for $350, furnished by Salvador,
Miranda sent to the respondent a letter of permanent employment to
which Miranda had forged the signature of one Pelleg,ri, a ranchowner.
Attached was a note from Miranda advising the respondent not to go
to the Pellegri ranch because he already had enough workers. Respondent inferred from the note that the Pellegri letter was only for
the record and that he could not expect employment by Pellegri. He
thought the letter had been given merely as a favor or accomodation
but did not know that it was a forged documemt.
Subsequently the respondent applied at the United States Consulate
at Monterrey for a visa, submitting an affidavit of support, executed by
his brother, and the purported Pellegri letter, although he knew
that he could not expect to be employed by Pellegri. When asked
about his destination in the United States, he gave the address of
Pellegri's ranch. The respondent was issued a visa on April 27, 1061,
and was admitted to the United States as an immigrant a few days
later. At that time he had in his possession from $60 to $70. He went
directly to his brother in Los Angeles and never contacted Pellegri.
For about a week he stayed with his brother, then obtained work as
a cook through another relative.
At about that time Miranda's forgeries were discovered. The respondent, his brother Salvador, his cousin Reyes Fragoso, and Jose

Miranda were indicted in the United States District Court for the
Northern District of California for conspiracy to violate 18 U.S.C.
1001.2 The indictment contained two counts. The first count charged
them with having conspired to make false and fictitious representations,
or to make or to use writing or documents, knowing them to contain
false, fictitious or fraudulent statements, to the Department of State
for the purpose of enabling the respondent to enter the United States
as an immigrant. The second count in. effect charged the defendants
other than Salvador with having caused Miranda to falsify the work

offer.
The respondent, his brother and his cousin were tried before the
court, a jury having been waived. The court found them guilty on
The section reads as follows :
Whoever, in any matter within the jurisdiction of any department or agency
of the United States knowingly and willfully falsifies, conceals or covers up by
any trick, scheme, or device a material fact, or makes any false, fictitious or
fraudulent statements or representations, or makes or uses any false writing or
document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than
five years, or both.
2

416

Interim Decision #1312
the first count. It held that work offer was "material" because the
visa would not have been issued but for it. 3 It acquitted the respondent and his cousin on the second count, finding that a reasonable doubt
existed as to the defendants' knowledge that the work offer was not
signed by Pellegri. The court stated that they were victims, albeit
willing victim% of circumstances and not flagrant or malicious violators of the law. The respondent MS given a prison sentence of
5 years, of which all but 30 days was suspended, and placed on probation for 5 years. The others also received 5-year terms which were
suspended in their entirety.
The Immigration and Naturalization Service then instituted proceedings to deport the respondent on the grounds described above.
The Service charged that the respondent had obtained his visa by
presenting to the United States consul the Pellegri work offer, although he knew that he did not and would not have employment with
Pellegri; that he had concealed from the consul the fact that the
letter had been obtained. from Miranda for $350, and that he withheld
those facts because he believed that the consul would not have issued
the visa had he been told the truth. The special inquiry officer dismissed the proceedings on the ground that the respondent's misrepresentation was not material and, hence, did not render him
excludable under section 212(a) (19) or vitiate the visa for the pur'rums of maim 212(a) (20). In reaching Ills conclusion, the special
inquiry officer applied the teas of materiality laid down in Matter of
S— and B—C—, supra, at 448-449, via. :
First, does the record establish that the alien is excludable on the true facts?
Second, did the misrepresentation tend to shut off a line of inquiry which is
relevant to the alien's eligibility [for admission] ?
Third, if a relevant line of inquiry has been cut off, might that inquiry have
resulted in a proper determination that the alien be excluded?

The special inquiry officer answered the first question in the negative.
He took the position that in connection with the determination as to
This finding of materiality was required although the defendants were indicted under a clause of 18 U.S.C. 1001 which does not in lute° verbs require that
the false statement, representation, or document be material, and the indictment
did not allege that the work order was a material document. It is, however,
established in the Ninth Circuit, in which the case was tried, and probably in
the majority of the circuits, that materiality is an element of every violation of
18 U.S.C. 1001, and not only of its first clause, in which it is specifically mentioned.
Branlow v. United States, 268 F. 2d 559, 564-565 (CA. 9) ; Fa,-item. Single
Poonian v. United States, 294 F. 2d 74, 75 (C.A. 9) ; Freidue v. United States,
223 F. 2d 598, 601-602 (C.A.D.C.) ; United States v. Zambito, 315 F. 2d 266,
268-269 (C.A. 4), certiorari denied, 373 U.S. 924. The Ninth Circuit has also
held that materiality need not be specifically set forth in the indictment, provided
the context warrants an inference of materiality. Partiem Singh. Poonian v.
United States, supra; Dear Wing Jung v. United States, 312 F. 2d 73, 75 (C.A. 9).

