Interim Decision #2613

NATTER OE' PRITCHARD
In

Deportation Proceedings
A-21260702

Decided by Board September 9, 1977
(1) Respondent was convicted in Great Britain in 1974 for unauthorized possession of
marihuana under the Misuse of Drugs Act of 1971. That statute, in § 28(3)(b) provided
that a defendant should be acquitted if he prdves that he neither believed nor suspected
or had reason to suspect that the substance or product in question was a controlled
drug. Thus, in this statute, guilty knowledge is relevant and the case is distinguishable
from Lennon v. INS, 527 F.2d 187.
(2) Respondent's conviction for marihuana possession is within the purview of section
212(a)(23) of the Act and for that reason he cannot be regarded as a person of good moral
character under section 101(0(3) of the Act.
(3) Since respondent cannot establish that he has been a person of good moral character for
at least five years preceding his application for voluntary departure under section
244(e), he was statutorily ineligible for that relief and his application was properly
denied.
CHARGE:
Order: Act of 19E—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Entered without inspection
ON BEHALF OF RESPONDENT: Ken Powell, Esquire
1011 North Mesa
El Paso, Texas 79902
BY: Milhollan, Chairman; Wilson and Maniatis, Board Members

In a decision dated August 25, 1976, the immigration judge found the

respondent deportable as charged, denied him the privilege of voluntary
departure, and ordered his deportation to Great Britain. The respondent has appealed from that decision. The appeal will be dismissed.

The respondent is a native of Chile and a citizen of Great Britian. In
an Order to Show Cause dated April 30, 1976, it is alleged that the
respondent entered the United States at El Paso, Texas on or about
October 29, 1975; and that he was not inspected and admitted (into the
United States) by an immigration officer. He was charged under section
241(a)(2) of the Immigration and Nationality Act.
At his hearing, the respondent admitted the facts alleged in the Order
to Show Cause and conceded deportability. The immigration judge
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Interim Decision #2613
determined that the respondent was deportable. We agree that deportability was established by clear, convincing, and unequivocal evidence.
The respondent declined to designate a country of deportation. The
immigration judge designated Great Britain (the respondent's country
of nationality) as his place of deportation.
The immigration judge further concluded that the respondent was
statutorily ineligible for voluntary departure because he was not a
person of good moral character within the meaning of the immigration
laws. His conclusion was predicated upon respondent's admission at his

hearing that he was convicted in Great Britian in 1974 of the criminal
offense of possession of marihuana. We note that the respondent further
admitted that he had pled guilty to the charge and that the trial court
sentenced him to three months imprisonment, but that an appellate
court reduced his sentence to a fine of 250 pounds in British currency.
On appeal, counsel for the respondent submits that the rationale
expressed by the Court of Appeals in Lennon v. INS, 527 F.2d 187 (2
Cir. 1975), is applicable to the facts of this case. Counsel argues that
Lennon and the respondent were convicted under the same British
statute that imposes criminal liability for unauthorized possession of

drugs; that under that particular statute, guilty knowledge is irrelevant;
and that, therefore, respondent's conviction under the statute for possession of marihuana does not render him ineligible for voluntary departure as a person who is not a good moral character. Counsel also points
out that the respondent has satisfied the requirements of good moral
character; that he is married to a United States citizen spouse; that a
visa petition has been filed with the Service on his behalf; and that his
application for voluntary departure should be granted.
The issue that arises in this case pertains to statutory eligibility for
voluntary departure. In order to be eligible for the discretionary relief

of voluntary departure, and alien must show that he is, and has been, a
person of good moral character for at least five years preceding his
application, and that he is willing and has the immediate means with
which to depart promptly from the United States. Section 244(e), Immigration and Nationality Act; 8 C.F.R. 244.1. The alien has the burden of
establishing that he is statutorily eligible for voluntary departure and
that he merits a favorable exercise of discretion. Matter of Tsang, 141.

& N. Dec. 294 (BIA 1973).

Under the provisions of section 101(f)(3) of the Act, a person is not of
good moral character if he has been convicted of an offense described in
section 212(a)(23) of the Act during the period for which good moral
character is required to be established. Section 212(a)(23) includes any
alien who has been convicted of a violation of any law or regulation
relating to the illicit possession of marihuana.
The respondent admitted that he pled guilty to and was found
341

Interim Decision #2613
guilty of the unauthorized possession of marihuana by a British criminal
court in 1974. The statute under which he was convicted is the "Misuse
of Drugs Act 1971" which was enacted by the British Parliament on May
27, 1971. This act superceded the "Dangerous Drugs Act- 1965." 1 The
important distinction to be drawn between the two British statutes for
immigration purposes is the fact that under the former statute guilty
knowledge or scienter was not an element of the offense of unauthorized
possession of drugs. In Lennon v. INS, supra, the United States Court
of Appeals for the Second Circuit held that Congress did not intend to
impose the harsh consequences of exclusion upon an individual convicted
of possession of drugs under a foreign law that made guilty knowledge
irrelevant. See Matter of Lennon, Interim Decision 2304 (BIA 1974),
reversed on other grounds, Lennon v. INS, supra. The court concluded
that the British statute under which the alien had been convicted
imposed absolute liability for unauthorized possession of drugs and
vacated the order of deportation. Unlike the statute under which Lennon was convicted, the respondent in the instant proceedings was convicted of unauthorized possession of marihuana under a statute which
explicitly provides that a defendant should be acquitted "if he proves
that he neither believed nor suspected nor had reason to suspect that
the substance or product in question was a controlled drug. " See Section
28(3)(b) of the Misuse of Drugs Act 1971 (Great Britain). 2 Lennon v.
LIVS, supra, at footnote 9; Matter of Lennon, supra, at footnote 17.
It is clear that under the terms of the British Misuse of Drugs Act of
1971, a defendant who can prove lack of knowledge would not be found
guilty. We conclude, therefore, that, in the case of the respondent's
marihuana conviction, the element of guilty knowledge was relevant.
Consequently, this case is distinguishable from the court's decision in
Lennon, v. INS, supra. Cf. Matter of Awadh, Interim Decision 2519
(BIA 1976); Matter of Pasquini, Interim Decision 2496 (3IA 1976).
We further conclude that respondent's conviction for unauthorized
marihuana possession in Great Britain comes within the purview of
section 212(a)(23) of the Act. Therefore, he may not be regarded as a

person of good moral character under the provisions of section 101(0(3).
Our determination regarding good moral character has no bearing on
' John Winston Ono Lennon, the petitioner in Lennon v. INS 527 F.2d 187 (2 Cir. 1975),
was convicted of possession of cannabis resin in the Dangerous Drugs Ant of 1965 (Great
Britain).
2 We note that the record file contains a letter sent by the Law Library (AmericanBritish Law Division) of the Library of Congress to counsel for the respondent on
F ebruary 7, 1977. That letter was issued to counsel in response to his question as to
whether an individual could be convicted under Scottish law of possession of marihuana
without guilty knowledge. The Library of Congress letter referred counsel to the Misuse
of Drugs Act of 1971, C. 38 (Great Britain'). A copy of part of the text of that Act was
enclosed in the Library of Congress letter.

342

Interim Decision #2613
the fact that the respondent was found deportable on a ground other
than his marihuana conviction, i.e., entry without inspection. See section
101(0(3). Since the respondent has not established that he has been a
person of good moral character for at least five years preceding his
application as provided in section 244(e) of the Act, we conclude that he
is not eligible for the discretionary relief of voluntary departure. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

343


Interim Decision #1610

Mar= or Wv In Visa Petition Proceedings
A-13457630

Decided by District Director February 23, 1963
:Since a minister of religion is a member of the professions within the meaning
of section 101(a) (32), Immigration and Nationality Act, as amended by
P.L. 89-236, a visa petition is approved to accord beneficiary, a qualified
minister of religion, preference classincation under section 208(a) (8) of the

Act
The•beneficiary is a 80-year-old citizen of China who is presently
in the United States. Iii 1958 he received a bachelor of arts degree

in t nglish literature at the Taiwan Normal University, Taipei,
'Taiwan. Be also received a bachelor of divinity degree in theology
and Christian education at the McCormick Theological Seminary,
(Chicago, Illinois on May 14, 1965. Since May of 1965 he has been
serving as pastor of the First Presbyterian Church, Hollister,
Missouri.

The beneficiary is a minister of religion. However, he is not
seeking status as a "special immigrant" under section 101(a) (27)
.(D) (i) of the Immigration and Nationality Act, as amended, which
provides that:
.(27) The term "special immigrant" means—
(D) (i) an immigrant who continuously for at least two years immediately
preceding the time of his application for admission to the United States has
been, and who seeks to enter the United States solely for the purposes of
carrying on the vocation of minister of a religious denomination, and whose
services are needed by such religions denomination having a bona fide organisation in the United States; . . .

