Interim Decision #2824

MATTER OF ESPINOZA
In Visa Petition Proceedings
A-24032853
Decided by Board September 2, 1980
(1) Under Article 195, Title 5 of the 1967 Constitution of Bolivia, all children are equal
before the law and have identical rights.
(2) Article 178 of the Family Code of Bolivia provides that children born out of wedlock
have the same rights as those born, in wedlock.
(3) When the country where the beneficiary was born and resides eliminates all legal
distinctions between legitimate and illegitimate children, all natural children are
deemed to be the legitimate offspring of their natural father from the time that
country's laws are changed. Lau v. Kiley, 563 F.2d 543 (2 Cir. 19T1); Matter of
Hernandez. Interim Decision 2712 (BIA 1974): Matter of Sanchez, 16 I&N Dec. 671
(BIA 1979); Matter of Wow, 16 I&N Dec. 646 (BIA 1979).
ON BEHALF OF PETITIONER: Elihu S. Masse', Esquire
122 East 42nd Street
New York, New York 10017
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

On February 13, 1980, the District Director denied

the visa petition

filed by the petitioner on behalf of the beneficiary as his son under the
provisions of section 203(a)(2) of the Immigration and Nationality Aet,
8 U.S.C. 1153(a)(2). The petitioner appeals from that decision. The

appeal will be sustained and the visa petition approved.
The petitioner is a native and citizen of Bolivia who was admitted as
a lawful permanent resident of the United States on August 4, 1978.
The beneficiary is also a native and citizen of Bolivia who was born out
of wedlock to the petitioner and a woman named Zoila Eva Pinedo in
La Paz, Bolivia, on January 10, 1969. According to the beneficiary's
birth certificate, the petitioner registered the beneficiary's birth with
the Civil Registrar for Apolo, Bolivia, 3 years following his birth.
The District Director denied the visa petition ruling that the beneficiary was not entitled to preference immigration status because he was
never legitimated. The petitioner countered the District Director's
conclusion by stating that under the Bolivian Constitution and Civil
522

Interim Decision #2824
Code, the beneficiary is deemed to be legitimate.
In visa petition proceedings, the burden of establishing the claimed
relationship is upon the petitioner. Matter of Brantigan, 11 I&N Dec.
493 (BIA 1966). The applicable statute is section 101(b)(1) of the Act, 8
U.S.C. 1101(b)(1), and its pertinent subsections are (A) and (C), which
provide:
The term "child" means an unmarried person under twenty-one years of age who
is—
(A) a legitimate child; or
(C) a child legitimated under the law of the child's residence or domicile, or under
the law of the father's residence or domicile, whether in or outside the United
States, if such legitimation takes place before the child reaches the age of eighteen
years and the child is in the legal custody of the legitimating parent or parents at
the time of such legitimation.

The term "legitimate" as used in section 101(b)(1)(A) normally
refers to a child born in wedlock. See Matter of James,15 I&N Dec. 544
(BIA 1975); Matter of Della Rosa,14 I&N Dec. 728 (BIA 1974); Matter of
Itubicka, 14 I&N Dec. 303 (BIA 1972). NeW York requires the marriage
of a child's natural parents in order to legitimate a child born out of
wedlock. Matter of Bullen, 16 I&N Dec. 378 (BIA 1977).
However, the petitioner contends that Bolivia has abolished all

differences between children due to their parents' marital status.
When the country where the beneficiary was born and resides
eliminates all legal distinctions between legitimate and illegitimate
children, all natural children are deemed to be the legitimate or
legitimated offspring of their natural father from the time that country's laws are changed. See Chin Lau v. Kiley, 563 F.2d (BIA 1979);
Matter of Sanchez, 16 I&N Dec. 671 (BIA 1979); Matter of Wong, 16
I&N Dec. 646 (BIA 1978). The petitioner bears the burden of establishing his contention regarding Bolivian law. Matter of Annang, 14 I&N
Dec. 502 (BIA 1973).

The evidence submitted by the petitioner regarding Bolivian law
consists of the following: a copy of portions of an English version of the
1967 Bolivian Constitution, a letter from the Bolivian Embassy in
Washington, D.C., and a letter from a Bolivian attorney. The portions
of the 1967 Constitution include Title 5, Article 195 which states the
following:
"All children, without distinction as to origin, have equal rights and duties in respect
of their parents. Filiation may be established by any means conducive to proof
thereof, in accordance with the system specified by law."

The letter from the Bolivian Embassy is dated January 18, 1980, and
states that under Bolivian law there are no legal differences, including
inheritance rights, between legitimate children and children recognized by the father. The letter from the Bolivian attorney states the
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Interim Decision #2824
same conclusion, specifying that Article 195 of the Constitution and
Article 178 of the Family Code of Bolivia provide that children born
out of wedlock have the same rights, duties, obligations with respect to
their parents as children born to married parents.
Therefore, we conclude that the petitioner has met his burden of
establishing that under Bolivian Iaw all legal distinctions relevant to
"child" status under our immigration law have been abolished. Consequently, the appeal will be sustained and the visa petition approved.
ORDERS The appeal is sustained, and the visa petition is approved.

524


MATTER OF V

In DEPORTATION Proceedings
A-10659043
Decided by Board February 8, 1960
Deportation proceedings—Membership in subversive organization—Authority
of B.I.A. and SW to determine admissibility at time of entry and to apply
exemptions in section 212(a)(2S)(I).

(1) Authority of the Board and special inquiry officer in deportation proceedings to adjudicate ) .-.)hether an alien was admissible or inadmissible at
time of entry includes the authority to determine whether an alien subject
to the provisions of section 212(a) (28) of the 1952 act was within any of
the exemptions contained in subparagraph (1) of that section.
(2) Exercise of the authority under subparagraph (I) is not dependent upon
whether the alien ever appeared before an American consular officer or
whether that officer made a finding of involuntary membership or defector
status.
CHARGES :

— ETeludable
at entry under 8 U.S.C. 1182(a) (20)—No immigrant visa.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under 8 U.S.C. 1182(a) (28)—Member of or affiliated with
Communist Party of foreign state.

Order: Act of 1052 Section 211(a) (1) [5 U.S.C. 1231(a) (1)]

BEFORE THE BOARD

Discussion: Following a decision of a special inquiry officer

that the respondent was deportable on the two grounds stated above,
counsel filed a motion for reconsideration. This was denied by the
special inquiry officer and the respondent appealed. On July 17,
1959, we sustained the appeal insofar as it related to the second

charge and dismissed the appeal as to the first charge. The Service
filed a motion for reconsideration on September 16, 1959. On November 20, 1959, we found it necessary to request the Service to
clarify its position and the Service filed a supplementary statement
on December 28, 1959. Our order of November 20, 1959, and the
Service statement of December 28, 1959, are made a part hereof as
appendices "A" and "B," respectively.
The respondent is a 28-year-old unmarried male, native and
citizen of Yugoslavia, whose only entry into the United States oc554

curred on May 11., 1956, at which time he was admitted temporarily
as a crewman. He intended to remain in this country permanently
but was not in possession of an immigrant visa. The second charge
is predicated on the respondent's former membership in Savez
Komunista Jugoslavije (the Communist Party of Yugoslavia), and
the issue to be determined is whether that charge is sustained.
Taking into consideration our orders of July 17 and November 20,
1959, and the Service motions of September 16 and December 28,
1959, the following is applicable generally to deportation cases in
which one of the charges is that the alien was excludable at the
lime of entry under section 212(a) (28) of the Immigration and
Nationality Act [8 U.S.C. 1182(a) (28)]. The Service and this
Board are in agreement that, in deportation proceedings, special
inquiry officers and this Board have jurisdiction to determine
whether an alien was admissible or excludable at the time of entry
under B U.S.C. 1182(a) (28) where the alien did not appeal before
an American consular officer or where the alien did appear but no
finding was made by the American consular officer that the alien's
membership was involuntary or that he was a defector.
The prooedopal, provisions of subparagraph (I) of 8 U.S.C. 1182
(a) (28) are not applicable to deportation cases. In other words,
an American consular officer's finding of involuntary membership is
not a prerequisite to a determination in deportation proceedings that
the alien was, in fact, admissible at the time of entry notwithstanding former membership in a proscribed organization. However, the substantive provisions of that subparagraph set forth
the criteria for determining whether membership was voluntary or

involuntary, that is, the alien can be found to have been admissible
at the time of entry if "(i) such membership or affiliation is or was
involuntary, or is or was solely when under sixteen years of age, by
operation of law, or for purposes of obtaining employment., food
rations, or other essentials of living and when necessary for such
purposes, or (ii) (a) since the termination of such membership or
affiliation, such alien is and has been, for at least five years prior to
the date of the application for admission actively opposed to the
doctrine, program, principles, and ideology of such party * * *, and
(b) the admission of such alien into the United States would be in
the public interest."
With respect, to cases in which the alien is charged with having
been excludable under 8 U.S.C. 1182(a) (28) and also with having
been excludable on the ground that the visa was obtained fraudulently by concealment of former membership in a proscribed organization, the Service States that. a. c7aMPrate concealment from
the consul of Communist Party membership must be regarded as a
material misrepresentation within 8 U.S.C. 1182(a) (13) even though