417
743S-4 Otif---13;ii-28

Interim Decision #1312
whether an applicant for an immigration visa is excludable under
section 212 (a) (15) of the Act, 8 U.S.C. 1182 (a). (15), as an alien likely
to become a public charge,' a work offer is not legally required as an
absolute condition for the issuance of the visa, and therefore that the
purpose of such a document is merely to assist the consul in his determination. Viewed in that context, the record did not establish the
respondent's excludability on the true facts Rather, the evidence
established that, even in the absence of the work offer, the respondent
was not likely to become a public charge.
The special inquiry officer answered the second question in the
affirmative; he concluded that the submission of the work offer did
cut off further investigation by the consul into the public charge issue.
The third question, however, was answered by him in the negative,
since nothing had been adduced to suggest that a further investigation
might have resulted in a proper determination that the respondent
was likely to become a public charge. Accordingly, he held that the
respondent's misrepresentation with regard to the spurious Pellegri
work offer was not material for the purposes of section 212(a) (19), 5
andsimlryotvehisafrpuoectin
212(a) (20).
On appeal by the Service, the Board of Immigration Appeals affirmed the ruling of the special inquiry officer. It recognized that,
as judicially interpreted, materiality was an element of the offense

under 18 U.S.C. 1001 of which the respondent had been convicted.
It ruled, however, that the district 'court's holding that the work offer
was a material document was not conclusive in the deportation proceeding. Under .18 U.S.C. 1001 a statement, representation, or document is material if under the formulation of United States v. Allen,
193 F. Supp. 954 (S.D. Cal.), it "could affect or influence the exercise
of a Government function." This has a broader reach than the term
"materiality" in section 212 (a) (19) of the Immigration Act, as it is

defined in Matter of S

—

and B C--, supra. The respondent's con—

viotion under 18 U.S.C. 1001 therefore did not nenesSarily establish

that the misrepresentation was material within the meaning of section 212(a) (19). The Board therefore felt itself free to examine
the question de nova, and concluded that the respondent's misrepresentations were not material because nothing the consul or the immi4 Section 212(a) (15) excludes "[a]liens who, in the opinion of the consular
officer at the time of application for a visa, or in the opinion of the Attorney
General at the time of application for admission, are likely at any time to become
public charges."
The special inquiry officer was careful to stress that bis conclusions were

limited Lc; the precise facts Of the case and that be was not holding that a work
offer could never be material.

418

Interim Decision #1312
gration authorities could have discovered, but for the misrepresentation, might have resulted in a proper determination that the respondent
was excludable as a person likely to become a public charge. 6 On the
Service's motion for reconsideration the Board adhered to its decision.
The Commissioner raises essentially the following points :
1. Whether materiality of the misrepresentation for deportation
purposes was established by the respondent's conviction.
2. Whether the Board properly applied the materiality tests established by Matter of lc— and B— C— . In this connection the Commissioner also argues that the test in Matter of S— and B-0— is not
applicable where the alien's conduct in obtaining a visa constitutes an
offense against the United States.

3. Whether a significant misrepresentation, even if it does not
amount to a "material" misrepresentation, renders a visa invalid for
the purpose of section 212 (a) (20).
I
Unquestionably the respondent did make a misrepresentation to the
consul. He submitted a. document which he knew was not a bona fide

work offer. However, the immigration statute, section 212(a) (19),
supra, requires that an alien's misrepresentations must be material
to the question of his admissibility to the United States under the
immigration laws. I agree with the Board that the respondent's conviction of conspiracy to violate 18 U.S.C. 1001, for the purpose of
which the same misrepresentation was found to be material, does not
conclusively establish its materiality for deportation purposes.
At the outset it should be noted that, although ordinarily a court
decision may be res judicata or operate as a collateral estoppel in a
later administrative proceeding, there is some basis for doubt as to
whether this rule applies in cases where, as here, Congress has vested
primary responsibility for enforcing a statute in an administrative
agency and not in-the courts. See Title v. Imanlgration ct Naturalization Service, 322 F.2d 21 (C.A. 9) ; Davis, iidministrative Law
Treatise, sec. 18.11 (Vol. II, pp. 619-623)? Section 242(b) of the
The Board rejected the SerTices contention that had the respondent told
the truth he would have been excludable under section 212(a) (9) of the Aet,
8 U.S.C. 1182(a) (9), as one who had admitted the essential elements of a crime
involving moral turpitude, vie., a conspiracy to violate 18 U.B.C. 1001, in connection with his visa application. Belying on 37 Op. Atty. Gen. 293, it held
that historically misrepresentations to a consul rendered an alien excludable
under section 212 (a) (9) only if they amounted to perjury.
Thus the National Labor Relations Board has held that even if a court has
decreed specifie performance of a contract, it may set aside the contract in a
proceeding under the Labor-Management Relations Act. Professor Davis states
.

Footnote continued on following page.

419

Interim Decision #1312
Immigration and Nationality Act, 8 U.S.C. 1252(b), provides that
"Metermination of deportability in any case 001 be made only upon
a record made in a proceeding before a special inquiry officer," and
that "[t]he procedure so described shall be the sole and exclusive procedure for determining the deportability of an alien. * "." There is,
therefore, a. basis for the argument that in the instant case the judicial
finding of materiality could not, as a matter of law, relieve the special
inquiry officer from his duty of making an independent determination
of materiality.8
Assuming, however, that the doctrine of collateral estoppel is applicable in cases of this kind, I agree with the Board's view that on
the question of materiality there was no true identity of issues in
the criminal case and the deportation proceeding. Even if statutes
use the same language, a determination under one is not necessarily
binding in a proceeding under another since the purposes of the statutes
may differ and the contexts in which the language is used may not be
the same. See Title, supra at 25, fn. 11. The determination in the
criminal case to the effect that the work offer was "material" might
be considered to be binding in the deportation proceedings only if the

