Interim Decision #1721

MATTER OF WOOD

In Exclusion Proceedings
A-14577147

Decided by Board March, 27, 1967
(1) Conviction of applicant under section 33 of the Canadian Juvenile Delinquents Act of 1929 of contributing to a 16-year-old female, becoming a
Juvenile delinquent by having sexual intercourse with such female, for which
offense imposition of sentence was suspended, he was placed on probation for
2 years and required to pay $150 toward costs, is conviction of a petty offense
within the purview of section 212(a) (9), Immigration and Nationality Act,
as amended.
(2) Applicant, who, following lawful admission for permanent residence, departed on December 5, 2965 to Canada to appear in court where he WAR
charged with conspiracy to utter and conspiracy to commit forgery and was
released, after which he returned to this country in a day or two, again returning on December 13, 1965 to Canada where on December 15 he was
convicted of both offenses, fined, placed on probation and released, returning
to the United States 3 or 4 days later, his return following each such departure
constituted an "entry" within the meaning of the immigration laws and at
the time of the latter entry (on or about December 18, 1965) he was eXeludable under auction 212 (a) (0) of the Act.
EiOLUDABLE; Act of 1952—Section 212(a) (20) [8 17.S.C. 1182(a) (20) I—Im-

migrant not in possession of immigrant visa or
other valid entry document.
Act of 1952—Section 212(a) (9) [8 U.S.C. 1182(a) (9)1—Convicted of crimes involving moral turpitude, to
wit: contributing to Juvenile delinquency
(Canada) ; conspiracy to commit forgery and
uttering (Canada)
ON BEIIIALP OF APPLICANT :

Harry Kobel, Esquire
Rosin & Kobel
2156 Kenobscot Building
Detroit, Michigan 48226

ON BEHALF or S.
Robert A. Vielhaber
Appellate Trial Attorney
(Memorandum submitted)

This case comes forward on certification from the special inquiry
officer, who found the applicant excludable on both grounds set forth
above and ordered his exclusion and deportation from the United
States.
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Interim Decision #1721
Applicant is a 26-year-old single male alien, a native and, citizen
of Canada, who was admitted to the United States for pornment
residence on June 14, 1965, at Noyes, Minnesota, in possession, of a
nonquota immigrant visa. He last sought admission to the United
States at Detroit, Michigan on September 11, 1966, as a returning
resident alien, upon presentation of his Form 1-151 (Alien Registration Receipt Card), and was held for a hearing as one who did not
appear to be -clearly entitled to enter.
On February 5, 1963, applicant pleaded guilty, in the Winnipeg
Juvenile Court and Family Court, in Canada, to having contributed
to the "becoming a juvenile delinquent" of a named child, in violation of section 33 of the Canadian Juvenile Delinquents Act of 1929, in
that he had had sexual intercourse with the said child', whose age is

shown by the record to have been 16 years. Imposition of sentence
was suspended for two years; applicant was released on his own recognizance under poor) bond, he was required to pay $150 toward the
costs of prosecution, and was to be on probation for two years. His
probation and all of the attendant conditions were terminated on
August 24, 1964. This conviction, and the details of the proceeding,
were made available by applicant to the American Consul when he
applied for an immigrant visa in 1964. On the basis of this information, the consular officer reached the decision that there had been a
single conviction of a petty offense, so that the applicant was not
ineligible for a visa under section 212(a) (9). The immigrant visa
was issued in 1965.
It is the special inquiry officer's holding that the conviction was not
for a petty offense; that applicant was rendered excludable by it and,
therefore, should not have been issued the visa; that his entry with
the visa was not a lawful one, nor was he entitled to the Form 1-151
issued thereafter on the basis of that entry; and that in consequence
he is now excludable as one who does not have an immigrant visa or
other valid entry document. In determining anew the question of whether the conviction was for
a petty offense, the special inquiry officer looked to Title 22 of the
District of Columbia Code to see whether it contained the same or an
equivalent offense (cf. Matter of T—, 6 I. & N. Dec. 508, for proper
procedure to determine whether a crime committed abroad is to be
considered a misdemeanor classifiable as a petty offense). There is no
exact counterpart in the District of Columbia Code, but it was the
special inquiry officer's opinion that section 22-8501 referred to "such
5 I. & N. Dee. 239, that violaI We have heretofore held, In Matter of W—,
tion of this section of the Canadian law, where the specific act is sexual intercourse, is a crime involving moral turpitude.

171
821-854--60

'18

Interim Decision #1121
an offense". We do not believe this is a correct determination. .That
section, providing a penalty of imprisonment for up to ten years, and
entitled "Indecent Acts—Children", relates to indecent liberties with
a child of either sex, tinder the age of sixteen years, and is not intended
to cover sexual intercourse with a female, either under or over 16 years
of age, Thompson v. United States, 228 F2d 463, 1956, 97 U.S. App.
D.C. 116; Whittaker v. United States, 281 F.2d 631, 1960, 108 U.S.
App. D.O. 268. The Government, by memorandum, urges that the
correct section of the District of Columbia Code is 22-2801, which
deals with rape, both statutory and forcible. Statutory rape, as defined
therein, relates to a female child under sixteen years of age. The Government urges, however :
The fact that the age in the mstrict of Columbia may be lower thee the corresponding offense in Canada does not mean that consent is present. The essence

of the offense here is lack of consent and whether the lack of consent is actual
or statutory is not material. • • *" (Memorandum, p. 3.)

The age of consent, as far as statutory rape is concerned, is the same
in Canada as in the District of Columbia (cf. section 138, Tremeear's
Armotated Criminal Code—Canada, 6th Edition), and under the facts
in this case, applicant could not have been successfully prosecuted for
statutory rape in Canada. Nor can we agree that the essence of the
offense is lack of consent. The section under which applicant was convicted punishes the knowing or willful doing of :
• • • any act producing, promoting, or contributing to a child's being or becoming a juvenile delinquent or likely to make any child a juvenile delinquent ...
(section 33. (1 ) (b), Juvenile Delinquents Act of 1929).

A "juvenile delinquent," as defined by that Act, is:
• * any child who violates any provision of the criminal code of any Dominion or Provincial statute or of any bylaw or ordinance of municipality, or
who is guilty of sexual immorality or any similar form of vice, or who Is liable
by reason of any other act to be committed to an industrial school or juvenile
reformatory under the provisions of any Dominion or Provincial statute • • •.
(emphasis supplied) (section 2(g), Juvenile Delinquents Act of 1929).

Thus, it is apparent that the core of the offense is that applicant, by
having relations with a female not his wife, who is still within the age
group considered as a juvenile, has contributed to her becoming a juvenile delinquent by making her guilty of sexual immorality. We believe that the offense in the District of Columbia Code most closely
equivalent to the one here involved is, as counsel contends, fornication,
defined in section 22 1002, which occurs when an unmarried man or
woman has sexual relations. By its terms, this section provides a
-

maximum penalty of a, $300 fine or six months' imprisonment, so that
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Interim Decision #1721
it is clearly a misdemeanor within the petty offense category. Thus,
applicant's conviction, both by the classification of the crime and the
character of the punishment imposed, was a petty offense.
We hold, therefore, that applicant's immigrant visa was properly
issued to him; that he was not excludable when he initially applied
for admission and was admitted for permanent residence; and that the
Form. 1-151 issued to him after that entry was valid, and properly
issued.
The record shows that after applicant's admission in June 1965, he
made several short visits to see his family in Canada. From his testimony, they were of the brief, casual and innocent type which do not,
under the standards set out in Rosenberg v. Fleuti, 874 U.S. 449, require
a finding that he made an "entry" on each return. (Inasmuch as we
have found, contrary to the holding of the special inquiry officer, that
applicant's original admission for permanent residence was lawful,
we consider that applicant was, up to a specific point discussed below,
entitled to the benefits of the Matti ruling.)
The record is incomplete as to when the applicant first became involved in a scheme (not clearly described) with two others to obtain
money by unlawful acts. Applicant testified that while on a visit to
Canada, probably in July 1965, when he was drunk, he agreed with the
two young men to go ahead with the scheme, but that upon sobering up,
he contacted them and told them not to go ahead with whatever had
been planned. They apparently put the scheme into operation in spite of
his request. His testimony is that he knew nothing of criminal proceedings until early December 1965 when he called one of the two persons
with whom he was also involved in buying a house, and that person told
him that there was a warrant out for his arrest and that he should phone
his lawyer. He telephoned his lawyer in Canada, who confirmed the
fact that there was outstanding a warrant for his arrest, and who arranged for applicant to meet him at Pemberton, North Dakota on
the afternoon of the following day, so that he could drive the applicant
back to Winnipeg and present him to the court. Applicant returned to
Winnipeg with his attorney on or about December 5, 1965, appeared
at the court, was served with an information charging him with conspiracy to utter and conspiracy to commit forgery, and was released.
He returned to the United States for a few days to await the scheduled
date of the trial. He returned to Canada on or about December 18,
1965, and the trial was held on December 15th. He pleaded guilty to
both counts of the information and was sentenced on that same clay.
No prison sentence was imposed, but he was fined $500 plus $3.50 in
costs, released in his own recognizance under $5000 bond, and placed
on probation for a period of six months. He returned to the United

