Interim Decision #1627

MASTER OF SEMERZIAX
A-10417492
In Visa Petition Proceedings

Decided by Regional Commissioner June 28, 1986
An immigrant faion within tho purview of section 212(a) (14), rinnitsration and Nationality Act, as amended by P.L. 89-236, must establish a bona
fide intent to work in the United States, immediately or in the forseeable

(1)

future, in his qualifying endeavor or b a related field.
(2) Since a mechanical engineer is a member of the professions within the

meaning of sections 203(a) (3) and 101(a) (32) of the Act, as amended, a
qualified mechanical engineer, who has established a bona fide intent to
work in the United States in his profession, is eligible for third preference
classification under the quota.

Discussion: This case comes forward on appeal from the decision
of the District Director, Los Angeles, who denied the application
on April 26, 1966 as follows:
Ton have based your claim to eligibility for third preference classification
. upon your profession of mechanical engineer. The record in your case reflects
that since you obtained your degree in engineering you were employed in that

field for a period of two months, from June 1965 to August 1965 and that
since January 1966 you have been employed as a distributor for the Kirby
Vacuum Cleaner Company. The record further reflects that you have been
unable to secure employment as an engineer and that you have no definite
plans to secure employment in that field in the near future. You base. therefore, failed tb establish that you intend to pursue the profession upon which
you base your petition for third preference classification.,

Applicant is a 36-year-old single male, a native and citizen of
Syria. He was admitted to the United States as a student at New
York, New York on October 27, 1956, destined to Bozeman, Montana,
where he enrolled as a foreign student at Montana State College.

He was granted extensions of stay in that status to March 20, 1965.
Except for the first year applicant has been supporting himself by
various odd campus jobs, summer employment, several scholarships,
and from 1960 to 1965 as a salesman and serviceman for the Kirby
751

Interim Decision #1627
Company of Southern Montana, distributors of Kirby vacuum cleaners. He was awarded a degree of Bachelor of Science in general
studies on June 4, 1962 and a Bachelor of Science Degree in mechanical engineering on March 20, 1965, both degrees from the Mon=
tuna State College, Bozeman, Montana. On April 96, 1965 he
applied for practical training as a field engineer for the Kirby
Company of Southern Montana. This application was denied May
24, 1965 in that the practical training to be given by the Kirby
Company was not sufficiently related to the field of mechanical
engineering to justify granting the application.
At the time his application for practical training was denied;

applicant was granted until June 24, 1965 to depart voluntarily from
the United States. He then left Montana and went to Los Angeles, ,
California, where he obtained employment with the Security Metal
Products Corp. on June 28, 1965 as a junior mechanical engineer
under a, training program with a starting salary of $400 per month.
In August, 1965 Security Metal Products Corp. released him from
their training program because his previous training did not meet
company requirements.
In a statement before an officer of this Service on April 21, 1966,
the applicant testified that following his release by Security Metal
Products Corp. he made various applications to other companies for
a position as a mechanical engineer but was turned down because
"I was not a citizen or resident of the United States." He further
testified that he then borrowed $5,000 and Get up a business as area

distributor of Kirby Vacuum Cleaners for the West Los Angeles
and Hollywood area. He concluded his statement by saying, "It is
my hope that I can make enough money to pay off debts and some
day return to school to advance my education in engineering." On December 14, 1965 the applicant submitted his petition in his
own behalf for classification for preference status under section 203
(a) (3) of the-Immigration and Nationality Act on the basis of his
profession as a mechanical engineer. The petition was accompanied
by Form ES 575A, "Statement of Qualifications of Alien," indicating
that he is seeking work in "mechanical engineering" and evidence
that he was awarded a Bachelor of Science Degree in general studies
and mechanical engineering at Montana State College, Bozeman,
Montana. .This form also shows that at that time applicant was
self-employed as area distributor for Kirby Vacuum Cleaners doing
sales and service work.
The District Director denied the petition in that petitioner had
'failed to establish that he intended to pursue the profession upon
752

Interim Decision *1627
which the petition for third preference classification was based, that
is, the profession of mechanical engineer.
Section 203(a) (3) of the Immigration and Nationality Act provides for the issuance of visas "to qualified. immigrants who are member: of the professions, or who because of their exceptional ability
in the sciences or the arts will substantially benefit prospectively
the national economy, cultural interests, or welfare of the United
States. Seetion 101(a) (32) states: "The term 'profession' shall in•lude hilt not be limited to architects,•engineers, lawyers, physicians,
• surgeons, and teachers in elementary or secondary schools, colleges,
academies, or seminaries."

The beneficiary is a member of a profession within the purview
of section 203(a) (3) by reason of his academic degree in mechanical
engineering from an accredited institution of higher learning. Befor• the petition may be approved, in addition to determining that
the beneficiary is quhlified professionally, the certification required.
by section 212(a) (14) of the Immigration and Nationality Act, as
amended, must- have been issued by the Secretary of Labor (or his
designated representative). This section provides as a prerequisite
for the admission of certain aliens seeking to enter the United States
for the purpose of performing skilled or unskilled_ labor that there
must have been issued in their behalf a certification by the Secretary
of Labor that:
(A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time or application for a visa and admission to the Uilited StatCs and the place where the. alien is to perform'
such skilled or unskilled labor; and
(B) the employment of such aliens will 'not adversely affect the wages and
working conditions of Workeis in the United States similarly employed.

The section specifically includes within its ambit immigrant aliens
described in section 203(a) (3). •
The Secretary of Labor, pursuant to section 212(a) (14), has de' termined that mechanical engineering is a category in which there
. are not sufficient workers who are • able, willing, qualified, and available for employment, and employment in such category will not
adversely affect the wages and working conditions of workers in
the United States similarly employed (29 CFR 60, Schedule .11,
Gioup II).
The phrase "for the purpose of performing," in section 212(a) (14),

clearly indicates that an immigrant alien within the contemplation
of section 212(a) (14) must •establish a bona fide intent to engage
immediately or in the foreseeable future in his profession or a related.
field. In addition, at page 12 of the Rouse of Representatives Report

753

Interlin Decision *1627
No. 145, 89th Congress, First Session, prepared by the Committee•

on the Judiciary in connection with H.R. 2580 (which, as amended,
was enacted as P.L. 89-236), the Committee made the following
statement regarding the preferences established by the propose&
• legislation•:
Pieference is also provided for those professional people, with personal qualifieations, whose services are urgently needed in the United States.

Thus, it appears to be clear that it was the Congressional intent to
award a preference classification to members of the professions, in
Contemplation that they -would perform needed services for which
their professional status qualified them.

It does not appear to have

been the wish of the Congress to award such a preference to an alien '
who, although fully qualified as a member of the professions, had no
intention of engaging in his profession or, at least, in' a related field'
for which he was fitted by virtue of his profestional education or
experience.
Sines an applicant for a visa under section 203(a) (3) may, be a
member of a profession for which a license, or even citizenship, may -

be a prerequisite before he may engage in his professional endeavor,.
we do not read into the statutes or regulations a requirement that the
applicant must. be able to engage in the qualifying profession immediately, if admitted to the United States. It is sufficient if he can
show a bona fide purpoie or intent to work in the United Statesin his qualifying endeavor. • In determining whether the alien intends to engage in his profession or in a field related thereto, consideration inay.he given to factors such as whether he is presently so ,
employdan,ifthegomasntbe ployd
and the reason therefor. Consideration may also be given to the•
alien's own declaration regarding his intended employment.
In this case, the applicant received a degree in mechanical engineering in March 1965. He was employed as a junior mechanical
.

engineer from June to August 1965, at which time he was released
because his prior training did not meet company requirements. He-,
stated that he sought employment with other companies as a mechan-:
ical engineer but was unsuccessful because he was not a citizen. He

then found it necessary in order to earn a livelihood to procure employment with the Kirby Company. He stated that he had hoped to
earn enough to liquidate his debts and to eventually receive further
schooling in engineering.
On appeal petitioner requested oral argument before the Regional
Commissioner. The request was granted. In oral argument on May 24,
1966 petitioner stated that after' obtaining work with the Kirby
754

Interim Decision #1627

'Company in Los Angeles as a salesman, and later assuming the
.distributorship for the company, he continued his efforts to obtain
a mechanical engineering position which he stated had always been his primary goal. lie stated he had been successful in obtaining a •
wing position and had started. working in such .
mechanical engineering
position the day before (May 23, 1966). He presented a. letter dated
May 10, 1966 addressed to the petitioner under the letterhead of Fed•eral Manufacturing Corporation, North Hollywood, California. This
letter reads as follows:
In our interview with you, we understand you have graduated from Montana
'State College in March, 1965,,as a mechanical engineer.
We have an opening for a person of your capabilities with our firm in the
-capacity of design of machine elements, mechanical drawing & research & testing of mechanical properties of metals.
lour starting date will be Monday, May 143, at a salary of $2.50 per hour.

Applicant then stated that he planned to retain his distributorship
for the Kirby Vacuum Cleaners for the time being and only act in a
managing capacity, and that at such time as he became firmly established in a permanent mechanical engineering position he,would dis-

pose of his distributorship.. His present hours with the Federal
Manufacturing Corporation are from 8:00 a.m. to 3:00 p.m., leaving
evenings for necessary management duties of the Kirby distributor-. .
:ship.
Review of the record establishes that the petitioner fully qualifies
for preference status under section 203(a) (3) of the Immigration
and Nationality Act, in that he is a member of a. profession for
which there is a blanket certification as provided by 29 CFR 60-and
he has established that it is his intention to engage in his profession

in the United States. The appeal will be sustained and the petition

granted.
ORDER: It is ordered that the appeal be sustained. and the petition granted.