word "material" has the same meaning in prosecutions under 18 U.S.C.
1001 as in deportation proceedings involving section 212(a) (19) of
the Immigration and Nationality Act. Cf. Hines v. Welch, 23 F. 2d
979 (C.A.D.C.) ; Thompson v. Flemmin g , 188 F. Supp. 123 (D. Ore.).
This, however, is not the case.
The issue of materiality under 18 U.S.C. 1001 is merely whether
the misrepresentation was "calculated to induce action or reliance by
an. agency of the United States." Brandow v. United States, 268 F.
2d 559, 565; United States v. Allen,193 F. Supp. 954, 957, supra. In
contrast, the opinion in Matter of B— and B—C—, supra, rejects the
notion that an alien. becomes deportable for every false statement "calculated to induce action or reliance" by a. consul; a false statement
is not material unless the alien would have been excludable on the true
facts, or unless the misrepresentation has shut off a line of inqUiry
which might have resulted in a. proper determination of excludability.
The term "material" does not have the same meaning in 18 U.S.C.
1001 . and in section 212(a) (19) of the Ant, and a determination under
the former that the work offer was material is therefore not to be reFootnote

continued.

that this is proper not only because of the difference in parties "but also because
of the congressional intent that primary responsibility for enforcing policies of
the Act shall be in the Board and not in the courts." Davis, op. cit., p. 619.
* In this connection, cf. National Labor Relations Board v. Pacific Intermountain Express Co., 228 F.2d 170, 176 (C.A. 8), certiorari denied, 351 U.S. 952;
Lane v. Itauroaa Retirement Deere; 185 F.2d 819, 822 (C.A. 6) ; Carpenter v_
Plemming,178 F. Supp. 791, 793 (N.D. W.Va.).

420

Interim Decision #1312
garded as conclusive in proceedings involving the latter, where the
term "materiality" has a more restricted scope. Accordingly, I conclude that the Board of Immigration Appeals properly held that the
inquiry into the materiality of the respondent's misrepresentation was
not foreclosed by his conviction for conspiring to violate 18 II.S.C.
1001.

II
I find no error in the Board's conclusion that the materiality standards of Matter of 5— ernd B—C— were properly applied in this
case. As pointed out above, that opinion holds that the issue of materiality for purposes of section 212(a) (19) turns on three questions:
First, whether the alien is excludable on the true facts; second, whether
the misrepresentation tended to shut off a line of inquiry relevant to
the alien's admissibility; and third, whether, if a relevant line of inquiry has been shut off, that inquiry might have resulted in a proper
determination that the alien be excluded.
In the context of this case, the initial question is whether the respondent would have been excludable under section 212 (a) (15), supra,
footnote 4, as a person likely to become a public charge. Although
under the statutory language the question for -visa purposes seems to
depend entirely on the consular officer's subjective opinion, both the
administrative and judicial decisions hold that the question must be
reexamined de novo on an objective basis when it arises in deportation
proceedings. See Matter of M—, 4 I. & N. Dec. 532, 538; Matter of
8—C—, 7 I. & N. Dec. 222, 225; Matter of C—T--P—, 8 I. & N. Dec.
134-135 ; In re Field's Petition,159F. Supp. 144, 146 (S.D. N.Y., 1958) .
There is no error in the determinations below that the respondent was
not excludable on the true facts; that, in other words, the evidence
in the deportation proceeding establishes that he would not have been
excludable as a person likely to become a public charge even though
he did not have an offer of employment in the United States.
The provision in the immigration lavve excluding aliens likely to
become public charges had its origin in section 2 of the Immigration
Act of 1882, 22 Stat. 214, and has been continued in all subsequent immigration statutes. It has been the subject of extensive judicial interpretation. The general tenor of the holdings is that the statute
requires more than a. showing of a possibility that the alien will require public support. Some specific circumstance, such as mental or
physical disability, advanced age, or other fact reasonably tending to
show that the burden of supporting the alien is likely to be cast on the
public, must be present. A healthy person in the prime of life cannot
ordinarily be considered likely to become a public charge, especially
where he has friends or relatives in the United States who have in491