Interim Decision #1721
States three or four days later and resumed his normal pattern of living
here, working during the week, taking weekend visits back to Canada
to see his friends and family fairly often, until he was prevented him
entering at the time these proceedings were instituted.
We have held, in Matter of Jensen, 10 I. & N. Dec. 747, that a conviction for forgery and uttering under Canadian law (there considered two separate crimes, but considered to be a single crime in most
United States jursidictions) is a conviction of an offense involving
moral turpitude. We have also held, in Matter of 2 I. & N. Dec.
225, that if a, substantive offense involves moral turpitude, then a conspiracy to commit that offense involves moral turpitude. In view of
the position we set forth below, however, we need not and do not pass
on whether this second conviction was for a petty offense.
Counsel urges that applicant's short trips to Canada on December
5 and December 13, undertaken on the advice of counsel, were not
intended to be meaningfully interruptive of his permanent residence
and, therefore, come under the Malta doctrine, so that, by implication,
applicant did not then make, and is not now seeking to make, an
"entry." We do not agree.
The trip considered by the Supreme Court in the Flueti case was a
casual two-hour visit across the border, requiring no prior preparation
and made for no purpose other than to visit. Nothing was done by
Fleuti either at the time of his departure, during his two-hour period
of absence, or at the time of his return to the United States, that was
in any way relevant to his immigrant status or admissibility. The Government urged that Fleuti's mere intentional stepping over the border
into Mexico rendered his physical return. an "entry", subjecting him
once again to all of the statutory criteria of admissibility for an alien
seeking admission as an immigrant. The Supreme Court rejected this
. contention, pointing to the statutory exception contained in section
101(a) (18), which states that an alien with a lawful permanent residence in the United States is not to be regarded as making an "entry"
if his departure from the United States "was not intended or reasonably to be expected by him." It then went on to hold :
We conclude, then, that it effectuates congressional purpose to construe the
intent exception to 101(a) (13) as meaning an intent to depart in. a manner
which can be regarded as meaningfully interruptive of the alien's permanent
residence. One major factor relevant to whether such an intent can be inferred
is, of course, the length of time the alien is absent. Another is the purpose of

the visit, for if the purpose of leaving the country is to accomplish some object
which is itself contrary to souse policy reflected in our immigration laws, it
would appear that the interruption of residence thereby occurring would properly be regarded as meaningful. Still another is whether the alien has to procure
any travel documents in- order to make his trip, since the need to obtain such

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Interim Decision *1721
items might well cause the alien to consider more fully the implications involved in his leaving the country. Although the operation of these and other possibly revelant factors remains to be developed "by the gradual process of judicial
inclusion and exclusion." Davidson v. New Orleans, 96 U.S. 97, 104, 24 L. Ed.
616, 619, we declare today simply that an innocent, casual, and brief excursion by
a resident alien outside this country's borders may not have been "intended"
as a departure disruptive of his resident alien status and therefore may not subject him to the commences of an "entry" into the country on Ms return. * • •
(At p. 462. Emphasis supplied.)

By the gradual process referred to, the holding in Fleuti has been
extended to cover casual, innocent excursions to Mexico and Canada
of several days' and even a week's duration (Matter of Quintanilla.ea-familia, decided November 29, 1965, Int. Dec. No. 1537; Zintmeman, v. Lehmann, 339 F.2d 943 (7th Cir., January 7,1965; etc.). In
such cases, the departure, absence and return were in no way relevant

to the underlying ground of deportability or excludability charged
other than that the Government claimed the return was an "entry"
so that the stautory standards of admissibility must apply, or that it
was an "entry" from which to date the running of a time limitation
imposed by statute on a ground of deportability. We know of no instance in which it has been extended to cover an alien who is charged
with being excludable or deportable because of an act or occurrence
arising during or directly connected with the departure, absence or
return. See, Matter of Caudillo-Villalobos, hit. Dec. No. 1423 aff'd
Caudillo-Vi2lakbos v. In and Naturalization Service, 361
F.2d 329 (CA. 5, 1966.) (Conviction for crime of incest during absence in Mexico—held to have made entry on return) ; Matter of 00rgva.Fragoso, Int. Dec_ No. 1549 (assisting of aliens to enter the

United States illegally, for gain, pursuant to arrangements made during absence in Mexico--held to have made an entry on return) ; Matter
of Alvarez-Yerdusco, Int. Dec, No. 1589 (conviction for attempt to
smuggle narcotics into the United States from Mexico on return to
United States—held to have made meaningful departure and to be attempting an entry when he sought to return) ; Matter of Ifolk,
Dec. No. 1443 (return after short visit to Mexico on false claim of
citizenship, thereby avoiding inspection—held to have made an
entry) ; eto.
We consider as definitive in Fleuti the repeated references to "an
innocent, casual and brief excutrsion". Applicant demonstrably was
not making such a trip when he left on December 5th. He went to meet
his attorney, at Pemberton, North Dakota, knowing that there was a
warrant outstanding for his arrest on criminal charges in Canada,
and that his attorney would be driving him from the United States
border to the court from'which that warrant had issued. He had no
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Interim Decision *1121
certain knowledge of what would await him there, and there is nothing
in the record to show that he might not have been detained or denied
bail pending trial. The fact is that he was not detained, and that he
returned to the United States a day or two later. We consider that the
purpose and manner of applicant's departure on December 5th were
such that it "can be regarded as meaningfully interruptive" of his permanent residence. On his return thereafter, he made an "entry". However, he was not excludable at the time of that entry, and was, therefore, properly admitted as a returning resident alien. Applicant's
second trip, on December lath, to be present for the trial of the criminal charges against him in the Winnipeg court, was likewise not an
innocent, casual excursion. He had no way of knowing definitely what
the outcome of that trip would be. Assuming that he knew from the
outset that he would plead guilty to the charges, there was no certainty that he would be fined rather than imprisoned, that he would
be released in his own recognizance and be able to return to the
United States with the next few days. The crimes of which he was convicted, two counts of conspiracy to commit an indictable offense, carry
the same possible penalty as the substantive offense which was the
subject of the conspiracy (cf. section 408.(1) (c), Tmemeear's Annotated Criminal Code—Canada, Sixth Edition) ; forgery is punishable by imprisonment of up to 14 years, and uttering is punishable by
the same length of imprisonment (cf. Tremeear's Annotated Criminal
Code—Canada, sections 310.(1) and 311.(1) ). His trip to Canada
for this purpose can, even more than the December 5th trip, be regarded as meaningful by interruptive of his permanent residence. Thus,
on his return three or four days after the disposition of the criminal
case, he made an "entry".
When applicant entered the -United States on or about December
18 or 19, 1905, he was an alien who had twice been convicted of crimes
involving moral turpitude. He was excludable under the provisions of

section 912(a) (9) . It is not necessary to decide whether conspiracy
to commit forgery and uttering comes within the petty offense classification. Applicant already had a conviction for a petty offense and this
second conviction, even if also a petty offense, rendered him excludable because the proviso to section 912(a) (9) specifies that the petty
offense exemption applies to an alien who has committed only one
such offense. If it was not a petty offense, then this conviction, without more, would make the applicant excludable.
Thus, when applicant made his entry on or about December 18 or
19, 1965, he was not admissible and should not have been admitted
as a returning resident alien. As one who was excludable and who was
not than or now eligible for any waiver of that excludability, he no

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Interim Decision #1121
longer could be considered as having been "lawfully admitted for
permanent residence" (cf. section 101 (a) (20), Immigration and Nationality Act). On each of his returns thereafter from trips to Canada
he was not within the exception to section 101(a) (18) interpreted in
Fleuti and must be deemed to have made an entry. The present application for admission is also an application to make an "entry" into
the United States.
As one who is no longer a returning resident alien, applicant cannot
meet the docuinentary requirements for entry by presentation of the
%TO. 1-151, and is properly excludable on the documentary charge as
well as the charge laid under section 212(a) (9).
ORDER: It is ordered that the decision of the special inquiry
officer, for the reasons set forth above, be and the same is hereby
affirmed.

t 77


MATTER

or M—

In VISA. PE

Proceedings

A-12285313
Decider?. by Regional C onmnissioner January 8,1962
Approved by Assistant Commissioner January 24,1962
Nonquota status—Orphans—Limitation of two to a family.
Family which has previously nrougnt twu unthaws to the Unit©d Stator In
special nonquota status is not entitled to obtain nonquota status for third
child. Controlling factor is not the number of petitions that may have been
previously approved or the number of visas that may have been issued but
the Congressional intent expressed in all special orphan legislation since
1953 to place a limitation of two on the number of eligible nonquota orphans that may be brought to the United States by any one family (See,
Matter of P—, 9-750, overruling the holding in this case.)