No visa petition has been submitted to accord the beneficiary
classification as a minister of. religion under the above-cited section
for the reason that, whereas the approval by the Service of a visa
petition was formerly required' to classify an alien under seetion

101(a) (27) (D), the provisions 'of the Act of October 3, 1965 (P.L.
.89-236) which, became effective on December 1, 1965 no longer
697

InterimiDeeision #1410
require the filing of a'visa petition or the approval of a visa petition
- as a. condition precedent to such classification. Furthermore, the
beneficiary does not, at this. time, meet the requirement of section
101 (a) (2.7) (D) (i) that he "continuously for at least two years.
immediitely preceding the time of his application for admission to
the United States has been . carrying on the vocation of minister
of a religious. denomination .. ." vocation as a minister of
Although lacking the two .years in
religion required for classification as a "special immigrant," the
beneficiary is seeking a preference classification under section 203.
(a) (3) of the Immigration and Nationality Act, as amended, which
provides for such preferende to be abcorded to "qualified immigrantswho are members of the professions, or who because of their exc,ep ;
the arts will substantially' benefittionalbyhe.sc
prospectively.the national economy, cultural interest, or welfare of
the United States."
Section 101(a) (32) of the above Act states that "the term 'profession' shall include but not be limited to architects, engineers, lawyers,
physicians, surgeons, and teachers in elementary or secondary schools,
colleges, academies, or seminaries."
While the vocation of minister of religion is not specifically mentioned in Section 101(a) (32) of the Act, it is the view of this office
that a person who has been graduated with a bachelor of divinity
degree from an accredited school of divinity is a member of a profession within the meaning of that section. It is noted that the
McCormick. Sertiinary is listed in the -pUblication "Accredited Higher
Institutions" published by the United States Department of Health,
Education and Welfare, Office of Education.. publication. reflects that this seminary has been accredited by the American Assoiiiation of Theological Schools Commission an_,Accreditine.
Section 204(a) of the Immigration and Nationality Act, as amended, provides that ". . . any alien desiring to. be classified'as a preference 'immigrant under section 203(a) (3) (or any person on 'behalf
of such an alien) . . . may file a petition .with the Attorney General
for such classification." In accordance with this provision, the
beneficiary has elected to file the petition in.his own behalf. Under
sections 204.1(c) and 204.2(f), Title 8, Code of Federal Regulations,
a visa petition seeking to classify an alien as a preference immitrant under section 203(a) (3) ol-the Act, must be submitted to the
Serice with Form ES-575A, Application for Alien Employment
Certification, executed in accordance with the instructions attached
to that form, and accompanied' by the evidence of the beneficiary's
qualifications specified in those instructions. The alien has complied

or

698

Decision , 461610
with that requirement: The Form E8-575A and supporting docu-

ments were referred by this office to the Bureau of Employment
Security, Department of Labor, for consideration of the issuance
of a certification pursuant to section 212(a) (14) of the Immigration
and Nationality Act, as amended by the Act of October 3, 1905.
A certification. was duly issued by, that Department, indicating that
a shortage existed in the United States d persorii in the beneficiary's
vocation, and that the beneficiary's employment in that vocation
would not adversely affect the Wages and working conditions of
persons similarly employed.' . .
It is concluded that the alien has established that he is a member of a profession.. within the meaning of section 203(a) (3) of
the Act, as amended. Be intends to engage in that profession
within the United States. The certification required by section
211(a) (14) of the Act has been issued by an authorized representative of the Secretary of Labor. It is ordered that the petition be and is hereby approved.


Interim Decision #1569

MATTER OF NIGHT=

Iii Deportation Proceedings
ie-10392808
• Decided by Board April 6, 1966
A native and citizen of Viet Nail who has been in the United States since
his last admission as an exchange visitor physician in 1958 has not established that because he has been away from his country so long, has refused
to return, is American trained and has an American family, he would be
subject to persedettion within the meaning of section 243 (h), Immigration
and Nationality Act, as amended, if deported to Viet Nam.
Canoe:
Order: Act of 1952—Section 241(a) (2) [8 U.S.Q. 1251(a) (2))—Exchange
visitor—remained longer.
Respondent is married, male, 41 years of age, a native and citizen
of Viet Nam, who was admitted to the United States on Septeniber
5, 1958, as an exchange visitor until September 15, 1962. He Was
granted until December 23, 1962, to depart, but did not avail him-

self of the grant. He has conceded deportability and applies for
withholding of deportation to Viet Nam pursuant to section 243(h)
of the Immigration and Nationality Act, as amended. The special
inquiry officer denied this application. Respondent appeals to the
Board from the denial. The appeal will be dismissed.
The special inquiry of if cer has set forth with care the respondent's
educational and professional background, and the manner in which
he has employed his time since he has been in the United §tates. He
is a doctor and was Reaching in the Department of Medicine at the
University of Saigon before coming to the United States. He was
first in the United States from 1955 to 1956 and attended the School
of Public Health, University of Michigan at Ann Harbor, and received a Master of Public Health degree. When he returned to the
United States in 1958 he studied at Harvard School of Public
Health, and was granted a Master of Science in Teaching. He then
attended the Johns Hopkins School of Public Health and was
541

Interim Decision #1569
granted a Doctor of Public Health degree in 1962. He -worked in
the Department of Environmental Medicine of the Johns Hopkins
School of Hygiene as a research associate; that school filed a petition
on his behalf for a first preference which was granted by the Baltimore office of the Immigration and Naturalization Service on

March 27, 1963.
Respondent pleads that he will be subject to persecution or discriminated against in Viet Nam because he has been away from the
country so long and has refused to return. Most of the record goes
to his fear of the government of Viet Nam prior to the revolution
in that country which occurred on November 2, 1968. Most of the

exhibits consist of magazine and newspaper reports on the Diem
administration which . was overthrown by General Nguyen Khanh.
Respondent admitted in his last reopened hearing on May 20, 1965,
that he is not well acquainted with the present government, but he

believes that there is continued. instability in the political parties and
in the Vietnamese Government, regardless of the identity of the head
of state. He asserts that having an American family places him in
a partiehlarly precarious position.
It is our feeling that, since the revolution overthrowing the Diem
regime two and a half years ago, at least part of the record regarding political conditions in that country is out of date. It is apparent
that respondent has no desire to return to his country to use the
special training he has received in the United States for the good of
his fellow countrymen. He declares that physicians educated in the
United States are discriminated against in Viet Nam in favor of
physicians trained in France, and that the dean - of the medical school
at Saigon had told him personally that no credit could be given for
training acquired in this country. This cannot be considered. to be
evidence supporting a claim of persecution in Viet Nam. Respondent came to the United States first in 1955. When he returned two
years later for additional training he must have been fully aware of
the government's attitude of discrimination, if it exists, in favor of
French trained physicians.
The fact that-respondent has attempted to remain in the United
States and has delayed his return to his native country as long as
possible does not constitute evidence that respondent will be subject
to persecution in Viet Nam. If this constituted evidence of parsecutIon, every case coming before the Board would, necessarily, be
resolved favorably to the alien. Every person applying for section
243(h) relief from deportation has delayed his departure as long as
possible, and must, to some degree, have charged the government in
542

Interim Decision *1569
his native land with repressive tactics; otherwise the appeal would
not be before us.
On April 11, 1963, respondent married a United States citizen.
One child was born of this union and at the time of his last hearing
respondent offered evidence to establish that his wife was again
pregnant, and was expecting a second child to be born in August
1965. Respondent's wife has two children by a previous marriage
who live with her. Her fOrmer husband, one Dr. Lindgren, testified
in behalf of respondent at his hearing in May 1963. Dr. Lindgren
also served with the United States Public Health Service in Viet
Warn. Dr. Lindgren is remarried, and the record establishes that

he pays support for his two daughters to respondent's wife, and that
relationships between the two families are friendly.
The Department of State, Bureau of Educational and Cultural
Affairs, informed the District Director at Baltimore that on. February 25, 1965, the Agency for International Development requested

the enforced departure of respondent "even though this constitutes
an exception to the present Service policy of not requiring departure of section 212(e) applicants pending completion of the study
of the Exchange-Visitor Program" (Ex. B-4). The Al]) memorandum, dated March 13, 1965, is quite lengthy, and makes the following
points: (1) that th•overnment of Viet Nam and our mission undertook the training of Dr. Thieu as part of the expansion of medical education facilities badly needed in Viet Nam- (2) that Dr.
Thieu signed an agreement to work for the Viet Nam Government for
ten years as a member of the faculty of the University of Saigon in
return for the advance medical education given him; (3) that Dr.
Thieu arrived in the United States under the sponsorship of the
World Ilealth. Organization on September 5, 1958, that his support
was assumed by the Agency for International Development on

September 1, 1960, and that his visa support was terminated by that
agency an September 15, 1962; (4) that Dr.. Thieu was fully aware
when he signed these contracts of the reqUirement of section 212(e)
of the Immigration and Nationality Act that he would be required
to return to his native land to utilize his training; (5) that Dr.
Thieu was not selected for training under the AID program for his
personal benefit but for the contribution he could make to the .progrant in Viet Nam; (6) that Dr. and Mrs-Thieu were aware of the
fact at the time they married that they would have to choose either

two years' separation or' that Mrs. Thieu would have to spend two
years in Viet/ Nam in order to be with her husband. It was the
opinion of the agencies involved that the respondent's case did not
involve the "type of unforeseeable hardship envisoned by the regu543

Interim Decision #1569 .
latiohs implementing section 212(e) of the Immigration and sNation:ality Act". The application for a waiver of the requirements of
section 212(e) rat denied by the District Director at Ba'timbre,
Maryland, and, on May 20, 1965, respondent's application for adjustment under section 245 was withdrawn. While the above facts do not resolve the issue as to whether or not
respondent would be subject to physical persecution upon his return
to Viet Nam, we insert them in our decision for the reason that they
indicate respondent's background and the circumstances under which
-he returned to the United States in 1958 for further study and
training.

Respondent testified at his reopened hearing on May 20, 1965,
(1) that if he is returned to Viet Nam he would have to take "a
position" in political affairs; (2) that "people might he nasty" to
him because he had the special privilege of remaining in the United

States for a number of years, and (3) because he has an American
. family, he might be discriminated against. He states that he would
not be free to practice medicine to support himself and his family,
and the small salary paid by Viet Nam to its physicians would not
permit him to support an American family. , He `would not be free
to choose employment, and he believes that the present regime is still
a dictatorship. Respondent was investigated and cleared for a passport by the
former (Diem) regime, which he professes to have feared the most.
He was permitted to return to the United States for a second period
of training, after having been here once already. If is true that
United States trained physicians are discriminated against in Viet
Nam both by the government and by French-trained physicians,
it is difficult to comprehend why he chose extended training in the
United States. He admits that his own knowledge of conditions
in Viet Nam predates the overthrow of the Diem regime.
For the most part the Board has not considered that joinins. protest groups and -making' public 'statements aftek entering theb
'United States supports a withholding of deportation - under section
243(h). Many aliens have attempted to . build up a 243(h) case
by this sort of activity. Whatever public statements and protests
respondent may have made while in the United States do not seem
to u•sufficient to make hint persona non grata to the present regime.
The record does not establish that respondent is wanted by his
government for:any. reason except to fulfill the contracts he made,
both with his own government' and with the agencies who sponsored .
andsuprtehim.ManyprsohvegtViNam
who are not nati,ves of respondent's country. The revised statute,
541.

