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Matter of A-C-M-, Respondent
Decided June 6, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien provides “material support” to a terrorist organization if the act has a logical
and reasonably foreseeable tendency to promote, sustain, or maintain the organization,
even if only to a de minimis degree.
(2) The respondent afforded material support to the guerillas in El Salvador in 1990
because the forced labor she provided in the form of cooking, cleaning, and washing
their clothes aided them in continuing their mission of armed and violent opposition to
the Salvadoran Government.
FOR RESPONDENT: Dawn Pipek Guidone, Esquire, Mineola, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Ilya Yukhtman, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY and COLE, Board Members.
Dissenting Opinion: WENDTLAND, Board Member

Concurring and

PAULEY, Board Member:

In a decision dated August 8, 2016, an Immigration Judge granted the
respondent’s request for deferral of removal under the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N.
GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into
force June 26, 1987; for the United States Apr. 18, 1988) (“Convention
Against Torture”). The Department of Homeland Security (“DHS”) has
appealed from that decision. The respondent filed a cross-appeal challenging
the Immigration Judge’s denial of her applications for Temporary Protected
Status, cancellation of removal under section 240A(b) of the Immigration
and Nationality Act, 8 U.S.C. § 1229b(b) (2012), asylum, withholding of
removal, and protection under the Convention Against Torture. The
respondent’s cross-appeal will be dismissed and the record will be remanded
to the Immigration Judge.

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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of El Salvador who claims that she
entered the United States without inspection in 1991. She was subsequently
granted Temporary Protected Status, departed the country on advance parole,
and returned on March 7, 2004, seeking admission. The DHS initiated
removal proceedings against her, charging that she is removable as an alien
without a valid entry document under section 212(a)(7)(A)(i)(I) of the Act,
8 U.S.C. § 1182(a)(7)(A)(i)(I) (2006).
In proceedings before the Immigration Judge, the respondent applied for
cancellation of removal. The DHS argued that she was ineligible for that
relief under section 240A(c)(4) of the Act based on her undisputed testimony
that she was kidnapped by guerillas in El Salvador in 1990 and was coerced
into undergoing weapons training and performing forced labor in the form of
cooking, cleaning, and washing their clothes.
In a decision dated December 15, 2011, the Immigration Judge found
the respondent removable but granted her application for cancellation of
removal. The DHS appealed. In a decision dated January 14, 2014, we
concluded that the respondent is ineligible for cancellation, finding that she
is inadmissible under section 212(a)(3)(B)(i)(VIII) of the Act because she
received military-type weapons training from the guerrillas, who we
determined were a terrorist organization in 1990. Further, we found no
basis for the Immigration Judge’s assertion that there is a self-defense or
duress exception in section 212(a)(3)(B) of the Act. We therefore sustained
the DHS’s appeal and remanded the record for the Immigration Judge to
consider whether the respondent is eligible for any other relief or protection
from removal. 1
On remand, the respondent applied for asylum, withholding of removal,
and protection under the Convention Against Torture. The DHS conceded
that although the respondent is barred from establishing eligibility for
cancellation of removal based on her military/weapons training, section
208(b)(2)(A)(v) of the Act, 8 U.S.C. § 1158(b)(2)(A)(v) (2012), does not bar
her from seeking asylum.
The Immigration Judge incorporated by reference the respondent’s
credible testimony and all the documents submitted at her cancellation of
removal hearing. In her August 8, 2016, decision, the Immigration Judge
found that the respondent is ineligible for asylum and withholding of removal
based on the material support bar in section 212(a)(3)(B)(iv)(VI) of the Act.
The Immigration Judge stated that, but for the material support bar, she
would have granted the respondent’s asylum application on humanitarian
1

Although the respondent again contends that her application for cancellation of removal
should not have been pretermitted, we decline to revisit that issue.

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grounds pursuant to Matter of Chen, 20 I&N Dec. 16 (BIA 1989), noting the
horrific harm she experienced from the guerrillas in El Salvador because, in
addition to being kidnapped and required to perform cooking and cleaning
for the guerrillas under threat of death, the respondent was forced to witness
her husband, a sergeant in the Salvadoran Army, dig his own grave before
being killed. However, the Immigration Judge granted the respondent’s
request for deferral of removal pursuant to the Convention Against Torture.

II. ISSUE
The principal issue on appeal is whether the respondent is subject to
the “material support” bar in section 212(a)(3)(B)(iv)(VI) of the Act.
Specifically, we must decide if the statutory definition of “material support”
has any limitation based on the extent and type of support rendered.