755


Interim Decision 112711

MATTER OF ASTORGA

In Visa Petition Proceedings
A-20952928
Decided by Board June 19, 1979
(1) Under the laws of the State of Washington, a marriage in any jurisdiction may be

declared invalid as of the date of the marriage and this declaration in essence renders
the question of the existence of the marriage totally irrelevant. Wash. Rev. Code
26.09.040.
(2) Under Wash. Rev. Code § 26.09.040, the question of void and voidable marriages is
avoided and a declaration of invalid marriage is obtained in proceedings akin to
divorce proceedings.
(3) As a general rule, marriages declared void at inception or annulled will not relate
back to cure a ground of exclusion or deportation at the time of entry where the alien
entered the United States in an immigrant status dependent on his being unmarried.
Matter of Wong, 16 I&N Dec. 87 (BIA 1977); Matter of R—J—, 7 I&N Dec. 182 (BIA
1956), reaffirmed.
(4) As a general rule, retroactive effect will not be given an annulment in deportation or
exclusion proceedings if no immigration law fraud is noted and injustice would result
if the relation-back concept were applied. Matter of Castillo-Sedano,15 I&N Dec. 445
(BIA 1975); Matter of B—, 3 I&N Dec. 102 (BIA 1947), affirmed.
(5) In a case involving visa petition proceedings, not exclusion or deportation proceedings, where no fraud, misrepresentation, or manipulation of the immigration laws was
alleged, and where a declaration of invalid marriage was obtained in the State of
Washington, no purpose would be served by finding the possible previous marriage in
Mexico an impediment to the present marriage in Washington on which the visa
petition is based, and the visa petition will be approved.
ON BEHALF Or PETITIONER:

Dan P. Danilov, Esquire
9828 Seattle-First National Bank Bldg.
Seattle, Washington 99154

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

The United States citizen petitioner applied for immediate relative
status for the beneficiary as her spouse under section 201(b) of the
Immigration and Nationality Act, S U.S.C. 1151(b). In a decision dated
July 25, 1978, the District Director denied the petition on the ground
that the beneficiary had previously entered into a marriage in Mexico,
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Interim Decision #2711
that this prior marriage had not been dissolved, and that the beneficiary was not free to marry the petitioner. The petitioner appealed from
this decision. In a decision dated November 24, 1978, this Board remanded the record to the District Director so that he might consider a
court order from the Superior Court of Washington for King County

declaring the prior marriage invalid from its inception, and a letter
from the Municipal President of Cuautla, Jalisco, Mexico, stating that
no record of the prior marriage existed in the archives there. The
record is now back to us upon certification by the District Director
pursuant to our order. In his decision of February 12, 1979, he again
found that the petitioner had not provided proof that the declaration
of invalidity made the marriage between the petitioner and the beneficiary valid for immigration purposes and reaffirmed his first decision.
He did not discuss the letter from the President of the Municipality.

However, as we have concluded that the petitioner's marriage is valid
for immigration purposes, there is no need to again remand the record.
The petitioner and the beneficiary were married on March 12, 1978,
at Seattle, Washington. Previously, in statements made to the Service, the beneficiary and his purported first wife had contended that
they were married. Thus, when the present petitioner submitted the
visa petition. on behalf of the beneficiary, a question arose as to the
dissolution of the first marriage. The petitioner submitted an affidavit
by the beneficiary that he had not previously been married, and a
statement from a City President and Judge of the Civil Register of the
State in Santiago Papasquiaro, Durango, Mexico, and letters from five
persons attesting to the fact that the beneficiary had not previously
been married. Among those submitting the letters was the purported
first wife. The District Director found the evidence submitted selfserving, not credible, and not sufficient to overcome the prior information given by the beneficiary and the alleged first wife.

On appeal, the petitioner submitted a copy of an order issued by the
Superior Court of Washington for King County on October 6, 1978, and
a letter from the Municipal President of Cuautla. The court order was
in the form of a "Declaration of Invalid Marriage" and stated that the
marriage was invalid from inception. The President's letter stated that
no record of marriage existed in that municipality. The record was
remanded so that the District Director could consider this evidence.
He did, as noted, consider the Declaration of Invalid Marriage and
found it unpersuasive.
Since we also find that the letters and the statements of the beneficiary are self-serving and weak evidence, in the fact of the previous
information provided, we will focus on the Declaration of Invalid
Marriage as the major piece of evidence presented by the petitioner to
prove the validity of his present marriage.
2

Interim Decision #2711
In 1978, the Washington legislature to a great extent overhauled the
laws dealing with domestic relations. As part of this process, it instituted a Marriage Dissolution Act.' Included in this Act was a section
codified as Washington Revised Code § 26.09.040.z This is the section
under which the beneficiary here proceeded to have his purported first
marriage declared invalid. Since this is the case, it is necessary for us
to consider first the legal effect of this action under Washington law,
and secondly, its effect for purposes of the immigration law.
As to the first point, the Declaration states that the marriage was
"declared invalid for all purposes from its inception and the relationship of the parties hereto does not constitute a marriage under the
laws of any jurisdiction where they have resided in the past." It is clear
that by the terms of Wash. Rev. Code § 26.09.040 a court can ". . .
declare the marriage invalid as of the date it was purportedly contracted;" and that:
(c) If it finds that a marriage contracted in a jurisdiction other than this state, was
void ov voidable under the law of the place where the marriage was contracted, and in
the absence of proof that such marriage was subsequently validated by the laws of the
place .of contract or of a subsequent domicile of the parties, shall declare the marriage
invalid as of the date of the marriage.

These provisions clearly grant the court jurisdiction to do what it
did. It would also appear that the question of whether or not the
purported marriage was either void or voidable according to Mexican
law is irrelevant. The Marriage Dissolution Act in 1973 repealed Wash.
Rev. Code § 26.08.050 which provided for the annulment of void marriages.3 The Act has eliminated distinctions between void and voidable
marriages and simply authorizes a declaration of invalidity. The apparent purpose of this action was to avoid argument over the meaning
of the words "void" and "voidable" and also to avoid conflict of laws
questions.' This being the case, it is not necessary to decide whether or
not there was a common law or other type marriage entered into in
Mexico, and to identify it as "void" or "voidable."
The fact that the Act repealed the annulment statute, however, and
in effect replaced it with a hybrid, is important in the sense that the
Washington law consequently stands outside the traditional annulment laws which have previously been considered by this Board. See
generally, Matter of B , 3 I&N Dee. 102 (BIA 1947); Matter of F , 9
I&M Dee. 275 (BIA 1961). By its clear terms, this section indicates that
-

—

—

' Marriage Dissolution Act (1973) Ch. 157 11 1-31, Washington Session Law; let Ex.
Seso-. 1215 29; Codified in Wash. Rev. Code, Title 26 (1975).
2 Included as an addendum.
3 1st Ex. Sess. 1973 Wash. Laws Ch. 157 31).
4 Rieke The Dissolution Act of 1973: From Status to Contract? 49 Wash. L.R. 375, 392-

393 (1074).

8

Interim Decision #2711
the marriage declared invalid is invalid from inception. The Act consequently provides a means for the parties to have a marriage declared
invalid as if it had never existed and in essence renders the question of
the existence of the marriage totally irrelevant, but does this in a
procedure more analogous to divorce than annulment.'
The legal effect under Washington law having been established, the
next question that arises is the effect such a declaration has for
purposes of the immigration laws. It is apparent from previous cases

that the issue of void, voidable, and annulled marriages has been a
difficult one. Generally, however, the Board has found that marriages
declared void at inception, or annulled, will not relate back to cure a
ground of exclusion or deportation at the time of entry where the alien
entered the United States in an immigrant status dependent on his
being unmarried. Matter of Wong,16 I&N Dec. 87 (BIA 1977); Matter of
7 I&N Dec. 182 (BIA 1956); Hendrix v. INS, 583 F.2d 1102 (9
Cir. 1974). The purpose of such a policy was generally to avoid manipulation of immigration priorities through changes in marital status not
undertaken in good faith. Hendrix, id., at 1104.
Conversely, however, other cases recognized that in certain instances, retroactive effect should not be given an annulment, but for an

entirely different reason. Matter of Castillo-Sedano, 15 I&N Dec. 445
supra The gnideline in these latter rases
(RA 1975); Matter of
was essentially that despite the fact that annulments generally related
back to the time of marriage, this principle would not be applied where
no immigration law fraud was noted and where injustice would result
if the relation-back concept were applied. In several other cases, the
Board found that the annulment decrees were retroactive, to a great
extent because the applicable state laws stated so. Matter of T—, 3 I&N
Dec. 528 (BIA 1949); Matter of Samedi, 14 I&N Dec. 625 (BIA 1974).
In the latter case, the result was particularly harsh, and cases that
followed tended to distinguish it. Matter of Wong, Matter of CastilloSedano, supra. The major lesson to be drawn from these cases is that
annulment decrees may have different effects depending on the nature
of the case and the purposes to be served by giving an annulment
decree retroactive effect. Consequently, even if the statute presently
under consideration were to be classified as an ordinary annulment
law, its effect in regard to the immigration laws would not have to be
the same as that cited by the District Director in his decision_ In
addition, another point of distinction is the fact that in all of the cases
cited, with the exception of Samedi, supra, either fraud, misrepresentation, or manipulation of the immigration laws was a consideration in the context of deportation or exclusion proceedings.
Those cases are consequently also distinguishable from the present on
this point. It should also be noted that this result is consistent with the
49 Wash. L.R. 392.