Interim Decision #1569
section 11 of the Act of October 3, 1965 (8 U.S.C.A. 1253(h)),
eliminates the requirement that there be a finding that respondent
would suffer "physical" persecution if returned to his native country. Even considering this record under the new law we are unable
to find that deportation of respondent to Viet Nam will subject him
to persecution. The appeal will be dismissed. ,
ORDER: It is ordered that `the appeal be dismissed.
It sa further ordered that the order of the special inquiry °facer
of November 8, 1965 be and is hereby approved.

546


Interim Decision #2001

MATTER OF VALENCIA-BARAJAS

In Deportation Proceedings
A-12986073
Decided by Board August 22, 1969
A lawful permanent resident alien who during a short trip to Mexico
engaged in activities considered criminal by the Immigration and Nationality Act, namely, knowingly and for gain assisted, abetted and aided 2
citizens of Mexico to illegally enter the United States, did not make an
innocent, casual and brief trip within the meaning of Rosenberg v. Fleuti,
374 U.S. 449, and, hence, upon his return made an entry within the purview of section 101 (a) (13) of the Act upon which to predicate a ground
of deportation.

CHARGE:
Order: Act of 1952—Section 241(a) (13) [8 U.S.C. 1251(a) (13)3—Prior

to entry, knowingly and for gain, encouraged,
induced, assisted, abetted or aided any other alien
to enter or try to enter the United States in violation of the law.

The respondent, an unmarried male alien, 24 years of age, a
native and citizen of Mexico, has been found deportable under
section 241(a) (13) in that prior to his entry at San Ysidro, California on February 23, 1968, he knowingly and for gain, encouraged, induced, assisted, abetted or aided two Mexican aliens to
enter the United States in violation of the immigration laws. He
appeals from an order entered by the special inquiry officer on
October 28, 1968 directing his deportation to Mexico on the
charge stated in the order to show cause.
The respondent was admitted to the United States as an immigrant at the port of San Ysidro, California on June 28, 1962. He
denies the allegations set forth in the order to show cause served
upon him on June 24, 1968 that he was admitted to the United
States as a returning resident alien on or about February 23,
1968; that prior to this entry, on or about February 20, 1968, he
entered into an agreement in Tijuana, Mexico with two aliens.

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Interim Decision #2001
citizens of Mexico, to assist them to illegally enter the United
States for the payment of $100 from each of them upon their arrival in Los Angeles, California; that he knew that the aliens
were not in possession of any document entitling them to enter
the United States; that, on or about February 22, 1968, he did assist the two aliens to enter the United States by transporting
them in his automobile from a location in Tijuana to a point near
the international border; that the two aliens did enter the United
States without inspection ; and that, on or about February 23,
1968, he placed the aliens in the trunk of his automobile and then
proceeded toward their interior destination.
The respondent testified that he was in Tijuana, Mexico on
February 21 or 22, 1968 to visit his parents. He further testified
that in the late afternoon of February 23, 1968 he was apprehended by the border patrol who found two aliens hidden in the
trunk of his car, and that he had not hidden them and was unaware of their presence. The trial attorney in support of the
charge presented a certified copy of the respondent's conviction in
the United States District Court for the Southern District of California (Ex. 6), which establishes that on July 8, 1968, the respondent was convicted of the offense of violating Title 8, section
1324 (a) (4) for inducing the illegal entry of aliens, and Title 8,
section 1324 (a) (2) for illegal transportation of aliens. The indictment contains four counts, charging the respondent with inducing
the illegal entry and the illegal transportation of two aliens, to
wit, Roberto Andrade and Donaciano Andrade. The respondent
was convicted on all four counts and sentenced to imprisonment
for two years. He served six months and was placed on probation
for the remainder of his sentence.
The record contains the affidavits of the two smuggled aliens
(Exs. 2, 2A and 4). They also testified during the hearing accorded the respondent on July 1, 1968 (pp. 5 and 11). They testified that they were approached by the respondent in Tijuana,
Mexico on or about the 21st of February 1968; that the respondent promised to assist them to enter the United States in payment of $100 from each of them; that in furtherance of their
agreement, he escorted them to the international border on the
night of February 22, from which point they were guided into the
United States by a third person, who secreted them in an empty
house at a ranch; that, on the following day, the respondent
brought them some food, and later that afternoon hid them in the
trunk compartment of his car, where they were found by the border patrol while proceeding to the interior of the United States.
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Interim Decision #2001
There is clear, unequivocal and convincing evidence that the respondent "knowingly and for gain" did assist, abet and aid two
citizens of Mexico to enter the IJnited States in violation of law.
Section 241 (a) (13) provides, however, that the substantive offense of assisting an alien "knowingly and for gain" to enter the
United States in violation of law must occur "prior to, or at the
time of entry, or at any time within five years after entry." The
Mexican aliens were smuggled into the United States on February 22, 1968, more than five years after the respondent's entry
for permanent residence on June 28, 1962. This factor raises the
issue as to whether the respondent, on the date of his last return
to the United States on February 23, 1968, made an "entry"
within the meaning of section 101 (a) (13), so as to become subject to deportation pursuant to section 241 (a) (13).
Section 101(a) (13) of the Act (8 U.S.C. 1101 (a) (13) ), provides that "an alien having a lawful permanent residence in the
United States shall not be regarded as making an entry into the
United States for the purposes of the immigration laws if the
alien proves to the satisfaction of the Attorney General that his
departure to a foreign port or place or to an outlying possession
was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was
not voluntary."
• The Supreme Court in the case of Rosenberg v. Fleuti, 374 U.S.
449, 10 L. Ed. 2d 1000 (1963), construed the intent exception of
section 101(a) (13), quoted above, "as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence" (id. at p. 462). The
major factors set forth by the Court relative to a determination
of whether such intent can be inferred were the length of time
the alien is absent; the purpose of his visit; and whether he required travel documents to make the trip. The Court said that if
the purpose of leaving the country is to accomplish some object
which is itself contrary to some policy reflected in our immigration laws, then it would appear that the interruption of residence
thereby occurring would properly be regarded as meaningful. The
Court held 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's status
and therefore may not subject him to the consequences of having
made an "entry" into the United States on his return.
The respondent testified that he went to Mexico to see his parents on February 21 or 22, 1968 "because they live in Tijuana";
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Interim Decision #2001
that he remained in Mexico "some ten or twelve hours"; that he
has neither worked nor resided in Tijuana since he was admitted
to the United States as an immigrant; and that he has been
steadily employed in the United States since his entry for permanent residence (p. 27) Regardless of the respondent's testimony,
we believe, in light of the record before u. -„ that his cicpature on
February 21 or February 22, 1968 and ensuing absence did not
constitute the innocent, casual and brief trip described by the Supreme Court in Fleuti (supra). Clearly the evidence of record establishes that the respondent's activities during his absence from
the United States (preceding his last return on February 23,
1968) involved conduct considered to be criminal by the Immigration and Nationality Act. He now stands convicted for violating 8
U.S.C. 1324(a) (2) and (4). This fact could support an inference
that his purpose in departing from the United States was to accomplish an object which is contrary to a policy reflected in our
immigration laws. In any event, we conclude that the respondent's departure can be regarded as "meaningfully interruptive"
of his permanent residence. The Supreme Court's ruling in Fleuti
(supra) is of no benefit to the respondent. Cf. Matter of Caudillo-Villa-lobos, 11 I. & N. Dec. 15 (BIA, 1965), aff'd 361 F.2d 329
(5 Cir., 1966); Matter of Corral Fragoso, 11 I. & N. Dec. 478
(BIA, 1966).
We find on the basis of the foregoing that the respondent last
entered the United States on February 23, 1968 within the meaning of section 101 (a) (13) of the Immigration and Nationality
Act. The evidence establishes that the respondent, while in Tijuana, Mexico on February 21 and 22, 1968, arranged for the
entry of and assisted two aliens to enter the United States in violation of the immigration laws; that subsequent to his return to
the United States on February 23, 1968, he further participated
in the smuggling operation by attempting to transport the two aliens to an interior destination and that the respondent has been
convicted for a violation of the immigration laws. The respondent, prior to his entry on February 23, 1968, did "knowingly and
for gain" assist two aliens to enter the United States in violation
of law. Accordingly, we conclude that there is clear, unequivocal,
and convincing evidence that the facts alleged as grounds for deportation are true, Woodby v. INS, 385 U.S. 276 (1966).
The respondent made no application for any form of discretionary relief. He does not appear to be eligible for voluntary departure because he is precluded from establishing good moral
character under section 101(f) (3) as an alien who during the pe-

372

Interim Decision #2001
riod for which good moral character is required, is or was a person described in section 212(a) (31) of the Act (8 U.S.C.
1182(a) (31)). This section provides in substance that any alien
who at any time shall have knowingly and for gain, encouraged,
induced, assisted, abetted or aided any other alien to enter or try
to enter the United States in violation of law shall be ineligible to
receive a visa and shall be excluded from admission to the United
States.
An appropriate order will be entered dismissing the appeal.
ORDER: It is directed that the appeal be and the same is
hereby dismissed.