III. ANALYSIS
A. Statutory Provisions
Section 208(b)(2)(A)(v) of the Act bars the Attorney General from
granting asylum to an alien who is inadmissible under sections
212(a)(3)(B)(i)(I), (II), (III), (IV) or (VI), or is removable under section
237(a)(4)(B) of the Act, 8 U.S.C. § 1227(a)(4)(B) (2012). The Attorney
General is also barred from granting withholding of removal to an alien when
“there are reasonable grounds to believe that the alien is a danger to the
security of the United States.” Section 241(b)(3)(B)(iv) of the Act, 8 U.S.C.
§ 1231(b)(3)(B)(iv) (2012). For purposes of that provision, an alien who is
described in section 237(a)(4)(B) of the Act—that is, inter alia, any alien who
has engaged, is engaged, or at any time after admission engages in any
terrorist activity, as that term is defined in section 212(a)(3)(B)(iv)—“shall
be considered to be an alien with respect to whom there are reasonable
grounds for regarding as a danger to the security of the United States.”
Section 241(b)(3)(B) of the Act.
As relevant to the respondent, section 212(a)(3)(B)(iv)(VI) of the Act
provides that a person engages in terrorist activity when she “commit[s] an
act that [she] knows, or reasonably should know, affords material support”
to a terrorist organization, as that term is defined in section 212(a)(3)(B)(vi).
Section 212(a)(3)(B)(iv)(VI)(dd) of the Act requires “only that the [alien]
afford material support to a terrorist organization, with the sole exception
being a showing by clear and convincing evidence that the actor did not
know, and should not reasonably have known, that the organization was of
that character.” Matter of S-K-, 23 I&N Dec. 936, 943–44 (BIA 2006),
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remanded, 24 I&N Dec. 289 (A.G. 2007), clarified, 24 I&N Dec. 475 (BIA
2008). If the evidence indicates that the terrorism bar applies to an alien, he
or she has the burden of proving by a preponderance of the evidence that the
bar is not applicable. See 8 C.F.R. § 1240.8(d) (2018); see also Matter of
M-B-C-, 27 I&N Dec. 31, 36–37 (BIA 2017); Matter of S-K-, 23 I&N Dec.
at 939.
B. Material Support Bar
The respondent argues on appeal that the Immigration Judge erred by
finding that she is subject to the material support bar, claiming that any
assistance she provided to the guerrillas in El Salvador was de minimis and
therefore not “material.” She further asserts that even if the material support
bar is applicable to her, she is entitled to a duress exception. However, in
Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), we ruled that the “material
support bar” in section 212(a)(3)(B)(iv)(VI) of the Act does not include
an implied exception for an alien whose material support to a terrorist
organization was provided under duress. The United States Court of Appeals
for the Second Circuit, in whose jurisdiction this case arises, has deferred to
our interpretation. See Hernandez v. Sessions, 884 F.3d 107, 109 (2d Cir.
2018). Consequently, we will not address that issue further.
We must therefore decide whether the phrase “material support” contains
a quantitative requirement. The respondent and the dissent contend that an
insignificant degree of support provided by an alien to a terrorist organization
does not constitute “material” support. We hold that no such quantitative
limitation exists in the bar. 2
We first observe that, while not dispositive, the fact that the Board and
the Federal courts have uniformly rejected a duress exception to the material
support bar counsels against adopting the interpretation that the respondent
and the dissent support. The essence of a duress defense is that it negates
culpability for one’s actions, even if those actions are otherwise criminal.
See Dixon v. United States, 548 U.S. 1, 6–7 (2006); United States v. Bailey,
444 U.S. 394, 409–10 (1980). A person who voluntarily renders assistance
has acted culpably and would seem to present a greater threat than one whose
aid was only involuntarily given. It therefore appears unlikely that Congress
intended to impose the bar on an alien who was coerced into giving material
support to a terrorist organization but to exempt one who willingly provided
such assistance, even if it was small in degree.
2

In Ayvaz v. Holder, 564 F. App’x 625, 628 (2d Cir. 2014), the Second Circuit concluded
that the term “material” is ambiguous and remanded for us to issue a precedential decision
interpreting the statute. Our decision in this case responds to the court’s request.