Interim Decision #1312
dicated their ability and willingness to come to his assistance in case
of emergency. See, e.g., Ex parte Mitchell, 256 Fed. 229 (N.D. N.Y.) ;
Ex parte Hosaye Sakaguohi, 277 Fed. 913, 916 (C.A. 9) ; U.S. ex rel.
Manlier v. Commissioner of Immigration, 3 F. 2d 234 (CA. 2) ; Ex
parte Turner, 10 F. 2c1 816, 817 (S.D. Cal.) ; Ex parts Sturgess,13 F.
2d 624, 625 (CA. 6) ; Gabriel v. Johnson., 29 F. 2d 347, 349 (CA. 1) ;
U.S. ex rel. Mimeo v. Reimer, 83 F. 2d 166, 168 (CA. 2). While it
appears that in appropriate cases consular officers have followed the
practice of requiring an alien to submit evidence of support, there is
no indication that a guaranty of employment has been a prerequisite.
The legislative history of the Immigration and Nationality Act of
1952, which retained the public charge provision as section 212 (a)
(15), contains a review of its background and interpretation. See
S. Rept. No. 1515, 82d Cong., 2c1 Sass., pp. 346-348. This review refers
to the practice of requiring evidence of support in appropriate cases
and to the judicial holdings.' Employment offers are not mentioned,
and there is nothing to show that Congress intended such offers to be
required as an absolute condition for satisfying the public charge
provision.
Nor is the administrative practice of the Department of State to the
contrary. The Department's regulations provide that a conclusion
of ineligibility under section 212 (a) (15) is to be predicated upon
circumstances indicating that the alien "will probably beenme a charge
upon the public after entry into the United States ;" the disability,
however, may be removed by the furnishing of a bond or undertaking.
22 CFR 42.91(a) (15). The Department's instructions to consular
officers on this subject admonish them to be "flexible"- and to predicate
their decision upon facts relating to the alien's "age, physical condition,
vocation, and existing conditions in the United States coupled with
their probable effect on the applicant's likelihood of becoming a publio
charge after admission into the United States." (State Department
Visa Handbook, Notes on 22 CFR 42.91 (a) (15), Note 1.1.) While
consular officers are authorized to consider "the promise of a job" (Note
3.1), this is not stated as an absolute prerequisite; alternative means
of satisfying the statute are provided, viz., the possession of sufficient
funds or assurances of support by relatives or friends in the United
States (Notes 1.2; 4). The record shows that the respondent was an
able-bodied man in. his early twenties, without dependents; that he
had no physical or mental defects which might affect his earning capacity, and that he had performed agricultural work for nearly 10
years. He had previously worked for 3 months in the United States,
'It

naa been

suggested that support bonds be substituted For afltlivella of

gamest
422

Interim Decision #1312
and his immigration was sponsored by a brother who had lived in the
United States for several years and was earning approximately $85.00
a. week in permanent employment. The special inquiry officer was
fully justified in concluding that the respondent was not likely to become a public charge, and, in the light of the judicial interpretation
of section 212(a) (15) and the pertinent administrative regulations
and instructions, that he was admissible in the absence of an employment offer.
The respondent's misrepresentation, however, did shut off a line of
inquiry relevant to his eligibility for a visa. It may be assumed that
if the consular officer had known that the work offer was spurious, he
would have examined the evidence of support more carefully. It does
not appear, however, that this would have resulted in a proper determination that the respondent was excludable. Further investigation
of the relationship between the sponsor and the respondent would
have shown that the sponsor was a devoted brother who had in the past
sent money to his family in Mexico and who was genuinely interested
in assisting the respondent; that, indeed, he had assisted him in his
his immigration efforts by paying $350 for the work offer. Further
examination also would have disclosed that the respondent had other
relatives in the United States who were willing to assist him in finding
work. There is nothing in this case to suggest that further investigation would have disclosed any reasonable ground for the proper
denial of a visa. In view of the particular circumstances of this case,
it appears therefore that the respondent's misrepresentation with
respect to the work offer was not of a material nature.
The Commissioner seeks to distinguish this case from Matter of Sand B—C—, on the ground that "this record establishes that the respondent was in the very act of participating in one or more crimes
against the United States at the very moment he got the visa and unquestionably would not have received the visa if the forgery had been
known." The fact that the respondent committed a crime against the
United States at the very moment he received his visa is not peculiar
to this case. It would seem that virtually every alien who at the time
of his visa application makes a misrepresentation "which was calculated to induce action or reliance by an agency of the Government"
(Brant:low v. United States, supra) violate 18 U.S.C. 1001 at that
very moment. Accordingly, this case is not distinguishable from the

situations normally covered by Matter of S— and B—C—, supra.
In view of the findings below that the respondent did not know that
Miranda had forged the work offer, I am not confronted here with the
problem as to whether Matter of S— and R---C— also applies to a
situation where a misrepresentation to the consular officer shuts off a
423

Interim Decision #1312
line of inquiry into a crime other than the misrepresentation itself or
other than a wrongdoing inseparably connected with it. Cf. Matter
of L—D—L—R, 91. &. N. Dec. 623.

III
The Commissioner finally urges that the respondent's misstatements
not only constituted a material misrepresentation within the meaning
of section 212(a) (19) but that they vitiated the visa itself and thus
rendered the respondent inadmissible under section 212(a) (20), supra.
It has been consistently recognized, however, that the type of misrepresentation which invalidates a visa is substantially identical
with that which renders the alien excludable under section 212(a)
(19). See Matter of S`—C—, 71. & N. Dec. 76,89-90, and the authorities cited therein. This rule appears to be correct and in accord with
the general proposition that a representation invalidates a visa only
if it is material or amounts to a fraud.
For the foregoing reasons, the decision of the Board of Immigration
Appeals is affirmed.