MATTER OF F—

In SECTION 245 Proceedings
A-11641025
Decided by Regional Commissioner June 16, 1960
Approved by Assistant Commissioner June 21, 1960

Adjustment of status—Section 245 of 1952 act—Alien who intended to pursue
application at time of readmission as nonimmigrant not bona ficle nonimmigrant.
Application for adjustment of status Sled prior to nonimm grant's temporary
departure from the United States and pending upon her return to this country is denied on the ground that applicant was not a bona fide, nonimmigrant
at the time of readmission when it was her intention to pursue her application for permanent residence under section 245 of the 1952 act.
BEFORE THE REGIONAL COMMISSIONER

Discussion: The applicant, a single, 35-year-old native and citizen
of England, was admitted to the United States as a nonimmigrant
treaty trader on April 1, 1959. On February 2, 1960, she filed this
application for status as a permanent resident. Within a few days,
and before the application could be adjudicated, she departed to
England to visit a friend who was ill. She returned to the United
States and on February 28, 1960, she was again admitted as a nonimmigrant treaty trader. It was her intention at the time of entry
to pursue her application for status as a permanent resident and
on May 4, 1960, the district director approved her application and
certified the case to this office for review.
The applicant has established that a quota immigrant visa is
immediately available to her and she has established that she is
admissible to the United States ae an immigrant. The issue to be
decided is what effect, if any, her departure from the United States
had upon her application.
It is clear from the legislative history that the procedure fo:
acquiring status as a permanent resident authorized under sectim
245 of the Immigration and Nationality Act was provided by th
Congress for one specific purpose. It was devised solely to obviai
the need for departing from the United States fur the purpose
securing an immigrant visa in the case of the alien who at 0,

680

of admission as a nonimmigrant had no intention of acquiring
the status of a permanent resident but who, subsequent to entry, has
a change of mind and seeks such status.
The alien outside the United States who seeks to enter the United
States for permanent residence must comply with the regular procedures set forth in the Immigration and Nationality Act for immigrants. He must secure an appropriate immigrant visa from an
American consular officer abroad and must apply for admission to
the United States as an immigrant. He does not have the option
of applying for admission as a nonimmigrant with the intention of

time

utilizing the procedure authorized under section 245 to acquire the

status of a permanent resident. The statements concerning adjustment of status in the United States contained in the reports of the
committees of both houses of the Congress which accompanied the
Immigration and Nationality Act at the time of enactment support
this interpretation. In speaking of adjustment of status generally,
both committee reports state:
The committee is aware, too, of the progressively increasing number of
cases in which aliens are deliberately flouting our immigration laws by the
processes of gaining admission into the United States illegally or ostensibly as
nonimmigraats but with the intention of establishing themselves in a situation
in which they may subsequently have access to some administrative remedy
to adjust their status to that of permanent residents. * * * This practice is
threatening our entire immigration system and the incentive for the practice
must be removed. [ Senate Report No. 1137, 82nd Congress, 2d Session, p. 25;
House Report No. 1365, 82nd Congress, 2d Session, pp. 62-63; emphasis supplied.]

When section 245 was amended by the Act of August 21, 1958,
the requirement that the applicant must have been a bona fide
nonimmigrant at the time of admission was retained. In this respect the committee report which accompanied the amendatory
legislation contained a clear statement that the legislation was not
intended to benefit the alien who has entered the United States in
violation of the law. (House Report No. 2258, 85th Congress, 2d
Session, p. 3).
If we are to comply with the clearly stated intent of the Congress to exclude from the benefits of section 245 those aliens who
have gained entry into the United States in an unlawful manner,

an application filed under the provisions of section 245 must be
decided on the basis of the facts surrounding the last entry of the
alien into the United States.
The present application, when originally filed, was based on the
applicant's admission to the United States on April 1, 1959. It is
conceded that at the time of that admission she was a bona fido nonimmigrant. As has been pointed out above, she departed from
the United States before a decision was reached on her application.
681

562713--61-45

Had it been known that she had left the United States her application would have been considered abandoned and would have been
denied on that basis, inasmuch as an alien outside the United
States cannot gain any benefits under section 245. However, 1,,-E , re
the facts concerning her departure became known, she had gH:1 ,-1
reentry to the United States as a nonimmigrant on February
1960. Therefore, her application will be considered but the decision
must be based on her last admission to the United States on February 28, 1960.
Since, prior to her application for admission on February 28,
1960, she had decided to take up permanent residence in the United
States, she was an immigrant, and it was incumbent upon her to
comply with the provisions of law relating to aliens seeking to
enter the United States as immigrants. This she failed to do.
Instead she applied for and gained admission to the United States
as a nonimmigrant. Under these circumstances she was not a bona
fide nonimmigrant at the time of her admission to the United States
on February 28, 1960, and her application must be denied.
Order : It is ordered that the order of the district director, dated
May 4, 1960, be withdrawn and that the application be denied on the
ground that the applicant was not admitted to the United States as
a bona fide nonimmigrant.

682


Interim Decision #2106

MATTER OF CHEUNG

In Deportation Proceedings
A-15171770
Decided by Board November 30, 1971
Where respondent, after stating his name and that he understood the charge
brought against him, refused to testify at his deportation hearing, deportability under section 241 (a) (2), Immigration and Nationality Act, is established by clear, convincing and unequivocal evidence on the basis of (a)
the identity of names of respondent and of the crewman who is the subject of documents which were in possession of the Service before
respondent's apprehension (seaman's Identity Book, Arrival Manifest
(Form 1-418), and the carrier's report of the desertion of a crewman),
and (b) the failure of respondent to show that the documents do not relate to him.

CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant crewman—remained longer.
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Peter Zimmerman, Esquire
100 State Street
Boston, Massachusetts 02109

Irving A. Appleman
Appellate Trial Attorney

Respondent appeals from the special inquiry officer's order
requiring his deportation. The appeal will be dismissed. Voluntary departure will be granted.
The facts have been fully stated by the special inquiry officer.
Respondent refused to testify on the advice of counsel. He did not
claim his answers would incriminate him. He did state he is
Cheung-Shui and that 'he understood the charge brought against
him (pp. 1-3). Counsel contends that the order of deportation is
based on documents the Service obtained by the illegal arrest and
search of the respondent. In finding respondent deportable, we
rely solely upon evidence which was in possession of the Service
before the respondent's arrest which occurred on or about June 5,
1970.

794

Interim Decision #2106
At the deportation hearing, the Service introduced in evidence
a certified copy of a page of an arrival manifest (Form 1-418)
showing the arrival of the carrier "Athelknight" at Philadelphia,
Pennsylvania on February 11, 1970. Listed among the crew of the
vessel is one Cheung Shui, a Chinese national bearing passport
No. 68774. He is shown to have been admitted as "D-1" (admitted with a conditional landing permit as an alien crewman). Part
of the same exhibit is a report concerning the desertion of a
crewman. The report, dated February 13, 1970, was made by the
vessel's agent to the Service. This report shows the desertion of
Cheung Shui, a native and national of China who had been issued
Identity Book No. 68774. The report shows the book was in the
possession of the Immigration Service at Philadelphia (Ex. 5).
The Service also produced Identity Book No. 68774 in the name
of Cheung Shui. It bears a photograph which the special inquiry
officer stated was a good likeness of the respondent. From it, the
special inquiry officer read into the record information showing
that Cheung Shui was born at Po On, Kwang Tung Province,
China on September 4, 1914 (p. 4).
The evidence we have set forth comes from official and
required Service records or is otherwise competent. The arrival
manifest (Form 1-418) must be submitted by the master or
agent of the vessel to the immigration officer at the point of first
arrival, 8 CFR 251.1 (a). The immigration officer who examines
the crewmen listed on the manifest must show what action he
took on the applications for admission of the crewmen listed. To
show that he granted an alien crewman a conditional landing
permit as a crewman he must use the symbol "D-1", 8 CFR
251.1 (d). Such an authorization to land can be granted only if
the crewman's passport is surrendered for safekeeping to the
master of the arriving vessel, 8 CFR 252.1 (d) . 1
As soon as the master or agent of the vessel discovers that an
alien crewman has illegally landed or deserted he must write to
the immigration officer in charge of the port where the act
occurred, giving him "the name, nationality, passport number"
and other details concerning the crewman and "any other information and documents which might aid in his apprenenshion,
including any passports surrendered pursuant to" 8 CFR
252.1(d), 8 CFR 251.2.
Thus, competent evidence in the possession of the Service
before respondent's apprehension establishes that Cheung Shui, a
1 The crewman is admitted for a period not exceeding 29 days, 8 CFR
252.1(d).

795

Interim Decision #2106
Chinese native and national, was admitted to the United States as
a crewman and deserted, Au Chiu Pang v. INS, 368 F.2d 637 (3
Cir., 1966), cert. denied 386 U.S. 1037 sustaining Matter of Pang,
12 I. & N. Dec. 489 (BIA, 1966); Valeros v. INS, 387 F.2d 921
(7 Cir., 1967); Williams v. Mulcahey, 250 F.2d 127 (6 Cir., 1957),
cert. denied 356 U.S. 946 (1958), affirming Williams v. Butterfield, 145 F. Supp. 567 (E.D. Mich., 1956) ; Vlisidis v. Holland,
245 F.2d 812 (3 Cir., 1957); Coelho v. Brownell, 240 F.2d 635
(D.C. Cir., 1957); Doto v. United States, 223 F.2d 309, 310 (D.C.
Cir., 1955), cert. denied 350 U.S. 847 (1955); United States v.
Klissas, 218 F. Supp. 880, 883-884 (D.C. Md., 1963) ; Da Silva,
Pereira v. Murff, 169 F. Supp. 81 (D.C. N.Y., 1958) ; and Goncalves-Rosa v. Shaughnessy, 151 F. Supp. 906 (S.D. N.Y., 1957).
Do these documents relate to respondent? We find they do. The
identity of names of the respondent and the crewman who is the
subject of the evidence we have discussed and the failure of
respondent to show that the records do not relate to him,
although he had the opportunity to do so, permit the inference
that the records relate to him, Valeros v. INS, supra; Au Chiu
Pang v. INS, supra; Vlisidis v. Holland, supra; Da Silva Pereira
v. Murff, supra. Moreover, we note the special inquiry officer
stated that the photograph in the passport surrendered by the
deserting crewman is a good likeness of the respondent. Finally,
although it is unnecessary to rely upon the fact, we point out that
respondent's failure to testify without having claimed the privilege
against self-incrimination is corroboration of the relation of the
Service evidence, Valeros v. INS, supra; Au Chiu Pang v. INS,
supra; Quilodran-Brau, v. Holland, 232 F.2d 183, 185 (3 Cir.,
1956) ; U.S. ex rel. Circella v. Sahli, 216 F.2d 33, 39 (7 Cir.,
1954) , cert. denied 348 U.S. 964 (1955). The documents set forth,
all in the possession of the Government before the respondent
was placed under proceedings, are clear, convincing and unequivocal evidence of the validity of the Service charge. Deportability
is clearly established.
Since we have utilitzed only evidence already in the Service's
possession before the apprehension of the respondent, and since
that evidence is clearly competent and standing alone establishes
deportability, we deem it unnecessary to discuss counsel's contentions that the Service illegally arrested respondent and illegally
seized documents from him. Nor is it necessary to discuss counsel's contention, in his memorandum of November 5, 1971, as to
where the burden of proof lies when a motion to suppress is filed,
Valeros v. INS, supra; Au Chiu Pang v. INS, supra; Medeiros v.
17(la

Interim Decision #2106
Brownell, 240 F.2d 634 (D.C. Cir., 1957); and Da Silva Pereira v.
ltfurff, , supra.1

The special inquiry officer denied voluntary departure. Without
impugning his judgment, we feel that a brief period of voluntary
departure should be granted here. We shall give respondent 30
days to depart voluntarily.
ORDER: The outstanding order of deportation is withdrawn
and the alien is permitted to depart from the United States voluntarily without expense to the Government, to any country of
his choice, within such period of time, in any event not less than
30 days, and under such conditions as the officer-in-charge of the
District deems appropriate.
Further order: If the alien does not depart from the United
States in accordance with the foregoing, the order of deportation
will be reinstated and executed.