BEFORE THE REGIONAL COMMISSIONER
(January 8, 1962)
DISCUSSION: This matter is before me on certification for review.
The petition in this case was filed to accord the beneficiary a nonquota classification as an eligible orphan so that the petitioners may
bring the orphan to the United States and adopt her in this country. The District Director in Boston, Massachusetts, denied the
petition on the - ground that the petitioners have previously brought
two children into the United States under special legislation enacted in behalf of orphans.
The first orphan brought to the United States by the petitioners
was born in Italy on June 4, 1956, and was admitted to this country
under section 5 of the Refugee Relief Act of 1953. The second
orphan brought to the United States by the petitioners was born m
Greece on December 19, 1957, and was admitted to this country
under section 4 of the Act of September 11, 1957. Following admission, these orphans were adopted by the petitioners.
Both, section 5 of the Refugee Relief Act of 1953 and section 4
of the Act of September 11, 1957, as amended, were enacted as
temporary legislation and provided, in part, that:
... Not more than two such special nonquota immigrant visas may be issued
to eligible orphans adopted or to be adopted by any one United States citizen
and spouse, unless necessary to prevent the separation of brothers or sisters.

542

The present petition WEIO filed on June 29, 1961. It may, therefore, be considered under section 4 of the Act of September 11, 1957,

amended (section 25(b) of the Act of September 26, 1961), or
under the permanent orphan legislation contained in sections 101(b)
and 205 of the Immigration and Nationality Act, as amended by
the Act of September 26. 1961.
Section 205(c), as amended, provides in part that:
. . Not more than two such petitions may be approved for one petitioner in
as

behalf of a child as defined in section 101(b) (1) . (F), unless necessary
to prevent the separation of brothers and sisters.. . .

The petitioners contend that under section 205(c) of the Immigration and Nationality Act, as amended, the limitation goes only
to the number of petitions that may be approved and that this is
only the second petition filed by them in behalf of an orphan. They
point out that a petition was filed and approved fcr the second child
but not for the first child as a petition was not required under the
Refugee Relief Act of 1953.
In all special orphan legislation enacted since 1953 the Cungresb
has placed a limitation of two on the number of orphans that could
be brought to the United States by the same family as nonquota
aliens. Whether the limitation is with regard to the number of visas
that may be issued or the number of petitions that may be approved,
the controlling factor is the intent of the Congress. That intent,
in view of the legislative history, is to limit to two the number of
nonquota eligible orphans that may be brought to the United States
by any one family, unless necessary to prevent the separation of
brothers or sisters. As such separation is not involved in this case,
the petition was properly denied.
ORDER: It is ordered that the petition be denied.

543


Cite as 28 I&N Dec. 169 (BIA 2020)

Interim Decision #4002

Matter of Jesus A. MELGAR, Respondent
Decided December 4, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Counsel’s acceptance of responsibility for error does not discharge the disciplinary
authority complaint obligation under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988),
particularly where the ineffective assistance allegation is rendered by the same attorney
against himself.
(2) A respondent seeking reopening on the basis of a claim of ineffective assistance of
counsel must show a reasonable probability that, but for counsel’s error, he would have
prevailed on his claim.
FOR RESPONDENT: Gage C. Herbst, Esquire, Midvale, Utah
FOR THE DEPARTMENT OF HOMELAND SECURITY: Saida Ulle, Assistant Chief
Counsel
BEFORE: Board Panel: GRANT, MULLANE, and RILEY, Appellate Immigration
Judges
MULLANE, Appellate Immigration Judge:

This case was last before us on September 3, 2019, when we dismissed
the respondent’s appeal from an Immigration Judge’s order of removal and
denied his motion to remand to apply for adjustment of status on the basis of
an approved visa petition filed by his United States citizen son. On
December 2, 2019, the respondent filed a timely motion to reopen based on
a claim of ineffective assistance of counsel. The Department of Homeland
Security (“DHS”) opposes the respondent’s motion. 1 The respondent’s
motion to reopen will be denied.
The respondent is a native and citizen of El Salvador. In his motion, he
asserts that his attorney provided ineffective assistance during the pendency
of his appeal. In particular, he contends that his attorney, who is still his
1

In its opposition, the DHS incorrectly states that the respondent’s motion is numerically
barred. An alien is entitled to file one motion to reopen after each final order of removal.
See 8 C.F.R. § 1003.2(c)(2) (2020). The motion to rescind the respondent previously filed
and had granted pertained to a different final order and does not bar the respondent from
filing a motion to reopen within 90 days of our September 3, 2019, decision, despite the
DHS’s assertion to the contrary.

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Interim Decision #4002

attorney, did not ask him for information regarding his rehabilitation or other
positive factors and therefore did not present sufficient evidence to establish
that he was entitled to a remand to apply for adjustment of status on the basis
of an approved visa petition filed by his United States citizen son. The
respondent maintains that he has satisfied the procedural requirements that
must be met before the Board will consider a motion to reopen based on
ineffective assistance of counsel. The respondent also contends that he has
established that he was prejudiced by his attorney’s errors.
The respondent’s ineffective assistance of counsel claim is different
because the claim is made against his current counsel, who represented him
before the Immigration Judge and on appeal to the Board, and continues to
represent him in the motion to reopen. In Matter of Lozada, 19 I&N Dec.
637 (BIA 1988), we stated that a claim for ineffective assistance of counsel
“should reflect whether a complaint has been filed with appropriate
disciplinary authorities regarding such representation, and if not, why not.”
Matter of Lozada did not hold that any such explanation, however
insufficient, would satisfy this requirement. Here respondent indicates that
a complaint has not been filed with disciplinary authorities “[b]ecause
counsel has taken responsibility for the error and the error is clear.” But the
obligation of the complaint cannot be so easily discharged, otherwise the
purpose of the requirement is rendered inconsequential. This is particularly
true in this context, where the ineffective assistance allegation is rendered by
the same attorney against himself. 2 The claim here, if permitted, renders
Matter of Lozada ineffectual.
The bar complaint requirement is designed to “highlight[] the standards
which should be expected of attorneys who represent persons in immigration
proceedings.” Id. at 639; see also Matter of Rivera, 21 I&N Dec. 599, 604
(BIA 1996). Requiring notification of disciplinary authorities is important
because this is the most effective way of informing disciplinary authorities
of allegations of potential violations of ethical or legal responsibilities.
While a single instance of malpractice may not be sufficient for disciplinary
authorities to act, the notification requirement allows disciplinary authorities
to assess whether there is a pattern of misconduct that should be addressed.
Further, the bar complaint “also serves to protect against collusion between
alien and counsel in which ‘ineffective’ assistance is tolerated, and goes
unchallenged by an alien before disciplinary authorities, because it results in
a benefit to the alien in that delay can be a desired end, in itself, in
immigration proceedings.” Matter of Rivera, 21 I&N Dec. at 604. There
may be valid reasons for not submitting a bar complaint—such as death of
2

The ethical propriety of an attorney making allegations of misconduct against himself
or herself is addressed in the ABA Model Rules of Professional Conduct, Rule 1.7.