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In Matter of S-K-, 23 I&N Dec. at 943, we stated that we were “unaware
of any legislative history which indicates a limitation on the definition of the
term ‘material support.’” We also agreed with the DHS that it is plausible
that the list in section 212(a)(3)(B) of the Act was intended to “cover virtually
all forms of assistance, even small monetary contributions.” Id. at 945.
However, we ultimately found it unnecessary to address the alien’s argument
that the term “material” should be given “independent content,” because the
amount of money she provided was sufficiently substantial to have an effect
on the terrorist organization’s ability to accomplish its goals. Id.
We agree with the Third Circuit that the word “material” in the phrase
“material support” must be “ascribed some meaning.” Sesay v. Att’y Gen. of
U.S., 787 F.3d 215, 222 (3d Cir. 2015). However, we conclude that the
meaning does not relate to a quantitative requirement. We reiterate that there
is no legislative history to support taking a quantitative approach and
separating out what amount of support is necessary to make it “material.” If
an alien affords material support to a terrorist organization, he or she is
subject to the bar, regardless of how limited that support is in amount.
This interpretation does not render the word “material” superfluous.
Without that qualification, the bar could have been construed to apply to a
person who merely expressed general “support” for a terrorist organization,
which would have raised substantial freedom of expression concerns. Cf.
Holder v. Humanitarian Law Project, 561 U.S. 1, 38–39 (2010) (upholding
a conviction under the criminal analogue to the material support bar in the
face of a First Amendment challenge).
In sum, “material support” is a term of art that “relates to the type of aid
provided,” that is, aid of a material and normally tangible nature, 3 and it is
not quantitative. Boim v. Quranic Literacy Inst. and Holy Land Found. for
Relief and Dev., 291 F.3d 1000, 1015 (7th Cir. 2002); 4 see also Singh-Kaur
v. Ashcroft, 385 F.3d 293, 298–99 (3d Cir. 2004) (noting that “material
support” is a broad concept that is not limited to the enumerated examples
and deferring to our determination that the “provision of food and setting up
tents” was within the definition of “material support”); Matter of S-K-,
3

The Court in Humanitarian Law Project, 561 U.S. at 36–40, considered that speech in
the form of “training” could be prohibited.
4
In reaching this conclusion, we adopt the reasoning of the Seventh Circuit in Boim, 291
F.3d at 1015, that the term “material”
relates to the type of aid provided rather than whether it is substantial or
considerable. . . . Congress’ goal of cutting off funding for terrorism would be
seriously compromised if terrorist organizations could avoid liability by simply
pooling together small donations to fund a terrorist act.
(Emphasis added.)

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23 I&N Dec. at 945 (observing that “Congress has not expressly indicated its
intent to provide an exception for contributions which are de minimis”).
The Third Circuit has defined “material support” as anything that has a
“logical connection” to the aims of the terrorist organization, but the act need
not be done for the specific purpose of aiding in a terrorist act. Singh-Kaur,
385 F.3d at 298–301; see also Black’s Law Dictionary 1066 (9th ed. 2009)
(defining “material” as “[h]aving some logical connection with the
consequential facts”). We agree that Congress intended to use the adjective
“material” in a relational sense—that is, to denote a necessary logical
relationship between an act and a forbidden consequence. Thus, we conclude
that an alien provides “material support” to a terrorist organization,
regardless of whether it was intended to aid the organization, if the act has a
logical and reasonably foreseeable tendency to promote, sustain, or maintain
the organization, even if only to a de minimis degree.
Our view that the phrase “material support” has no quantitative
component is also borne out by the fact that Congress, through section
212(d)(3)(B)(i) of the Act, has conferred upon the Secretary of Homeland
Security the authority to grant a waiver regarding the application of the
material support bar in order to address excusable violations including,
among other things, support provided under duress or to only a de minimis
degree. See, e.g., Annachamy v. Holder, 733 F.3d 254, 261–64 (9th Cir.
2013), overruled on other grounds by Abdisalan v. Holder, 774 F.3d 517,
526 (9th Cir. 2014) (as amended Jan. 6, 2015); Barahona v. Holder, 691 F.3d
349, 354–55 (4th Cir. 2012). As relevant here, the DHS has construed the
waiver to apply specifically in situations where an alien has afforded only
“insignificant material support” to an undesignated terrorist organization, a
member of such an organization, or an individual the applicant knew, or
reasonably should have known, had committed or planned to commit a
terrorist activity. Exercise of Authority Under Section 212(d)(3)(B)(i) of the
Immigration and Nationality Act, 79 Fed. Reg. 6913, 6913 (Feb. 5, 2014). 5
In Matter of S-K-, 23 I&N Dec. at 941, we noted that the inclusion of the
waiver was a means of balancing the “harsh provisions” of the material
support bar. By creating the waiver, Congress effectively addressed the
over-inclusive nature of the bar by allowing the Secretary to consider each
5

The DHS has also determined that the waiver applies to “an alien who provided limited
material support . . . that involves (1) certain routine commercial transactions or certain
routine social transactions . . . , (2) certain humanitarian assistance, or (3) substantial
pressure that does not rise to the level of duress.” Exercise of Authority Under Section
212(d)(3)(B)(i) of the Immigration and Nationality Act, 79 Fed. Reg. 6914, 6914 (Feb. 5,
2014). Thus, the waiver is available to cover the kinds of activities that the dissent argues
should not be considered to be “material support,” such as providing water or medical care.