424


Interim Decision #2459

MATTER OF MINTAH
In Visa Petition Proceedings
A-21765697

Decided by Board December 15, 1975
Once an appeal to the Board of Immigration Appeals from a District Director's order has
been filed, the District Director loses jurisdiction. Any motions thereafter must be
directed to the Board. Hence, the purported reopening of the proceedings in the instant
case, upon mot.on of the Service, subsequent to the District Director's order dated
February 24, 1375 denying the visa petition for lack of prosecution, from which an
appeal was taken to the Board of Immigration Appeals, and the District Director's
second order of June 16, 1975, following the purported reopening, are nullities, notwithstanding the District Director "certified" his second decision to the Board.
ON DENALF OF PETMONER;

Pro se

The United States citizen petitioner applied for immediate relative
status for the beneficiary as her spouse under section 201(b) of the
Immigration and Nationality Act on July 3, 1974. The district director
denied the petition in an order dated February 24, 1975 for want of
prosecution because the petitioner had failed to attend scheduled interviews on November 27, 1974, January 22, 1975, and February 6, 1975.
While this :natter was pending before us, the proceedings were
reopened on notion of the Service. Three additional interview dates, on
March 31, 1975, April 14, 1975, and April 25, 1975, were arranged to
afford the petitioner an opportunity to establish the claimed relationship. Again the petitioner failed to appear. The district director, in a
decision dated June 16, 1975, purportedly "reaffirmed" his earlier decision of February 24, 1975. He certified the case to us for review and final
decision. To avoid any question as to our jurisdiction, we have decided
to certify the entire record file to ourselves.
The district director was correct in denying the application for lack of
prosecution. The petitioner's failure to appear for interviews scheduled
to establish that a viable, ongoing marriage exists between her and the
beneficiary is proper basis for denial of the petition, Matter of Pearson,
13 I. & N. Dec. 152 (BIA 1969). It is the petitioner's burden to establish
eligibility for the benefit she seeks, Matter of Brantigan, 11 I. & N. Dec.
493 (BIA 1966,-, this burden has not been met in this ease. We accord540

Interim Decision #2459
ingly fmd that the district director's decision of February 24, 1975 was
correct when rendered.
We note, however, that on the appeal form, where she appealed from
the February 24, 1975 decision, the petitioner alleges that she received
no notice of the November 27, 1974 interview and was unable to attend
the one set for February 6, 1975. In addition, she claims that her
attorney of record was in court and consequently unavailable for the
January 22, 1975 interview.
It is the conclusion of this Board that the case should be remanded so
that the district director may give the petitioner an opportunity to
support the contentions she made on the appeal form.
The purported "reopening" of these proceedings subsequent to the
filing of the appeal, and the district director's second order, of June 16,
1975, are nullities. Once an appeal has been filed, the district director
loses jurisdiction. Any motions thereafter must be directed to this
Board. The regulation, 8 CFR 3.5, states that when an appeal is taken,
the record be forwarded to the Board. The only exception would be
where there has been a withdrawal of appeal, as is provided for in 8
CFR 8.4, but the record before us does indicate a withdrawal. The
attempted "reopening" was upon motion of the Immigration Service.
Therefore, we give no effect to anything done in connection with this
case by the district director following the filing of the appeal from his
decision of February 24, 1975. It matters not that the district director
"certified" his second decision to us.
ORDER: The case is remanded for further proceedings in accordance
with the forgoing opinion.

541


Interim Decision #2947

MATTER OF OGNIBENE

Section 248 Proceedings
A-24702193
Decided by Regional Commissioner April 4, 1983
(1) In the case of w dual national alien nonimmigrant, the nationality claimed or established by him at the time of his entry into the United States must be regarded, for
purposes of section 214 of the Immigration and Nationality Act, 8 U.S.C. 1184, as his
sole or operative nationality for the duration of his temporary stay in the United States.
(2) Satisfactory claim to, or establishment of, alien nationality is one of the conditions
under which a person is admitted to the United States pursuant to section 214(a) of
the Act. Thus, applicant who applied for admission to the United States and was admitted
as a citizen of Canada is strictly governed by the condition of Canadian nationality under
which he was admitted.
(3) Section 101(a)(15)(E)(ii) of the Act, 8 U•S.C. 1101 (a)(15)(E)(ii), makes no provision
for dualpationality in relation to administration and enforcement of treaties of commerce
and navigation. See Matter of Damioti, 17 I&N Dec. 303 (Comm. 1980).
ON BEHALF OF APPLICANT: David F. Vedder, Esquire
Wells & Vader
P.O. Box 5385
Daytona Beach, Florida

The applicant is a 48-year-old native of Italy who alleges to be a dual
national of Canada and Italy. He last entered the United States as a
noncontrolled Canadian citizen on December 19, 1980. He now seeks
treaty investor status based on his claimed Italian nationality and on a
purported investment in real estate ventures in Florida.
Section 101(a)(15)(E)(ii) of the Immigration and Nationality Act, 8
U.S.C. 1101(a)(15)(E)(ii), defines a treaty investor as-an alien entitled to enter the United States under and in pursuance of the provisions of a
treaty of commerce and navigation between the United States and the foreign state of
which he is a national . . . solely to develop and direct the operations of an enterprise in
which he has invested, or of an enterprise in which he is actively in the process of
investing, a substantial amount of capital1.1 (Emphasis supplied.)

The District Director denied the application on the premise that
because the applicant had not established he "can legally claim both
Canadian and Italian nationalities at the same time, it must be assumed
that he can claim only Canadian nationality." Nationals of Italy are
425

Interim Decision #2947
eligible for classification as treaty investors. Nationals of Canada are
ineligible for that classification. Service Operations Instruction (0.I.)
214.2(e).