2 We would point out, however, that counsel's claim that the Identity Book
No. 68778 was taken from the respondent by a Service illegal arrest, search
and seizure is without basis in fact (p. 4). The record shows that the document was in the possession of the Service before respondent's apprehension
(Ex. 5). Counsel's allegation is not supported by an affidavit from the respondent and the basis of the claim is not given. We have previously pointed
out the danger which can exist when counsel does not exercise proper care
to establish the basis for a claim of illegal arrest and search, Matter of
Tang, Interim Decision No. 2080 (BIA, 1971).

797


Interim Deeision #1303

MATTER

OF TAUTTRA

In SECTION 248 Proceedings
A-13293187
Danidetlby Regional Commissioner July 15,1994

Since a nonimmigrant alien who is employed as a chief cook, supervising 3 to 4
subordinates in the preparation of Japanese fried food specialties and performing the duties of the main kitchen chef in the latter's absence, is employed in a "responsible capacity" within, the meaning of 22 OFR 41.41, he
is eligible for a change of nonimmigrant status under section 248, Immigration
and Nationality Aet, as amended, to that of an employee of a treaty investor
under section 101(a) (15) (E) (ii) of the Act.

This matter is before the Regional Commissioner on appeal from
the denial of the application for change of nonimmigrant status.
The applicant is a married Japanese subject, born August 31, 1930
at Baguio, Philippines. He was admitted to the United States at
Honolulu, Hawaii on November 22, 1962 under section 101(a) (15)
(H) (1) of the Immigration and Nationality Act on the basis of a petition filed by Saito Restaurant, Inc., a well-known Japanese eating
establishment in New York City. He was authorized to remain until
November 21, 1963. On October 10, 1963 he applied for change of
nonimmigrant status to that of a treaty investor under section 101(a)
(15) (E) (ii) of the Act.
The Saito Restaurant, which has recently moved to a new location,
represents an investment of approximately one million dollars. Its
owners, Mrs. Moto Saito and her son, Tokio Saito, are Japanese Nationals who are presently maintaining E-2 status. The applicant
is in their employ as a chief cook, supervising three to four others in
the preparation of Japanese fried food specialties. He earns $103 a
week and is provided with meals and living quarters. In denying his
application for change of nonimmigrant status, the District Director
found that the applicant is ineligible for classification as a treaty investor because he has no financial interest in the restaurant.
Section 101 ( a) (10) (E) (ii) of the Immigration and Nationality Act
defines a treaty investor as an alien entitled to enter the United States
717

Interim Decision #1393
under and in pursuance of the provisions of a treaty of commerce and
navigation between the United States and the foreign state of which
he is a national, and the spouse and children of any such alien if accompanying or following to join him, solely to develop and direct
the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital. The applicable regulation (22 OFIt 41.41)
further provides as follows:
ยง 41.41 Treaty favestors.
(a) An alien shall be classifiable as a nonimmigrant
treaty investor if he establishes to the satisfaction of the consular officer
that he qualifies under the provisions of section 101(a) (15) (E) (ii) of the Act
and that : (1) He intends to depart from the 'United States upon the termination
of his status; and (2) He is an alien who has invested or is investing capital
in a bum fide enterprise and in not cooking to proceed to the United States in.
connection with the investment of a small amount of capital in a marginal
enterprise solely for the purpose of earning a living; or that (3) He is employed
by a treaty investor in a responsible capacity and the employer is a foreign person or organization of the same nationality as the applicant

A Treaty of Friendship, Commerce and Navigation exists between
the United States and. Japan. Article VIII o(this treaty states, in
part, that nationals and companies of either party shall be permitted
to engage, within the territories of the other party, accountants and
other technical experts, executive personnel, attorneys, agents and
other specialists of their choice. Matter of Kobayashi and Doi, Interim Decision #1313.
The applicant herein is engaged as chief cook by Japanese nationals
who have invested substantial sums of money in establishing a restaurant known for its excellent Japanese ouisine. He was brought to
the United States by his employers because of his skill in the preparation of Japanese dishes. He is not only charged with the responsibility of supervising several subordinate cooks in preparing fried
food specialties but also performs the duties of the main kitchen chef
in the latter's absence. In contradistinction to the restaurant service
personnel discussed in Matter of Kobayashi and Doi, supra, we find
that the instant applicant is employed in a "responsible capacity"
within the meaning of 22 CFR 41.41 and additionally, may be considered to be a "specialist" within the contemplation of Article V.1.11
of the aforementioned treaty between the United States and -Japan.
Accordingly, the appeal Will be sustained.
It is ordered that the decision of the District Director be reversed
and that the application for change of nonimmigrant status be
granted.

718


-

• MATTER
'

or

Interim Decision #1517

BI7EALINO

In Deportation Proceedings
A-10607337
Deoided by Board September 30, .1965
(11 Where the special inquiry officer states unequivocally and without hesitation that he did not prejudge the cause; that he received no advice, instructions, or directions whatsoever in the cause; and that all his determinations
were premised solely on his honest and sincere evaluation of the evidence adduced and his understanding and knowledge of the applicable laws and
•regulations, his unequivocal statement of lack of prejudgment or prejudice
effectively meets respondent's claim of prejudgment.
(2) •Respondent, who, subsequent to his lawful. admission to the .United States
for permanent residence in 1914, became deportable upon reentry without
inspection by falsely claiming U.S. citizenship, -is statutorily ineligible for
the creation of 'a record•of lawfuLadmission under section 249, Immigration
and Nationality Act, as amended, since a record of lawful admission in his
case is still available; likewise, he is statutorily ineligible for adjustment
of status under section 245' of the Act, as amended, since he was ne* in.
spected.
(8) Since respondent; who depcirtable on grounds within the terms of both•.
subsections (a) (1) and . (a) (2) of beetion 244 of the Act, as amended, is
thereby statutorily precluded from establishing eligibility for suspension of
deportation under section 244(a) (1), he must establish eligibility for such
relief under section 244(a) (2) of the Act.
(4) The 10-year period of continuous physical presence required to establish
statutory eligibility fOr suspension or deportation under section 244(a) (2)
of the Act, as amended, runs from the date of the last- deportable act
(5) Respondent, by hls evasive, equivocal, discrepant, and contradictory statemeats coupled with his demeanor while testifying before the special inquiry
officer, is found to have given- false testimony and, therefore, is precluded
by section 101(f) (6) of the Act from establishing good moral character for
purposes of qualifying for the exercise of discretionary relief.
(6) Respondent, a native and citizen of Italy, who claims that his 'United
States-acquired criminal reputation would result in certain intensive restrictions on his liberty, social, and economic life so as to impOse severe, if
not total, economic sanctions, if deported to Italy, has not established that
such deportation would result in "physical persecution" within the meaning•
of section 243(h) of the Act, as amended, since there is no evidence re351

Interim Decision #1517
spondent would be subject to physical persecution on account of race, religion or politicaLyiewpoint.
Classes:
Order: Act of 5052 — RoetIon ' 241(n) (2) (5 13 C 1251(n) (2)3 —Entered

without inspection.
Order: Act of 1952—Section 241(a) (5) (8 U.S.C. 1251(a) (5)]—Failed to
furnish address and other information required by
section 265 and 'has not established failure was
reasonably excusable or was not wilful.
Lodged : Act of 1952—Section 241(a) (1) [8 U.S.C.. 1251(a) (1)]—Excludable at entry—not in possession of valid visa or
other valid entry document.

The case comes forward on appeal from the order of the special
inquiry officer, dated March 17, 1965, denying the respondent's
various applications for . discretionary relief, ordering respondent
deported on the charges contained in the order toshow cause and
on the lodged charge to Brazil, in the alternative, to Italy, and
further ordering that the respondent's application for withholding

of deportation. to Italy under section 243(h) of the Immigration and
Nationality Act be denied.
The order of the special inquiry officer sets forth the prior action
in the case. The respondent is a native and citizen of Italy, 61 years
old, male, married. The proceedings were instituted on December
16, 1957 by the issuance and service of an order to show cause -which
charged the respondent with being deportable on the two grounds

set forth in the caption. The second charge was amended by being
restricted to allege the respondent's failure to furnish notification of
his address to the Attorney General only during the years 1956 and
1957. A third charge was lodged that the respondent was deportable under the provisions of section 241(a) (1) of the Immigration.
and Nationality Act (8 U.S.O. 1251(a) (1)) as one who was excludable at time of entry into the United States at New York,
New York on May 5, 1956 because he was then an alien immigrant
who entered by claiming to be a citizen of the United States and
was not in possession of an unexpired, immigrant yisa or valid
entry document.
. The respondent through counsel admitted the charge of entry
without inspection and the lodged charge of entry without proper
documentation. The second charge under section 241(a) (5) was
dispirted; After hearing, the then presiding special inquiry officer
entered a decision on April 2, 1958 finding respondent deportable on
all three charges. Applications for discretionary relief frvn de352

lAterim. DecisioA #1517•

portation were denied and deportation. was directed. On appeal,
this Board initially remanded the cause for further hearing. Then,
upon motion for reconsideration, it certified. the case to the Attorney
General, who, in • turn, directed that a decision he entered by the
Board on the merits and on September 2, 1958, this Board dismissed
the respondent's appeal.
A petition for review of the order of deportation and denial of
the applications for discretionary relief, filed in the United States
District Court for the Eastern District of Pennsylvania, was dismissed on April 8, 19,59. This grant of summary judgment by the
District Court was affirmed on Aprll 1, 1900 by the United States
Court of Appeals for the Third. Circuit (Bufalino v. Holloack 277
F.2d 270) and certiorari was denied (364 - U.S. 863 (1960)).
Administratively, and not as part of the deportation proceedings,
the respondent then sought the creation of a record of lawful admis-•
sion for permanent residence, pursuant to the provisions of section
249 of the Immigration and Nationality Act (8 U.S.C. 1259), and
alternatively, withholding. of deportation to Itidy, the country directed by the District Director pursuant to the provisions of section