555

there was a finding of involuntary membership or defector status
made by a special inquiry officer or the Board after the alien's arrival in the United States. Hence, it appears that the Service agrees
with the Board that, even in such cases, the charge that the alien was
inadmissible at the time of entry under 8 U.S.C. 1182 (a) (28)
may be found not sustained. We will reserve for consideration in
specific cases the question of whether excludability under 8 U.S.C.
1182(a) (19) has been established.
The decisions of Gabian v. Press, 347 U.S. 522 (1954), and
Rowoldt v. Perfetto, 355 U.S. 115 (1957), apparently have no
direct application in this respondent's case. The question of their
applicability in future deportation or exclusion cases will be consid,red as such cases arise.
In view of the foregoing, it follows that there is no controversy
as to any legal problem connected with the respondent's case and
the issue has resolved itself solely into the question of whether the
respondent's membership was or was not voluntary, in accordance
with the criteria stated in 8 U.S.C. 1182(a) (28) (I).
We have carefully considered the Service view as to the factual
situation in this respondent's case which was set forth on pages 1,
2, 9 and 10 of the motion of September 16, 1959. Our own appraisal of the evidence is as follows. The respondent's admission to
the United States occurred on May 11, 1956, but it was not until
May 29, 1956, that he deserted his vessel and remained in this
country. On June 7, 1956, he made a statement before an immigration officer at the St. Louis office of the Service and admitted that
he had deserted his ship. When asked if he had been a member
of any organization, he freely admitted his membership in the
Communist Party of Yugoslavia. The record does not show whether
the Service had previously become aware of the respondent's unlawful presence in the United States or whether he may have appeared
voluntarily at the St. Louis office of the Service. He expressed his
opposition to Communism and offered to assist the United States
Government. He stated that, although a person was not compelled
to join the Communist Party of Yugoslavia, it was almost a necessity in order to obtain sufficient food and clothing and in order to
hold a position.
The respondent became a member of the Communist Party of
Yugoslavia in 1950, and had previously been a member of the Communist Party youth organization commencing in 1948 when he was
about 17 years old. 'When first questioned on June 7, 1956, the
respondent stated that he supposed he was still being carried as a
member of the Communist Party of Yugoslavia. He testified that he
had never been an officer of the organization; that no "special jobs"
were assigned to him by the Party; and that he attended meetings,

556

;ometimes weekly and sometimes monthly. During the 13 months
)receding his arrival in the United States, he had been employed
is a seaman and stated that the only Communist meetings he attended were those on board his ship and that the meetings were
poorly attended.
With the exception of a period of service in the Yugoslavian
army from 1951 to 1953, the respondent had been employed as a
grocery clerk in a government store from 1946 until May 15, 1955,
when he commenced his employment as a seaman. Before he became a member of the Communist Party he had been earning about
$10 monthly, which was a starvation salary, but after becoming a
member of the Party he earned about $14 monthly upon which he
could subsist. He also stated that the ration stamps furnished to
non-members bordered on the starvation level; that it was only
because of these economic factors that he joined the Communist
Party; and that he has always been opposed to the present government of Yugoslavia.
When the respondent was first interviewed, nine days after he
deserted his ship, he voluntarily admitted his membership in the
Communist. Party of Yugoslavia and expressed his opposition to
Communism. There is no evidence of his membership other than
his own testimony. For that reason, his explanation as to why he
joined the organization is entitled to considerable weight. We are
impressed with his candor at the time of the first interview. We
have no reason to doubt the respondent's statement that joining
the Communist Party of Yugoslavia represented the difference between trying to exist on a starvation salary or receiving a few
more dollars which removed the threat of starvation.
In the Acting Regional Commissioner's order of October 20,
1958, relating to this respondent, appears the following statement:
The Service pointed out in the Matter of K—, A-9555532, on April 23, 195S,
that from various sources, including the personal observations of officers of
this Service in that country, it has been established that: The Government of
Yugoslavia is completely under the domination and control of the Communist
Party of Yugoslavia and the economic and political philosophy of the country
differo only in degree from that followed in the USSR and its satellite countries. Advancement in almost any line of activity is, with few exceptions,
limited to Party members. The basic freedom to criticise, as we know and
enjoy it does not exist in Yugoslavia.

The respondent was an employee, of the Government, of Yugoslavia and the economic compulsion upon him was greater than
would have been the case with respect to one who did not hold such
employment. After careful review of the record, it is our considered opinion that the respondent's membership in the Communist
Party of Yugoslavia was involuntary and that it falls within the
criteria of 8 U.S.C. 1182(a) (28) (I) relating to membership in a
557

proscribed organization which was necessary for the purposes of
obtaining employment, food rations or other essentials of living.
Accordingly, we hold that the second charge (that the respondent
is deportable because he was excludable at entry due to his membership in the Communist Party of a foreign state) is not sustained.
The first charge, relating to his lack of a visa, is sustained. In
connection with the request, in counsel's motion, for reconsideration
of the application for a stay of deportation under section 213(h)
of the Immigration and Nationality Act, that is a matter within
the jurisdiction of the Service. Counsel indicated that the respondent desired to take steps with a view of adjusting his status to
that of a lawful permanent resident. The following order will be
en tered.
Order: It is ordered that the motion of the Service for reconsideration, except as reconsidered herein, be denied.
It is further ordered that the respondent's appeal he sustained
insofar as it relates to the second charge, that is, the Communist
Party charge.
It is further ordered that the respondent's appeal be dismissed as
to the first charge (lack of an immigrant visa) without prejudice
to further application by the alien for any discretionary relief
which may be available.
APPENDIX "A"
BEFORE THE BOARD
(Nov. 20, 1959)

In re: A
V
A-10659043
Discussion: On July 17, 1959, we dismissed the alien's appeal
as to the first charge and sustained his appeal as to the second
charge. The Service requested reconsideration of this order in its
motion dated September 16, 1959.
It was stated in the motion that we had not correctly understood the position of the Service and there was a particular reference to a statement on page 3 of our previous order, reading as
follows: "The Service takes the position that a former member of
the Communist Party of a foreign state is excludable under subparagraph (C) of 8 U.S.C. 1182(a) (28) regardless of whether his
membership was voluntary or in/voluntary; that subparagraph (I)
Gets forth a epecifie procedure which ouch aliens must follow; and

that, if this procedure is not followed, the alien must leave the
United States, follow the procedure in subparagraph (I), and obtain
a visa or a new visa before again applying for admission to this
country."
558

With the exception of such statements as may have appeared in
decisions of special inquiry officers or in briefs of examining officers, the Service has not, heretofore filed any written memorandum
outlining its position concerning S 1182(a) (28) (C) and
(I). However, we believe, that statements which were made by
the Service representatives during oral arguments were along the
lines summarized in the sentence quoted above.
l
B
, A-10935264, the Service repreIn Matter of G
sentative stated on February 26, 1959, that the Attorney General,
this Board, and the special inquiry officers have no jurisdiction to
pass upon voluntary or involuntary membership or defector status
"unless and until it has been passed upon first by the consul" and
that in that particular case the Board did not have jurisdiction
because the American consular officer had not considered the. case
under subparagraph (I) of 8 U.S.C. 1182(a) (28).
ii
, A-10930148, the Service representative
In Matter of 0
on May 12, 1959, agreed that a correct statement. of his position
was that, even if it should be perfectly clear in a given case that
membership in a foreign Communist Party was involuntary but the
American consul had not considered that issue, the alien must be
denied admission because of such membership, must return to his
country, start all over again, and submit his case to the American
consul. It was also stated that the ground of exclusion under 8
U.S.C. 1182(a) (28) is sustained merely on a showing of membership and that the type of membership or the degree of affiliation is
absolutely immaterial in a deportation proceeding, and that the
remedy under subparagraph (I) is the sole and exclusive remedy.
Upon careful consideration of the motion of the Service dated
September 16, 1959, and in view of the apparent conflict, between
statements therein and the statements which had been made by the
Service representatives, we find it. necessary to return the case to the.
Service so that it may clarify its position by answering the following questions:
(1) Does the Service now concede that this Board and special
inquiry officers have jurisdiction to determine whether an alien was
admissible. or inadmissible at the time of entry because of former
membership in the Communist Party of a foreign state. where there
had been no finding by the American consular officer that the alien's
membership was involuntary or that he was a. defector within the
meaning of section 212 (a) (28) (I)
(2) Does the Service claim that there is such jurisdiction only
where the alien has never appeared before an American consular
officer, and, if so, what. is the statutory basis for this distinction?
(3) In cases where two deportation charges are involved, that is,
(a) excludable at entry because of former membership in a foreign
559

Communist Party, and (b) excludable at entry because the visa
was obtained by fraud, does the Service contend that this Board
and special inquiry officers are precluded from finding that the alien
was an involuntary member of the Communist Party of a foreign
state or that he was a defector merely because an American consular officer had not previously made such a finding?
Order: It is ordered that this ease be returned to the Service
for the purpose stated above in accordance with 8 CFR 3.1 (d) (2).
APPENDIX "B"
BEFORE THE CENTRAL OFFICE
(December 28, 1959)
SCPPLEMENTARY STATEMENT OF POSITION IN SUPPORT OF MOTION
TO RECONSIDER
In

re: A—V
A-10659043

Discussion: On September 16, 1959, the Service filed a motion
to reconsider the Board's decision of July 17, 1959, in the subject

case. By order dated November 20, 1959, the Board has requested
clarification of the Service position with respect to the following
questions:
1. Does the Service now concede that this Board and special inquiry officers
have jurisdiction to determine whether an alien was admissible or inadmissible at the time of entry because of former membership in the Communist
Party of a foreign state where there had been no finding by the American
consular officer that the alien's membership was involuntary or that he was a
defector within the meaning of section 212(a) (28) (I)?
2. Does the Service claim that there is such jurisdiction only where the
alien has never appeared before an American consular officer, and, if so, what
is the statutory basis for this distinction?
3. In cases where two deportation charges are involved, that is, (a) excludable at entry because of former membership in a foreign Communist Party,
and (b) excludable at entry because the visa was obtained by fraud, does the
Service contend that this Board and special inquiry officers are precluded from
finding that the alien was an involuntary member of the Communist Party of
a foreign state or that he was a defector merely because an American consular
officer had not previously made such a finding?

The respondent entered as a crewman on May 11, 1956, and has
remained here illegally since. The only charges are (1) excludable
at time of entry because not in possession of an immigrant visa, and
(2) excludable at time of entry under the provisions of section 212
(a) (28) (C) in that he had been a member of or affiliated with the
Communist. Party of a. foreign state_ insofar as appears from the
record, the respondent never appeared before a United States consul in connection with an application for a visa to enter this country.
In the light of the foregoing, the Service motion to the Board
560

was confined to the facts of the case. Thus, at page 9 of the Service
motion, it was stated:
(4) That for the reasons set forth in pp.
of the Board decision there is
authority under section 212(a) f`28 (I) for the special inquiry officer and the
Board to consider the issue of involuntariness or otherwise find an alien
within the exemptions of that subsection, in a case where the alien has never
appeared before a 'United States consul * * *.