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Interim Decision #4002

prior attorney or his disbarment—but respondent has not stated one here
except for a self-serving purpose, which we will not accept. For these
reasons, we conclude that respondent has not satisfied Matter of Lozada.
Even if we assume that the respondent’s attorney provided ineffective
assistance and that the respondent has satisfied the procedural requirements
of Matter of Lozada, the respondent has not met his burden of showing that
he was prejudiced by his attorney’s errors. See Matter of Lozada, 19 I&N
Dec. at 638. Specifically, the respondent has not met his burden of
establishing a reasonable probability that, but for his attorney’s mistakes, he
would have obtained a remand to apply for adjustment of status. See, e.g.,
Harmon v. Sharp, 936 F.3d 1044, 1059 (10th Cir. 2019) (noting, in context
of habeas proceeding, that, to show prejudice from ineffective assistance, a
petitioner must demonstrate a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different)
(citations omitted). The “reasonable probability” standard is appropriate
because ineffective assistance of counsel only matters when there is
prejudice. See Matter of Lozada, 19 I&N Dec. at 640. Reopening such cases
is an extraordinary remedy that should not be invoked for attorney error that
is non-prejudicial to the decision. A respondent who does not prevail on his
claim may feel this was because his attorney was not good enough. Matter
of Lozada remedies are not for those cases where a better attorney might have
obtained a favorable result. Our concern is for respondents who have
suffered significant harm and can show a reasonable probability that they
would have prevailed on their claim. Thus a respondent does not have to
show he definitely would have prevailed, but he needs to make a clear
showing that the attorney erred in such a manner that he can show a
reasonable probability that he would have prevailed on the claim, if not for
the error.
The respondent has not shown a reasonable probability that he would
have obtained a remand to apply for adjustment of status if his attorney had
not made the alleged mistake. The respondent asserts that the additional
evidence he submitted with his current motion establishes that he is entitled
to a discretionary grant of adjustment of status. We disagree.
The additional information the respondent submitted regarding his
criminal record does not erase our concerns regarding the number of
encounters he has had with law enforcement and the extended period over
which these encounters have occurred. The information also does not dispel
our concern regarding his conviction for child abuse under section
76-5-109(3)(B) of the Utah Code Annotated. The respondent asserts that his
offense is not a crime involving moral turpitude, but we do not need to
resolve this issue to make a determination on the respondent’s motion. The
offense does qualify as a crime of child abuse for the purposes of
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Interim Decision #4002

section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(E)(i) (2018). See Matter of Velazquez-Herrera, 24 I&N Dec.
503, 512 (BIA 2008). 3 Accordingly, the conviction is a strong negative
factor weighing against a grant of adjustment.
Further, the respondent has not submitted statements from any of his
children, and the letters he submitted are not sufficient to outweigh his long
history of arrests and his convictions for child abuse, assault, and disorderly
conduct. See, e.g., Matter of Coelho, 20 I&N Dec. 464, 472–73 (BIA 1992)
(indicating that a moving party must establish that he or she warrants relief
as a matter of discretion). The respondent’s new evidence therefore is not
sufficient to meet his burden of showing a reasonable probability that he
would have obtained a remand to pursue adjustment if his attorney had
presented this evidence with his motion to remand. The respondent
accordingly has not established that he was prejudiced by any error of his
attorney, and we deny his motion to reopen based on a claim of ineffective
assistance of counsel.
ORDER: The respondent’s motion to reopen is denied.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See Section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

3
The respondent was convicted under section 76-5-109(3)(B) of the Utah Code
Annotated. His offense therefore had as an element a mens rea of recklessness and is
distinguishable from the offense discussed in Ibarra v. Holder, 736 F.3d 903 (10th Cir.
2013).

172


Interim Decision *1261

MATTER

or KOWALSKI

In DEPORTATION Proceedings
A-10867062
Ditoideut by Board January 17, MC

Since the alien is not institutionalized at public expense where the maintenance
charges have been paid and are currently being paid in the sum demanded, even
though the charges have been fixed by appropriate State authorities at a rate

less than the rate prescribed under State statute, a charge of deportability
under section 241(a) (3) of the Immigration and Nationality Act does not
lie. [Matter of C—R---,71. & N. Dec. 124, overruled.]
Onanaz:
Order: Act of 1952—Section. 241 (4) (3) [8 U.S.C. 1251(a) (3) ]—Institutionalized at public expense for mental disease.

The ease comes forward on appeal from the order of the special
inquiry officer dated August 80, 1962, directing that the respondent be
deported to Belgium on the charge contained in the order to show
cause.
The record relates to a native and citizen of Belgium, about 27 years
old, female, who last entered the United States at the port of New
York on May 28, 1960, as a returning resident. She was previously
admitted to the United States on March 29, 1958, for permanent
residence and thereafter made two trips to Belgium returning from her
first trip on March 80, 1959, after an absence of about two months and
from her last trip after a stay in Belgium of about seven or eight
months. She is married to a permanent lawfully resident alien by
whom she has a four-year-old son.
The respondent has been a patient at the Chicago State Hospital
since her commitment thereto by the County Court of Cook County,
Illinois, on September 26, 1960_ Her condition has been diagnosed
as schizophrenic reaction, chronic undifferentiated type. The respondent was previously committed to the same institution from August 8, 1960, to August 29, 1960. The statement of a staff member of
the hospital, dated September 29, 1960, sets forth that the respondent
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Interim Decision #1261
was a schizophrenic of long standing and that her history disclosed
that she had been hospitalized in a mental institution prior to the time
she came to the United States. The respondent's hospitalization in a
mental institution in Belgium on two occasions prior to her entry into
the United States was verified.
The section of law under which deportation of the respondent is
sought is section 241(a) (3) of the Immigration and Nationality Act
which provides for the deportation of an alien who hereafter, within
5 years after entry, becomes institutionalized at public expense because
of mental disease, defect or deficiency, unless the alien can show that
such disease, defect or deficiency did not exist prior to his or her
admission to the United States. The evidence establishes that the respondent has become institutionalized within 5 years after entry be-

cause of a mental disease, defect or deficiency, and it has not been
shown that the mental disease, defect or deficiency did not exist prior
to her admission to the United States. The only issue remaining is
whether the respondent was institutionalized at public expense within
themeaning of the act.
The special inquiry officer, by order dated March 31, 1961, after a
hearing at which the husband had testified that he had paid nothing
on his wife's bill, that he did not want his wife back and that because
of all of his other expenses he was unable to pay for her hospitalization, ordered deportation on the charge stated in the order to show
cause. On appeal, by order dated June 23, 1961, we remanded the
case for the purpose of including in the record evidence showing the
husband's legal liability for payment of hospitalization and treatment
in the Chicago State Hospital and the final results of an action for
recovery of the respondent's monthly maintenance charges from the
respondent's husband provided in sections 9-19 and 9-23 of the Illinois
Mental Health Code and for such other action as might be appropriate.
At the reopened hearing evidence was presented showing that the
husband had been informed by the Department of Welfare as of
January 30, 1962, that the monthly rate to him on the basis of his
financial situation for the care and maintenance of the respondent was
decreased from $36.00 a month to $9.00 a month, that the husband
had remitted payment on February 16, 1962 of all charges assessed
against him for the care of his wife which brought his account up to
current status, that the husband paid $87.00, the amount billed for his
wife's care, and has been paying the sum of $9.00 a month as billed
for his wife's care and maintenance at the Chicago State Hospital.
The special inquiry officer, after considering various provisions of
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Interim Decision #1261
the Illinois Mental Health Code and several court decisions,) came
to the conclusion that inasmuch as the only payments made for the
respondent's care and maintenance were her husband's remittances of
$9.00 per month which were less than the rate prescribed under
section 9-20 of the Illinois Mental Health Code, that the respondent
had been institutionalized at public expense. The decision of the
special inquiry officer was based upon the precedent decision of Matter
of C-1?—,71.& N. Dec. 124, 126, which was quoted as follows :
The determining factor under section 241(a) (3), supra, however, is whether
an alien after the enactment of the statute "becomes institutionalized a public
expense" because of mental disease, defect or deficiency. Congress in providing
this new ground for deportation in the 1952 Act was aware of the fact that
in some cases where aliens are institutionalized because of mental deficiency
they escape deportation as a public charge by payment or the minimum charge
of public institutions which does not represent the full cost to the taxpayer.
Under the circumstances, we are of the opinion that the special inquiry officer's
conclusion with respect to the respondent's hospitalization is based upon the
wrong premise. It is our opinion that the defenses applicable to the -public
charge" provision of the 1917 Act have no application to section 241(a) (8),
supra. In other words, under section 241(a) (3) of the 1952 Act there is no
basis for terminating the proceedings as long as the full debt has not been
discharged.