243(h) of the Immigration. and Nationality Act (8 U.S.C. 1253(h) )4The determination on each of the applications was adverse to the
respondent who then. sought judicial review in the United States
District Court for the District of Columbia. Summary judgment
was entered against the respondent on June 7, 1962. The respondent appealed and the appellate court, on June 0, 1963, reversed
(Bufalino v. Kennedy, 322 F.2d 1016 (D.C. Cit.)) and directed that
the cause be returned to the District Court for a trial upon the
limited. issue of the respondent's contention that there had been
adverse prejudgment of his applications by the Immigration and
Naturalization Service.
Subject to the approval of the United States Court of Appeals
for the District of Columbia Circuit, respondent's counsel and the
United States Attorney on September 26, 1963 stipulated that the
cause be remanded, through the' District Court to the Inunigration
and Naturalization Service with directions to reopen the administra
tive deportation proceedings. The stipulation specifically limited
the scope of the further proceedings to a redetermination of the
previous aa•ninistratively denied applications of the respondent for
withholding of deportation and for creation of a record of lawful
admission for permanent residence and to a determination of ?he
country of deportation in accordance with section 243(a) of the
Immigration and Nationality Act (8 U.S.C. 1253(a)). Leave was

Interim Decision '40517
alsri granted in the stipulation for the respondent to raise, promptly
both before the special inquiry officer and the Board of Immigration
Appeals, the claim of prejudgment' whieh he had asserted during
the litigation. After approval of this stipulation by the United
States Court of Appeals for the District of Columbia Circuit on
October 14, 1968, the District- Court, in turn, on October 31, 1963,
remanded the cause to the Immigration and Naturalization Service.
The Board of Immigration Appeals then, on November 15, 1963,
administratively remanded the cause for further proceedings consistent with the District Court's order and the stipulation.. Pursuant
to further stipulations between counsel and the trial attorney for
the Service, the proceedings were enlarged. to permit the respondent
to file applications for suspension of deportation and voluntary departure in lieu of deportation -under section 244 of the Immigiation
and Nationality Act, as amended (8 1254, as amended), and
for change of status to that of a lawful resident alien under section
245 of the Immigration and Nationality Act, as amended (8 U.S.C.
1255, as amended), and to require a determination on each of the
applications.
At the outset of the reopened proceedings on March 2, 1964, respondent's counsel moved for disqualification of the special inquiry
officer and for the appointment of an attorney outside the Department of Justice to condrict this hearing. The motion was denied.
A similar motion had been denied by the Acting Attorney General
on January 27, 1964. The applications were bottomed upon respondent'g contention that the ultimate determination in this cause had
been prejudged, as indicated by public statements made by the
Attorney General with respect to the rag-Inn/lent and_ his activities.
The special inquiry officer stated unequivocally and without hesitation, that he has received no advice, instructions, or directions whatsoever in this cause from anyone (other than the mere assignment
to preside) ; that the interim determinations and rulings and this
decision were premised solely upon his understanding and knowledge
of the applicable laws and regulations and his honest and sincere
evaluation of the evidence adduced, including his appraisal of the
credibility of the respondent and witnesses; that he has not been
influenced to any degree by Allegations (made essentially by respondent's counsel) that information outside the record exists; and this
cause was not in any way prejudged by him.
In the order remanding the case on the issue of prejudgment
(Bufalino v. Kennedy, 322 F.2d 1016 (D.C. Cir.)) the court relied
on the case of Aceardi v. Shaugh/nessy, 347 U.S. 260, to hold that the
354

Interim Decision #1517
word "discretion" means that the recipient of the Attorney General's
authority must exercise his authority according to his understanding
and conscience. The Circuit Court also cited the case of Shaughnessy
v. Accardi, 349 U.S. 260. This case held that the record fully
-supported the District Court's conclusion that the Board's decision
represented the free undictated decision of each member and that
there was no proof of prejudgment. Similarly, we come to the
conclusion. that the special inquiry- officer's statement of lack of
'prejudice or prejudgment effectively meets respondent's claim of
prejudgment. We note that counsel has not charged the Board with
prejudgment:

The special inquiry officer found that respondent was deportable
on all three charges urged against him in the administrative deportation proceedings relying upon Bufalino v. Holland, 277 F.2d 270
(3rd Cir., 1960), certiorari denied 364 T.T.S. 863, 5 L. ed 2d 85 •1960).
He also quoted the Court of Appeals for the District of Columbia
Circuit which ruled that the validity of that deportation order can
no longer be challenged. Bufalino v. Kennedy, 322 F.241 1016 (1963),
although that court did remand. the case for a hearing on the issue
of prejudgment. The special inquiry officer concluded thiit deportability of the Tespondent was established as a matter of law and
refused to permit an attack 'upon the validity of the deportation
order based upon the ruling of the Supreme Court in Rosenberg v.
Fleati, 374 U.S.' 449. Parenthetically, the Reza?: doctrine is in,

applicable ui the case of a. lawful permanent resident, who, fella*_

ing a. brief, casual visit abroad, reentered the United States upon
a false claim of citizenship thereby avoiding inspection as an alien.
In such a case an entry has been made within the meaning of
section 101(a) (13) of the Immigration and Nationality Act upon
which a ground of deportationmight be predicated?
The respondent has submitted formal applications for the creation
of a record of admission for permanent residence under section 249
of the Immigration and Nationality Act, for suspension of deportation and for permission to depart voluntarily under section 244 and
for adjustment of status as a lawful resident pursuant to section 245.
We shall deal with these applications separately. Section 249 of
the Immigration and Nationality Act provides that a record of
lawful admission for permanent residence, may, in the discretion
See Nanette v. Bands, 349 U.S. 803.
'Matter'of Kork,'Int Dec. No. 1443. The case of Zimmerman v. Lehman,
389 F.2d 943 (7th 01r., 1965), may be distinguished on the ground that there
existed a bona fide. although erroneous. assumption on the part of the alien
that be was a derivative citizen at the time of his reentry from Canada.
3

355

Interim Decision *1517
of the Attorney General and under such regulations as he may prt.
scribe, be made in the case of any alien * * * if no such record is
otherwise available and such alien shall satisfy the Attorney General that he 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, and he
establishes that he (a) entered the United States prior to June 28,
1940; (b) has had his residence in the United. States continuously
since such entry; (c) is a -person of good moral- character; and (d)
is not ineligible to citizenship.
The respondent originally entered the United States in December
1903 and apparently left in 1904, reentering in January of -1906 and
leaving again in 1910. _He was admitted for permanent residence
at the port of New:York on February 15, 1914. The evidence establishes that the respondent has had residence in the United States
since at least 1927. There appear to have been brief departures from
the United States to Canada during the early or mid-1920's, the
exact time and number is not definitely. established. However, all
_departures were for a day or less and thiy were in connection with
the respondent's then employment in the Buffalo, New York area.
The respondent also concedes that he made two trips to Cuba—in
1951 and in 1956—for a short period of two or three days and
additionally, preceding the 1956 trip to Cuba, he made a four or
five-day vacation trip to Bimini in the West Indies. It is clear, as
the respondent concedes, that in 1951 and in 1956, when he returned
from the two trips to Cuba and the trip to Bimini, he represented
himself to be a United States citizen and was admitted as such.
There crisis in the respondent's ease a record of lawful permanent
admission in 1914. Subsequently, he became deportable by virtue of
his entry as a United States citizen, thereby entering without inspection. The special inquiry officer has relied upon Matter of R , 8
I. & N. Dec. 598, to hold that the record of his admission is not
presently available, since by reason of his deportability, his status
must be deemed to have been changed within the contemplation of
section 101(a) (20) of the Immigration and Nationality Act (8
U.S.C. 1101(a) (20)). However, Matter Of R ; supra, a decision
of the Assistant Commissioner, has been overruled by this Board
in Matter M P , 9 1. &I N. Dee. 741 (affirmed, Maldonado v.
Rosenberg, No. 62-1123–K, S.D. Cal. C.D. (December 27, 1962)) ;
Matter of Preeiado Castillo, Int. Dec. No. 1230; see also Matter of
Edwards, Int. Dec. No. 1333, which cites these two cases. Inasmuch.
' as there exists a record of lawful entry which has not been vitiated
—

—

—

—

-

356

Interim Decision *1517
by the respondent's subsequent deportability, he is not eligible for a
creation of a record of lawful admission pursuant to section 249 of
the Immigration and Nationality Act. The issue of good moral
character, although irrelevant in view of the fact that the respondent has been found ineligible for this form of relief, will be discussed

later. .
The respondent has applied for suspension of deportation pursuant
to section 244(a) of the Immigration and Nationality Act (8 U.S.C.
1254(a)). On the basis of his long residence in. the United States56 of his 61 years, the fact :that his wife, to whom he has been
married for 30 years, is totally dependent upon him for support

and maintenance, family ties of two sisters and a brother, the respondent's deportation would result in either "extreme hardship"
under subsection (1), or "exceptionally and extremely unusual hardship" under subsection (2) of section 244(a). However, the amendment of section 244(a) by the Act of October 24, 1962, 76 Stat. 1,247;
specifically provides in subsection (1) that subsection shall apply
where the respondent "is deportable under any law of the United
States except the provisions specified in paragraph (2) of this subsection." Inasmuch as the respondent is deportable under a section
inclided paragraph (2) under section 241(a) (5) he must meet
the requirement of "exceptional and extremely unusual hardship"
and must establish that for a continuous period of not less than ten
years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, he must
prove that during all of such period he has been and is a person
of good moral character. Thus the holding in Desealernze v. Savovetti, 356 U.S. 269 (1958), which applied to the Act before its
Amendment by the Act of October 24, 1962 is inapplicable.'
The respondent must meet the requirement in subsection (2) of
section 244(a) of ten years' physical presence." This ten-year period
must be continuous immediately following the commission of an act
constituting a, ground of deportation. In Matter of
Int. Dec.
No. 1380, this Board held that the ten-year period begins to run
from the time an alien first becomes deportable. This holding was
based upon Fong v. Immigration and Naturalization Service, 308
F.2d 191 (9 Cir. 1932), which led to the overruling of the holding in
Matter of r-R-, 9 I. & N. Dec. 340, which held that the ten-year
period is determined by the date of the last deportable act. SubKrug v. Pederfolf, 062-376. No. 1). Ohio. E.D. (lone 24. 1964), unreported.
'Chang Wing Meting at Haperiv, 271

1".25 905 (1 Cir. 1959). cert. den. 362

U.S. 911, rehearing denied 362 U.S. 937.