4

Interim Decision #2711
general principle that the validity of a marriage for immigration
purposes is governed by the law of the place where the marriage is
celebrated. See Matter of Adamo, 13 I&N Dec. 26 (BIA 1968). It is clear
that the State of Washington would recognize the present marriage as
valid.
In this instance, the case involves neither exclusion nor deportation,
but the approval of a visa petition for a beneficiary who did not receive
any immigration benefits through his purported first marriage. In a
previous case involving a visa petition, the Board found the fact that
the beneficiary's marriage to the petitioner took place prior to the
annulment of the first marriage did not render the marriage to the
petitioner invalid for immigration purposes. Matter of F , supra. We
—

think that a similar result is warranted here. By his first marriage, the
beneficiary did not evade the immigration laws and there is no indication in the record that the present marriage is anything other than
bona fide; consequently, a major negative element of the cited deportation and exclusion cases is lacking here. In addition, we can conceive of
no purpose that would be served by finding that the present marriage
was invalid for immigration purposes.
In short then, the process under which the beneficiary's possible
Previous marriage was declared invalid under Washington law is
distinct from the usual annulment procedures. It makes no distinction
between void and voidable marriages and is designed to enable persons
to resolve their status for whatever lawful purpose the court will
accept. The declaration of invalidity clearly relates back to the date of
the marriage and voids it as of the date it was purportedly contracted.
The beneficiary's actions have met the criteria of Washington law. His
possible prior marriage is thus invalid for all purposes in Washington.
Since this is the case, and there is no purpose of the immigration laws
that could be furthered by finding his possible previous marriage still
valid and a bar to his present marriage, we have concluded that the
beneficiary's possible prior marriage does not stand as an obstacle to

his present marriage. The appeal will accordingly be sustained.
ORDER: The appeal is sustained and the visa petition is approved.
ADDENDUM

26.09.040—Petition to have marriage declared invalid or judicial determination of validity—Procedure—Findings—GroundsLegitimacy of children
(1) While both parties to an alleged marriage are living, and at least
one party is resident in this state or a member of the armed service and
stationed in the state, a petition to have the marriage declared invalid
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Interim Decision #2711
may be sought by:
(a) Either or both parties, or the guardian of an incompetent
spouse, for any cause specified in subsection (4) of this section: or
(b) Either or both parties, the legal spouse, or a child of either
party when it is alleged that the marriage is bigamous.

(2) If the validity of a marriage is denied or questioned at any time,
either or both parties to the marriage may petition the court for a
judicial determination of the validity of such marriage.
(3) In a proceeding to declare the invalidity of a marriage, the court
shall proceed in the manner and shall have the jurisdiction, including
the authority to provide the maintenance, custody, visitation, support,
and division of the property of the parties, provided by this chapter.
(4) After hearing the evidence concerning the validity of a mar-

riage, if both parties to the alleged marriage are still living, the court
(a) If it finds the marriage to be valid, shall enter a decree of
validity:
(b) If it finds that:
(i) The marriage should not have been contracted because of
age of one or both of the parties, lack of required parental or court
approval, a prior undissolved marriage of one or both of the
parties, reasone of consanguinity, or because a party lacked capacity to consent to the marriage, either because of mental incapacity
or because of the influence of alcohol or other incapacitating

substances, or because a party was induced to enter into the
marriage, by force or duress, or by fraud involving the essentials of
marriage, and that the parties have not ratified their marriage by
voluntarily cohabiting after attaining the age of consent, or after
attaining capacity to consent, or after cessation of force or duress
or discovery of the fraud, shall declare the marriage invalid as of
the date it was purportedly contracted;
(ii) The marriage should not have been contracted because of
any reason other than those above, shall upon motion of a party,
order any action which may be appropriate to complete or to
correct the record and enter a decree declaring such marriage to
be valid for all purposes from the date upon which it was
purportedly contracted:
(c) If it finds that a marriage contracted in a jurisdiction other
than this state, was void or voidable under the law of the place where
the marriage was contracted, and in the absence of proof that such
marriage was subsequently validated by the laws of the place of
contract or of a subsequent domicile of the parties, shall declare the
marriage invalid as of the date of the marriage.
(5) Any child of the parties born or conceived during the existence of
a marriage of record is legitimate and remains legitimate notwithstanding the entry of .s. deulareliun of invalidity of the marriage.
[Enacted Laws 1st Ex. Sees. 1973 Ch. 157 § 4; Amended by Laws 19.75
Ch. 32 § 2.]
6


Interim Decision #1942

MATTER OF CAMPOS
In Deportation Proceedings
A-8960574
Decided by Board February 6, and February11, 1969
A motion to reopen the deportation proceedings is denied by the Board
where the identical issue raised was before the Court of Appeals when it
considered and dismissed respondent's petition for review. However, where
new evidence adduced since entry of the judgment of the Court of Appeals
is subsequently presented, proceedings are reopened for further action in
light of the new evidence.
DEPORTABLE: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251 (a) (9)3—After
admission as a nonimmigrant and subsequent
change to another nonimmigrant status under
section 248 of the Act, failed to comply with
the conditions of changed status.
ON BEHALF OF RESPONDENT:
Sidney Broffman, Esquire
756 South Broadway, Suite 818
Los Angeles, Calif. 90014
(Brief filed)

ON BEHALF OF SERVICE:

Reece B. Robertson
Trial Attorney
(Brief filed)

BEFORE THE BOARD

(February 6, 1969)
The case comes forward upon motion of counsel to reopen, set
aside and vacate our order dated August 8, 1967; declare invalid,
set aside and vacate the Class "A" medical certificate of the
United States Public Health Service; and remand the case for a
further examination.
The respondent, a native and citizen of the Republic of the
Philippines, 32 years old, an unmarried male, last entered the
United States at the port of Honolulu, Hawaii on or about July
14, 1954 as a nonimmigrant visitor. His nonimmigrant status was
changed to that of a student and he was authorized to remain in
the United States until March 4, 1963. The respondent was
granted the privilege of _voluntary departure on July 28, 1966,

148

Interim Decision * 1942
such departure to be effected on or before August 5, 1966. The respondent failed to depart and concedes deportability.
The respondent applied for adjustment of his status to that of

a permanent resident alien under the provisions of section 245 of
the Immigration and Nationality Act. He was convicted on two
occasions under the laws of the State of California on charges relating to public decency and lewd conduct (Exs. 5 and 6). The re-

spondent was examined by a medical officer of the United States
Public Health Service on January 12, 1966 and was certified on
March 26, 1966 as a Class A Sexual Deviate. A board of medical
examiners affirmed the medical findings pursuant to section 234
of the Immigration and Nationality Act on July 25, 1966. The
special inquiry officer found that the respondent was statutorily
ineligible for relief under section 245 because he was inadmissible
to the Unted States pursuant to section 212 (a) (4) of the Immigration and Nationality Act. On appeal, on August 8, 1967, we
affirmed that finding.
Thereafter, the respondent filed a petition for review in the
Court of Appeals for the Ninth Circuit. Crisologo Redondo Campos v. INS, 402 F.2d 758. The court on October 28, 1968 held that
the dismissal of the petitioner's application for adjustment of status to that of a permanent resident and of his application for suspension of deportation was proper inasmuch as an alien seeking
to adjust his status to that of a permanent resident is assimilated
to the position of an alien seeking to enter the United States for
permanent residence except for entry documents and affirmed the

finding of inadmissibility under section 212 (a) (4) of the Act (8
U.S.C.A. 1182 (a) (4)). The court concluded that the petitioner's
contentions that he was treated unfairly and in violation of due
process of law, as guaranteed by the Fifth Amendment to the
United States Constitution, were without merit.
The main thrust of the present motion is the alleged failure to
comply with the procedures and regulations of the United States
Public Health Service and with the "Manual For Medical Examination of Aliens." However, these matters are not new but were
on the record as they existed prior to the petition for review of
the order of the Immigration and Naturalization Service, and
were .raised, by inference at least, in the appeal of the prior attorney which was disposed of by this Board in its decision of August 8, 1967 and by the court in its decision of October 28, 1968.
A party ordinarily cannot bring repeated court proceedings
testing the same issues. Such repetitious litigation is precluded by

the principle of res judicata, which declares that a person cannot
149

Interim Decision #1942
present to the courts an issue which was decided or could have
been raised in a previous litigation between the same parties. 1
There must be some finality to litigation. The respondent had his
opportunity in court. His complaint was dismissed. He cannot
now file substantially the same complaint and ask the court again
to consider the matter. The dismissal of the former complaint is
res juclicetta. 2

Counsel has cited the case of Matter of Caydam, 12 I. & N.
Dec. 528 (1967). However, Caydem was an administrative decision and the bar of res judicata does not apply to administrative
decisions. Here, the validity of the Public Health Service finding
had already been raised and the Court of Appeals for the Ninth
Circuit has sustained our prior order. The court's judgment is res
judicata. We cannot permit piecemeal litigation of issues. We
must defer to the judgment of the reviewing court. The motion
will be denied.
ORDER: It is ordered that the motion be and the same is
hereby denied.
BEFORE THE BOARD

(February 11, 1969)
Following entry of our order of February 6, 1969, but before
copies thereof were sent out, we received a letter dated February
5, 1969 from counsel for the respondent, enclosing a letter dated
January 29, 1989 from the Assistant Surgeon General concerning
the respondent. The letter of January 29, 1969 states, in part:
After review of the procedures used and the testimony taken at the previous
examination, it has been decided that the eSt_Se merits reexamination. this
will be done by a medical board made up of officers who have not previously
been involved with this case .

In his order of March 28, 1967, the special inquiry officer found
respondent ineligible for section 245 relief because he had been
certified by the United States Public Health Service as a Class
"A" Sexual Deviate. In our order of August 8, 1967, we rejected
respondent's challenge to that finding and our order was sustained on judicial review, Campos v. INS, 402 F.2d 758 (9 Cir.
1968). Respondent's new attack on the Class "A" medical certificate was dismissed in our February 6, 1969 order because we con1 Gordon and Rosenfield, section 8.19, citing Commissioner v. Stinnett,
333
U.S. 591, 597 (1948) ; see U.S. v. Rangel-Perez, 179 F. Supp. 619 (S.D. Cal.

1959).
2

Frisina v. Esperdy, 61 Civ. 221 (S.D. N.Y. 1961).