The decision in Matter of C—I , supra, relied upon the language
of Senate Report No. 1515 pursuant to Senate Resolution 137 (81st
Congress, 2d Session) at page 390 in which it was the conclusion of the
subcommittee that all aliens who become public charges any time after
entry from causes not affirmatively shown to have arisen after entry
should be subject to deportation; that information available to the
subcommittee indicates that in some cases where persons are institutionalized because of mental deficiency they escape deportation as a
public charge by payment of the minimum charge of public institutions which does not represent the full cost of the taxpayer. It was
therefore recommended that all aliens who become institutionalized
because of mental deficiency within five years after entry should also be
deportable. The Committee Report is dated April 20, 1950.
It is believed that by relying upon this language contained in the
Senate Report No. 1515, the decision in Matter of C-R--- 2 reached an
erroneous conclusion. It is true that the various Senate bills introduced at the first and second sessions of the 82nd Congress (S. 716
introduced January 29, 1951, S. 2055 introduced August 27, 1951 and
Sections 9-10, 9-20, 0-21, 0-22, and 9-24 of the Illinois Health Mental Code ;

Public Welfare v. Bohleber, 21 Ill. 2d 587, 173 N.E. 2d 457; Department of
Public Welfare v. A'Sern, 14 Ill. 2d 575, 153 N.B. 2d 22. Both of these cases

involved claims against the estate of the deceased patients for maintenance
charges.
2

7 & N. Dec.124.
768-11;0--03----12

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Interim. Decision #1261
S. 2550 introduced January 29, 1952) all provided in section 241 (a) (3)
for the deportation of an alien who within five years after entry became
institutionalized because of mental disease, defect, or deficiency. However, the House Bill, H.R. 5678, introduced October 9, 1951 (82nd
Congress, 2d Session) section 241 (a) (3) provided for the deportation
of any alien who "hereafter within five years after entry, becomes
institutionalized at public expense because of mental disease, defect,
or deficiency." (Emphasis supplied.) In an analysis of some of the
major differences between the McCarron Omnibus Bill (S. 2550) and
the Humphrey-Lehman Bill (S. 2842) it was pointed out that section
241(a) (3) of the McCarron Bill makes deportable aliens who, within
five years after entry, become institutionalized because of mental disease, defect or deficiency, though it be a nervous breakdown, whether
rr not the alien can pay his own way and whether or not the cause
existed before entry. The Humphrey-Lehman Bill makes such persons deportable only if they are institutionalized at public expense
and if the mental disease, defect or deficiency existed prior to entry.
It was pointed out that the Humphrey-Lehman Bill follows the
present law.8
The bill, as it was finally enacted on June 27, 1062, provides in

section 241(a) (3), 8 U.S.C. 1251(a) (3), for the deportation of any
alien who hereafter, within five years after entry, becomes institutionalized at public expense because of mental disease, defect or deficiency, unless the alien can show that such disease, defect, or deficiency
did not exist prior to his admission to the United States. The final
draft of the bill appears to have evolved as a floor amendment and
the only comment relative thereto is to the effect that in conforming
the language of both House and Senate versions, the conferees have
provided for a statute of limitations (as contained in the House
version) in accord with humanitarian principles, particularly in the
cases of aliens where deportation would be based on mental disease or
on economic distress.'
It can be seen that the bill as finally enacted differed widely from
the original draft which was the result of the recommendations contained in House Report No. 1515 (81st Congress, 2d Session), page
390. Not only was a five-year statute of limitations provided for, but
provision was also made that if the alien became institutionalized at
public expense and if it was shown that the mental disease, defect or
deficiency did not exist prior to his admission, the ground of deportability would fail. Thus, the legislation as finally enacted resembled
closely the public charge provisions of the Immigration Act of Febru3

98 Congressional Record 5799.

`House Report No. 2096 (62nd Cong., 2d Secs.), p. 127; 98 Congressional
Record 7017 (June 11,19x2).

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Interim Decision #1261
ary 5, 1917. Therefore, the comments in the Report on the Committee
on the Judiciary pursuant to Senate Resolution 137 5 with its recommendation that all aliens who become institutionalized because of
mental deficiency within five years of entry should be deportable was
never enacted into law, but the less stringent provisions of the Humphrey-Lehman Bill was enacted into section 241(a) (3) which followed
the then existing law. 6
The law that then existed is set forth in Matter of B.—, 3 I. & N.
Dec. 323 (A.G., October 28, 1948). In that case the respondent first
entered the United States in 1920, and last entered on July 22, 1939,
after a visit to Ireland. Early in 1940 she was sent to the Cook County
Psychopathic Hospital for observation and in March she was ordered
committed to the Manteno State Hospital by the County Court of

Cook County, Illinois. Her condition was diagnosed as psychoneurosis, reactive depression, and at the time of the hearing she was
still a mental patient at that institution. Her sister provided money
for the purchase of respondent's clothes and for other incidentals.
The Illinois statute provided that the respondent was entitled to
receive free maintenance, care and treatment while a patient at the
Mantena State Hospital and she was only liable for her clothing,
transportation and other incidental expenses which were discharged
by her sister. The Board, citing the cases of Noechi v. Janson, 6 F.2d
1 (1st Cir., 1925) and Ex parte Kiehmiriaats, 283 F. 697 (N.D. Cal.
1922), evolved the following rule: (1) the State or other governing
body must, by appropriate law, impose a charge for the services
rendered to the alien; in other words, the State must have a cause of
action in contract against either the person taking advantage of the
State's services or other designated relatives or friends; if no charge
is made and if the State does not have a cause of action, the alien cannot
be said to be a public charge; (2) the authorities must make a demand

for payment of the charge upon those persons made liable under the
State law except where the patient and persons legally responsible for
its care and maintenance are known to be destitute; and (3) there
must be a failure to pay for the charges; if there is a failure to pay
either because of the lack of demand or because the State authorities
do not perform their duty to collect the charges, the alien cannot be
said to have become a public charge. A minority of the Board dissented from this view but the Attorney General sustained the majority
opinion.
In the present case, the State has fixed a charge having in mind the

ability of the respondent or her legally liable husband, to pay, and
payment has been made of the sum demanded. The fact that the
* Senate Report No. 1515 (81st Cong., 2d Bess., 390).
6

98 Congressional Record 5797.

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Interim Decision *1261
State might later have recourse against the estate of the patient or of
her husband we believe is not material to the charge laid under section
241(a) (8) of the Immigration and Nationality Act. Inasmuch as
the maintenance charges have been paid and are currently being paid,
it cannot be said that the respondent is being institutionalized at public
expense and the charge must therefore fall. The proceedings will be
terminated.
ORDER: It is ordered that the appeal be sustained and that the
proceedings be and the same are hereby terminated.

164


Cite as 27 I&N Dec. 82 (BIA 2017)

Interim Decision #3899

Matter of J-G-D-F-, Respondent
Decided August 18, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Burglary of a dwelling in violation of section 164.225 of the Oregon Revised Statutes is
a crime involving moral turpitude, even though the statute does not require that a person
be present at the time of the offense, provided that the dwelling is at least intermittently
occupied.
FOR RESPONDENT: N. David Shamloo, Esquire, Portland, Oregon
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sarah C. Lara, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, WENDTLAND, and O’CONNOR, Board Members.
PAULEY, Board Member:

In a decision dated February 29, 2016, an Immigration Judge determined
that the respondent is removable under section 212(a)(2)(A)(i)(I) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), as
an alien convicted of a crime involving moral turpitude. The Immigration
Judge issued a second decision dated May 5, 2016, in which she denied the
respondent’s applications for cancellation of removal, asylum, withholding
of removal, and protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened
for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51,
at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987;
for the United States Apr. 18, 1988) (“Convention Against Torture”), but
granted his application for voluntary departure. The respondent has appealed
from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United
States without inspection at an unknown time and place. He was convicted
of burglary in the first degree in violation of section 164.225 of the Oregon
Revised Statutes on April 9, 1999, and March 19, 2002.

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Interim Decision #3899

The Department of Homeland Security (“DHS”) initiated removal
proceedings against the respondent, charging him with removability under
section 212(a)(2)(A)(i)(I) of the Act based on his convictions and under
section 212(a)(6)(A)(i), as an alien who is present in the United States
without being admitted or paroled. The respondent conceded that he is
inadmissible because of his unlawful presence but denied inadmissibility
under section 212(a)(2)(A)(i)(I) of the Act.