357

Interim Decision #1517
sequently, the court in Pateis v. Immigration and Naturalization
Service, 337 F.2d 733 (1964), expressly disavowed the holding in
the Fong case and approved the holding in Matter of V-1?—, 9
I. & N. Deo. 847, that the ten-year period runs from the date of
the commission of the last deportable act. 5 In view of the diversity
of the court holdings we are inclined not to disturb the holding of
the special inquiry officer that the respondent does not possess the
required ten years' residence in the 'United States subsequent to his
failure in January 1956 and January 1957 to report his address,
especially in view of the Prior holding in the Third Circuit in
Bizfalirto v. Holly td. 6 Thus he is not eligible for suspension of

deportation or for voluntary departure.
The final application for relief from deportation is the request for
status as a permanent resident under the provisions of section 245
of the Immigration and Nationality Act as amended (8 U.S.C. 1255,
as amended). This section reads in pertinent part as follows:
Section 245. (a) The status of an alien, other than an alien crewman, who
may be adjusted
by the Attorney General, in his discretion and under such regulations as he
may prescribe, to that of an alien lawfully admitted for permanent residence if
(1) the alien snakes an application for such adjustment (2) the alien is eligible to. receive an immigrant visa and is admissable to the United States
for permanent residence, and (3) an immigrant visa as immediately available
to him at the time his application is approved * • *.
WAS inspected and admitted or paroled into the United States

The respondent has made an application for such adjustment and
has been found to be mentally and physically sound, his financial
responsibility is established and the evidence does not bring him
within any of the excludable provisions of section 212(a) of the
Immigration and Nationality Ant_ Ns is statutorily eligible to

receive a visa and such a visa is immediately available to him on
the basis of his marriage to his •United States citizen wife who has
filed for a nonquota visa on his behalf. However, the existence of
good moral character for a reasonable period of time must be considered in determining whether an applicant for status as a permanent resident under the provisions of section 245 of the Immigration and Nationality Act merits the favorable exercise of disCretion.T
The court in a prior proceeding in this case Buffalino v. Holland, 2T7 F.24
270 (3rd thr. 1960), likewise held that the ten-year period of residence subseanent to the last deportable stet was required and for this reason denied suspension of deportation and voluntary departure.
• See also Williams v. Sahli. 271 BM 228 (6 01r. 1959), and Krug v. Pe&
-green, NM. Ohio, E.D. (June 24, 1964), unreported; Hatter of Graham,- Int.
Dec: No. 1483.
'Matter of Francois, Int. Dee. No. 1263.
`

-

358

Interim Decision #1517
Section 245 specifically requires that an alien applying for status
as a permanent resident be inspected and admitted into the United
States. The respondent in the instant case has been found deportable as one who obtained entry into the United States in April
1956 and in May 1956 on the ground that he knowingly, wilfully
and falsely claimed to be a United States citizen on the occasion of
those two entries, thereby entering without inspection, as heretofore
found by the Court of Appeals for the Third Circuit in prior proceedings, a deportability finding that can no longer be challenged..
Inasmuch as the respondent has not been inspected he is ineligible
for status as a permanent resident under section 24Z of the Immi-

gration and Nationality Acts We note the case of Tibke v. Immigration and Naturalization Service, 335 F.2d 42 (2d Cir. 1964).
lion•ever, that ease involved an alien who first entered the United
States in 1958 as an immigrant admitted for lawful permanent residence and subsequently became deportable upon conviction of two
crimes involving moral turpitude under section 241(a) (4) of the
Act, which was waived under section 212(g) on the basis of a finding
that his exclusion would result in extreme hardship to his citizen
_spouse and that the admission of the alien would not be contrary to
the national Welfare and security , of the United States. It is to be
observed that in Tibke, the'alien never left the United States afters
his lawful adrirission for permanent residence in. 1958. The court, •
in finding Tibke eligible for adjustment under section 245 of the
'Immigration and Nationality Act, rejected the argument that he was
eligible to adjust his status only under the provisions of section 244.
We believe that Tibke should be confined to the facts and is not applicable to the present case where there havebeen departures and a
finding of deportability based upon entry without inspection.
The question of good moral character on the part of the respondent is common to.all of his applications for relief from deportation
as a matter of eligibility or as a matter of discretion. The. special
inquiry officer in the 1958 proceeding was convinced that the respondent's testimony in respect to his business connections and income knowingly and deliberately•told less than the truth ancl that
his testimony was contradicted time and again by the respondent's
own testimony and other evidence of record. This finding was expressly approved by the Court of Appeals for the Third Circuit in
Bufalino v. Holland, 271 F.2d 270 (1900), which held that the

respondent's testimony regarding his employment for the past five
years was inaccurate and lacked required honesty and frankness;
• Natter of II—, 9 L & N. Dec. 599.

359

Interim Dicision 4*1517
instead of a direct answer to this simple inquiry, the sum ,total of
•the respondent's contradictory and confusing testimony elicted after
lengthy cross-examination demonstrated he had many other employment associations and income-producing connections concerting
which his testimony was intentially and purposely vague and uninformative. Having determined that the respondent testified falsely
in the 1958 proceedings in order to avoid deportation, the court
found that the special inquiry officer was required to find that the
respondent was not a person of good moral character, in view of the
requirement of 8 U.S.C. 1101(f) (6) which provides than an alien
who testifies falsely to procure benefits under the Immigration and

Nationality Act is estoppel from demonstrating himself to be a
person of good moral character.
The special inquiry officer in the present proceedings, finds from
his demeanor as well as his confusing, contradictory testimony, that
the respondent was deliberately untruthful, that the so-called
"mistakes" were not innocent, and that he has given false testimony
in this cause. As the trier of facts, the observations of the special

inquiry officer regarding the respondent's demeanor, attitude and
actions while testifying are material and relevant to the issue of
credibility. The special inquiry officer has set out (pp. 28-47)
various aspects of contradictions and discrepancies in the record
regarding his meetings with certain persons who attended a meeting
at Apalachin and explanations regarding his association with a Mrs.
Jane Collins. We believe that the cumulative effect of the testimony, which is full of distortion, half truths, incomplete answers,
misleading responses, evasion, concealment, suppression, equivocation
and quibbling is such as to cast a serious doubt upon its credibility.
In a situation where the respondent is an applicant for discretionary relief, the Government is entitled to the truth and the burden is
on the respondent to establish that he has been of good moral character for the required period. It is not incumbent upon the Attorney
General to establish that respondent was .not a person of good moral
character.• The special inquiry officer has concluded that the respondent, who made false statements in a 1958 proceeding, as found
by the prior special inquiry officer and the Court of Appeals for
the third Circuit, has continued to do so in the 1964 proceedings
before him. Upon this record and based upon the opinion of the
In ro Sittler. 197 F. Bunn: 278, affirmed Sittler v. United States, 316 F.2d
312 (25 Cir. 1963) ; Brownell v. Cohen, 230 F.25 770 (DO. Cdr. 1957) ; Prettier
v. United States. 238 F.2d 233 (25 Cir. 1956), cert. den. 332 II.S. 990 (1957);
Chaunt v. United States, 364 U.S. 350 (1960) ; United States v. Accord°, 113 F.
Supp. 783 affd. 208 F.25 632 (3d Cir: 1953), cert. den. 347 U.S. 952.
'

360

Interim Decision #1517
special inquiry officer, the trier of the facts, regarding demeanor,
lack of candor and probity, we are not disposed to find his evaluation of the testimony incorrect. The respondent is ineligible for
discretionary relief, including the discretionary relief of section 245
of the Immigration. and Nationality Act because he has failed to
establish' good moral character for the past ten years. In addition,
the respondent has failed to establish.the requisite ten years of continuous physical presence in the United States since his last deportable act.
The respondent designated Brazil as the eountt7 of deportation

in the event that he is ordered deported, and Italy has been named
as the alternative country of deportation in the event deportation
cannot, pursuant to the statute, section 248(a) of the Immigration
and Nationality Act (8 U.S.C. 1858(a)), be effected to Brazil. The
respondent has submitted an application for withholding of deporta r
tionIalypurs theovinfsc243(h)ote
Immigration- and Nationality Act (8 U.S.C. 1253 (h) ), alleging that
he will be physically persecuted if deported there. Although the
respondent has testified that the "Mafia" is a fable and the "Cosa
Nostra" does not exist, nevertheless, since he has acquired the reputation. of a gangster, mobster, and racketeer in the United States,
the Italian authorities are well aware of this reputation and that as
a result thereof they will subject him upon his deportation to Italy
to such treatment and restrictions as will constitute physical persecution. He contends that in accordance with Italian law and praetice,
if deported to Italy, he will be subjected to certain intensive restrictions upon his liberty and his social and economic life, including
confinement or restriction to a small village in the 'Sicilian peninsula
of Italy, limitation in his freedom of movement throughout the
country, subjection to surveillance, interrogation, and possibly arrest;
with or without probable reason or cause, and denial of employment
opportunities because of physical disabilities and the proscription of
the Italian statutes, so as, in fact, to impose severe, if not total,
economic sanctions and restrictions.
The phrase "physical persecution" as used in section 24301) of
the Immigration and Nationality Act has been interpreted as meaning confinement, torture, or death inflicted on account of race, religion, or political viewpoint. 10 It has also been held that economic
proscription so severe as to deprive a person of all means of earning
"Bratana v. Bouchard, 28R F.28.

507 (3rd Cir. 1981). cert. den. 366 U.S. 950;

Dinetnich, v. Esperdy, 299 F.2d 244 (2d Or. 1961), cert. den. 369 U.S. 844.