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situation in a more holistic manner. See Sesay, 787 F.3d at 223 n.8 (noting
that in recent years, the Secretaries of State and Homeland Security have
continued to expand the categories of activities eligible for waiver). 6
Obviously, if providing merely an “insignificant” amount of support did
not constitute “material support,” the DHS would not have found a need for
a waiver addressing this type of circumstance. The fact that the waiver
covers such situations is clear evidence that the DHS regards the bar as
extending to the provision of even “insignificant” support, contrary to the
contention of the respondent and the dissent. While the DHS’s position is
not binding on either the Board or the Federal courts, it is nevertheless
entitled to some weight. See Davis v. United States, 495 U.S. 472, 484
(1990); Udall v. Tallman, 380 U.S. 1, 16 (1965). Thus, regardless of how
sympathetic the circumstances of an alien’s case may be, we find no support
for concluding that Congress intended to provide a quantitative exclusion
from the term “material support.” See generally Matter of C-T-L-, 25 I&N
Dec. 341, 345 (BIA 2010) (stating that we do not generally view statutory
language in isolation, but must read the words “in their context and with a
view to their place in the overall statutory scheme” (citations omitted)).
We therefore conclude that, on the facts before us, the respondent
afforded material support when she aided guerillas in continuing their
mission of armed and violent opposition to the Salvadoran Government in
6

Implementation of the section 212(d)(3)(B)(i) material support exemption has been
delegated from the Secretaries to the U.S. Citizenship and Immigration Services (“USCIS”)
in consultation with the U.S. Immigration and Customs Enforcement (“ICE”). See
Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act,
72 Fed. Reg. 9955, 9955 (Mar. 6, 2007). The DHS announced that USCIS, in consultation
with ICE, will consider a case for an exemption only after an order of removal is
administratively final. See Fact Sheet: Department of Homeland Security Implements
Exemption Authority for Certain Terrorist-Related Inadmissibility Grounds for Cases
with Administratively Final Orders of Removal, USCIS (Oct. 23, 2008),
https://www.uscis.gov/sites/default/files/USCIS/Laws/TRIG/USCIS_Process_Fact_Sheet
_-_Cases_in_Removal_Proceedings.pdf. After an administratively final order is issued,
ICE will forward to USCIS those cases where relief or protection was denied solely on the
basis of one of the terrorist-related inadmissibility grounds for which exemption authority
has been exercised by the Secretary. Id. Pursuant to the Secretaries’ exercise of authority
under section 212(d)(3)(B)(i) of the Act, “USCIS will consider whether certain aliens are
eligible for and warrant a discretionary exemption for the provision of the following types
of certain limited material support: certain routine commercial transactions; certain routine
social transactions; certain humanitarian assistance; or material support provided under
sub-duress pressure.” USCIS Policy Memorandum, PM-602-0112, 2015 WL 2439341
(May 8, 2015) (regarding “Implementation of the Discretionary Exemption Authority
under Section 212(d)(3)(B)(i) of the Immigration and Nationality Act for the Provision of
Certain Limited Material Support”). We emphasize that the DHS adjudicates section
212(d)(3)(B)(i) waivers only as a last resort, when it is clear that the terrorism bar is the
sole ground for an alien’s removability or ineligibility for relief.