It was not deemed necessary to enlarge upon the Service position
with respect to the situation where the alien had appeared before a
United States consul, and had deliberately concealed Communist
Party membership since those were not the facts of the ease. However, since the request for clarification indicates that the Board regards a statement of the Service position in this additional area
pertinent to its consideration of this case, the Service position with
respect to all three of the above questions is as follows:
For the reasons set forth in pp. 4-6 of the Board order of July 17, 1959,
the Service accepts the ruling - of the Board that authority exists with a special inquiry officer and with the Board to find involuntary membership or
defector status under the provisions of section 212(a) (28) (I) both in a situation where the alien never appeared before a United States consular officer,
and where the alien did appear before an American consular officer but no
finding was made by that officer that the alien's membership was involuntary
or that he was a defector.

With respect to the cases pending before the Board involving an
issue of fraud, the Service still maintains, for the reasons advanced
in the arguments in those cases, that a deliberate concealment of
'Communist Party membership by the alien, from the consul, must
be regarded as a material misrepresentation within cection 9.12(a)
(19), in that it was directly relevant to issuance of a visa, and that
this is true regardless of any' subsequent finding of involuntary membership or defector status made by a special inquiry officer or the
Board after the alien's arrival in the United States.
With respect to the instant case, the Service continues to maintain
that an alien who has been a member of the Communist Party of a
foreign country and, hence, was excludable under section 212(a)
(28) (C) at time of entry, can only be removed from the class of
aliens defined in that section under the provisions of section 212
(a) (28) (I), which is the exclusive statutory remedy, and that the
decisions in Rowoldt v. Perfetto (355 U.S. 115), and Gatvam v. Press
(347 U.S. 522), have no application in such a case.
On the basis of the foregoing, motion is again made that the Board
reconsider and withdraw its order dated July 17, 1959, and enter
an order that the respondent be deported on both of the charges set
forth in the order to show cause.

561


Cite as 26 I&N Dec. 688 (BIA 2015)

Interim Decision #3853

Matter of Y-S-L-C-, Respondent
Decided November 23, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The requirements of the Federal Rules of Evidence with respect to the admission of
expert testimony are inapposite to a respondent’s testimony regarding events of which
he or she has personal knowledge.
(2) Conduct by an Immigration Judge that can be perceived as bullying or hostile is
never appropriate, particularly in cases involving minor respondents, and may result in
remand to a different Immigration Judge.
FOR RESPONDENT: Gilardo J. Arcila, Esquire, Doraville, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Ginger Vaudrey, Assistant
Chief Counsel
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; HOLMES and GREER,
Board Members.
HOLMES, Board Member:

In a decision dated March 2, 2015, an Immigration Judge denied the
respondent’s request for withholding of removal under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res.
39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
(1984) (entered into force June 26, 1987; for the United States Apr. 18,
1988) (“Convention Against Torture”). The respondent has appealed from
that decision. The Department of Homeland Security (“DHS”) opposes the
appeal. The record will be remanded.
The respondent is a 15-year-old child from Guatemala who arrived in
the United States on June 5, 2014. According to the respondent, one of his
early memories was of his house being fired upon when he was 4 years old.
Apparently, gang members tried to enter the house and shot at the door
when the respondent’s mother refused to open it. The respondent fled the
house through a window with his mother and younger sister, spent the night
with his grandparents, and then moved to another area. His family was
then blackmailed by gang members, and when they stopped paying the
demand money in 2005, the respondent’s uncle was killed.
688

Cite as 26 I&N Dec. 688 (BIA 2015)

Interim Decision #3853

For some years thereafter, the trouble in the respondent’s life subsided.
However, in 2012, gang members again extorted his family, threatening to
kill him and his sister if his mother and aunt did not pay the demanded sum.
During this period, the respondent saw three corpses near his house. In
2013, another uncle was taking the respondent and his sister to school when
they were accosted by two men with guns and machetes. The respondent
and his sister fled and hid in someone’s home.
On another occasion, an extortion letter was thrown into the
respondent’s school, warning that a grenade would be thrown next if the
extortion demands made against his family members were not met. The
respondent stopped attending school for several months. In 2014, after an
incident in which the respondent was personally threatened, his mother,
who was then in the United States, arranged for him to join her in this
country.
At a hearing before the Immigration Judge, the respondent’s counsel
attempted to question him regarding the effect that his experiences in
Guatemala had on him. The following colloquy occurred:
[COUNSEL] TO [THE RESPONDENT]
Q. These events that you suffered and endured in Guatemala, have they caused
you any psychological issues; nightmares─
JUDGE FOR THE RECORD
We’ll qualify him as an expert witness.
JUDGE TO [THE RESPONDENT]
Q. Sir, how far have you gone in school?
A. How far did I go in school? The 6th grade.
Q. Have you ever lectured on a professional level on psychology?
[COUNSEL] TO JUDGE
Your Honor, I’m not trying to qualify him as an expert. All I’m asking is
questions about his personal answers. He can tell us if he’s had nightmares. He
can tell us if he’s had terrors.
JUDGE TO [COUNSEL]
You can ask specific questions. You can’t ask leading questions. You asked him
what psychological problems. I’m getting the background to understand whether
he can testify as to psychological problems.
[COUNSEL] TO JUDGE
Well, Your Honor, he’s not─
JUDGE TO [COUNSEL]
If you’re willing to stipulate that he has never lectured at the university or
professional level, he’s never written any professional journals, and he’s never
had any training on psychology, then I will allow him to testify as a lay witness.
But he’s not going to testify as to vague psychological problems. You can ask
him if he has experienced difficulties because of what he saw when he was
4 years old in Guatemala and questions like that. But you cannot ask him the
psychological impact.

689

Cite as 26 I&N Dec. 688 (BIA 2015)

Interim Decision #3853

First, regarding this colloquy, we conclude that the Immigration Judge
erred in suggesting that the respondent had to be qualified as an expert
witness. Under the Federal Rules of Evidence, a lay witness is prohibited
from giving an opinion based on “scientific, technical, or other specialized
knowledge,” which can be offered only by a witness who is qualified as an
expert. See Fed. R. Evid. 701(c), 702(a).
It is well established that the Federal Rules of Evidence are not binding
in immigration proceedings, where the test for admitting evidence is
whether it is probative and its admission is fundamentally fair. See, e.g.,
Matter of D-R-, 25 I&N Dec. 445, 458 (BIA 2011); Matter of
Ponce-Hernandez, 22 I&N Dec. 784, 785 (BIA 1999). Nevertheless, they
may provide helpful guidance “because the fact that specific evidence
would be admissible under the Federal Rules ‘lends strong support to the
conclusion that admission of the evidence comports with due process.’”
Matter of D-R-, 25 I&N Dec. at 458 n.9 (quoting Felzcerek v. INS, 75 F.3d
112, 116 (2d Cir. 1996)).
The respondent’s attorney asked him to testify regarding events that the
respondent himself experienced, such as nightmares or other reactions to
the trauma he suffered. Therefore the respondent had personal knowledge
of the matters addressed and did not offer opinion testimony at all. See
Fed. R. Evid. 602. Consequently, the requirements regarding the admission
of expert and lay opinion testimony are inapposite to the respondent’s
testimony, which, in any case, was in compliance with the Federal Rules.
See id.; see also, e.g., United States v. Champion, 813 F.2d 1154, 1172
(11th Cir. 1987) (finding that a witness’ testimony regarding the events at
issue was based on her personal knowledge and was therefore not opinion
testimony). Moreover, his testimony was probative and its admission was
fundamentally fair.
Second, and more significantly, we cannot condone the Immigration
Judge’s treatment of the respondent through this questioning. Courts have
stressed that a respondent in immigration proceedings should expect
dignity, respect, courtesy, and fairness in a hearing before an Immigration
Judge. Cham v. Att’y Gen. of U.S., 445 F.3d 683, 690−91 (3d Cir. 2006)
(stating that such terms are “not merely advisory or aspirational” and that
an alien is “entitled, as a matter of due process, to a full and fair hearing on
his application”).
Conduct by an Immigration Judge that can be perceived as bullying or
hostile can have a chilling effect on a respondent’s testimony and thereby
limit his or her ability to fully develop the facts of the claim. See id.
at 692; Wang v. Att’y Gen. of U.S., 423 F.3d 260, 271 (3d Cir. 2005). Such
behavior also creates the appearance that an Immigration Judge has
abandoned his or her role as a neutral fact-finder and raises a question
690

Cite as 26 I&N Dec. 688 (BIA 2015)

Interim Decision #3853

whether the respondent was given a “full and fair hearing of his claims and
a reasonable opportunity to present evidence on his behalf.” Colmenar
v. INS, 210 F.3d 967, 971 (9th Cir. 2000). Moreover, the mere appearance
of bias on the part of an Immigration Judge can diminish the stature of the
judicial process that he or she represents. Sukwanputra v. Gonzales, 434
F.3d 627, 638 (3d Cir. 2006).1
It is difficult to view the above exchange as anything other than
belittling to the respondent and insensitive to the difficult matters about
which counsel was trying to question him. While such treatment of any
respondent is never appropriate, it is particularly misplaced in these
proceedings considering the respondent’s young age, his past experiences,
and the fact that his counsel was attempting to elicit the effects that the
frightening events he experienced in Guatemala may have had on him. 2
Regardless of whether the respondent is ultimately found to be eligible for
relief from removal, the Immigration Judge did not question his credibility
or whether the events he described occurred.3
We conclude that this hearing was not conducted in a manner that meets
the high standards expected of Immigration Judges. Consequently, we find
it appropriate to vacate the Immigration Judge’s decision and remand the
record to the Immigration Court for a new hearing before a different
Immigration Judge. See Ali v. Mukasey, 529 F.3d 478, 492−93 (2d Cir.
2008) (remanding with instructions to reassign the case where the
Immigration Judge’s conduct resulted in an appearance of bias or hostility
that precluded the court’s meaningful review); Sukwanputra v. Gonzales,
434 F.3d at 638 (suggesting that the case should be reassigned to a different
Immigration Judge on remand “to ensure fairness and the appearance of
1