150

eluded further review was barred on res judicata principles by
the Ninth Circuit's judgment.
The Assistant Surgeon General's letter of January 29, 1969,
though somewhat informally presented, undoubtedly constitutes
new evidence which has accrued since entry of the Ninth Circuit's judgment. Consequently, principles of res juclicata do not
preclude our consideration of this new evidence. It now appears
that the medical findings underlying the special inquiry officer's
conclusion of ineligibility are being reexamined. If this new evidence had been presented before we entered our order of February 6, 1969, we would have directed reopening. No reason appears why we should not do so now.
It is irdered that our orders of February 6, 1969 and August 8,
1867, and the special inquiry officer's order of March 28, 1967, be
vacated, but only insofar as concerns the issue of respondent's eligibilitY for section 245 relief; and that the case be remanded to
the special inquiry officer for such further proceedings as may be
appropriate in the light of the evidence now presented.

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Interim Decision #2504

MATTER OF PALSANG

In Visa Petition Proceedings
A-20752907
Decided by Board July 9, 1976
(1) United States citizen petitioner sought to classify beneficiary as an immediate relative
spouse under saction201(b) of the Immigration and Nationality Act based on a marriage
according to Tibetan custom and tradition contracted in India on July 10, 1974. As
evidence of dissolution of beneficiary's prior marriage, she submitted an agreement
sworn and executed by herself and her first husband dated November 28, 1974—four
months after the date of the marriage which supports this petition. Beneficiary claims
her first manic ge was terminated under Tibetan custom and tradition in July 1973 when
she and her first husband ceased to live together as husband and wife.
(2) Under seetiors 2 and 29 of the Hindu Marriage Act, 1955, No. 25, which is controlling
in this case, a :3uddhist marriage in India may be dissolved in accordance with custom
without the intervention of a onurt gertion 3 of that At requires that the (matron he

certain; not un:•asonable, nor contrary to public policy. However, in order to claim the
benefits of the custom, the party must prove the prevalence of the custom and its
applicability to him.
(3)Where beneficiary did not substantiate the existence of the custom, or its applicability
to her, there • was no evidence that the dissolution of the marriage met the stated
requirements, and the subsequent customary marriage was not valid for immigration
purposes.
ON BEHALF OF PETITIONER: Thomas J. Watson, III, Esq.
Watson, Snow & Bartlett
225 Franklin Street
Boston, Massachusetts 02110

The United States citizen petitioner applied to have the beneficiary
classified as an immediate relative spouse under section 201(b) of the

Immigration and Nationality Act. In a decision dated June 24, 1975, the
district director denied the petition on the ground that the beneficiary
had a prior existing undissolved marriage. The petitioner has appealed.
The appeal will be dismissed.
The petitioner and the beneficiary are both Buddhists, natives of
Tibet; the beneficiary is a refugee in India. They were married according to Tibetan custom and tradition in India on July 10, 1974, and the
marriage was attested by them in the Court of the Southern District
Judicial Magistrate at Darjeeling, India, on July 13, 1974. However, the
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Interim Decision #2504
beneficiary was previously married, apparently under Tibetan custom
and tradition; a daughter was born of that union on July 6, 1970 in India.
An agreement dissolving the prior marriage was submitted. This
agreement was sworn and executed by the beneficiary and her first
husband before officials of The Darjeeling Tibetan Refugee Cooperative Collective Farming Society, Ltd. It, however, was dated
November 28, 1974; this is four months after the date of the marriage
which supports the visa petition.
On appeal counsel contends that the effective date of the dissolution of
the beneficiary's first marriage is not November 28, 1974 the date of the
agreement, but rather in July, 1973, when the parties ceased to live
together as man and wife. He argues that under Tibetan tradition and
custom, such cessation of cohabitation constitutes a lawful divorce between the parties.
In support of his contention counsel submitted a letter dated July 9,
1975, from the New York Office of the Representative of His Holiness of
the Dalai Lama in New Delhi. In that letter it is stated in reference to
the agreement dissolving the marriage dated November 28, 1974:
The statement is not a formal decree, effective upon signing, since according to Tibetan
custom, the divorce was legally effective when the couple ceased to reside as man and
wife in July of 1973.

Inasmuch as the parties, at the time of the divorce, were domiciled in
India, the legal provisions in India would govern such a divorce. Section
2 of the Hindu Marriage Act, 1955, No. 25, states in pertinent part:
2. (1) This Act applies—
(b) to any person who is a Buddhist . . . .

A Buddhist marriage in India may be dissolved under section 29 of the
Hindu Marriage Act, 1955, No. 25, in accordance with custom without
the intervention of a court. Additionally, under section 3 of the Act, the
custom must be certain; not unreasonable, nor opposed to public policy.
However, a party that desires to have the benefit of the custom must
prove not only the prevalence of that custom, but also its applicability to
him.
The existence of the custom, and its applicability to the beneficiary
have not been substantiated. Absent evidence that a dissolution of the
marriage meets the stated requirements, a subsequent customary marriage will not be recognized for immigration purposes.
The decision of the District Director was correct. Accordingly, the
appeal will be dismissed.
Should the petitioner succeed in obtaining the proper decree establishing that the dissolution of the beneficiary's marriage occurred prior
to his marriage to her, or if the petitioner remarries the beneficiary
subsequent to a dissolution of her earlier marriage, he may submit a
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Interim Decision #2504
new visa petition. In the alternative, the petitioner may seek her admission as a nonimmigrant fiancee of a citizen of the United States under
section 101(a)(15)(K).
ORDER: The appeal is dismissed.

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Interim Decision #3966

Matter of Michael Vernon THOMAS, Respondent
Matter of Joseph Lloyd THOMPSON, Respondent
Decided by Attorney General October 25, 2019
U.S. Department of Justice
Office of the Attorney General
(1) The tests set forth in Matter of Cota-Vargas, Matter of Song, and Matter of Estrada
will no longer govern the effect of state-court orders that modify, clarify, or otherwise
alter a criminal alien’s sentence.
(2) Such state-court orders will be given effect for immigration purposes only if based on
a procedural or substantive defect in the underlying criminal proceeding; these orders
will have no effect for immigration purposes if based on reasons unrelated to the merits
of the underlying criminal proceeding, such as rehabilitation or the avoidance of
immigration consequences.

BEFORE THE ATTORNEY GENERAL
On May 28, 2019, I directed the Board of Immigration Appeals (“Board”)
to refer this case for my review and invited the parties and interested amici
to submit briefs addressing relevant questions. Matter of Thomas & Matter
of Thompson, 27 I&N Dec. 556 (A.G. 2019).
For the reasons set forth in the accompanying opinion, I overrule the
Board’s decisions in Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005);
Matter of Song, 23 I&N Dec. 173 (BIA 2001); and Matter of Estrada,
26 I&N Dec. 749 (BIA 2016). The tests described in those cases will no
longer govern the effect of state-court orders that modify, clarify, or
otherwise alter a criminal alien’s sentence. Instead, for reasons similar to
those explained in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d
on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), such
state-court orders will be given effect for immigration purposes only when
the orders are based on a procedural or substantive defect in the underlying
criminal proceeding. These state-court orders will have no effect for
immigration purposes when based on reasons unrelated to the merits of the
underlying criminal proceeding, such as rehabilitation or immigration
hardship.
Accordingly, I vacate the decisions below and remand these cases to the
Board to reassess whether the relevant state-court sentence alterations should
be effective for purposes of federal immigration law.

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Aliens convicted of crimes in state court may face immigration
consequences based on the nature of the conviction and the length of the
resulting sentence. To avoid these consequences, some aliens seek
state-court orders retroactively vacating the conviction or altering the
sentence. At present, the Board of Immigration Appeals (“Board”) has
adopted three different tests to determine the legal effect of such state-court
orders, depending upon how the state court describes its decision.
If the order “vacates” an alien’s conviction, then the order has legal effect
if based on “a procedural or substantive defect in the underlying
proceedings,” but not if based on reasons “unrelated to the merits” such as
“rehabilitation or immigration hardships.” Matter of Pickering, 23 I&N Dec.
621, 624 (BIA 2003), rev’d on other grounds, Pickering v. Gonzales, 465
F.3d 263 (6th Cir. 2006). If the order “modifies” an alien’s sentence, then
the modification is given “full . . . faith and credit” for immigration purposes
regardless of the reason. Matter of Cota-Vargas, 23 I&N Dec. 849, 850–52
(BIA 2005); see also Matter of Song, 23 I&N Dec. 173 (BIA 2001). Finally,
if the order “clarifies” an alien’s sentence, then an immigration judge
assessing the order’s effect considers several characteristics of the order,
such as whether the original sentencing order contained an obvious
discrepancy and whether the clarifying court had jurisdiction to enter the
order. Matter of Estrada, 26 I&N Dec. 749, 755–56 (BIA 2016). Adding to
the confusion, the classification of a state-court order as a modification or
clarification may turn on how the state court itself labels the order, not on
any objective distinctions between the two categories.
The tests articulated in Matter of Cota-Vargas, Matter of Song, and
Matter of Estrada have no basis in the text of the Immigration and
Nationality Act (“INA”), promote inconsistency in the application of the
country’s immigration laws, and fail to advance Congress’s intent to attach
immigration consequences to certain convictions and sentences.
Accordingly, those cases are overruled. Going forward, immigration courts
should apply the test articulated in Matter of Pickering in determining the
immigration consequence of any change in a state sentence, no matter how
the state court describes its order. Such an alteration will have legal effect
for immigration purposes when based on a procedural or substantive defect
in the underlying criminal proceeding, but not when the change was based
on reasons unrelated to the merits, such as the alien’s rehabilitation or an
interest in avoiding an immigration consequence.