II. ANALYSIS
A. Crime Involving Moral Turpitude
To determine whether the respondent’s burglary offense is a crime
involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act, we
employ the “categorical approach” by “comparing the elements of the state
offense to those of the generic [definition of a crime involving moral
turpitude] to determine if there is a categorical match.” Escobar v. Lynch,
846 F.3d 1019, 1024 (9th Cir. 2017) (citations omitted). “This [approach]
requires us to focus on the minimum conduct that has a realistic probability
of being prosecuted under the statute of conviction, rather than on the facts
underlying the respondent’s particular violation of that statute.” Matter of
Silva-Trevino, 26 I&N Dec. 826, 831 (BIA 2016); see also Escobar, 846 F.3d
at 1024.
“Although the immigration statutes do not specifically define offenses
constituting crimes involving moral turpitude, a crime involving moral
turpitude is generally a crime that ‘(1) is vile, base, or depraved and
(2) violates accepted moral standards.’” Escobar, 846 F.3d at 1023 (citations
omitted); see also Matter of Silva-Trevino, 26 I&N Dec. at 834 (“To involve
moral turpitude, a crime requires two essential elements: reprehensible
conduct and a culpable mental state.”).
The respondent argues that the crime defined in section 164.225 of the
Oregon Revised Statutes is broader than the generic definition of a crime
involving moral turpitude in section 212(a)(2)(A)(i)(I) of the Act.
Specifically, he argues that a violation of the statute does not necessarily
involve reprehensible conduct or a culpable mental state since it does not
require that a defendant unlawfully enter a dwelling or intend to commit a
crime involving moral turpitude at the time he or she enters the building. 1
1

To the extent that the respondent asserts that section 212(a)(2)(A)(i)(I) of the Act is
invalid because the phrase “crime involving moral turpitude” is unconstitutionally vague,
it is well settled “that as a general matter, we may not entertain constitutional challenges
to the provisions of the Act.” Matter of Calcano de Millan, 26 I&N Dec. 904, 911 (BIA

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Interim Decision #3899

The DHS contends that first degree burglary under Oregon law is
categorically a crime involving moral turpitude because it necessarily
involves the burglary of a dwelling with the intent to commit a crime therein.
Whether the respondent’s offense is a crime involving moral turpitude is a
question of law that we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2017).
At all relevant times, section 164.225 of the Oregon Revised Statutes
provided as follows, in pertinent part:
(1) A person commits the crime of burglary in the first degree if the person violates
ORS 164.215 and the building is a dwelling, or if in effecting entry or while in a
building or in immediate flight therefrom the person:
(a) Is armed with a burglar’s tool as defined in ORS 164.235 or a deadly
weapon; or
(b) Causes or attempts to cause physical injury to any person; or
(c) Uses or threatens to use a dangerous weapon.

(Emphasis added.) Section 164.215 provided, in turn, that
a person commits the crime of burglary in the second degree if the person enters or
remains unlawfully in a building with intent to commit a crime therein.

(Emphasis added.) 2 Under section 164.205(2), the term “dwelling” means
a building which regularly or intermittently is occupied by a person lodging therein
at night, whether or not a person is actually present.
2017). Moreover, the Supreme Court has previously held that the meaning of the phrase
“crime involving moral turpitude” is sufficiently definite to withstand constitutional
scrutiny. See Jordan v. De George, 341 U.S. 223, 229–32 (1951).
2
At the time of the respondent’s 1999 conviction, section 164.205(3) of the Oregon
Revised Statutes defined the phrase “Enter or remain unlawfully” as follows:
(a) To enter or remain in or upon premises when the premises, at the time of such
entry or remaining, are not open to the public or when the entrant is not otherwise
licensed or privileged to do so; or
(b) To fail to leave premises that are open to the public after being lawfully
directed to do so by the person in charge.
(Emphasis added.) The word “or” between the clauses “are not open to the public” and
“when the entrant is not otherwise licensed or privileged to do so” in section 164.205(3)(a)
has been construed by Oregon courts as being conjunctive rather than disjunctive. See
State v. Collins, 39 P.3d 925, 929 (Or. Ct. App. 2002) (citing State v. Hartfield, 624 P.2d
588, 594–95 (Or. 1981) (en banc)). Moreover, as the court in Collins noted, the legislative
history of the statute indicates that earlier drafts included the word “and,” rather than “or.”
Id. at 393. So does the current version of section 164.205(3)(a) following its amendment
in 2015. We are therefore unpersuaded by the respondent’s contention that his violation
of section 164.225 did not necessarily involve an unlawful entry or remaining.

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Interim Decision #3899

(Emphasis added.)
Thus, a person commits first degree burglary under section 164.225 of
the Oregon Revised Statutes by either (1) entering or remaining unlawfully
in a building that is a dwelling with the intent to commit a crime; or
(2) unlawfully entering or remaining in a building, while carrying a burglar’s
tool or deadly weapon, causing or attempting to cause injury to any person,
or using or threatening to use a dangerous weapon. United States v. Mayer,
162 F. Supp. 3d 1080, 1089 (D. Or. 2016). We need not determine whether
both prongs of the statute define a crime involving moral turpitude, because
the statute is divisible with respect to whether a first degree burglary offense
involved entering or remaining unlawfully in a dwelling, as opposed to a
building other than a dwelling. Id. (“Clearly, the statute provides alternative
elements of functionally separate crimes; one that involves a dwelling and
others that do not.” (citing Oregon Uniform Criminal Jury Instructions 1901
(stating the elements for a violation of section 164.225 involving entering or
unlawfully remaining in a dwelling) and 1902 (same with regard to a building
other than a dwelling)); see also Mathis v. United States, 136 S. Ct. 2243,
2249 (2016) (deeming a statute to be divisible if “it list[s] elements in the
alternative, and thereby define[s] multiple crimes”). 3
Because the respondent’s statute of conviction is divisible, the
Immigration Judge was permitted to employ a modified categorical inquiry
to determine whether the respondent was convicted of unlawfully entering or
remaining in a “dwelling” with the intent to commit a crime therein. See
Mathis, 136 S. Ct. at 2249. The Immigration Judge found that, with respect
to the 2002 conviction, the respondent pleaded no contest to “Burg I
3

Citing United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016), the respondent argues
that section 164.225 is indivisible. In Cisneros, the Ninth Circuit held that section 164.225
punishes conduct outside the generic definition of a “burglary” under Federal law because
“the statute does not limit burglary to ‘building[s] or structure[s],’ but also includes
non-structures (such as booths, vehicles, boats, and aircraft).” Id. at 1194 (alteration in
original) (quoting United States v. Mayer, 560 F.3d 948, 959 (9th Cir. 2009)). The Ninth
Circuit additionally held that section 164.225 is indivisible with respect to the type of
“building” involved in a violation of section 164.225. Id. at 1196. However, the holding
in Cisneros is inapposite. While the definition of a “building” under Oregon law is relevant
to the categorical comparison of the elements of section 164.225 to the generic definition
of burglary under Federal law, as we explain below, it is the requirement that the building
be a “dwelling”—that is, “a building which regularly or intermittently is occupied” under
section 164.205(2)—that brings violations of the first prong of section 164.225 within the
generic definition of a crime involving moral turpitude. The respondent does not argue
that a burglary of a regularly or intermittently occupied dwelling that is not a structure
(such as a booth, vehicle, boat, or aircraft) is less turpitudinous than a burglary of an
occupied dwelling that is a structure.

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Interim Decision #3899

occupied.” Additionally, the judgment and plea agreement for the
respondent’s 1999 conviction show that he pleaded to “Burglary I” as
charged in Count 2 of the charging document, which alleged that the offense
occurred “in an occupied dwelling.” We therefore discern no error in the
Immigration Judge’s conclusion that, according to the respondent’s record of
conviction, he was convicted under the prong of section 164.225 that requires
entering or remaining unlawfully in a “dwelling” with the intent to commit a
crime. 4 The critical question then becomes whether burglary of a regularly
or intermittently occupied dwelling under Oregon law is a crime involving
moral turpitude. For the following reasons, we conclude that it is.
We first addressed in a precedent decision whether burglary is a crime
involving moral turpitude in Matter of M-, 2 I&N Dec. 721 (BIA, A.G. 1946).
In that decision, which the Attorney General affirmed, we considered a
provision of New York Penal Law that provided that whoever “[w]ith intent
to commit a crime therein, breaks and enters a building, or a room, or any
part of a building[] or . . . [b]eing in any building, commits a crime therein
and breaks out of the same, is guilty of burglary in the third degree.” Id. at
722.
We indicated that we had “always maintained that these offenses may or
may not involve moral turpitude, the determinative factor being whether the
crime intended to be committed at the time of entry or prior to the breaking
out involves moral turpitude.” Id. at 723 (citing nonprecedential orders
issued between 1943 and 1945). We reasoned that merely unlawfully
entering premises by, “[f]or example, pushing ajar the unlocked door of an
unused structure and putting one’s foot across the threshold,” would not itself
constitute “base, vile, or depraved” conduct. Id. And we noted that although
larceny was probably present in most violations of the New York statute,
“larceny is not a necessary element in third degree burglary in New York.”
Id. In fact, the statute reached breaking and entering to commit any one of
almost countless offenses under New York law, including misdemeanor
offenses such as “a group of boys opening the unlocked door of an abandoned
barn with the intention of playing cards in violation of one of the many New
York wagering laws,” an offense we concluded did not involve moral
turpitude. Id. We therefore held that it is the “particular crime” that
accompanies the unlawful entry, rather than the unlawful entry itself, that
determines the turpitudinous nature of a burglary offense. Id.
In numerous unpublished decisions issued subsequent to Matter of M-,
we have applied our holding that burglary is a crime involving moral
4

Although section 164.225 is divisible with respect to whether a burglary offense
involved entering or unlawfully remaining in a dwelling, it is indivisible with respect to
whether the dwelling was “occupied” within the meaning of section 164.205(2) at the time
of the offense, as alleged in both the 1999 and 2002 records of conviction.