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1990. See Humanitarian Law Project, 561 U.S. at 28–29 (citing Congress’
finding that any “contribution” to a terrorist organization facilitates terrorist
activity and holding that such a “contribution” is not limited to monetary
aid); Humanitarian Law Project v. Reno, 205 F.3d 1130, 1136 (9th Cir. 2000)
(stating that “giving support intended to aid an organization’s peaceful
activities frees up resources that can be used for terrorist acts”); Matter
of S-K-, 24 I&N Dec. at 477–78 (reaffirming Matter of S-K-, 23 I&N Dec.
at 944–46). While the respondent’s assistance may have been relatively
minimal, if she had not provided the cooking and cleaning services she was
forced to perform, another person would have needed to do so.
The dissent, in addition to arguing that the amount of support afforded by
an alien to a terrorist organization must reach a certain level to be considered
“material,” asserts that the support provided must be of a certain type in order
to be covered by the material support bar. We find this issue, which was not
raised by the respondent, to be relatively straightforward.
In several nonprecedential decisions, some of which have been reviewed
by the Federal courts of appeals, we have found that “material support”
includes activities, both voluntary and involuntary, such as fundraising,
making payments of money, providing food and shelter, and performing
physical labor. See, e.g., Tahir v. Lynch, 654 F. App’x 512, 515 (2d Cir.
2016) (designing and printing communications materials, such as brochures,
posters, and banners); Annachamy, 733 F.3d at 257 (making a monetary
contribution and performing physical labor); Barahona, 691 F.3d at 351
(allowing the use of a home for shelter and meal preparation); Haile
v. Holder, 658 F.3d 1122, 1124 (9th Cir. 2011) (fundraising and supplying
provisions and secret documents); Singh-Kaur, 385 F.3d at 294 (providing
food and shelter). The term is broadly defined and is not limited to the
enumerated examples in the statute under section 212(a)(3)(B)(iv)(VI) of the
Act. See, e.g., Alturo v. U.S. Att’y Gen., 716 F.3d 1310, 1314 (11th Cir. 2013)
(per curiam) (citing Singh-Kaur, 385 F.3d at 298–99).
The dissent nevertheless asserts that, although not an exclusive list, the
acts enumerated in section 212(a)(3)(B)(iv)(VI) of the Act imply that only
certain kinds of support qualify as “material.” 7 This argument is refuted by
the above-cited examples. Moreover, as we have noted, the examples of
types of material support listed in the statute are not exhaustive but are
“intended to illustrate a broad concept rather than narrowly circumscribe a
term with exclusive categories.” Matter of S-K-, 23 I&N Dec. at 944 (quoting
Singh-Kaur, 385 F.3d at 298). We have further observed that the court in
7

Section 212(a)(3)(B)(iv)(VI) identifies acts that afford material support as “including”
the following: “a safe house, transportation, communications, funds, transfer of funds or
other material financial benefit, false documentation or identification, weapons (including
chemical, biological, or radiological weapons), explosives, or training.”

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Singh-Kaur “rejected the alien’s arguments that because a similar statute
criminalizing such support to terrorists included a longer list of examples,
including lodging, congressional intent was to limit the types of support that
would qualify to those listed.” Id.
In fact, no court has held that the kind of support an alien provides, if
related to promoting the goals of a terrorist organization, is exempt from the
material support bar, and we discern no basis to import such a limitation.
Indeed, the Supreme Court has stated that even “[m]aterial support meant
to ‘promot[e] peaceable, lawful conduct’ can further terrorism by foreign
groups in multiple ways.” Humanitarian Law Project, 561 U.S. at 30
(alteration in original) (citation omitted).
The dissent invokes the canon of ejusdem generis, which provides that
when “general words in a statute follow the enumeration of particular classes
of persons or things, the general words will be construed as applicable only
to persons or things of the same general nature or class as those enumerated.”
Matter of L-, 9 I&N Dec. 14, 21 (BIA 1960). 8 But canons of statutory
construction are merely general guides and should not be applied where the
context dictates otherwise. See, e.g., Envtl. Def. v. Duke Energy Corp., 549
U.S. 561, 574 (2007); Atl. Cleaners & Dyers v. United States, 286 U.S. 427,
433 (1932). Here, Congress has considered that combatting terrorism is a
high priority and that any contributions to terrorist organizations further their
terrorism. See Humanitarian Law Project, 561 U.S. at 28–32. The context
therefore plainly counsels against a limitation being placed on the type of
support rendered by an alien.
Because the material support bar applies, we will dismiss the
respondent’s cross-appeal. As noted, the Immigration Judge determined that,
but for the “material support” bar, the respondent would have been eligible
for asylum on humanitarian grounds under Matter of Chen, 20 I&N Dec. 16.
The DHS does not dispute this finding. For the reasons enumerated by the
Immigration Judge, we agree.
C. Convention Against Torture
The DHS argues that the Immigration Judge erred by granting the
respondent’s application for deferral of removal under the Convention
Against Torture because the respondent did not demonstrate that it is more
likely than not that she will be tortured if removed to El Salvador. Our review
of the Immigration Judge’s decision reflects that she has not provided
sufficient fact-finding and analysis regarding the respondent’s request for
protection under the Convention Against Torture. We cannot meaningfully
8

We declined to apply the doctrine ejusdem generis in Matter of L- where only specific
terms were used and were not accompanied by any general term.