To provide context for these circuit court decisions, we note that they were published
over the 6-year period from 2000 to 2006, during which Immigration Judges entered final
decisions in over 1,250,000 cases, some 50,000 of which were ultimately subject to
petitions for review before the courts of appeals. Like the case before us, the above-cited
decisions involved proceedings that were not representative of the fair and professional
hearings that are conducted daily by Immigration Judges under challenging conditions.
2
The importance of sensitivity in questioning a child and the special significance of the
“language and tone” employed are addressed in an Operating Policies and Procedures
Memorandum (“OPPM”) from the Chief Immigration Judge, entitled “Guidelines for
Immigration Court Cases Involving Unaccompanied Alien Children.” OPPM 07-01, at 7
(May 22, 2007), http://www.justice.gov/eoir/efoia/ocij/oppm07/07-01.pdf.
3
We note that a psychological report prepared by a licensed Master Social Worker, who
met with the respondent and his mother for several hours, was presented in this case.
This report discusses the violence to which the respondent and his close family members
were exposed, beginning with the violent episode at his home when he was 4 years old.
The report concludes that the respondent suffers from Post-Traumatic Stress Disorder.
However, the Immigration Judge did not refer to this report in his decision.

691

Cite as 26 I&N Dec. 688 (BIA 2015)

Interim Decision #3853

impartiality”). The parties will have an opportunity on remand to provide
additional evidence and arguments regarding the respondent’s eligibility for
withholding of removal under the Convention Against Torture and for any
other relief from removal for which he may be eligible.
ORDER: The decision of the Immigration Judge is vacated.
FURTHER ORDER: The record is remanded to the Immigration
Court for assignment to a new Immigration Judge and for further
proceedings consistent with the foregoing opinion.

692


Interim Decision #2434

MATTER OP

EWONG,

at al.

In Visa Petition Proceedings
A-19287469-70-71-72

Decided by Board September 18, 1975
Section 15 of ti e Marriage Reform Ordinance of Hong, Kong, which became effective
October 7, 1971, and which provides that a marriage contracted according to Chinese
law and custom subsisting on that date and registered in accordance with Part IV of
that Ordinanc e may be dissolved, is not the sole method by which a customary marriage
may be dissolved on or after October ?,1971; an unregistered customary marriage may
still be dissolved in Hong Kong in accordance with Chinese law and custom.
ON BEHALF OF PETITIONER: Pro se

In a decision dated March 14, 1975, we dismissed the appeal taken
from the Service's denial of the four visa petitions submitted in behalf of
the beneficiaries. The Service has submitted a motion requesting that
we reconsider that decision. The motion will be granted, the proceedings reopened and the record remanded to the Service.
The petitioner is a citizen of the United States. He seeks immediate
relative status under section 201(b) of the Immigration and Nationality Act for the beneficiaries, his wife and three stepchildren. The
adult female beneficiary is a native of China, and the children are
natives of :Kong Kong. The children are evidently the offspring of a
marriage celebrated under Chinese law and custom between the adult
female beneficiary and her former husband.
The petitions were initially denied on the ground that the present
marriage between the petitioner and the adult female beneficiary was
not valid. The invalidity of the present marriage was allegedly the
result of the failure of the adult female beneficiary to dissolve her
former marriage properly. The question we must decide is whether this
former marriage was legally terminated in Hong Kong under Chinese
law and custom.
Although the petitioner's wife disputes the existence of a prior
marriage, there is significant evidence in the record indicating that she
contracted a marriage in accordance with Chinese law and custom. That
marriage appears to have been terminated in September of 1974 by a
mutual consent divorce executed in Hong Kong pursuant to Chinese
464

Interim Decision #2434
customary law. The Officer in Charge at Hong Kong, however, denied
the petitions on the basis of section 15 of the Hong Kong Marriage
Reform Ordinance, which became effective on October 7, 1971.
The pertinent portion of section 15 of the Marriage Reform Ordinance
states:
(1) A customary marriage subsisting on the appointed day (October 7, 1971) and
registered in accordance with Part IV may where at least one party to the marriage has a
substantial connexion with Hong Kong be dissolved on or after that day in accordance
with this Part.
The officer in charge evidently interpreted section 15 as establishing
the sole method by which a customary marriage may be dissolved on or
after the "appointed day." In our decision of March 14, 1975, we implicitly
accepted that interpretation. However, in several subsequent unreported decisions we have questioned whether section 15 of the Marriage
Reform Ordinance applies in any respect to a customary marriage not
registered under Part IV of that Ordinance.
Apparently as a result of these more recent decisions, the officer in
charge obtained the opinion of the Solicitor General of Hong Kong on the
question of the dissolution of unregistered customary marriages. The
Service motion includes a copy of that opinion, which indicates that
unregistered customary marriages may still be dissolved in accordance
with Chinese law and custom.
The adult female beneficiary's first marriage does not appear to have

been registered under Part IV of the Marriage Reform Ordinance. The
parties to that marriage separated and executed an agreement dissolving
their relationship. That agreement recognizes that a husband-wife relationship existed, provides for the termination of the relationship, pur-'
ports to make each party free to remarry, and provides for the custody of
the children.
The December 1974 marriage between the petitioner and the adult
female beneficiary appears to have been validly contracted in Hong Kong.
It thus appears that our decision of March 14, 1975 was not correct. The
motion will be granted.
ORDER: Our order of March 14, 1975 is withdrawn,-the proceedings
are reopened andthe record is remanded to the Service.

465


Interim Decision #1527

Marrer or Branpon’s Prorzssronat Scxoo1s
Petition for Approval of School
SFR 214.836
Decided by Regional Commissioner October 18, 1966

‘Where petitioner, a privately-operated professional school offering secretarial
and other courses, including English as a foreign language and foreign
language courses, Tailed to submit evidence that the offered language
courses had been approved by an appropriate State of California authority,
“nor did the United States Office of Education, following consultation,
approve the language courses, the petition for approval of the school for
altcudauce by nonimmigrant students porosant te ection 40% (0) (26) (Fy
Immigration and Nationality Act, as eriended, was denied without prejudice

Discussion: ‘This case comes forward on appeal from the decision -
-of the District Director, San Francisco, who denied the application
on September 15, 1965 in that petitioner (1) failed to submit evi-
dence that two of the courses offered by petitioner, foreign language
aud Euglish ao » furcign language, had beon approved by an ap-
propriate State of California authority, and (2) failed to submit
evidence thet the prior approval of the secretarial, clerk typist, and
PBX receptionist courses had been renewed or extended beyond .
July 6, 1965. :

The petitioner is a privately operated professional school doing
business under the name of Bandon’s Professional Schools at 821
Market Street, San Francisco, California. The school was founded
in 1988 and incorporated in the State of California, June 27, 1961,
under the name of the Professional Secrétarial School, Incorporated.
‘The school has 19 instructors with salaries ranging from $400 to
$500 per month. The school conducts dey and night classes and
“is in session throughout the year except for national holidays. It
has facilities for ¢ maximum of 90 students, None of the instructors
or stuff have Siute of Culifumin teaching credentials ulthough they
have been approved by the Bureau of Readjustment Education, De-
partment of Education of tlie State of California. .

Tho petitioner ic aesking approval for tha aeeaptanea “af none

immigrant foreign students to pursue secretarial, clerk typist, PBE:
897
Interim Decision #1527 --

receptionist, English as a foreign language and foreign lenguage- |

courses, The time required for completion of such conrses ranges
from 210 hours for the PBX receptionist to 720 hours for beginning
students in a foreign Janguage. In udiition, the petitioner eolle
courses in such individual subjects as shorthand, ‘typing, and foreign
languages which students may purchase: and pursue without time
limitation. The State.of California ent of Education recog-
nizes the certificates awarded students tipon completion of the secre-
tarial, clerk typist, and PBX receptionist courses ‘but does not recog-
nize the “Certificate of Accornplishment” awarded upon completion
of the foreign language and Hnglish as 2 furvigu lunguoge couteco ae
these courses do not lead to academic or professional goals, -

In support of the appeal, petitioner has presented a document
fsoucd by the Stata of California Department of Education dated
July 6, 1963 which shows,that the secretarial course, the clerk typist

course, and the PBX receptionist course have been approved to,

July, 6, 1966 pursuant to the California Education Code, section

8 CER 214.3(b) provides in part-as follows:
‘If tha petitioner is a yocational school, business school, or American institu-

tion of research. recognized as such by {he Attorney Genoral, it must establish -
that its courses of study are accepted as fulfilling the ‘requirements for the

Gttatument of om educational, professional, or vocational objective, and are
not avocational or recreational in character. ;

“A letter dated September 2, 1965 by the State of Culiforalw De~
partmént of Education and presented by the petitioner in support
of the appeal states in part: ea
‘The subject Hnglish for the Foreign’ Born and torelgn Iunguaige subjects were
not-included in the original or subsequent application for approval as the
training does not lead to a vocational objective and therefore’ does not fall
under the jurisdiction of the code, section 29007:5.

It has, however, been determined that section 29007.5 further pro-
vides that.if proper application is made and if accompanied by
appropriate “fee, the State of California Department of Education

_may approve the language courses jm question if they meet the
State’s educational requirements. ey Peete
_ 8 CFR 214.8(c). states that the United States Office of Education
has recugnized as established institutions of Tearning (digible for
the enrollment of foreign students) the following types of schools:
1. A school owned or operated as a public edneational inetitation by the
Tinited States or a State or a political subdivision thereof.