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Interim Decision #3899

turpitude only if the crime accompanying the unlawful entry is itself
turpitudinous. However, we have emphasized that Matter of M- did not
involve burglary of a dwelling. See Matter of Louissaint, 24 I&N Dec. 754,
756 (BIA 2009) (“We therefore find that our holding in Matter of M- . . . is
distinguishable because the offense at issue here . . . involves the burglary of
an occupied dwelling.” (emphasis added)); cf. Hernandez-Cruz v. Holder,
651 F.3d 1094, 1106–10 (9th Cir. 2011) (concluding that the offense of
entering a commercial building with the intent to commit any felony was not
a categorical crime involving moral turpitude because it did not involve a
“dwelling” or require the entry to be unlawful).
In Louissaint, we held that burglary of an occupied dwelling in violation
of section 810.02(3)(a) of the Florida Statutes is a categorical crime
involving moral turpitude because the “conscious and overt act of unlawfully
entering or remaining in an occupied dwelling with the intent to commit a
crime is inherently ‘reprehensible conduct’ committed ‘with some form of
scienter.’” Matter of Louissaint, 24 I&N Dec. at 758 (citation omitted). We
reasoned that “[b]y breaking into a dwelling of another for an illicit purpose,
the burglar tears away the resident’s justifiable expectation of privacy and
personal security and invites a violent defensive response from the resident.”
Id. at 758–59. In a recent decision holding that third degree burglary of a
dwelling under Maryland law is categorically a crime involving moral
turpitude, the United States Court of Appeals for the Fourth Circuit similarly
distinguished our decision in Matter of M- and deferred to our holding in
Louissaint. Uribe v. Sessions, 855 F.3d 622, 626−27 & n.5 (4th Cir. 2017).5
We recognize that the Ninth Circuit, in whose jurisdiction this case arises,
has favorably cited our holding in Matter of M- for the proposition that “the
act of entering is not itself ‘base, vile or depraved,’ and that it is the particular
crime that accompanies the act of entry that determines whether [a burglary]
offense is one involving moral turpitude.” Cuevas-Gaspar v. Gonzales, 430
F.3d 1013, 1019 (9th Cir. 2005) (quoting Matter of M-, 2 I&N Dec. at 723),
abrogated on other grounds by Holder v. Martinez Gutierrez, 566 U.S. 583
(2012). However, that case was decided before we issued Louissaint, which
clarified that unlawfully entering or remaining in an occupied dwelling to
commit any crime categorically falls within the generic definition of a crime
involving moral turpitude. Thus, we do not view Cuevas-Gaspar as
intending to preclude us from reconsidering and refining our holding in
Matter of M- after a reasoned analysis. See Marmolejo-Campos v. Holder,
558 F.3d 903, 911 (9th Cir. 2009) (en banc) (stating that deference should be
accorded where “the Board determines that certain conduct is morally
5

At this time, we need not address whether burglary of a “dwelling” or “residence” is a
categorical crime involving moral turpitude under each of the States’ definitions of these
terms.

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turpitudinous in a precedential decision”); see also Uribe, 855 F.3d at 627
n.5.
We conclude that it is appropriate to extend our holding in Matter of
Louissaint to the offense of first degree burglary of a dwelling under section
164.225 of the Oregon Revised Statutes. Burglary of a dwelling under
Oregon law differs from the Florida crime we examined in Louissaint in that
Oregon does not require the victim’s presence at the time of the offense. See
Matter of Louissaint, 24 I&N Dec. at 758 (recognizing that the Florida statute
required “proof that the burglary took place in a dwelling occupied by
another person at the time the offender entered or remained”). However,
section 164.205(2) of the Oregon Revised Statutes does require, at a
minimum, that the dwelling be “regularly or intermittently . . . occupied.”
(Emphasis added.); see also State v. Eaton, 602 P.2d 1159, 1160 (Or. Ct.
App. 1979) (concluding that a structure is not “regularly or intermittently”
occupied “[w]here an eight-week period of occupancy is followed by
44 weeks of vacancy, and where the burglary occurred months after the last
occupant left”).
This requirement raises the probability of a person’s presence at the time
of the offense and involves the same justifiable expectation of privacy and
personal security as the Florida burglary offense we considered in Louissaint.
See California v. Ciraolo, 476 U.S. 207, 213 (1986) (indicating that privacy
expectations are most heightened in a person’s home, both physically and
psychologically). We therefore hold that burglary of a regularly or
intermittently occupied dwelling under Oregon law is morally turpitudinous,
regardless of whether a person was actually present at the time of the offense.
Consequently, the Immigration Judge correctly ruled that the respondent has
been convicted of a crime involving moral turpitude and is therefore
removable under section 212(a)(2)(A)(i)(I) of the Act.
B. Relief and Protection From Removal
Because the respondent has been convicted of an offense under section
212(a)(2), he is ineligible for cancellation of removal under section
240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2012). The respondent
also applied for asylum, withholding of removal, and protection under the
Convention Against Torture. Although he conceded that he did not
experience past persecution in Mexico, he testified that he fears returning to
that country because he is afraid he will be targeted for kidnapping and other
harm as a result of the general violence there and because he will be singled
out as someone who has spent many years in the United States.
The Immigration Judge determined that the respondent is barred from
seeking asylum because his late filing was not excused. See sections
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208(a)(2)(B), (D) of the Act, 8 U.S.C. §§ 1158(a)(2)(B), (D) (2012); 8 C.F.R.
§ 1208.4(a)(4), (5) (2017). However, we need not address the timeliness of
the application because we agree with the Immigration Judge’s alternative
determinations that the respondent has not demonstrated past persecution or
shown that membership in a particular social group, or any other protected
ground, would be at least one central reason (or even a reason) for the harm
he fears. See Barajas-Romero v. Lynch, 846 F.3d 351, 358–60 (9th Cir.
2017) (holding that although an applicant for asylum must show that a
protected ground was “one central reason” for the claimed persecution, the
Act only requires applicants for withholding of removal to demonstrate that
a protected ground was “a reason” for the harm). Because the respondent
does not allege that he experienced past persecution in Mexico, he is not
entitled to a presumption that he has a well-founded fear of future
persecution. 8 C.F.R. § 1208.13(b)(1) (2017).
We also agree with the Immigration Judge that the respondent has not
established the requisite likelihood of future persecution on account of
membership in a particular social group. We recently clarified the elements
required to establish a cognizable particular social group under the Act. See
Matter of M-E-V-G-, 26 I&N Dec. 227, 237–43 (BIA 2014); Matter of
W-G-R-, 26 I&N Dec. 208, 212–18 (BIA 2014), vacated in part and
remanded on other grounds, Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016).
An applicant for asylum or withholding of removal based on membership in
a particular social group must establish that the group (1) is composed of
members who share a common immutable characteristic, (2) is defined with
particularity, and (3) is socially distinct within the society in question.
Matter of M-E-V-G-, 26 I&N Dec. at 237; Matter of W-G-R-, 26 I&N Dec.
at 212–18; see also Reyes, 842 F.3d at 1135 (deferring to our articulation of
the “particularity” and “social distinction” requirements). In addition to
establishing the existence of a cognizable particular social group, an
applicant for asylum or withholding of removal must also demonstrate a
nexus between the alleged persecution and membership in the specified
social group. See Matter of L-E-A-, 27 I&N Dec. 40, 43−44 (BIA 2017).
Although the respondent did not clearly articulate a particular social
group, he asserted that he would be targeted by criminals because he would
be recognized as someone who has lived in the United States for a long period
of time based on his clothing and accent. However, this proposed group lacks
particularity, because it is amorphous and lacks definable boundaries. As
described, the proposed group could include persons of any age, sex, or
background. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228–29 (9th Cir.
2016) (finding that no cognizable particular social group was established by
Mexicans claiming they would be perceived as wealthy Americans because
they are light-skinned, fit, and have American mannerisms or accents);
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Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (finding
that a group comprised of “returning Mexicans from the United States” was
too broad to constitute a cognizable social group); Matter of W-G-R-, 26 I&N
Dec. at 223 (“Deportees are too broad and diverse a group to satisfy the
particularity requirement for a particular social group under the Act.”).
Accordingly, the respondent has not demonstrated membership in a
cognizable particular social group and therefore has not shown his eligibility
for asylum or withholding of removal. See Zetino v. Holder, 622 F.3d 1007,
1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by
criminals motivated by theft or random violence by gang members bears no
nexus to a protected ground.”).
We also affirm the Immigration Judge’s determination that the
respondent has not met his burden of proof for protection under the
Convention Against Torture. Although we recognize the generalized
evidence of crime, violence, and impunity among public officials in Mexico,
there is no clear error in the Immigration Judge’s finding that the respondent
did not establish that it is more likely than not that he, in particular, will be
tortured by or at the instigation of, or with the consent or acquiescence of
(to include the concept of willful blindness), a public official or other person
acting in an official capacity in Mexico. 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a)(1) (2017); see also Delgado-Ortiz, 600 F.3d at 1152.