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I.
A.
Congress has provided that an alien’s conviction for certain serious
crimes, which result in a sentence of imprisonment of sufficient length, shall
have consequences for an alien’s immigration status. Notably, the INA
defines an “aggravated felony” to include a “crime of violence” for which
“the term of imprisonment [is] at least one year,” see 8 U.S.C.
§ 1101(a)(43)(F), and an alien convicted of an aggravated felony is ineligible
for most forms of relief or protection from removal, see, e.g., id.
§ 1227(a)(2)(A)(iii). In many cases, after the Department of Homeland
Security (“DHS”) commences removal proceedings against a criminal alien,
the alien petitions a state court to alter the conviction or resulting sentence.
An alien facing removal as an aggravated felon, for example, may ask the
state court to vacate the underlying conviction entirely, or to modify, clarify,
or otherwise alter the associated sentence so that it falls below the one-year
term of imprisonment necessary to qualify as an “aggravated felony.” The
state court’s order may have no actual impact on the alien under state law—
in most cases, the alien has already served the term of imprisonment he seeks
to alter. The sole issue then is the impact that the conviction has under the
immigration laws.
Under existing Board precedent, the immigration consequences of such a
state-court order depend on the precise form of relief granted by the court.
First, if the state court vacates the alien’s conviction, then the Board applies
the test set forth in Matter of Pickering, 23 I&N Dec. 621. In Pickering, the
Board concluded that there is a “significant distinction” between vacaturs
based on a “procedural or substantive defect in the underlying proceedings,”
and those based on “post-conviction events, such as rehabilitation or
immigration hardships.” Id. at 624. The former circumstance calls into
question whether the original conviction was valid, but the latter does not.
Hence, under Pickering, “if a court with jurisdiction vacates a conviction
based on a defect in the underlying criminal proceedings, the respondent no
longer has a ‘conviction’ as that term is defined in the INA. If, however, a
court vacates a conviction for reasons unrelated to the merits of the
underlying criminal proceedings, [then] the respondent remains ‘convicted’
for immigration purposes.” Id.
By contrast, if the state court modifies the alien’s sentence, rather than
vacating the alien’s conviction, then the Board follows the rule set forth in
Matter of Song, 23 I&N Dec. at 173–74, and Matter of Cota-Vargas, 23 I&N
Dec. at 851–52. Under those decisions, the immigration judge will
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automatically give full faith and credit to the state court order, regardless of
the reason for the modification. In Matter of Song, the respondent was
originally sentenced to a term of imprisonment of one year, but subsequently
petitioned a state court to resentence him to a term of imprisonment of 360
days. 23 I&N Dec. at 173–74. Finding the situation analogous to one where
a state court had deemed the alien’s initial sentence “to have been illegal”
and thus regarding it “as void and of no force and effect,” see Matter of
Martin, 18 I&N Dec. 226, 227 (BIA 1982), the Board concluded that “the
offense no longer [fell] within the definition of an ‘aggravated felony’ in [the
INA], and the respondent [was] not removable.” Matter of Song, 23 I&N
Dec. at 174. Elaborating upon that reasoning in Matter of Cota-Vargas, the
Board, over a dissent, held that “a modified or reduced sentence is recognized
as valid for purposes of the immigration law without regard to the trial court’s
reasons for effecting the modification or reduction.” 23 I&N Dec. at 849.
Finally, if the state court “clarifies” an alien’s sentence, then the Board
considers the characteristics of the order discussed in Matter of Estrada,
26 I&N Dec. 749. There, the respondent initially had received a
twelve-month sentence, but it was not clear whether the sentence was for
“probation” or for a “probated term of imprisonment”—only the latter of
which would have counted as a term of imprisonment under the INA. The
respondent successfully petitioned the state court to “[c]larify[]” that the
sentence was solely for probation. See id. at 755. In deciding whether to
give effect to the order, the Board considered several characteristics
previously identified as relevant by the Eleventh Circuit. See id. (citing
Herrera v. U.S. Att’y Gen., 811 F.3d 1298 (11th Cir. 2016); United States
v. Garza-Mendez, 735 F.3d 1284 (11th Cir. 2013)). These characteristics
include whether the original sentencing order contained an obvious
discrepancy; whether the original judge was the same as the clarifying judge;
whether a significant period of time had passed between the original
sentencing and the clarification; and whether the clarifying court had
jurisdiction to enter the clarification. Id. at 755–56. The Board then observed
that, in the case before it, the alien’s original sentencing order was
legitimately unclear and the clarifying order had been issued by the same
judge who had initially sentenced the alien. Id. For these reasons, the Board
gave effect to the order and concluded that the alien was not removable. Id.
at 756.
Taken together, these Board decisions establish three distinct tests
governing the immigration consequences of state-court orders that
retroactively alter a criminal conviction or sentence. These tests are
inconsistent with each other, and they cause similarly situated aliens to

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experience disparate outcomes under the immigration laws. The two cases
in this matter demonstrate this inconsistency.
B.
1.
In Matter of Michael Vernon Thomas, the respondent, a citizen of
Trinidad and Tobago, had been living in the United States as a lawful
permanent resident since 1977. In 2001, a Georgia state court convicted
Thomas of family violence battery, see Ga. Code Ann. § 16-5-23.1(f), and
sentenced him to a term of imprisonment of twelve months. In 2016, DHS
charged Thomas as removable as an aggravated felon because he had been
convicted of a “crime of violence” for which the “term of imprisonment
[was] at least one year.” See 8 U.S.C. § 1101(a)(43)(F). Thomas conceded
before an immigration judge that his conviction constituted grounds for
removal, and the immigration judge ordered Thomas removed.
While Thomas’s appeal was pending, he petitioned a Georgia state court
to alter his criminal sentence. Thomas did not allege any procedural or
substantive defect in the original criminal proceeding, which occurred over
fifteen years before, but upon the consent of the prosecution, the state court
issued an order stating, “Defendant’s sentence in the above matter is hereby
clarified to reflect that Defendant was sentenced to a cumulative term of
11 months and 28 days of probation.” The Board then remanded for the
immigration judge to review the impact of the consent order.
The immigration judge declined to credit the order, and the Board
affirmed. Because the order “clarified” Thomas’s sentence, the Board
considered the characteristics of the order identified as relevant in Matter of
Estrada. The Board observed that—in contrast to the situation of the alien
in that case—Thomas’s original sentencing order was clear; a significant
period of time (approximately fifteen years) had passed between the original
sentence and the clarification; and the state-court judge clarifying the
sentence differed from the original sentencing judge. The Board thus
declined to credit the “clarification” of Thomas’s sentence, and he was
deemed removable.
2.
In Matter of Joseph Lloyd Thompson, the respondent, a citizen of
Jamaica, was lawfully admitted to the United States in 1987. In 2012, a
Georgia state court convicted Thompson of family violence battery, see Ga.
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Code Ann. § 16-5-23.1(f), and sentenced him to a term of imprisonment of
twelve months. As with Thomas, in 2017, DHS charged Thompson as
removable as an aggravated felon, because had had been convicted of a
“crime of violence” for which the “term of imprisonment [was] at least one
year.” See 8 U.S.C. § 1101(a)(43)(F).
In March 2018, while the removal charges were pending, Thompson filed
a “Motion to Modify Sentence” in Georgia state court seeking to reduce his
sentence to eleven months and twenty-seven days. Thompson did not
identify any defect in the original criminal proceeding, but the court granted
the motion the same day. Before the immigration judge, Thompson admitted
that he had been convicted of a crime of violence, yet argued that his
modified sentence did not amount to a term of imprisonment of at least one
year.
After the immigration judge rejected Thompson’s argument, the Board
reversed on appeal. The Board acknowledged that there were questions
concerning whether the Georgia state court had jurisdiction to issue the order
and that the timing of the order suggested that it may have been issued to
affect the immigration court proceeding. But under Matter of Cota-Vargas,
the Board concluded that it must “give full effect” to the modified sentence.
Thus, in contrast with Matter of Thomas, the Board gave effect to the postsentencing state-court order and concluded that Thompson was no longer
removable.
3.
Both Thomas and Thompson were convicted of the same state law
offense, were charged with removability on the same ground, and petitioned
the state courts to alter their sentences without alleging any procedural or
substantive defects in the original proceeding. Yet these similarly situated
aliens faced markedly divergent consequences. Relying on a semantic
distinction between a “clarification” and a “modification,” the Board found
that Thomas was removable but Thompson was not. I certified these cases
to address these inconsistencies and to clarify the appropriate treatment under
the INA. See 27 I&N Dec. 556 (A.G. 2019). 1
1

After I certified these cases for my review, Thomas filed a “Motion for Production”
asserting that the Due Process Clause entitles him to a chance to respond to any “briefing,
memoranda, or other documents” that might influence the decision in his case. The motion
is denied. Thomas has received DHS’s briefs in these matters, and he had a full and fair
opportunity to raise his own arguments and respond to any other party’s arguments through
his own initial and reply brief.

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II.
The INA assigns clear immigration consequences to an alien who has
been convicted and sentenced for a state crime, yet the Board has adopted
multiple tests that permit state courts to change those results well after the
fact. Although a state court may alter a state conviction for appropriate
reasons under state law, the state court does not have the authority to make
immigration-law determinations. In view of these considerations, I conclude
that the Pickering test should apply to state-court orders that modify, clarify,
or otherwise alter the term of imprisonment or sentence associated with a
state-court conviction. As a result, such alterations will have legal effect for
immigration purposes if they are based on a procedural or substantive defect
in the underlying criminal proceeding, but not if they are based on reasons
unrelated to the merits, such as rehabilitation or immigration hardship.
Matter of Cota-Vargas, Matter of Song, and Matter of Estrada must therefore
be overruled.