398

Interim Decision #1827

2. A sehool listed in the current ‘United States, OFice of Education publica-
tion, “Accredited Higher Institutions” ‘or “Bdueation Directory, Part 3,
Higher Education”,

9, A sccondary achool operated by or as a part of an inctitntion of higher |

learning listed in the current United States Oftice of Education publica-
tions named in (2) above and further provides as follows:
“Before a decision is made on a petition filed by axy other school;.the
‘United States Office of Education shall be consulted by the District
Director to determine whether the petitioner is an estal instita-
. tion of learning or other récognized place of study, is operatifig & bona .
fide school, and has the necessary facilities, Personnel, and finnees to.
1. + instruct in recognized courses.”

Petitioner does not fall within the type of school listed ‘in (1s

(2) and (8) above but falls within the “other school” category of the-
- quoted provision of 8 CFR 214.3(e), and the United States Office of
Education must be, consulted.

The United States, Office of Education was consulted by the District
Director, Son Francisco and upon review of the petition and support-
ing documents, the United Statac Offica af Rdueation on Inly 19,
1965 recommended that petitioner's courses, secretarial, clerk typist,

and PBX receptionist, be approved on the condition that these :
courses previously approved by the State of California Department ~

of Education to July 6, 1965 be extended beyond July 6, 1965 and
further recommended that the courses “English as 2 foreign Jan-
guage” and ‘foreign language” not be approved. It should be noted
that. af tha tima the TInited ‘States Office of Education made this ad-
verse recommendation in regard to the language-courses petitioner

had not made proper application for approval to the State of Calif- ~

ornia Depaitment of Education. If such approval had been ob-
tained, It would have been considered by ‘the United States oo of
‘Education in making its recommendation.

Petitioner has met, She conditional requirements relating to tlie ap-* .
proved courses by;presenting evidence that the three professional . -
courses, secretarial, clerk typist, and“PBX receptiénist, have been *

approved to July 6, 1966 by the State of Cstifornia Department of
Education, Petitioner has thus overcome one of the grounds of de-
nial by the District Dircctor.. However, tho language coirses have
- not been approved by either the State of California Department of

Education or the United States Office of Educatiori. The petitioning -

school may not-be approved for the enrollment of nonimmigrant for-

eign students, The decision of the District Director was proper and ||

the appeal will be dismissed. The deficiency as it relates to the non-
approved language courses may be overcome if proper application
is made to appropriate authorities and the cources cubscquontly ap-
proved by the State of California Department.of Education and the

399
* Interim Decision #1527 -
United States Office of Education. Therefore, the petition is denied

* without prejudice, and the District Director is authorized to recon-

sider this petition at-such time as evidence is obtained that the lang-
uage courses in question have been properly approved by the Stale
and Federal educational authorities.

ORDER: It is ordered that the appeal be dismissed.

It te further ordered.that the denial of the petition be without
prejudice and that the District Director reconsider the petition when
the language courses of the petitioning school have been approved by
proper authorities.

400.


Interim..Decision *1429

MATKAR OP YOUNG

In Deportation Proceedings
A 418 967S
-

Decided by Board. January 99, 1985
Applicant's voluntary departure from the United States following the institution of, and pursuant to, deportation proceedings did not break the con-

tinuity of his residence within the purview of section 249, Immigration and
Nationality Act, as amended.
Oxon.:use:

Order:

Act

of 1952—Section 241(a) (2) (8 U.S.O. 1251(a) (2) ]—Remained_
longer—Nonimmigrant.
Lodged: Act of 1952--Section 241(a) (2) (S U.S.O. 1251(a) (2)] Entered
without inspection.
—

The case conies forward on appeal by the trial attorney from a
decisiOn of the special inquiry officer dated September 15, 1981 granting the application for adjustment of status under section 249 of
the Immigration and Nationality Act.
The record relates to a native and citizen of China, 65 years old s

arrived in the United States at the port of male,widorhst
New York on or about July 4, 1947 on the S.S. Paralos and was
ordered detained and refused a landing permit. Ere thereafter
entered the United States without inspection as an alien. Deportability solely on the lodged charge is, conceded.
The respondent has applied for an adjustment of immigrant status
under section 249 of the Immigration and Nationality Act. The
only requirement with which we are concerned is that the alien must
have resided continuously in the United States since prior to June
28, 1940. In his Application for Adjustment of Status as a. Permanent Resident (Form 1-485), executed in connection with the deportation proceedings, and in his Alien Registration Form (Form
AR .2) executed November 2, 1940, the respondent indicated that
he had resided in the United States since 1925. The respondent has
38
o.

Interim Decision *1429
established, on the basis of testimony and documents presented, the
requisite continuous residence in the United States since prior to
June 28, 1940. However the Service contends that the respondent
interrupted the continuity of his residence by his voluntary departure on-March 15, 1947 because this voluntary departure occurred
after the institution of deportation proceedings; that any departure
from the United States after deportation .proceedings have beeninstituted breaks the continuity of residence for the purpose of section 24.9 relief.
The term "residence" means the place of general abode, the 'place
of general abode of a person means his principal, actual dwelling
place in fact without regard to intent? The Service has commingled
the definitions of "entry" and "residence" to result in the conclusion
that a person whose departure is occasioned by deportation proceedings could not claim that he had not made a new "entry" into the
United. States. It is conceded that the respondent made a new
"entry" into the United States when he entered without inspection
on or about July 4, 1947 after his voluntary departure. Since section
249 of the Immigration and Nationality Act requires continuous
residence in the United. States since prior to June 28, 1940, it is.
apparent that the significant term is "residence" and that the question to be determined is whether such residence was continuous or
was broken by a voluntary departure pursuant to deportation procedings in March 1947. The respondent testified that he reshipped
in France to another vessel owned by the same line at the direction
of the owner of the line. He claims that when he departed in March
1947 he maintained his residence in the United States as indicated
by his retention. of his living quarters in the United States where
he left much of his personal effects.
There appear to be no court cases directly in point: Those court
cases which held that residence for the purpose of section 249 of the
Immigration and Nationality Act was broken involve a departure
under an order of deportation, such departure being regarded as
having executed the order and warrant of deportation. 2
There have been some administrative- decisions which have dealt
indirectly with the problem: In Matter .of P—, 8 L & N. Dec. 167,
the alien alleged entry in the United States in 1920 and continuous
2

Sebtlea 101(a) (33) of the Immigration and Nationality Act, S U.S.C. 1101

(a) t33).

Mrvica v. Beverly, 376 U.S. 560, 11 Led. 2d .911:.Chong v. Beverly, 191 F.
Sung. 935 (8.D.N.Y., 1981) ; Sit Jag Sing v. Nice, 182 F: Supp. 292 (D.C., Cal.
1960) afrd. 287 -F.2d 561.

89

Interim Decision

*1429

that time. Evidence was presented to establish that
claim and also establish that he had been absent from the- United
States for brief periods on two occasions, in August 1922 and. again

residence since

in 1940. The departure in 1922 was as the result of exclusion proceedings. It was held that an alien who has bean absent from the
United States at any time since the entry upon which his application
is based may be found to have resided continuously in the United
States since the date of his original entry if his absence was temporary and his principal actual dwelling place in fact remained in the
United States during the entire period of his absence. It was further
held that a departure from the -United States cre a result of emoktsion
or eepuZsion proceedings breaks the continuity of residence for the
purpose of section 249, regardless of the period of time the alien is
outside the United States after such departure. The underlined portion must be read in conjunction with the next sentence which indicates that the applicant's continuous residence in the United States•
was broken on August 24, 1922 when be .was excluded and deported.

Thus the holding in this case is consistent with the holding of the

Supreme Court in. dirvicay.Espordy, 376 U.S. 560.3
Although the residence since the critical date must be continuous,.
the statute does not require actual physical presence in the United_
States during the entire period. -Temporary absence, without abandoiament of residence in the United States, will not preclude establishment of the required residence. All the statute requires is that
the applicant "has had his residence in the United States continuously since such entry." "Residence" is- defined as "the place of

general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent." 4
The Service suggests that the record-does not•clearly show whetheror not the respondent was accorded the privilege of voluntary departure or left under an outstanding deportation order. A reading of
the evidence clearly shows that it is conceded that he left under an
order of volUntary departure. In any event, if the respondent had
in fact been deported, the Service would have introduced evidence.
of such deportation into the record and if they should' discover such,
evi.dence,.it may properly be made the, subject of a motion to reopen
or reconsider. '
It is Conchnled that the respondent' has established continuous
residence in the United. States since prior to June 28, 1940. gis de'matter of P—, 8 X. & N. Ded. 187, was cited with approval In Matter of R—.
8 L & N. Dec. 598,. 599.
‘.00cdon and Rosenfield, Znanigratrozi ZU417 and Procedure Tat

40:

Interim Decision #1429
parture in 1947 was not the result of exclusion or expulsion proceedings but was voluntary. We are unable to distinguish between a
voluntary departure prior to the institution of deportation proceedings and a voluntary departure subsequent to the institution of
deportation proceedings. The legal effect remains the same. The
respondent has established that his absence was temporary. He is
not a member of the excludable classes enumerated in section 249, is
not ineligible to citizenship and is a person of good moral character.
He has established eligibility for the discretionary relief available
under section 249 of the Immigration and Nationality Act. The
order of the special inquiry officer will be affirmed.
ORDER: It is ordered that the order of the special inquiry officer
dated September .15, 1964 granting the application for adjustment
of status under section 249 of the Immigration and Nationality Act

be affirmed.
It is further ordered that the appeal by the trial attorney from
such decision of the special inquiry officer be and the same is hereby
dismissed.

41


MATrna

OF C

In VISA PETITION Proceedings
A-12632399
Decided by Board March u8,1962
Preference quota ntatus—Section 203(a)(2), 1952 act -Legitimation of children, Spain.

Legitimation of a child born out of wedlock occurs under Spanish law when
the parents of the illegitimate child have been legally married in accordance with the laws or Spain. Recognition or such a &Alai by We uatural
father under Article 134 of the Spanish Civil Code is not legitimation.