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address the DHS’s arguments absent sufficient legal analysis by the
Immigration Judge or adequate factual findings, which we are without
authority to make in the first instance. See Matter of S-H-, 23 I&N Dec. 462,
463 (BIA 2002) (remanding to the Immigration Judge because of insufficient
factual findings and legal analysis); Matter of A-P-, 22 I&N Dec. 468, 477
(BIA 1999) (stating that the Immigration Judge is “responsible for the
substantive completeness of the decision”).
It is also unclear whether the Immigration Judge applied the correct legal
standard in assessing the merits of the respondent’s claim for protection
under the Convention Against Torture. Such relief is available only if it is
more likely than not that an individual will suffer from torture “inflicted by
or at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1)
(2018); see also Khouzam v. Ashcroft, 361 F.3d 161, 170–71 (2d Cir. 2004)
(noting that an applicant for protection under the Convention Against Torture
must show that torture will be perpetrated with a government official’s
consent, acquiescence, or willful blindness).
The Immigration Judge’s analysis was conclusory, stating only that the
respondent met her burden to show that she was subject to torture and that
deferral of removal was warranted. Under these circumstances, we conclude
that a remand is necessary for the Immigration Judge to provide factual and
legal analyses for her decision. Upon remand, the Immigration Judge
may conduct further proceedings, as appropriate, and give the parties an
opportunity to supplement the record with additional relevant evidence and
argument. She should issue a new decision taking into consideration the
totality of all the evidence presented in this matter. In remanding, we offer
no opinion as to the ultimate outcome in this case.
ORDER: The respondent’s cross-appeal is dismissed.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

CONCURRING AND DISSENTING OPINION: Linda S. Wendtland,
Board Member
I concur with the majority to the extent that it holds that the record should
be remanded for further proceedings and the entry of a new decision with
regard to the respondent’s eligibility for protection under the Convention
Against Torture.
However, I respectfully dissent from the majority’s conclusion that the
respondent is subject to the bar to asylum and withholding of removal for
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applicants who have provided “material support” to a terrorist organization,
and I would sustain the respondent’s cross-appeal in that regard. See sections
208(b)(2)(A)(v), 212(a)(3)(B)(i)(I), (iv)(VI), 237(a)(4)(B), 241(b)(3)(B)(iv)
of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(2)(A)(v),
1182(a)(3)(B)(i)(I), (iv)(VI), 1227(a)(4)(B), 1231(b)(3)(B)(iv) (2012).
The primary question presented by this case is whether the respondent’s
activities are of the kind and magnitude that would meet the threshold
requirement of “material.” I would conclude that they are not.
To prevent Congress’ use of the word “material” from being superfluous,
that word must have an independent meaning. Had Congress intended the
word “material” to add little or nothing to the threshold requirements, it
presumably would have simply prohibited “support.” Far from having done
so, Congress went into detail about the kinds of activities that the general
term “material support” entails. Specifically, section 212(a)(3)(B)(iv)(VI) of
the Act states that “material support” includes “a safe house, transportation,
communications, funds, transfer of funds or other material financial
benefit, false documentation or identification, weapons (including chemical,
biological, or radiological weapons), explosives, or training.”
Admittedly, this is not an exclusive list. Nevertheless, the listed specific
examples imply that certain kinds and levels of support are required in
order to constitute “material” support. See Matter of S-K-, 23 I&N Dec. 936,
945 (BIA 2006) (acknowledging that the respondent’s “argument that
‘material’ should be given independent content is by no means frivolous,”
but finding it unnecessary to resolve the issue), remanded, 24 I&N Dec. 289
(A.G. 2007), clarified, 24 I&N Dec. 475 (BIA 2008). It is a well-settled
canon of statutory construction that general statutory terms like “material
support” “should be understood to refer to items belonging to the same class
that is defined by the more specific terms in the list.” Holder v. Hall, 512
U.S. 874, 917 (1994) (emphasis added); see also Federal Land Bank of St.
Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (concluding that the
use of the word “including” in a statutory definition conveys that other
kindred items may be included within that definition, even if the items are
not explicitly listed). 1
I cannot conclude that the menial and incidental tasks that the
respondent performed—as a slave—for Salvadoran guerrillas, including
cooking, cleaning, and washing clothes, are of “the same class” as the
enumerated forms of assistance set forth in the statute. The enumerated
examples all involve items that either can directly be used to plan or carry
1

The majority cites Matter of L-, 9 I&N Dec. 14 (BIA 1960), as having rejected the use
of the doctrine of ejusdem generis where only specific terms were listed and no general
term accompanied them. In this case, however, the statute does use a general term, namely,
“material support.” Thus, Matter of L- does not support the majority’s holding.