A.
1.
In considering whether a state-court order that modifies, clarifies, or
otherwise alters a “term of imprisonment or a sentence” should change the
immigration consequences of the original sentence, we begin with the text of
the statute. E.g., Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). The INA
defines “conviction” and a “term of imprisonment or a sentence” as follows:
(A) The term “conviction” means, with respect to an alien, a formal
judgment of guilt of the alien entered by a court or, if adjudication of
guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has
entered a plea of guilty or nolo contendere or has admitted sufficient
facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or
restraint on the alien’s liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect
to an offense is deemed to include the period of incarceration or
confinement ordered by a court of law regardless of any suspension of
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the imposition or execution of that imprisonment or sentence in whole
or in part.
8 U.S.C. § 1101(a)(48) (emphasis added). An alien plainly has been
convicted under the INA when a court has entered “a formal judgment of
guilt,” and he has received a sentence when the court orders a “period of
incarceration or confinement,” no matter whether that sentence is executed.
The question then is whether the state court’s subsequent alteration of a
“conviction” or a “sentence” changes those facts under the INA. Neither the
INA nor the associated regulations provide further guidance on this point,
but the statute’s history helps illuminate the meaning of the phrase. Congress
amended the INA to define “conviction” following the Board’s decision in
Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). There, the Board established
a rule that “a conviction will be found for immigration purposes” where:
(1) a judge or jury has found the alien guilty or he has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a
finding of guilty;
(2) the judge has ordered some form of punishment, penalty, or restraint
on the person’s liberty to be imposed (including but not limited to
incarceration, probation, a fine or restitution, or community-based
sanctions such as a rehabilitation program, a work-release or
study- release program, revocation or suspension of a driver’s license,
deprivation of nonessential activities or privileges, or community
service); and
(3) a judgment or adjudication of guilt may be entered if the person
violates the terms of his probation or fails to comply with the
requirements of the court’s order, without availability of further
proceedings regarding the person’s guilt or innocence of the original
charge.
Id. at 551–52. Under Ozkok’s definition of “conviction,” “it was possible for
a defendant to plead nolo contendere, obtain a suspended sentence, or enter
a rehabilitation program on probation—so long as the court stopped short of
a formal adjudication of guilt—without having the offense be considered a
conviction for purposes of immigration laws.” Francis v. Gonzales, 442 F.3d
131, 140 (2d Cir. 2006). Applying this definition “required an individualized
analysis of the particular procedures of different state penal systems to
determine whether a person had been ‘convicted.’” Id.
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Congress rejected the third element of Ozkok in enacting 8 U.S.C.
§ 1101(a)(48) as part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”). The statute incorporated the first
two elements of Ozkok’s definition of “conviction,” but eliminated the third,
which had excluded certain suspended sentences. See Pub. L. No. 104-208,
div. C, § 322, 110 Stat. 3009, 3009-546, 3009-628 (1996); see also H.R. Rep.
No. 104-828, at 224 (Conf. Rep. 1996) (confirming this textual interpretation
by observing that the IIRIRA “broaden[ed] the scope of the definition of
‘conviction’ beyond that adopted by the Board of Immigration Appeals in
Matter of Ozkok,” which had not gone “far enough to address situations
where a judgment of guilt or imposition of sentence [was] suspended.”);
Francis, 442 F.3d at 141 (collecting cases acknowledging “that in enacting
IIRIRA, Congress specifically and deliberately abrogated the Ozkok test”).
In enacting section 1101(a)(48), Congress made clear that immigration
consequences should flow from the original determination of guilt. In
addition, Congress ensured uniformity in the immigration laws by avoiding
the need for immigration judges to examine the post-conviction procedures
of each State. See Saleh v. Gonzales, 495 F.3d 17, 23 (2d Cir. 2007)
(“Interpreting the new definition, the BIA identified two primary aims that it
believed Congress sought to accomplish: to focus the conviction inquiry on
the ‘original determination of guilt’ and to ‘implement a uniform federal
approach.’” (quoting Matter of Roldan–Santoyo, 22 I&N Dec. 512, 521–22
(BIA 1999)); Herrera-Inirio v. I.N.S., 208 F.3d 299, 306 (1st Cir. 2000)
(explaining the “emphasis that Congress placed on the original admission of
guilt” when enacting the new definition of “conviction” (emphasis in
original)); id. at 305 (explaining that Matter of Ozkok “failed to produce . . .
uniformity and Congress stepped in to fill the void”); see also, e.g.,
Resendiz-Alcaraz v. U.S. Atty. Gen., 383 F.3d 1262, 1270 (11th Cir. 2004).
This statutory history confirms that, under paragraph (A), an alien’s
original adjudication or admission of guilt establishes the fact of his
“conviction.” The remainder of the definition, paragraph (B), similarly
contains language making clear that the length of a “term of imprisonment
or a sentence” is calculated “regardless of any suspension of the imposition
or execution of that imprisonment or sentence in whole or in part.” 8 U.S.C.
§ 1101(a)(48)(B) (emphasis added). The length of a sentence for
immigration purposes thus ignores “suspensions” (whether occurring at the
time of sentencing or thereafter), suggesting that other post-sentencing
events—such as modifications or clarifications—should not be relevant
under the immigration laws. Accordingly, the phrase “term of imprisonment
or a sentence” in paragraph (B) is best read to concern an alien’s original

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criminal sentence, without regard to post-sentencing alterations that, like a
suspension, merely alleviate the impact of that sentence.
This reasoning, which supports the Pickering test, should likewise extend
to all state-court modifications, clarifications, and other alterations of a
criminal sentence. If the original sentence was altered because of a legal
defect, then the sentence was not legally effective, and there is no valid
sentence to which immigration consequences can attach. The original
sentence—because of the defect—should not have been entered in the first
place. If, in contrast, a state court later alters an earlier sentence for
rehabilitative or immigration reasons, then the immigration consequences of
that sentence under section 1101(a)(48) remain unchanged because section
1101(a)(48) addresses the alien’s original term of imprisonment or sentence.
See Saleh, 495 F.3d at 24 (explaining that “Congress did not intend to allow
an alien to escape [immigration] consequences by means of a state vacatur
that was not on the merits”).
Said differently, Congress has determined that an alien who is convicted
of a crime that is sufficiently serious to warrant a significant sentence should
be subject to removal. Later alterations to that sentence that do not correct
legal defects, do not change the underlying gravity of the alien’s action. They
accordingly do not affect Congress’s judgment as to whether that alien
should be removed. Such an alteration therefore should have no effect for
purposes of the immigration laws. Cf. id. at 25 (“When a conviction is
amended nunc pro tunc solely to enable a defendant to avoid immigration
consequences, in contrast to an amendment or vacatur on the merits, there is
no reason to conclude that the alien is any less suitable for removal.”).
Applying the Pickering test to all sentence alterations thus ensures that aliens
who have committed significant crimes, as identified by Congress, do not
later avoid the immigration consequences of those actions.
Furthermore, the application of a single test to state-court sentence
alterations promotes uniformity in the law. In the cases currently under
review, for example, applying the Pickering test should avoid the
inconsistent results that apply to the two similarly situated respondents. If
neither state court altered the respondent’s sentence on the basis of “a
procedural or substantive defect in the underlying proceedings,” see
Pickering, 23 I&N Dec. at 624, then the Pickering test would dictate the same
immigration consequence for both respondents.
In addition, applying the Pickering test to all forms of state-court sentence
alterations resolves inconsistencies among the states’ “crazy quilt of . . .
widely disparate state rehabilitative and diversionary arrangements.”
Herrera-Inirio, 208 F.3d at 305; see also, e.g., Pinho v. Gonzales, 432 F.3d
193, 205 (3d Cir. 2005) (observing that the Board in the past has been
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“bedeviled by the diversity of state rehabilitative programs and the resulting
difficulty in fashioning a uniform national immigration policy”);
Resendiz-Alcaraz, 383 F.3d at 1269 (noting “the vagaries of state law”
related to the alteration of a conviction). The Pickering test eliminates the
need to assess this broad array of state procedures. If the state court alters
the alien’s sentence because of a procedural or substantive defect in the
original proceeding, then the alteration has legal effect—regardless of the
label the state court placed on the order. If the state court alters an alien’s
sentence on the basis of something other than a procedural or substantive
defect, then the alteration has no effect and the immigration judge need
inquire no further. Moreover, similarly situated aliens in different states will
face similar consequences. Whether one state affords more or less generous
mechanisms for altering a sentence for rehabilitative purposes will be
irrelevant. Only those alterations based on legal defects will receive effect.
The country’s immigration system will thereby achieve more uniform
results.
2.
In reaching this conclusion, I have considered the Board’s reasons for
adopting the Cota-Vargas and Estrada tests, but I find them unpersuasive.
In Matter of Song, the Board offered little analysis before giving full effect
to state-court modifications, and it did not ground that rule in any facet of the
text of the INA. See 23 I&N Dec. 173. In Matter of Cota-Vargas, the Board
acknowledged that the “language and purpose of section 101(a)(48)(A)”
support applying the Pickering rule to sentence alterations, see 23 I&N Dec.
at 852, but found it relevant that paragraph (B) addresses “suspensions” and
not “modifications.” Based upon this statutory silence, the Board inferred a
congressional intent to credit state-court modifications that were unrelated to
the merits of a criminal proceeding. See id. Yet paragraph (A)’s definition
of “conviction” is equally silent about “vacaturs,” and the Board nonetheless
determined in Matter of Pickering that vacaturs unrelated to the merits will
not have immigration consequences. See 23 I&N Dec. at 624. Paragraph
(A) and paragraph (B) simply do not address vacaturs, modifications, or
clarifications. This silence, however, provides no reason to depart from
Congress’s focus on the alien’s original conviction and sentence in either of
those provisions.
I likewise do not believe that the Estrada test finds any more support in
the INA. There, the Board considered a number of characteristics in
assessing the effect of a clarification, yet none of them flows directly from
the text of the INA itself, see 26 I&N Dec. 755–56, and reliance on such
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varied considerations does not promote uniformity, cf. Hertz Corp. v. Friend,
559 U.S. 77, 91–92 (2010) (observing that “highly general multifactor
tests . . . [had] failed to achieve a nationally uniform interpretation of federal
law”). Moreover, the Estrada test may give effect to state-court clarifications
that do not call into question the validity of a criminal alien’s original
sentence. For example, the opinion in Estrada suggests that a “clarification”
entered shortly after the original sentence by the same judge who issued the
sentence could be given effect for immigration purposes, see 26 I&N Dec.
755–56, even if the alien who sought the clarification did so just to avoid
immigration consequences. The Estrada test thus undermines Congress’s
decision to attach immigration consequences to sentences of a certain length.
B.
In extending the Pickering test to all forms of sentence alterations, I have
also considered and rejected several additional arguments pressed by the
respondents.
1.
The respondents first argue that requiring immigration judges to assess
the reasons that a state court altered a criminal alien’s sentence would require
them to act as fact-finders in matters of state criminal law with which they
have little familiarity. The Pickering test, however, already requires
immigration judges to assess the administrative record and make
determinations about the reasons that certain state-court orders were entered.
See 23 I&N Dec. at 625 (examining “the law under which the
[post-conviction] court issued its order,” “the terms of the order itself,” and
“the reasons presented by the respondent in requesting that the court vacate
the conviction”). The extension of the Pickering test to state-court sentence
alterations raises no new concerns about the role of immigration judges in
assessing the record.
Moreover, the evidence on which immigration judges will rely when
assessing state-court sentence alterations will typically be readily available
in the record and should require little interpretation of state law. The
application of the Pickering test demonstrates as much, as adjudicators
applying it frequently determine whether a vacatur is valid for immigration
purposes by assessing the text of the order of vacatur itself or the alien’s
motion requesting the vacatur. See, e.g., Al-Najar v. Mukasey, 515 F.3d 708,
716 (6th Cir. 2008) (declining to give effect to a vacatur because of “the
absence of any substantive legal basis cited in [the alien’s] motion”); Sanusi
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v. Gonzales, 474 F.3d 341, 347 (6th Cir. 2007) (declining to give effect to a
vacatur because “[a] colorable legal ground for the granting of a writ of
coram nobis was not raised in [the alien’s] state court petition”); Alim
v. Gonzales, 446 F.3d 1239, 1251 (11th Cir. 2006) (giving effect to a vacatur
after examining the “state court order” and the alien’s “coram nobis petition”
to determine “the reason underlying the state court’s decision to vacate” the
conviction). The availability of such evidence thus indicates that
immigration judges should not need to wade into the intricacies of state
criminal law in applying this opinion’s rule.
2.
The respondents next contend that the Full Faith and Credit Act,
28 U.S.C. § 1738 (the “Act”), requires that immigration judges and the Board
give effect to state-court alterations of a criminal sentence, regardless of the
reasons for that alteration. The respondents contend that Matter of
Cota-Vargas supports this argument because, although that decision did not
cite the Act, it concluded that a state court’s “decision to modify or reduce
an alien’s criminal sentence nunc pro tunc is entitled to full faith and credit
by the Immigration Judges and the Board of Immigration Appeals.” 23 I&N
Dec. at 849 (emphasis added). This argument fails for two independent
reasons.
First, Congress may define terms such as “conviction” for the purposes
of federal law in a way that differs from the definition attached to such terms
by state courts. Thus, in deciding whether a vacated conviction remains
effective for immigration purposes, an immigration judge or the Board
merely applies and upholds the definition of conviction in the INA. The
adjudicator is not reevaluating or otherwise questioning the validity of the
state-court judgment. The adjudicator accordingly does not violate the Full
Faith and Credit Act. See Saleh, 495 F.3d at 26 (“[T]he BIA is simply
interpreting how to apply Saleh’s vacated State conviction for receiving
stolen property to the INA and is not refusing to recognize or relitigating the
validity of Saleh’s California state conviction. The full faith and credit
statute is not thereby violated.”); Herrera-Inirio, 208 F.3d at 307 (“Neither
the Full Faith and Credit Clause nor the statutory overlay ‘purports to prevent
federal legislative authorities from writing federal statutes that differ from
state statutes or from attaching, to words in a federal statute, a meaning that
differs from the meaning attached to the same word when used in a statute
enacted by a state.’” (quoting Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992)
(Breyer, J.))).