BEFORE THE BOARD

DISCUSSION: The petitioner appeals from an order entered by
the District Director at Los Angeles, California, on December 13,
1961, denying his application under section 203(a) (2) of the Immigration and Nationality Act for second preference quota status for
his alleged unmarried daughter (8 U.S.C. 1153(a) (2)). Exception
has been taken to the District Director's finding that the beneficiary
does not qualify as a second preference quota immigrant.
The petitioner was naturalized a citizen of the United States on
July 11, 1941. The beneficiary, female, born May 23, 1922, is a
native of, and now resides in, Spain. A verified document submitted
with the visa petition states in substance that the beneficiary was
born out of wedlock to the petitioner (father) and one A—C-(mother) and was registered in the Civil Registry of Pola de Lena as
a "natural child of the affiant (A—C—) with the name of D—GE—." This document also refers to the fact that in the year 1929 the
petitioner "recognized as his natural daughter, said D—, above acImowiedgment was inscribed in the Civil Registry of Pola de Lena
(under) the name of D—, with the paternal and maternal names, that
is, A— and C ."
Counsel urges that the potitioner'r recognition of the beneficiary

creates the relationship of father and daughter and any reference to
legitimacy is beyond the scope of section 203(a) (2) (8 U.S.C. 1153
(a) (9,) ). Counsel also urgOs that under the statute (section 203(a)
(2) ) it is immaterial whether the beneficiary was in the legal custody
597

of the petitioner at the time of the alleged legitimation, a reason

advanced by the district director for denying second preference
classification.
Section 205(b) of the Immigration and Nationality Act provides
(inter alia) that no petition for a preference under the quota in
behalf of a son or daughter of a citizen of the United States under
paragraph 2 of section 203(a) "shall be approved by the Attorney
General unless the petitioner establishes that he is a parent as defined in section 101(b) (2) of the Immigration and Nationality Act"
(8 17.S.C. 1155 (b) and 1101(b) (2)) (emphasis supplied).
Section 101(b) (2) of the Immigration and Nationality Act states
in substance that the terms "parent", "father", or "mother" exist only
where the relationship comes into being under the definition of the

terra "child", as set forth in section 101(b) (1). The term "child"
is defined by section 101(b) (1) (insofar as is pertinent here) as "an
unmarried person under 21 years of age" who has been "legitimated
wider the law of the child's residence" provided "such legitimation
takes place before the child reaches the age of eighteen years and the
child is in the legal custody of the legitimating parent or parents at
the time of such legitimation."
The beneficiary in the instant case is now 39 years of age. While
it is true that she was under the age of 18 at the time of the recognition in 1929, said recognition does not amount to "legitimation"
under Spanish law. Legitimation in Spain does not take place until
the parents of the illegitimate child have been legally married in
accordance with the laws of Spain.'
The action taken by the petitioner in the instant case comes under
Article 134 of the Spanish Civil Code and is known as "hijo natural
reconocido" (recognition of natural child). Such "recognition" is
not the same as "legitimation." CL Matter of D-, 7 438 (recognition in Italy not legitimation) ; Matter of F—, 7-448 (recognition

in Portugal not legitimation).
Under the circumstances, the beneficiary does not qualify for second preference quota classification under section 203(a) (2) of the
Immigration and Nationality Act. The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dihinibsed.
1

Article 120, Civil Code of Spain of 1889, as amended.

588


Interim Decision #2716

MATTER OF HEALY AND GOODCHILD

In Exclusion Proceedings
A-21672002
A-21672008
Decided by Board July 8, 1979
(1) An alien destined for the United States for the primary purpose of study at a school
which has not been approved by the Attorney General for attendance by nonimmigrant students is subject to the provisions of section 101(a)(15)(F) of the Immigration and Nationality Act, 8 U.S.C. 1101(aX15)(F), and is not admissible as a nonimmigrant visitor for pleasure as defined by section 101(a)(15)(B) of the Act.
(2) The B-2, visitor for pleasure, nonimmigrant category is not a "catch-all" classification available to all who wish to come to the United States temporarily for whatever
purpose but instead encompaoocs a opeeific, defined Glace of aliens. Soetion

101(a)(15)(B) of the Act; 22 C.F.R. 41.25.
(3) Where an alien has failed to establish his entitlement to status as a nonimmigrant
under any of the classifications set forth in section 101(a)(15) of the Act, he is properly
excludable under section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), as an immigrant
without the requisite travel or entry documents, not under section 212(a)(26) of the
Act, as a nonimmigrant not in possession of the necessary documentation.
(4) Adequate notice of section 212(a)(20) as an applicable ground of exclusion is provided by sections I01(a)(15) and 214(b) of the Act, 8 U.S.C. 1101(a)(15) and 1184(b),

which may mandate a finding that an alien is an immigrant whenever his right to a
particular nonimmigrant classification is questioned by the Service.
(5) Knowledge of the falsity of a representation satisfies the fraud and willfulness
requirements of section 212(a)(19) of the Act. Suite v. INS, 594 F.2d 972 (3 Cir. 1979).

(6) Section 291 of the Act, 8 U.S.C. 1361, places the burden upon the alien to demonstrate
that he is not inadmissible under any provision of the Act; however, inasmuch as an

alien excluded under the first clause of section 212(a)(19) is perpetually barred from
admission to the United States, the factual basis of the finding of excludability should
be subject to close scrutiny, particularly where the alleged fraud or misrepresentation
involves a disputed issue as to the alien's subjective intent.
EXCLUDABLE Act of 1952—Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)]—Fraudulent visa
Sec. 212(a)(20) [8 U.S.C. 1182(a)(20))—Immigrant—no
. valid immigrant visa
Sec. 212(a)(26) [8 U.S.C. 1182(a)(26)]—Student—no valid
nonimmigrant visa

22

Interim Decision 112716
ON BEHALF OF APPLICANTS:

ON BEHALF OF SERVICE:

David Carliner, Esquire
Carliner & Gordon
1511 K Street, N.W.
Washington, D.C. 20005
BY:

George Indelicato
Appellate Trial Attorney

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This case is before us on appeal from the April 26, 1978, decision of
an immigration judge which found the applicants, Mr. Healy and Mr.
Goodchild, excludable under section 212(a)(26) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(26). Mr. Healy was additionally found
excludable under section 212(a)(19) of the Act. The appeal will be
dismissed.
Mr. Healy, a native and citizen of Ireland and a resident of Australia, applied for a nonimmigrant visa at the United States Consulate
General in Melbourne, Australia, for the stated purpose of visiting this
country for a 1-month period. On September 7, 1977, he was issued a B2 nonimmigrant visitor for pleasure visa, valid for multiple applications for admission to the United States within 3 months from the date
of issuance. One that same date, Mr. Goodchild, a native and citizen of
Great Britain, was issued a B 2 nonimmigrant visitor visa at the
-

United States Embassy in London, England, which was valid for
multiple applications for admission to this country within 6 months
from the date of issuance.
In the course of inspection upon their respective arrivals in New
York, each applicant was found to be in possession of a letter of
acceptance for admission to a 9-month course of study at the Claymont
School for Continuing Education, an institution which has not been
approved for attendance by nonimmigrant students. The applicants
were thereupon charged with excludability under section 212(a)(26) as
nonimmigrant students not in possession of valid nonimmigrant student visas and under section 212(a)(19) as aliens who procured their
visas by willfully misrepresenting material facts.
In the consolidated exclusion proceedings that ensued, the immigration judge found Mr. Goodchild excludable as charged under section
212(a)(26) but held that the charge under section 212(a)(19) could not
be sustained in his case. As noted above, Mr. Healy - was found excludable under both section 212(a)(26) and section 212(a)(19). The immigration judge's findings as to each charge will be examined in turn.
The facts underlying the section 212(a)(26) charge present an issue
common to both applicants, specifically, whether an alien seeking
admission to the United States for the primary purpose of attending
an educational institution that has not been approved by the Attorney
23

Interim Decision #2716
General for attendance by alien students in accordance with section
101(a)(15)(F) of the Act, 8 U.S.C. 1101(a)(15)(F), may be properly
admitted as a nonimmigrant visitor for pleasure pursuant to section
101(a)(15)(B) of the Act.
Under section 101(a)(15) of the Act, every alien is considered to be an
immigrant unless he is able to establish that he is entitled to nonimmigrant status under one of the specified classes of nonimmigrants
designated by Congress in section 101(a)(15)(A) through section
101(a)(15)(L). Section 214(b) of the Act, 8 U.S.C. 1184(b); 22 C.F.R.
41.10. Moreover, the burden is upon the alien to establish that he is
entitled to the nonimmigrant classification and type of nonimmigrant
visa for which he is an applicant. 22 C.F.R. 41.10; of section 291 of the
Act, 8 U.S.C. 1361.
The applicants conceded that they are not entitled to status as
nonimmigrant students under section 101(a)(15)(F) inasmuch as the
Claymont School has not been approved by the Attorney General or his
delegate.' Each applicant further acknowledged that the principal
purpose of his visit was to participate in the basic course to which he
was admitted at the Claymont School, that he had paid a deposit of
$100 toward the $2,750 tuition for the course prior to seeking admission
to the United States, and that he had been in attendance at the school

since his parole into this country.
Counsel does not seriously contest the fact that the Claymont School
is a school and that the applicants are students within the ordinary
usage of those terms and we are satisfied that they are properly
classifiable as such? Counsel argues instead that section 101(a)(15)(F)
' Section 101(a)(15)(R) accords nonimmigrant status to

an alien having a residence in a foreign country which he has no intention of
abandoning, who is a bona fide student qualified to pursue a full course of study and
who seeks to enter the United States temporarily and solely for the purpose of
pursuing such a course of study at an established institution of learning or other

recognized place of study in the United States, particularly designated by hint and
approved by the Attorney General after consultation with the Office of Education of
the United States, which institution or place of study shall have agreed to report to

the Attorney General the termination of attendance of each nonimmigrant student,
and if any such institution of learning or place of study fails to make reports
promptly the approval shall be withdrawn .... (Emphasis added.)
The purpose and program of the basic course at the Claymont School are described as
follows in excerpts from the institution's 1977-78 catalog (Ex. 4A):
The Claymont School for Continuous Education is founded on the principle that true
education must include techniques of self-perfecting in mind, body, and spirit and
must realize the potential latent in normal men and women.... The daily schedule
normally begins at 6 a.m. All students and staff share in psychological and spiritual
• exercises until breakfast. After breakfast, 4-5 hours are devoted to practical activities involving the acquisition of a wide variety of skills such as cooking, breadmaking, carpentry, housepainting, plumbing and electrical work, gardening, logging,