313

Cite as 27 I&N Dec. 303 (BIA 2018)

Interim Decision #3928

out terrorist activities or, in the case of funds, have the liquidity and
fungibility to readily be diverted to such use. Cooking and cleaning services
for individuals who happen to belong to a terrorist organization cannot
validly be placed in the same category as items that can be used to plan and
carry out the organization’s goals. If Congress had intended to include such
incidental services in the definition of “material support,” there would have
been no need—and, indeed, it would have been counterproductive—to list
multiple specific examples that relate directly to terrorist activity.
Similarly, I cannot conclude that the incidental assistance the respondent
afforded to the guerillas provides “material” support in the logical sense of
having at least some importance to promoting, sustaining, or maintaining the
organization’s goals. See Haile v. Holder, 658 F.3d 1122, 1129 (9th Cir.
2011) (concluding that the definition of “material support” was broad enough
to include collecting funds, supplying provisions, and passing along secret
documents (citing Matter of S-K-, 23 I&N Dec. at 943)). “A word in a statute
may or may not extend to the outer limits of its definitional possibilities.
Interpretation of a word or phrase depends upon reading the whole statutory
text, considering the purpose and context of the statute, and consulting any
precedents or authorities that inform the analysis.” Dolan v. U.S. Postal
Serv., 546 U.S. 481, 486 (2006). I do not believe, as the majority apparently
does, that Congress intended that any support—no matter how small,
dissimilar to the statutorily enumerated examples, or indeed immaterial—
would bar an asylum applicant from relief. The majority’s apparent
interpretation of “material,” as referencing anything and everything that
“another person would have needed to do” if the respondent had not done it,
is without effective limits and would lead to absurd results. Matter of
A-C-M-, 27 I&N Dec. 302, 310 (BIA 2018).
For example, under the majority’s strained interpretation, providing a
glass of water to a thirsty individual who happened to belong to a terrorist
organization would constitute material support of that organization, because
the individual otherwise would have needed to obtain water from another
source. Providing medical care to a flu-stricken member of a terrorist
organization would also qualify as material support, since the individual
otherwise would have needed to seek help from another doctor. Myriad other
everyday activities that involve the crossing of paths with individuals who
happen to be members of terrorist organizations would also be covered, such
as selling such a member groceries on the same terms as are applied to the
public generally, or cooking breakfast or doing laundry for one’s spouse who
is a member. All of these examples, like the majority’s application of the
bar to the minimal and menial activities in which the respondent has
engaged, essentially read the word “material” out of the statute and render it
superfluous, an outcome with which I cannot agree. See, e.g., Dole Food Co.
314

Cite as 27 I&N Dec. 303 (BIA 2018)

Interim Decision #3928

v. Patrickson, 538 U.S. 468, 476–77 (2003) (declining to construe a “statute
in a manner that is strained and, at the same time, would render a statutory
term superfluous”); Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3d Cir.
2004).
In view of our relatively recent holding in Matter of M-H-Z-, 26 I&N Dec.
757 (BIA 2016), that the material support bar contains no exception for
duress, “it is especially important to give meaning to the statutory limit of
‘material.’ That term calls for [I]mmigration [J]udges, the Board, and the
courts to strike a balance written into the Act.” Jabateh v. Lynch, 845 F.3d
332, 348 (7th Cir. 2017) (Hamilton, J., concurring in part and concurring in
the judgment). Individuals arriving in this country from “some of the most
dangerous and chaotic places on earth . . . may not have been able to avoid
all contact with terrorist groups and their members, but we should not
interpret the statute to exclude on this basis those who did not provide
‘material’ support to them,” since “[m]any deserving asylum-seekers could
be barred otherwise.” Id. Unlike the majority, which apparently would apply
the bar without any meaningful limit, I would not decline to carry out our
responsibility to strike the foregoing critical balance.
Nor do I believe that Congress intended to relegate the respondent, who
did not afford support that qualifies as “material,” to the statutory waiver
process under section 212(d)(3)(B)(i) of the Act, which is intended only
for those individuals whose support did meet the threshold materiality
requirement. 2 And given my view that the respondent’s conduct does not
come within the “material support” bar in the first place, I need not reach the
question whether the respondent reasonably should have known that the
guerrillas in 1990 in El Salvador were a terrorist organization.

2

Notably, under section 212(d)(3)(B)(i) of the Act, the determination whether to waive
the “terrorist” bar’s applicability to an alien in removal proceedings comes within the sole
unreviewable discretion of the Secretary of Homeland Security (after consultation with
the Secretary of State and the Attorney General). However, a court with jurisdiction over a
final order of removal entered against an alien may conduct a limited review of
constitutional claims and questions of law. Section 242(a)(2)(D) of the Act, 8 U.S.C.
§ 1252(a)(2)(D) (2012).

315


Interim Decision #1672

MATTER

or

DUZIOAN

In Visa Petition Proceedings
A-8848289 '
.

Decided by Diatrict Director' Decemer 6, 1866
.
.
• ..

A lecturer who has traveled extensively and has been lecturing on her travels

since 1951, whose lectures have received widespread acclaim, and who has
written a book and several magazine articles on her travels, is a person of
exceptional ability in the arts who will benefit prospectively the cultural
interests of *the United States and, therefore, is eligible for preference
classification, as ,a lecturer, under section 203(a) (3) of the Immigration
and Nationality Act,.as'ainefided' by P.L:'89-236,.'