301

Interim Decision #1517
a livelihood may amount to physical perseeution." This of course

. means economic proscription inflicted because of race, religion or
political viewpoint. On the other hand, possible incarceration for '
one or two years for illegally deserting a vessel, difficulties and hardships feared by the alien on his return, and imprisonment for con- -vietion of a crime do not constitute physical persecution as that term
is used in section 243(h) of the Act." Whatever physical persecution is claimed by the respondent arises out of his actions and reputation in the United States. The Government of Italy is a demo:cratic orie and not totalitarian. There is no doubt that if the respondent were tried, he would receive a judicial trial with adequate
safeguards. The claim of physical persecution stems from speculation and conjectures unrelated- to the .respondent himself. .There
is no evidence that the respondent would be subject to physical per:
secntion within section 243(h) of the Immigration and Nationality
Act because of race, religion or political viewpoint. It is concluded•
that respondent has failed to establish his claim of physical persecution and his application for withholding of deportation is denied.
The constitutional question urged by counsel, that deportation would
constitute cruel and unusual punishment in violation_ of the Eighth
Amendment, is not cognizable in this forum.
We have also considered other objections raised by counsel.'here
is no requ,irernent in the statute or in the regUlations regarding-an
independent character investigation. 1.1 view of the numerous witnesses in this case, such an investigation would appear to be superfluous. However, where ctsoretionary' relief is deniedi'il is neither' .
usual practice nor requirement that such an investigation be conducted and the Government has not relied on an investigation. We
regard-the denial.by the special.inquirY officer of the request for
subpoenas to assure the presence of various Government officials of .
other agencies as vague,. irrelevant and immaterial because there is
not in issue matters which.may-or may not have been the subject of
investigation by the Federal Bureau of Investigation, the Internal
Revenue Service, or the Bureau of Narcotics. A request for, a deposition has been granted. Viewing, the record as a whole, we do
not find there was any prejudicial error committed .'and conclude
that the respondent has been given a fair heartag. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the.same is hereby
dismissed.
Dunat v. Hamm 297 F.2d 744 (3rd 01r. 1952). •
'
v. Raperdo, 319 F.25 773 (2d Clr. 1963); Sin* v. Flagg, 303 F.24,
289 (7th 01r. 1962) S Kaiatiis v. Rosenberg,. 305 r2d 249 (9th 01r. 1962).
24

u Zvpreich.

362


Interim Decision #2500

MATTER OF KO
In Deportation Proceedings
A-20548879
Decided by Board June .17, 1976
(1) Operations Instruction 245.4(a)(6) which provides that a case will be held in abeyance
where the sole basis for applicant's ineligibility for relief under section 245 of the
Immigration and Nationality Act is the unavailability of a visa number occurring
subsequent to the filing of the application is not applicable to a case where respondent's
application for adjustment of status was denied for lack of a valid labor certification,
because in such instance, the respondent's ineligibility for section 245 relief was based
on a reason other than the unavailability of a visa number which had occurred subsequent to the filing of the application.
(2) Matter of Ho, 15 I. & N. Dec. 692, distinguished.
CHARGE:

,
Order: Act of 1952—Section 241(a)(2)-18 U.S.C. 1251(a)(2)1 7-Nonimmigrantremained longer

ON BEHALF OF RESPONDENT: John B. Bartos t Esquire
4676 Admiralty Way, Suite 632
Marina Del Rey, CA 90291

In a decision dated August 18, 1975, the immigration judge found the
respondent deportable, denied his application for adjustment of status
under section 245 of the Immigration and Nationality Act, and granted
the respondent the privilege of voluntary departure. The respondent
has appealed from the denial of his application for adjustment of status.
The appeal will be dismissed.
The respondent is a native and citizen of China who entered the
United States in 1971 as a nonimmigrant student. The respondent has
conceded deportability as a nonimmigrant who has remained beyond the
authorized length of his stay. The only issues on appeal involve the
denial of the respondent's application for section 245 relief.
The respondent initially submitted his application for adjustment of
status to the district director, prior to the commencement of these
proceedings. At that time, the respondent sought section 245 relief as a
nonpreference immigrant claiming exemption from the labor certification requirements of section 212(a)(14) as an investor ' within the
695-

Interim Decision #2500
eontemplatiou of 8 CFR 212.8 (b)(4). The district director denied the
respondent's section 245 application, finding that the respondent had
not established his claim to investor status. The district director based
his decision on the respondent's lack of training in the field in which he
allegedly invested, and the fact that the respondent appears to be a

minority shareholder in the business. The respondent evidently filed a
motion to reconsider the district director. However, prior to the filing of
that motion the district director had issued the order to show cause in

this case, thus lodging jurisdiction over the section 245 application with
the immigration judge. See 8 CFR 245.2(a)(1).
At his hearing the respondent renewed his application for section 245
relief before the immigration judge. The immigration judge denied the
application on the ground that a visa was not then available to the
respondent as a nonpreference immigrant. See Department of State
bulletin on 'the Availability of Immigrant Visa Numbers for August
1975. A review of recent Department of State bulletins on the Availability of Immigrant Visa Numbers indicates that visas have been unavailable to nonpreference aliens from China since June of 1975.
In his brie:' on appeal, counsel for the respondent implicitly acknowledges the fact that a visa is presently unavailable to the respondent as a
nonpreference immigrant. Counsel, however, seeks a remand on the
basis of the Service policy expressed in Operations Instruction 245.4
(a)(6). In his brief, counsel also requests that the district director be
required to process the respondent's application for a labor certification
as a professional (Form MA7-50A). While it is not entirely clear from
the record, it appears that the respondent desires to be classified as a
preference immigrant under section 203(a)(3) of the Act.
The Operations Instruction relied upon by the respondent basically
provides for the holding in abeyance of any case in which an alien has

submitted aflection 245 application at a time when a visa number was
available to him, but in which he is precluded from receiving that relief
solely because a visa number is not available at the time the processing
of the case ,is completed. The respondent•contends that this Operations
Instruction has application in this ease because he submitted his section
246 application to the District Director at a time when a nonpreference

number was available.to him. We find, however, that the Operations
Instruction has no bearing on this case because there is another basis for
denial of the respondent's application for adjustment of status. This
case, therefore, , differs from Matter of Ho, 15 I. & N. Dee.
692, also decided today, because the respondent's ineligibility for
section 245 relief is not solely related to the unavailability of an immigrant visa number.
In order to be eligible for adjustment of status the respondent must
meet the labor certification requirements of section 212(a)(14) of the
696

Interim Decision #2500
Act. The respondent presently contends that he meets this requirement
as an investor. The district director's decision denying the respondent's
application for adjustment of status, however, calls into question many
aspects of the respondent's investment. That decision appears to have
been correct. For example, the respondent has not shown that he has
assumed substantial responsibility for the direction and control of the
enterprise as is required to qualify for the investor exemption. See
Matter of Yang, 15 I. & N. Dec. 147 (R.C. 1974); Matter of Ko,
14 I. & N. Dec. 349 (Dep. Assoc. Commr. 1973). The respondent has therefore failed to meet the burden of proof requirements
imposed by Matter of Ahmad, 15 L & N. Dec. 81 (BIA 1974). In
addition, the respondent has not shown that he is eligible for adjustment
of status as a preference immigrant under section 203(a)(3) or (a)(6). We.
note that the pendency of these deportation proceedings does not bar
the respondent from attempting to establish such eligibility by seeking
approval of a petition filed under 8 CFR Part 204.
The respondent is not presently eligible for adjustment of status
under section 245. On this record, it has not shown that he meets the
labor certification requirements of section 212(a)(14) of the Act. Furthermore, as has been indicated, a visa is not presently available to the
respondent as a nonpreference immigrant. The decision of the immigration judge was correct. The appeal will be dismissed.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 31 days from the date of this order or any extension beyond that
time as may be granted by ,the district director; and in the event of
failure so to depart, the respondent shall be deported as proVided in the

immigration judge's order.

697


Interim Decision #2464

MATTER OF NEVAREZ
In Visa Petition Proceedings
A-20292676

Decided by Board January 16, Ins
(1)Petitioners and applicants for immigration benefits are required by 8 CFR 103.2(b) to
provide certif ed English translations of any foreign language documents they submit;
the Service should likewise provide certified English translations of relevant foreign
documents it submits in evidence in such proceedings.
(2)Where the crucial evidence submitted by the Service in connection with the revocation
of approval of the visa petition to accord beneficiary immediate relative classification is
beneficiary's $.fiiclavit before the U.S. Consul in Monterrey, Mexico on November 12,
1974, and the document is in Spanish and no translation has been provided, the record is
rem

on appeal, by the Board fur a proper translation of the affidavit and for a new

decision based on the completed record.
ON BEHALF

OF PETITIONER:

Pro se

The United States citizen petitioner applied for immediate relative
classification for the beneficiary as her spouse under section 201(b) of the
Immigration and Nationality Act. The petition was approved on December 11, 1973. However, as a result of a consular inquiry into the
bona fides of the marital relationship, on October 31, 1975 the district
director revoked approval of the petition on the ground that the beneficiary had Entered into the marriage for the sole purpose of obtaining

immigration benefits. The petitioner appeals from the district director's
revocation. The record will be remanded to the district director for
further proceedings.

The district director's decision to revoke approval of the petition is
based on a sworn statement, executed by the beneficiary before the
United States Consul in Monterrey, Mexico on November 12, 1974 to

the effect that he only desired to immigrate to the United States and
had no intentions of establishing a life with the petitioner. However, on
August 20, 1975 the beneficiary recanted his earlier statement and
attested that it had not been given voluntarily. On appeal, the petitioner
maintains that her marriage to the beneficiary is valid and subsisting
and that they intend to live together as husband and wife.
The crucial evidence submitted by the Service is the beneficiary's
550

Interim Decision 46z4tiu

damaging affidavit before the United States consul. However, this
document is in Spanish and no translation has been provided. Petitioners and applicants for immigration benefits are required by regulation to provide certified English translations of any foreign language
documents they submit, 8 CFR 103.2(b). The Service should likewise
provide certified English translations of relevant foreign language
documents it submits. Accordingly, the record will be remanded to the
district director for a proper translation of the beneficiary's November
12, 1974 affidavit and for a new decision based on the completed record.
ORDER: The record is remanded to the district director for further
proceedings consistent with the foregoing opinion.

551