III. CONCLUSION
The respondent has been convicted of a crime involving moral turpitude
and is therefore removable under section 212(a)(2)(A)(i)(I) of the Act and
ineligible for cancellation of removal under section 240A(b)(1)(C). He has
also not established that he is eligible for asylum, withholding of removal, or
protection under the Convention Against Torture. Accordingly, his appeal
will be dismissed. However, because the respondent submitted timely proof
that he paid the voluntary departure bond, the period of voluntary departure
granted by the Immigration Judge will be reinstated.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge’s order and
conditioned upon compliance with conditions set forth by the Immigration
Judge and the statute, the respondent is permitted to voluntarily depart the
United States, without expense to the Government, within 60 days from the
date of this order or any extension beyond that time as may be granted by the
DHS. See section 240B(b) of the Act, 8 U.S.C. § 1229c(b) (2012); see also
8 C.F.R. § 1240.26(c), (f) (2017). In the event the respondent fails to
voluntarily depart the United States, the respondent shall be removed as
provided in the Immigration Judge’s order.
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NOTICE: If the respondent fails to voluntarily depart the United States
within the time period specified, or any extensions granted by the DHS, the
respondent shall be subject to a civil penalty as provided by the regulations
and the statute and shall be ineligible for a period of 10 years for any further
relief under section 240B and sections 240A, 245, 248, and 249 of the Act,
8 U.S.C. §§ 1229b, 1255, 1258, and 1259 (2012). See section 240B(d) of the
Act.
WARNING: If the respondent files a motion to reopen or reconsider
prior to the expiration of the voluntary departure period set forth above, the
grant of voluntary departure is automatically terminated; the period allowed
for voluntary departure is not stayed, tolled, or extended. If the grant of
voluntary departure is automatically terminated upon the filing of a motion,
the penalties for failure to depart under section 240B(d) of the Act shall not
apply. See 8 C.F.R. § 1240.26(e)(1).
WARNING: If, prior to departing the United States, the respondent
files any judicial challenge to this administratively final order, such as a
petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252
(2012), the grant of voluntary departure is automatically terminated, and the
alternate order of removal shall immediately take effect. However, if the
respondent files a petition for review and then departs the United States
within 30 days of such filing, the respondent will not be deemed to have
departed under an order of removal if he provides to the DHS such evidence
of his departure that the Immigration and Customs Enforcement Field Office
Director of the DHS may require and provides evidence DHS deems
sufficient that he has remained outside of the United States. The penalties
for failure to depart under section 240B(d) of the Act shall not apply to an
alien who files a petition for review, notwithstanding any period of time that
he remains in the United States while the petition for review is pending. See
8 C.F.R. § 1240.26(i).

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Interim Decision #2227

MATTER OF JULIANUS
In Visa Petition Proceedings
A-11753637

Decided by Board September 14, 1973
Under the law of Guadeloupe, French West Indies, legitimation of a child born
out of wedlock is accomplished by the subsequent marriage of his father and
mother.
. ON BEHALF OF PETITIONER: Ben Carter, Esquire
138 E. Court Street
Room 327 Temple Bar Bldg.
Cincinnati, Ohio 45202

The permanent resident petitioner applied for preference status
for the beneficiary as his unmarried son under section 203(aX2) of
the Immigration and Nationality Act. The District Director denied
the application in an order dated May 1, 1972. The petitioner

appeals from that decision. The appeal will be dismissed.
The beneficiary is a native of Guadeloupe, French West Indies
and a citizen of France. The record indicates that the petitioner
was never ceremonially married to the beneficiary's Mother. The
petitioner's residence and domicile are in Ohio.
The issue presented in this appeal is whether the beneficiary
qualified as a "child" for purposes of the immigration laws when
he was under the age of 21, for he must have been a "child" then
in order to qualify as an unmarried son now. See Matter of R—, 5 L
& N. Dee. 435, 439 (BIA, 1953).
The term "child" is defined in section 101(b)(1) to include any
unmarried person under 21 years of age who is—
(A) a legitimate child: or
(B) a stepchild ...; or
(C) a child legitimated under the law of the child's residence or domicile, or
under the law of the father's residence or domicile, whether in or outside the
United States, if such legitimation takes place before the child reaches the age
of eighteen years and the child is in the legal custody of the legitimating
parent or parents at the time of such legitimation; or
(D) an illegitimate child ... on whose behalf a status, privilege, or benefit is
sought by virtue of the relationship of the child to its natural mother; or
(E) a child adopted ...

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Subparagraphs (B), (D), and (E) dearly are inapplicable to the
present case. The petitioner claims that the beneficiary is a
legitimated child, although he presented no evidence to show
legitimate birth or legitimation under the law of either the
beneficiary's or the petitioner's residence or domicile.
With respect to the laws of Guadeloupe, the residence and
domicile of the beneficiary, the beneficiary does not qualify as a
legitimated child. Clearly, the beneficiary was not a legitimate
child at birth, since his parents were not married to each other,
and children born out of wedlock are legitimated only by the
subsequent marriage of their father and mother, Article 221,
French Civil Code. 1 This provision was in force in Guadeloupe at
all relevant times including when this application was made, and
until January 3, 1972. On that date the wording of this provision
was changed slightly because of the enactment of a law on
filiation, but not in such a way as would affect the outcome of this
case. 2
The petitioner claims that the beneficiary was legitimated according to the laws of Ohio, alleging that because Ohio recognizes
common law marriages, the beneficiary was somehow legitimated.
However, he presents no evidence regarding either common law

marriage or legitimation under Ohio law. The petitioner states in
his petition that he never lived with the beneficiary's mother in
the United States. His own residence in Ohio is not sufficient basis
to claim the existence of a common law marriage under that
state's law. Therefore, it appears that the beneficiary has not been
legitimated in accordance with Ohio law.
It is well settled that an illegitimate child gains no benefits
under the immigration laws on the basis of its relationship to its
father, Matter of C-, 5 I. & N. Dec. 610 (BIA, 1954). Since a parentchild relationship, as defined by the immigration laws, was never
formed, the beneficiary does not qualify as an unmarried son for
purposes of section 203(a)(2) of the Act.
Counsel claims in his brief that in 1969 a government official led
the petitioner to believe that all he needed to do to accord the
1 Article 331 of the French Civil Code (Law of April 25, 1924): "Children born
outside of marriage, other than those born of adulterous intercourse, shall be
legitimated by the subsequent marriage of their father and mother when the
latter have acknowledged them before their marriage or when they acknowledge
them at the time of its celebration ...."
2 Article 331 of the French Civil Code (Law of January 3, 1973): "All children
born outside of marriage shall be legitimated by operation of law by the
subsequent marriage of their father and mother.
"If their filiation was not already established, these children shall be the
object of the acknowledgment at the time of celebration of marriage ...."

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beneficiary legal status as his son for immigration purposes was to
wait until the boy was 18 years old. He alleges that the petitioner
was not informed that he would have to legitimate his son before
the boy reached the age of 18. He contends that, because the
petitioner relied to his detriment on the official's statement, the
Government should be estopped from barring the youth's admission now. However, there is no evidence in the record to substantiate these assertions, and the burden to establish eligibility for
benefits sought under the immigration laws falls upon the petitioner in visa petition proceedings, Matter of Brantigan, 11 I. & N.
Dec. 493, 495 (BIA, 1966); Matter of Yee, 11 I. & N. Dec. 27,
30 (BIA, 1964).
Accordingly, we agree with the District Director that the petitioner has failed to establish the beneficiary's eligibility for the
preference he seeks, and therefore we shall dismiss the appeal.
ORDER: The appeal is dismissed.

437