On appeal, counsel argues that the applicant may properly be deemed
to hold both Canadian and Italian nationalities. Counsel has introduced
inconclusive undertakings to this effect from two Canadian sources.
It has not been conclusively established that the applicant does hold
dual Canadian-Italian nationality. However, it is noted in this regard
that the oath of allegiance prescribed for persons becoming naturalized
as citizens of Canada does not contain an instrument of renunciation of

prior allegiances. Accordingly, it will be conceded arguendo, to ensure

due process, that the applicant is in fact a dual national of Canada and
Italy.
Counsel urges the proposition that, in spite of his admission to the
United States as a Canadian citizen, the applicant should now be permitted to assert his Italian nationality in pursuit of the benefit sought in the
instant application. There are numerous examples of judicial recognition
of the principle or fact of dual nationality and of the prerogative of dual
nationals to alternately exercise the respective rights or privileges of
such dual nationalities. However, such cases are concerned solely with
questions of expatriation and election of nationality pursuant to the

provisions of the nationality laws of the United States. See, e.g., Perkins v. Elg, 307 U.S. 325 (1939); Tomasicchio v. Acheson, 98 F.Supp.
166 (D.D.C. 1951); Kawakita v. United States, 343 U.S. 717 (1952), reh.
denied, 344 U.S. 850; Jcabuena v. Dulles, 254 F.2d 379 (3d Cir. 1958).
The instant application is- set in the wholly distinct context of a dual
national who, haying been admitted to the United States as a citizen of a
specific foreign state, now seeks to obtain a benefit unavailable to those
of the nationality in which he was so admitted, but available to individuals sharing his second nationality.
However, The clear language of section 101(a)(15)(E)(ii) of the Act
makes no provision for consideration of dual nationality in relation to

administration and enforcement of treaties of commerce and navigation,
nor do attendant regulations, policy, or case law.
Dual nationality is universally recognized as an undesirable phenomenon. It inevitably
results in questionable loyalties and leads to international conflicts. . . . Dual nationality
also makes possible the use of citizenship as a badge of convenience rather than one of
undivided loyalty_ And it impairs the singleness of commitment which is the hallmark of
citizenship and allegiance. A person should have a right to choose his own nationality,
and this choice should be honored by all countries. However, he should not be entitled
to claim more than one nationality.

The undesirable features of dual nationality have often been noted. To some extent,
treaties have sought to curtail this status, e.g. treaties between states agreeing that
naturalization of their wades:la will be recognized as terminating their original nationality.
-Moreover, under appropriate circumstances a dual national can be required to elect
which nationality he desires to retain. (Footnotes omitted.) (Emphasis supplied.) -

426

Interim Decision #2947
3 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 11.3d
(rev. ed. 1983).
Two states may in fact lay claim to the same individual as a national at the same time_

This circumstance does not, however, place the claimants on an equal footing. The
equities of one are of necessity superior to those of the other. They cannot at the same
moment be on the same plane. (Emphasis supplied.)

§ 1131, as quoted in Matter of Damioli, 17
I&N Dec. 303, 306 (Comm. 1980).
Clearly, in any given proceeding of law or treaty which turns on the
specific nationality of an individual, the conduct of a dual national -may
be examined to ,determine specific applications of such law or treaty.
Thus, for example, "A person possessing two or more nationalities who
habitually resides in one of the countries whose nationality he possesses,
and who is in fact most closely connected with that country, shall be
exempt from all military obligations in the other country or countries."
Article I, Military Obligations in Certain Cases of Double Nationality
(a protocol concluded at The Hague on April 12, 1930, to which the
Hyde, International Law at

United States and Canada, et al., are signatory). 'Thus, under appropriate circumstances in a given proceeding of law, the operative nationality

of a dual national may be determined by his conduct without affording
him the opportunity to elect which of his nationalities he will exercise.
The instant proceeding is deemed to constitute such a circumstance.
The applicant is an alien, that is, he currently is physically present in a
sovereign state of which he is neither a citizen nor a national. His
presence in this country is governed by section 214 of the Immigration
and Nationality Act, which provides that, "[t]he admission to the United
States of any alien as a nonimmigrant shall be for such time and under
such conditions as the Attorney General may by regulations prescribe
. . . ." Clearly, the presence of any person In a sovereign state as an alien
nonimmigrant is based on such person having satisfactorily claimed or
established alien nationality or citizenship at the time that such person
applied for admission to and was admitted to such sovereign state.
Satisfactory claim.to , or establishment of, alien nationality is one of the
conditions under which a person is admitted to the United States pursuant to section 214 of the Act.
The applicant applied for admission- to the United States and was

admitted to the United States as a citizen of Canada. His continued
presence in the United States is strictly governed by the condition of
Canadian nationality under which he was admitted. The applicant cannot be afforded the opportunity of "the use of citizenship as a badge of
convenience" (Gordon and Rosenfield, supra) in this instance, for to do
so would contravene section 214 of the Act by usurpation of the statutory discretionary authority of the Attorney General to establish the
conditions under which an alien nonimmigrant may be admitted to the
427