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The same reasoning applies to sentence alterations. In applying the
Pickering test to these state-court orders, the immigration judge is simply
determining the meaning of the phrase “term of imprisonment or a sentence”
in the INA for the purpose of enforcing federal immigration law. Hence, for
the same reason that interpreting the term “conviction” in accordance with
the Pickering test “does not infract applicable principles of full faith and
credit,” see Herrera-Inirio, 208 at 307, applying the Pickering test to the
phrase “term of imprisonment or a sentence” likewise does not implicate,
much less violate, the Full Faith and Credit Act.
The respondents attempt to avoid this result on the ground that Matter of
Pickering’s interpretation of “conviction” is required by paragraph (A) of
8 U.S.C. § 1101(a)(48), whereas paragraph (B) does not mandate a similar
result for the phrase “term of imprisonment or a sentence.” As discussed
above, however, I believe that the text and history of this provision suggest
that the two paragraphs are properly construed together, such that paragraph
(A)’s focus on the original criminal proceeding requires paragraph (B) to be
similarly interpreted. Moreover, just as paragraph (B) does not specifically
address the effect of state-court “modifications,” “clarifications,” or other
alterations of a sentence, paragraph (A) does not specifically address the
effect of state-court “vacaturs” of a conviction. Both paragraphs, in other
words, are silent on the effect of state-court orders, so there is no express
textual basis for differentiating between the paragraphs in deciding whether
to apply the Full Faith and Credit Act.
The respondents’ argument also fails for the second reason that the Full
Faith and Credit Act does not apply to federal agencies. By its own terms,
that statute provides that “[a]cts, records and judicial proceedings . . . shall
have the same full faith and credit in every court within the United States and
its Territories and Possessions as they have by law or usage in the courts of
such State, Territory or Possession from which they are taken.” 28 U.S.C.
§ 1738 (emphasis added). The text of the Act is thus clear: it applies to
“courts”—but not to “agencies”—and does not require agency officials such
as immigration judges or the Board to give effect to state-court orders. See
Perez v. Cissna, 914 F.3d 846, 857 (4th Cir. 2019) (“[T]he Act does not apply
to agencies. The text of the Act is clear. . . . The [United States Citizenship
and Immigration Services (“USCIS”)] is not a court. Thus, the plain
language of 28 U.S.C. § 1738 establishes that it does not apply to [USCIS].”);
see also Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788, 799 (5th Cir.
2000) (explaining that the “plain language of [the Act] establishes that it does
not apply” to an agency); N.L.R.B. v. Yellow Freight Sys., Inc., 930 F.2d 316,

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320 (3d Cir. 1991) (holding that “federal administrative agencies are not
bound by section 1738 because they are not ‘courts’”). 2
The foregoing observations also dispose of the respondents’ broader
argument that—even apart from the Act—an immigration judge’s
assessment of state-court sentence alterations would contravene principles of
federalism and comity. Contrary to respondent Thompson’s argument, an
immigration judge’s evaluation of the reasoning behind a state-court
alteration of an alien’s sentence does not “arrogate” to the federal
government “the power to determine the effectiveness of state court orders.”
Instead, as explained above, the immigration judge in such a case simply
determines the effect of that order for the purposes of federal immigration
law. See Matter of Velasquez-Rios, 27 I&N Dec. 470, 474 (BIA 2018) (“We
must use Federal law, rather than State law, to determine the immigration
consequences of [a] respondent’s . . . conviction.” (emphases in original)).
The state-court order itself remains effective and unchallenged for all other
purposes, and there accordingly exists no intrusion on state law of the sort
that principles of federalism and comity are designed to prevent.
3.
The respondents finally argue that, in determining the impact that a
state-court alteration of a sentence should have on the immigration laws, the
Attorney General should proceed through rulemaking rather than
adjudication. But given that the Board itself adopted its prior tests precisely
in the context of administrative adjudications, I do not believe that there is a
need for a regulation here. Indeed, Supreme Court precedent confirms my
authority as agency head to proceed by adjudication, and my authority here
derives from the text of the relevant provisions in the INA.
The Supreme Court has long recognized that agencies may decide
whether to announce reinterpretations of a statute through rulemaking or
through adjudication. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294
(1974) (“[T]he choice between rulemaking and adjudication lies in the first
2

Two Board opinions suggest that 28 U.S.C. § 1738 nonetheless applies to federal
agencies. See Matter of Adamiak, 23 I&N Dec. 878, 880 (BIA 2006) (“In the absence of a
statutory directive to the contrary, we are required by 28 U.S.C. § 1738 (2000) to give full
faith and credit to this State court judgment.”); Matter of Rodriguez-Ruiz, 22 I&N Dec.
1378, 1380 (BIA 2000) (“We will instead accord full faith and credit to this state court
judgment. See 28 U.S.C. § 1738.”). The plain text of the statute and the federal court
precedent cited above indicate that these cases were wrongly decided. These cases
accordingly are overruled to the extent that they suggest that the Full Faith and Credit Act
applies to proceedings before immigration judges and the Board.