24

Interim Decision #2'116
is solely concerned with alien students destined for approved schools.
Since the Claymont School has not been accredited by the Service, he
insists that the applicants are not subject to the provisions of section
101(a)(15)(F) of the Act but are admissible as visitors for pleasure. We
disagree.
It is clear that absent Service approval of the school to which an
alien student is destined, he may not establish eligibility for a nonimmigrant student visa under section 101(a)(15)(F). It does not follow
ipso facto, however, that an alien bound for the United States for the
primary purpose of pursuing a course of study at an unapproved school
is entitled to status as a nonimmigrant visitor for pleasure under
section 101(a)(15)(B)- That such alien is not entitled to status as a
nonimmigrant visitor is evident from the express terms of section
101(a)(15)(B) which includes among those classifiable as
nonimmigrants:
an alien (other than one corning for the purpose of study or of performing skilled or
unskilled labor or as a representative of foreign press, radio, film, or other foreign
information media coming to engage in such vocation) having a residence in a foreign
country which he has no intention of abandoning and who is visiting the United States
temporarily for business or temporarily for pleasure; ... (Emphasis added.)

While the statutory term "pleasure" is not defined in the Act, State
Department regulation 22 C.F.R. 41.25 provides the following
definition:
(c) The term "pleasure", as used in section 101(a)(15)(B) of the Act, refers to legitimate activities of a recreational character, including tourism, amusement, visits with
friends or relatives and rest; medical treatment, or activities of a fraternal, social or
service nature.

See also Vol. 9, Foreign Affairs Manual, Part II, 22 C.F.R. 41.25, note
5(a) through (g).
It is thus apparent from the explicit language of section
101(a)(15)(B), as supplemented by the foregoing regulation, that the B2, or visitor for pleasure, nonimmigrant category was not intended to
be a "catch-all" classification available to all who wish to come to the
United States temporarily for whatever purpose. Instead, as is the case
with the other nonimmigrant classes enumerated by Congress in section 101(a)(15), section 101(a)(15)(B) was designed to encompass a
specific, defined class of aliens; by the express terms of the statute, that
class does not include aliens coming for the purpose of study. To accept
counsel's theory would not only disregard the explicit language of
animal and vegetable husbandry, repairs and special crafts and skills such as
spinning, woodworking and pottery to meet particular needs.... In the afternoon ... the two groups not on house duty attend classes, which include work at
the Gurdjieff sacred gymnastics, psychology, cosmology, art, music, and theatre.
There are also special. classes, seine conducted by the School staff, some by visiting
tutors, on subjects such as health, ecology and intermediate technology....

25

Interim Decision #2716
section 101(a)(15)(B) but would undermine the requirements for entitlement to student status under section 101(a)(15)(F) and the
detailed regulations which have been promulgated to implement that
section.3 See 8 C.F.R. 214.2(f); 8 C.F.R. 214.3; 8 C.F.R. 214.4.
We accordingly hold that an alien bound for the United States for
the primary purpose of study is not admissible as a nonimmigrant
visitor for pleasure as defined by section 101(a)(15)(B) but must instead establish his entitlement to nonimmigrant student status under
section 101(a)(15)(F) and the pertinent regulations. Cf. Matter of Le
Flock, 13 I&N Dec. 251 (BIA 1969). We recognize that our decision in
effect declares unapproved educational institutions such as the
Claymont School to be unavailable to alien students. Our holding,
however, is in keeping with the clear statutory scheme drawn by
Congress which deems all aliens to be immigrants unless they can
demonstrate that they qualify for status under one of the distinct
nonimmigrant classes enumerated in section 101(a)(15). The dispositive fact is that Congress made no provision thereunder for aliens
destined for the United States for the primary purpose of pursuing a
course of study at an unapproved school.
Although we agree with the immigration judge that the applicants
are excludable on the facts presented, we believe that section
212(a)(20), not section 212(a)(26), constitutes the appropriate ground
of exclusion. Inasmuch as the applicants have failed to establish their
entitlement to status as F-1 students, as B-2 visitors, or as nonimmigrants under any other classification set forth in section 101(a)(15),
they are properly excludable as immigrants without the requisite
travel or entry documents rather than as nonimmigrants not in possession of the necessary documentation. We note the absence from the
record of an express reference to section 212(a)(20) as an applicable
exclusion ground but are nevertheless satisfied under the circumstances of this case that the applicants had adequate notice of that
charge. Whenever the right of an alien to a particular nonimmigrant
classification is questioned by the Service, sections 101(a)(15) and
MAN of the Act may mandate a finding that the alien is an
immigrant.
The remaining issue before us concerns the finding of excludability
under 212(a)(19) with respect to Mr. Healy. At the hearing, Mr. Goodchild testified that he had requested a visa valid for 9 months, telling
the consul at the Embassy in London that he was "coming to a
Section 101(a)(16)(F) and the correlative regulations manifestly have the dual purpose of protecting alien students by ensuring the legitimacy of the school to be attended

and of facilitating the enforcement of the immigration laws with respect to those
students.
26

Interim Decision #2716
community where we practice all sorts of living" (Tr. p. 27). He
conceded that he did not disclose to the counsul that he intended to
take an actual course of study here but accepted as accurate the
immigration judge's summation that te had "more or less told them
everything about the place except that it was a school" (Tr. p. 29). On
the basis of this testimony, the immigration judge concluded, with the
concurrence of the Service, that a charge under section 212(a)(19) had
not been sustained with respect to Mr. Goodchild.
Mr. Healy testified that he had had but one brief conversation with a
State Department employee at the United States Consulate in
Melbourne prior to obtaining his visa.` He stated that he was told by
that employee when he visited the Consulate to inquire about
procedures for coming to the United States, that he need only fill out a
visitor visa application form if he planned to remain here for 1 month
or less but that he would have to produce documentary evidence of his
intention to return to Australia if he contemplated a longer stay.' He
testified that he told the employee that he would apply for a 1-month
visit but would probably seek an extension of his stay from the Service
after his arrival in this country.
Mr. Healy maintained that his visa was issued on the basis of that
single conversation, which involved no discussion as to the purpose of
his trip, and of the visitor visa application form which he contemporaneously completed and returned to the Consulate employee.
On his application form, Mr. Healy responded to Items 18 and 19 as
follows:
18. What is the purpose of your trip?
"to visit America"
19. How long do you plan to stay in the USA?
"one month"

In response to the inquiry set forth in Item 20, "At what address will
you reside in the USA?", Mr. Healy provided the address of the
Claymont School.
At several points in the course of the hearing, Mr. Healy indicated
that notwithstanding his acceptance at the Claymont School for a
9-month course of study and his payment of a $100 deposit to the
school, he had not firmly decided to remain in this country for the
duration of the course at the time he applied for his visa. He stated
4 It is not apparent from the record whether Mr. Healy spoke with a consular officer or
with a local employee at the Consulate.
As an element of his overall burden of demonstrating entitlement to nonimmigrant
status under section 101(a)(15)(11) and (F), an alien must establish that he has a
residence in a foreign country which ho has no intention of abandoning. We are unaware
of any State Department policy or practice which absolves an alien of his burden of
establishing his bona fides as a nonimmigrant upon his representation that he intends to
remain in this country for a relatively short period of time.

27

Interim Decision 112716
that he instead intended to visit the school and, if he found that course

to be suitable, to apply to the Service for an extension of his stay. Mr.
Healy explained that he would have requested additional time for his
visit when he initially applied for a visa but felt he would have
encountered difficulties in producing documentation to establish the
requisite ties in Australia since he had terminated his employment in
that country.
Mr. Healy stated that he believed that he was ineligible for a student
visa since the Claymont School is not an approved educational institution and thought, as a consequence, that he could properly apply for a
tourist visa. He further stated that while his acceptance at the
Claymont School provided the primary impetus for seeking admission
into the United States, he also wished to visit this country.
The immigration judge held that Mr. Healy had willfully misrepresented a material fact within the ambit of section 212(a)(19) by
indicating that he was destined for a 1-month visit to the United States
when he in fact knew that he was coming to study for a
9-month period. While the record is not free of ambiguities, we are, on
balance, unable to agree with the conclusion reached by the immigration judge.
In determining whether an alien has procured his visa by fraud or
willful misrepresentation of a material fact within the meaning of
section 212(a)(19), it is appropriate to examine the circumstances as
they existed at the time the visa was issued. Under the rule of law
announced herein, an alien's trip to the United States for the primary
purpose of participating in a course of study at an educational institution that has not been approved by the Service may not be characterized as a "visit" of a nature which would qualify him for status as a
visitor for pleasure under section 101(a)(15)(B). This precise issue,
however, has not previously been addressed by the Board. Given the
uncertain state of the law at the time Mr. Healy applied for his visa, it
is not unlikely that he considered the declared purpose of his trip, "to
visit America," to be an accurate statement of his intent.' Moreover,
we find Mr_ Healy's explanation with respect to his stated anticipated
length of stay plausible, if not compelling.
In interpreting the term "willful" for purposes of section 212(a)(19),
the Court of Appeals for the Third Circuit held in a recently decided
case that knowledge of the falsity of a representation satisfies the
fraud and willfulness requirements of that section- Suite v. INS, 594
F.2d 972 (3 Cir. 1979). We are not persuaded that a finding of willful'We note that unlike Mr. - Goocichild, Mr. Healy apparently was not afforded an
opportunity to fully discuss the purpose of his trip with a consular officer prior to the
issuance of his visa.
28