Interim Decision #2947

United States. It is hereby found that, in the case of a dual national alien
nonimmigrant, the nationality claimed or established by him at the time
of his entry into the United States must be regarded, for the purposes of

section 214 of the Act, as his sole or operative nationality for the duration of his temporary stay in the 'United States. "Nationality Considerations Pursuant to Section 101(a)(15)(E)(ii) of the Immigration and Nationality Act" (memorandum of law from the Service General Counsel,
February 4, 1983). To permit a dual national alien nonimmigrant to
freely switch or alternate nationalities, for whatever reason, subsequent to admission to the United States would cause unjustifiable confusion in proceedings under the Immigration and Nationality Act, which
contemplates, in instances such as this one, possession by alien nonirrunigrants of a single, specific nationality, to wit, that in which they were
admitted to the United . States.
Further, as stated by Gordon and Rosenfield, supra, as a general
principle, dual nationals, in any given proceeding in which nationality is
a factor, "should not he entitled to claim more than one nationality."
Clearly, it is not the prerogative or position of the United States to
require a dual national alien nonimmigrant to elect to retain one or
another of his nationalities. Equally clearly, the national sovereignty of
the United States is acceptably and reasonably exercised through sec

-

tion 214 of the Act in holding that a dual national alien nonimmigrant is,
for the duration of his temporary stay in the United States, of the
nationality which he claimed or established at the time that he entered
the United States. Accordingly, it is concluded that the District Director properly determined that the applicant must be regarded as a citizen
of Canada and that he is therefore ineligible for the benefit sought in
that Canada is not signatory to a treaty of commerce and navigation

with the United States.
The District Director did not address any factors beyond those concerned with the applicant's nationality. Review of the appellate record,
however, does not compel a prima facie finding that the investment
under consideration is substantial, as also required by section 101(a)(15)
(E)(ii) of the Act.
The record contains no indication of the investment by the applicant
of a substantial amount of capital owned or controlled by him. The
record does contain documentary evidence of real estate transactions by
the applicant, most of which involve assumption of mortgage debt or the
incurring of new mortgage debt. The record contains copies of personal
checks totaling $108,915 applied by the applicant to various real estate
ventures. However, the record is silent as to whether this sum represents capital owned by the applicant or for which he is personally at risk
or whether it represents unsecured mortgage debt incurred by the
applicant. "Investthents such as mortgage debt or commercial secured
428

Interim Decision #2947
loans to the enterprise (e.g., loans secured by the enterprise assets)
cannot count toward determining the amount of the actual investment."
VoL V, Visa Services No. 20, Bureau of Consular Affairs, U.S. Department of State (May 1982). A review of the applicant's statement of
accounts indicates that the applicant's real estate transactions are based
on exactly such mortgage debt or commercial secured loans. Accordingly,
it is found that the applicant has failed to establish that he has in fact
invested a substantial amount of capital in a commercial enterprise.
For the above-stated reasons, the decision of the District Director
will be affirmed and the appeal will be dismissed.
ORDER The appeal is dismissed.

429


Interim Decision #2286

MATTER OF M/S VALIANT TRADER
In Fine Proceedings
SFR 10/28.212

Decided by Board May 7, 1974
Where an alien crewman was injured on board ship after it left San Francisco
(en route to Yokohama); he was removed by launch and admitted to the U.S.
Public Health Service Hospital; the carrier advised the Service that the
crewman would be continued on the vessel's payroll following injury and
would rejoin his ship at Yokohama; and the day of his release from the
hospital, the crewman flew to Japan to rejoin his vessel, fine under section 256
of the Immigration and Nationality Act was improperly imposed since there
was no evidence whatsoever that there was a payoff and discharge of the
alien.
BASIS FOR FINE: Act of 1952—Section 256 [8 U.S.C. 1286]
IN RE: M/S "VALIANT TRADER,"

which arrived at the port of Honolulu,
Hawaii, from foreign on June 20,1972'. Alien crewman involved: TONG

BACK AN
ON BEHALF OF CARRIER:

A.R. Blackburn
Lilly Shipping Agencies
One California Street
San Francisco, Calif. 94111

This case presents an appeal from a decision of the District
Director at San Francisco, California, wherein a fine in the
amount of $1,000, mitigated to the minimum sum of $500, was
imposed upon Lilly Shipping Agencies, for violation of section 256
of the Immigration and Nationality Act, as amended. The appeal
will be sustained and the order imposing a file will be withdrawn.
The specific violation complained of was failure of the MIS
"Valiant Trader" to obtain consent of the Attorney General before
paying off and discharging an alien crewman, Jong Back An. The
vessel had arrived first at Honolulu for Nagoya, Japan on June 26,
1972, at which time the alien had been granted a conditional
permit to land temporarily. He was injured after the vessel left
San Francisco on the evening of July la, 1072. The alien suffered a
fractured skull and was bleeding profusely from one ear, nose and
688

Interim Decision #2286
mouth. He was removed from the vessel by launch and admitted
to the United States Public Health Service Hospital. The M/S
"Valiant Trader" continued on its trip to Yokohama, Japan as
scheduled, without the alien. Two weeks later, on July 27, 1972, the
alien was deemed fit for duty and released from the hospital. He
flew to Tokyo the same day to rejoin his vessel, at no expense to
the United States Government. The foregoing facts are not in

dispute.
The carrier was notified by the District Director of his intention
to impose a fine under section 256 of the Act for unlawfully paying
off and discharging the alien crewman without first having obtained the consent of the Attorney General. In reply to the
charges by the District Director, it was alleged in behalf of the
carrier that since the alien had been removed from the vessel