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instance within the [agency’s] discretion.”); see also Velasco-Giron
v. Holder, 773 F.3d 774, 779 (7th Cir. 2014) (explaining that agencies “can
choose freely between rules and standards, between rulemaking and
adjudication”); Gao v. Holder, 595 F.3d 549, 556 (4th Cir. 2010) (“[I]t is a
basic principle of administrative law that ‘the choice made between
proceeding by general rule or by individual, ad hoc litigation is one that lies
primarily in the informed discretion of the administrative agency.’” (quoting
SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)). Indeed, in the decades
since Bell Aerospace, the Supreme Court “has not even suggested that a court
can constrain an agency’s choice between rulemaking and adjudication.’”
Velasco-Giron, 773 F.3d at 779 (emphasis added) (quoting Richard J. Pierce,
Jr., I Administrative Law Treatise § 6.9 at 510 (5th ed. 2010)). And agencies
retain their discretion even when announcing interpretations that may
conflict with prior decisions. See Chisholm v. F.C.C., 538 F.2d 349, 364
(D.C. Cir. 1976) (“[A]n administrative agency is permitted to change its
interpretation of a statute, especially where the prior interpretation is based
on error, no matter how longstanding.”); see also id. at 365 (“The original
interpretation of the [statute] was . . . established by adjudication; thus
reversal by adjudication seems particularly appropriate here.”). I accordingly
conclude that it is appropriate to address these Board precedents in the
context of an administrative adjudication, and there is no legal requirement
to do so by regulation.
C.
Finally, although I did not request briefing on the subject, the parties to
this case have addressed which side should carry the burden of proof when it
comes to establishing the state court’s reason for altering a sentence under
the Pickering test. The Board and the courts of appeals have considered this
issue in applying Matter of Pickering to vacaturs of convictions, and they
have allocated the burden in different ways, depending on the procedural
posture of the case at hand. See, e.g., Andrade-Zamora v. Lynch, 814 F.3d
945, 949 (8th Cir. 2016) (the alien bears the burden to prove that a conviction
was vacated because of a procedural or substantive defect when applying for
cancellation of removal); Barakat v. Holder, 621 F.3d 398, 403–04 (6th Cir.
2010) (the government bears the burden to prove that a conviction was
vacated for reasons other than a procedural or substantive defect when
seeking to establish that an alien is removable); Rumierz v. Gonzales, 456
F.3d 31, 37 (1st Cir. 2006) (the alien bears the burden to prove that a
conviction was vacated because of a procedural or substantive defect when
seeking to reopen removal proceedings).
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The courts of appeals have sometimes invoked a burden-shifting
framework to describe the burden of proof, e.g., Barakat, 621 F.3d at 403
(describing how “the burden of production may shift during removal
proceedings”), but regardless of how the issue is described, the bottom line
remains the same: When the government alleges that an alien is deportable,
the government bears the burden of proving deportability by clear and
convincing evidence. 8 U.S.C. § 1229a(c)(3)(A). And when an alien applies
for relief from removal, the alien bears the burden to prove that he meets the
eligibility requirements for the specific form of relief requested. Id.
§ 1229a(c)(4). After all of the evidence has been proffered by the parties,
the immigration judge must weigh that evidence and determine whether the
party bearing the burden of proof has carried its burden.
The parties to this appeal dispute how these principles should apply in the
context of sentence alterations, but I did not request briefing on this issue.
See 27 I&N Dec. 556. In the absence of such a request, I decline to address
the burden-shifting issue anew and thus leave undisturbed the existing body
of law applying the Pickering test.

III.
For the reasons explained, the Board’s decisions in Matter of
Cota-Vargas, Matter of Song, and Matter of Estrada are overruled. The tests
described in those cases will no longer govern the immigration-related
effects of state-court orders that modify, clarify, or otherwise alter a criminal
alien’s sentence. Instead, such state-court orders will be given effect for
immigration purposes only if based on a procedural or substantive defect in
the underlying criminal proceeding. These orders will have no effect for
immigration purposes if based on reasons unrelated to the merits of the
underlying criminal proceeding, such as rehabilitation or the avoidance of
immigration consequences.
Because the Board’s decisions in Matter of Michael Vernon Thomas and
Matter of Joseph Lloyd Thompson were based on these earlier precedents,
I vacate the Board’s decisions below and remand these cases to the Board to
assess the state-court alterations in light of the Pickering test. I do not doubt
that it would be the rare case where a state court’s alteration of an old
sentence by three or four days (as in respondents’ cases) would reflect a
necessary remedy for a fundamental legal defect, rather than an exercise of
the trial judge’s sentencing discretion. But insofar as the parties litigated
these cases under the earlier precedents, I do not wish to foreclose any
available arguments in that regard. On remand, the Board may review the
evidence in the record, and consider any appropriate requests to reopen the
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record, to determine whether the state-court alterations in each of these cases
arose as a result of a procedural or substantive defect, or for some other
reason.

691


ATATTER

OF P—

In SECTION 249 Proceedings
A-4577395
Doaklad by Regional Commissioner Ortuher IC, laCR

Approved by Assistant Commissioner

Adjustment of status—Effect of absence on continuity of residence—Good
moral character requirement.
(1) Applications for adjustment of status under section 249 of the 1952 act
pending on August 8, 1958, will be decided under the terms of the amended
statute.
(2) A temporary absence from the United States will not break the continuity
of residence required by section 249, as amended. However, a departure
from the United States as a result of exclusion or expulsion proceedings
breaks the continuity of the alien's rosidence regardless of the purind of
time he is outside the United States.
(8) Since an applicant under section 249, as amended, is required to establish
good moral character (although not for any specified period of time), the
standards set torts in section 101 (x) of the act will be %A/umlauted along with
other factors in determining whether the requirement has been met.
APPLICATION: Creation of a record of admission for permanent residence under section 249 of the Immigration and Nationality Act.

BEFORE THE REGIONAL COMMISSIONER
Discussion: This nose comes

forward on appeal from the order

of the District Director, Detroit, Michigan, dated July 10, 1958,
denying the application on the grounds that the applicant was subject to deportation under section 241 (a) (2) of the Immigration
and Nationality Act for entry without inspection by reason of his
entry in 1940 upon a false claim to United States citizenship, and
under section 241(a) (1) of the act by reason of his excludability
at time of such entry because of lack of required documents.
The application for creation of a record of admission was filed
prior to the enactment of the Act of August 8, 1958 (72 Stat.
548), which amended section 249 of the Immigration and Nationality
Act. The statute does not specifically provide that an application
pending at time of enactment be determined in accordance with the
provisions of the amended law. However, it is considered that, in
the proper exercise of the discretion expressed in the present law,
167

all applications pending on August 8, 1958, must be determined on
the basis of the standards set forth by Congress as of that date.
Applicant was born in Aberdeen, Scotland, no November 24,

, both aliens
1912, his parents being F
P
and C
at that time. His father died on February 21, 1917. On August 8,
1922, his mother (deceased in 1936) was married in Detroit, Michigan, to applicant's stepfather, A B , a native-born United
States citizen. Upon her marriage, she derived United States citizenship pursuant to section 1994, Revised Statutes. Applicant was
married in 1934 to a native-born United states citizen and has 4
native-born children, two of whom are presently in the United States
Armed Forces.
Applicant claims that he originally entered the United Staten in
1920 but no record of any entry by him can be located. A record

has been located indicating that applicant and his mother were
debarred from entry into the United States on August 24, 1922, on
the grounds that they were likely to become public charges. They
were then destined to (A B ) a friend, who is presumably
applicant's stepfather to whom applicant's mother was married on
August 8, 1922. There is no explanation for the mother's attempted
entry as an alien rather than as a citizen, nor her intended destination to a friend rather than to her United States citizen husband.
It is furthermore apparent that this debarment occurred in connection with a visit to Canada, inasmuch as a school record of the
Board of Education, Grosse Pointe, Michigan, indicates that applicant attended school there from September 19, 1921, through February 21, 1926. He has established continuous residence in the
United States from at least 1922 and that he was absent from the
United States thereafter on only one occasion on a short trip to
Canada. While there is contradictory testimony by applicant as to
the date of reentry into the United States, it occurred prior to June
28, 1940.
Under the provisions of section 249, as amended, a record of lawful admission may, in the discretion of the Attorney General, be
made as of the date of approval of his application or, if entry
occurred prior to July 1, 1924, as of the date of such entry, in
the case of any alien who makes application therefor, and who
establishes that he:
(1)

entered the United 2tatca prior to Juno us, 1010, and no record of such

entry exists;
(2) has had his residence in the United States continuously since such
entry;
(3) is not Inadmissible under section 212(a) Insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens;
(4) Is not ineligible to citizenship, and
(5) Is a person of good moral character.

168

An applicant for adjustment of status under section 249, as
amended, is required by the statute to establish good moral character. This need not be established for any required period of
time hot the standards set forth in section 101(f) should be taken
into consideration, along with other factors, in determining whether
the requirement of good moral character has been met.
The applicant has established that he is not inadmissible to the
United States under section 212(a) as a member of one of the classes
enumerated above, that he is a person of good moral character and
is not ineligible to citizenship.
The applicant alleges entry into the United States in 1920 and
continuous residence here since that time. He has presented evidence to establish his claim, but he has been absent from the United
States for brief periods on two occasions, one in August 1922,
and again in 1940, but prior to June 28 of that year. An alien
who has been 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. However, a departure from the
United States as a result of exclusion or expulsion proceedings
breaks the continuity of residence for the purpose of section 249,
regardle.5, of the period of time the alien is outside the United
States after such departure. Therefore, the applicant's continuous
residence in the United States was broken on August 24, 1922,
when he was excluded and deported.
He has established that he has subsequently resided in the United
States since September 5, 1922. His temporary absence in 1940
is not considered to have broken the continuity of that residence.
He has established his eligibility for the creation of a record of
lawful admission under section 249, as amended, as of a date prior
to July 1, 1924. The applicant has no recollection of his absence
from the United States in 1922 and cannot give the date of his
reentry. Therefore, a record of entry for lawful admission for
permanent residence will be created as of September 5, 1922, since
he has established continuous residence from at least that date.
Order: It is ordered that the appeal of J—C P— from
the denial of the district director of his application for creation of
a record of lawful admission for permanent residence be sustained
and that a record of his lawful admission for permanent residence
be created as of September 5, 1922.

169
582713-61-13