Interim Decision #2716
ness is warranted on the particular facts of this case, and we accordingly hold that Mr. Healy in not inadthissible under secton 212(a)(19)
of the Act for having procured his visa by fraud or by willfully
misrepresenting a material fact.
In so holding, we recognize that the Act places the burden on the
alien to demonstrate that he is not inadmissible under one of the
exclusionary grounds enumerated in secton 212(a). Section 291 of the
Act, 8 U.S.C. 1361. We believe, however, that given the harsh consequences of a finding of excludability under the first clause of section
212(a)(19), the factual basis of such finding, should be subject to close
scrutiny. This is particularly true where the alleged fraud or misrepresentation involves a disputed issue with respect to an alien's
subjective intent.
In accordance with the foregoing discussion, we shall order each
applicant excluded and deported solely on the ground of inadmissibility set forth in section 212(a)(20) of the Act.
IT IS ORDERED THAT the applicants be excluded and deported
from the United States pursuant to section 212(a)(20) of the Immigration and Nationality Act.
FURTHER ORDER. The appeal is dismissed.
'

' An alien excluded under the first clause of section 212(a)(19) as one who "... seeks to
procure, or has sought to procure, or has procured a visa or other documentation ... by
fraud, or by willfully misrepresenting a material fact ..." is perpetually barred from
admission to the United States. In contrast, the Board bas held that a finding of
inadmissibility under the second clause of the section, which refers to any alien who "...
seeks to enter the United States by fraud, or by willfully misrepresenting a material fact
..." affects only the application for admission then under consideration and does not
constitute a continuing ground of inadmissibility. Matter of M--, 6 I&N Dec. 752 (BIA
1955).

29


Interim Decision #2821

MATTER OF KHAN

In Deportation Proceedings
A.-21187278
Decided by Board August 21, 1980
(1) Where the employment of the applicant for adjustment of status under section 245 of
the Act, 8 U.S.C. 1245, was neither authorized by the Service nor found not to have an
adverse impact on this country's labor market, the unauthorized employment was a
negative factor to be considered in the exercise of discretion. Matter of Arai,13 I&N
Dec. 494 (BIA 1970), and Matter of Lars, 16 I&N Dec. 432 (BIA 1978), distinguished.
(2) Although unauthorized employment is as adverse consideratiun, that factor alone
should not ordinarily result in the discretionary denial of adjustment of status to
those individuals who are statutorily eligible for that relief and who present no other
negative considerations.
(3) Adjustment of status should not be denied in the exercise of discretion to the
respondent, who was certified as a member of the professions in 1976 and who
presented no adverse considerations other than his unauthorized employment.
CHARGE:

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant student—
remained longer than permitted
ON BEHALF OP RESPONDENT:
Samuel D. Myers, Esquire
230 West Monroe Street
Suite 2812

ON BEHALF OF SERVICE:
George W. Masterton, Esquire
Appellate Trial Attorney

Chinagr, Illinois SOUK
BY:

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent appeals from the July 6, 1978, decision of the immigration judge finding him deportable as charged, denying his application for adjustment of status in the exercise of discretion, but
granting him the privilege of voluntary departure. The appeal will be
sustained and the record remanded.
The respondent is a 30-year-old native and citizen of India, who
entered the United States as a nonimmigrant student in September
1974. He had entered to study mechanical engineering at the Chicago

Technical College and was authorized to remain until September 29,
508

Interim Decision #2821
1975. Shortly after entry, the applicant began part-time employment
without applying for permission to work. He testified that it had
become necessary for him to work because his mother's asthma condition worsened almost immediately after he left India and because his
funds in India, which he had planned to use for his education, were
necessary to support her.' The respondent successfully finished his first
semester, but then left school because of a shortage of funds and begun
full-time employment. He later enrolled in a masters degree program
at Northeastern University and in January 1977 was a full-time day
student at DePaul University.
In July 1975, while still within the period he was authorized to
remain as a student, the respondent applied for a labor certification as
a member of the professions, i.e. a chemist. See 29 C.F.R. 60.3(b) (1975).
The petition was approved in June 1976. The respondent then applied
to the District Director for adjustment of status as a nonpreference
immigrant. The application was denied in April 1977. An Order to
Show Cause was issued in June 1977 charging the respondent with
being deportable under section 241(a)(2) of the Act, 8 U.S.C. 1251(a)(2),
as an "overstayed" nonimmigrant.
At the deportation hearing in August 1977. the respondent conceded
deportability, but renewed his application for adjustment of status.
The immigration judge found him statutorily eligible for that relief,
but denied adjustment in the exercise of discretion because of the
respondent's unauthorized employment. The immigration judge found
this case distinguishable from Matter of Arai, 13 I&N Dec. 494 (BIA
1970) and Matter ofLam,16I&N Dec. 422 (BLit 1978). He noted that the
unauthorized employment in those cases was found not to be detrimental because labor certifications were ultimately granted for the very

employment in question, whereas in this case the respondent was
never granted a labor certification for the unauthorized employment
he engaged in. The immigration judge concluded that the equities
presented by the respondent were not sufficient to outweigh this adverse consideration. Adjustment of status was, therefore, denied in the
exercise of discretion.
' The record file includes an affidavit from the respondent's mother in which she
indicates that she seriously suffered from asthma starting on October 3, 1974. She stated
that by the time she recovered from her asthma, she was afflicted with a serious attack of
tuberculosis. The record also includes a statement from a physician in India that he
treated the respondent's mother for chronic bronchial asthma starting in "about"
October 1974 and a certificate from the director of a tuberculosis clinic that she had been
undergoing treatment since September 12, 1975. The respondent's mother indicated that
her medical expenses precluded her from sending her son money for his education.
Although the immigration judge questioned whether the respondent's mother's illness
was the reason he began working, the nature and circumstances of the mother's illnesses
were not placed in doubt.

Interim Decision #2821
The respondent appeals from the denial of adjustment of status.
Through counsel, he submits that unauthorized employment should
not of itself lead to a discretionary denial of adjustment of status to a
respondent who is statutorily eligible for such relief. It is submitted

that Matter of Arai, supra, and Matter of Lam, supra, are controlling
here, that the immigration judge erroneously failed to give any weight
to the favorable fact that the respondent had an approved labor
certification as a professional, and that relief should have been granted
in the exercise of discretion. Counsel submits that unauthorized employment should not alone be determinative of the discretion issue
because "of the common knowledge that almost every applicant for
permanent residence has worked without permission."
We agree with the immigration judge that the facts here are distinguishable from those in Matter of Arai, supra, and Matter of Lam,
supra. In both Arai and Lam, the respondents, who had worked
without permission, were ultimately certified by the Department of
Labor for the very employment they had previously engaged in. Thus,
the Department of Labor found that their employment was not of a
nature to have any adverse impact on the American labor market.
Their employment in fact was necessary to the employer who applied
for the labor certification on their behalf. Under these circumstances,

we found that the unauthorized employment should not be deemed an
adverse factor in determining whether adjustment of status was warranted in the exercise of discretion.
In this case, as noted by the immigration judge, the respondent's
employnient was neither authorized by the Service nor found not to
have had an adverse impact on this country's labor market. Under
these circumstances, unauthorized employment is a negative consideration to be weighed in the exercise of discretion.

This conclusion, however, is not dispositive of the case before us.
Although unauthorized employment of the type at issue here is an

adverse factor, we find that this factor alone should not ordinarily
result in the discretionary denial of adjustment of status to those
individuals who are statutorily eligible for that relief and who present
no other negative considerations'
In this regard, we note that as of January 1, 1977, section 245(c) of
the Act has expressly precluded certain aliens from adjusting their
status if they engaged in unauthorized employment. This statutory
The nature and circumstances of an individual's unauthorized employment, however,
may in certain cases be such•as to alone warrant a discretionary denial of relief absent a
. showing of significant countervailing equities (e.g., where it is clear that the employment
had a significant adverse impact on the labor market or where the timing of the

employment cast doubts on the individual's true intentions at the time of entry as a
nonimmigrant).

n

Interim Decision 112821
preclusion does not apply to those individuals whose only unauthorized
employment occurred prior to January 1, 1977, or who engaged in
unauthorized employment after filing their adjustment application, or
who qualify as "immediate relatives" of United States citizens. We

decline to adopt a rule regarding the exercise of discretion which could
in effect expand this statutory bar beyond the limits set by Congress
and prevent adjustment of status to all aliens who engaged in
unauthorized employment. Accordingly, we conclude that if an individual is not within the scope of the section 245(c)(2) bar and if his or
her unauthorized employment is the only adverse matter of record,
adjustment of status should not ordinarily be denied in the exercise of
discretion.
In the present case, the respondent was denied adjustment of status
because the immigration judge did not find sufficient countervailing
equities to offset the adverse impact of the respondent's unauthorized
employment' There were no other adverse matters identified. It was
not concluded that the respondent had entered with a preconceived
intent to remain permanently or that he had engaged in any fraud or
misrepresentation in connection with his application for his student
visa. He had no prior immigration violations nor any criminal record.
His certification as a professional chemist in 1976 indicated that he

could be a "definite boon to the American culture and workforce." See
Matter of Stamatiades, 11 I&N Dec. 643, 645 (D.D. 1966).
Under these circumstances, we find that the respondent should not
be denied adjustment of status in the exercise of discretion. The appeal
will accordingly be sustained. The record will be remanded for further
processing of the respondent's application for adjustment of status
and for the entry of an order not inconsistent with the foregoing
decision.
ORDER? The order of the immigration judge is vacated and the
record is remanded for further proceedings consistent with this

decision.

' This case is not controlled by section 245(c)(2). Both the employment in question here
and the filing of the adjustment application by the respondent occurred prior to January
1, 1977.