"during non-office hours, it hardly seemed sensible to contact your
office before entering him into the hospital." It was further alleged
that in a telephone conversation the following morning with a
person speaking for the Service, the carrier was assured that it
would be sufficient if the alien was noted on the crew change
report filed by its customs broker. The instruction was followed
and it was the carrier's position that the intent of the law to
prevent alien seamen from remaining in this country was not
violated. In any event, the carrier advised the Service that the
alien crewman would be continued on the vessel's pe.yrull following
his injury and would rejoin his ship at Yokohama, Japan.
The District Director, noting that an unintentional violation of
the statute is not a basis for exception, concluded that liability to
fine definitely had been established. He found, however, that
discretionary mitigation of the statutory fine of $1,000 was merited
in this instance, to the extent permitted under section 256 of the
Act, namely, the absolute minimum of $500. On appeal, it is
contended by the carrier that the Service contributed to the
violation and that "... a $500.00 fine is completely out of line."
We have carefully reviwed this matter and conclude that the
fine was improperly imposed. Under section 256 of the statute, the
carrier has an absolute duty not to pay off or discharge any alien
crewman employed on board a vessel or aircraft arriving in the

United States, without first having obtained the consent of the
Attorney General. The only exception to this rule is an alien
lawfully admitted for permanent residence. There is no indication
whatsoever that there was a payoff and discharge of the alien in
this instance. Since the statute we administer is penal in nature,
strict proof of a violation is required. The Service has failed to
meet its burden. As we stated in Matter of Yacht Caribbean Star, 9
I. & N. Dec. 272 (BIA 1961), under section 256 of the Act, "the
689

Interim Decision #2286
element essential to establish a violation is the termination of the
crewman's employment by an affirmative act of the parties responsible for the vessel or of the crewman himself." On the record
before us, we are persuaded that there was no such affirmative
act. Rather, it appears that the alien was not paid off; that he was
kept on the crew list; and rejoined his vessel in Japan.
Although this ease involves a rather unusual set of circumstances, we cannot agree with the District Director's conclusion
that liability to the fine of $1,000, mitigated to the sum of $500, has
been incurred. There has been substantial compliance with the
law and we are satisfied that the penalty was improperly ordered
imposed on the carrier. CL Matter of SS. "Loch Avon," 7 L & N. Dec.
215 (BIA 1956). Accordingly, the appeal will be sustained.
ORDER: The appeal is sustained; the order of the District
Director on October 5, 1972 is reversed; and the fine is remitted.

690


MAYrnit

Os

A--

In VISA. PETITION Proceedings

VP 9-1-37037
Dec,ided 0' bloard lamuarp 12, 1050

Nonquota status—Adopted child of alien parent may qualify as "stepchild"
upon parent's marriage to United States citizen.
Foreign adoption which meets requirements of section 101(b) (1) (E) of act
results in adopted child's acquiring nonquota status as 'stepchild" under
section 101 (b) (1) (B) of act upon 1958 marriage of adoptive mother (previously single) to United States citizen husband.

BEFORE THE BOARD

Discussion: This case comes forward pursuant to certification.
The petitioner, a native-born citizen of the United States, seeks
nonquota status on behalf of the beneficiary as his stepchild. The
beneficiary was born in Japan on November 3, 1949, and was
adopted by the petitioner's Japanese wife, while single, under the
laws of Japan on April 20, 1953. Since the date of adoption the
child has been in the legal custody of and has been residing with
her adoptive mother. The a- doptive mother married the citioen petitioner on March 22, 1958.
Under section 101(a) (27) (A) of the Immigration and Nationality
Act a child of a United States citizen is eligible for nonquota,
immigrant status. The term "child" is defined in section 101(b) (1)
(B) to include an unmarried person under 21 years of age who is a
stepchild, provided the child had not reached the age of 18 years
at the time the marriage creating the status of stepchild occurred.
This section was expanded by the amendment of September 11,
1957 (Public Law 85-316) to include a child adopted while under
the age of 14 years 11 the child had thereafter been in the legal
custody of, and had resided with, the adopting parent or parents
for at least two years. The use of the term "adopting parent or
parents" in the alternative indicates that a single person, as well as
a married couple, might adopt a child under this section. The
adoption complies with the other provisions of section 101(b) (1)
(E) and also appears to constitute a legal adoption hi conformity
with the laws of Japan.
242

Prior to the enactment of the amendatory legislation of September 11, 1957, there was no provision for an adopted child in the
definition of "child" in section 101(b). The new legislation indiCa',O. a (Teel TO to liberalize the definition of a child to include not
only an adopted child but also an illegitimate child in relationship
to its natural mother, a status which was not available under the
original legislation. The general effect of modern statutory adoption is said to create a status between the adoptive parent and the
adopted child which is identical with that existing between a
natural parent and his child. 2 Corpus Juris Seoundum, § 55. The
amendment equated the ataltis of a properly adopted child to that of
a "child" as defined in section 101(b). For immigration purposes,
such an adopted child satisfies the definition of child in relation
to its adopting parent. Upon the inarriaLta of such adoptive parent
to a United States citizen while such child was under the age of
18 years, the adopted child became a stepchild and eligible for nonquota status.
Order: It is ordered that the decision of the district director
approving the petition for a nonquota status on behalf of the beneficiary be and the same is hereby approved.

240