Discussion: The beneficiary was born March 21, 1928,• in Melbourne, Australia, and is a citizen .of that country. She. was last
admitted into the United States at . New York New York, on September 10, 1263, under the provisions of section 101(a) (15) (B) of
the linmigration and Nationality Act and is presently in Washington, •.C. She is a widely acclaimed lecturer who bases her travel
monologues upon a vast reservoir of experiences accumulated through
extensive travels in Australia, Africa, the Middle .East, and Asia..
The -beneficiary,: on June-28, 1966, filed a petition in Washington,
D.0„ under section 203 (a) (3) of the Act to, accord herself third. preere'ace ,classification based upon .ber exceptional ability in the arts as
a lecturer,. ,-Seetion 203(a) (3) of the ..A.ct provides thatIvisas shall be
made available "to qualified immigrants who are members of the professions,, or :who .becanse of their 'exceptional ability the sciences .or .
.the patio:* economy; thearswil'ubnyeftproscivl
cultural interests, or ivelfare of the United States".
In support of her application, the beppficiary has Aupplitted two
categories of independen•evidence regarding her claim to exceptional
ability in the 'arts. The first' consists of letters in her 'behalf from
diverse philanthropic, religious; social, 'Ind cultural organizations.
Among these are the Thomas A. Dooley Foundation, Inc., the Southern School Assemblies Agency, the NatiOnal School Aisemblies
Agency, the 'Cosmos Club (Wrishington, D.C.), and the School Assembly Service, Inc. The second category consists of numerous newspaper reviews regarding her performance as a lecturer. All of this
909

Interim Decision #1672
malarial, without exception, is of a highly favorable nature. Invariably, the adjectives used to describe the impact upon her diverse
audiences are "fascinating", "delightful", "interesting", and the like.
She Is personally described as intelligent, enthusiastic, and with a
"natural sense of humor". Her audiences are said to listen with
"rapt interest" and are "spellbound.". It is estimated by one school
agency alone that she has lectured to one quarter of a million students for that agency. A review of the record shows that she has
been engaged in lecturing since approximately 1951 and that this is
her primary occupation.
It is evident from the critics' reviews and from statements by her
employers that the beneficiary is able to impart to her audiences a
good share of the personal enthusiasm she has in her work. She has
earned widespread acclaim for the uniform excellence of her performances and by her recognized ability to capture and hold her
audiences as she relates of her experiences in many far of lands.
The beneficiary has also authored a book titled. "Two Wheels to
Adventure" (George G. Harrap, Publishers, London, England, 1957,
222 pages). It is based upon her travels in Australia. Several magazine articles of the type found in newspapers' Sunday magazine sections have been published. She also claims to have completed two
years of study at Melbourne University.
' Section 212(a) (14) of the Immigration and Nationality Act provides that preference immigrant aliens described in section 208(a)
(3) of that Act, among others, are ineligible for issuance of immigrant visas and for admission to the United States unless the Secretary of Labor has first issued a certification to the effect that qualified
workers are not available in the United States and that the employment of such aliens will not adversely affect the wages and working
conditions of persons in the United States similarly employed. Under Part 204.2(f), Title 8, Code of Federal Regulations, a visa petition to accord an alien third preference classification may not be
approved until such certification has been issued. 111 the instant case,
. the required. certification was issued by the Department of Labor on
April 22, 1966.
Upon careful consideration of the entire record, it is found that the
beneficiary, as a lecturer, possesses exceptional ability in the arts
which will substantially benefit prospectively the cultural interests of
the United States. She is therefore qualified for preference classification under section 203(a) (3) of the Immigration and Nationality
Act, as amended. Accordingly, the petition will- be approved.
ORDER: It is ordered that the petition be and the same is hereby
approved.
010


Interim Decision #1915

MATTER OF BERNABELLA
In Deportation Proceedings
A-14733481
Decided by Board October 18, 1968
Netherlands Antilles, whose marriage to a
United States citizen occurred subsequent to his last admission to this
country (as a nonimmigrant) on or about May 23, 1967, is ineligible for a
nuns pro tune section 212(h) waiver of the criminal grounds of inadmissibility existing at entry; further, he is ineligible as of the present time for
a section 212(b) waiver hi the current deportation proceedings since section 212(h) benefits are available in deportation proceedings only in conjunction with adjustment of status under section 245 or section 249 of the
Immigration and Nationality Act, as amended, and respondent, a native of
a Western Hemisphere country, is ineligible for section 246 adjustment,
and since he entered the United States subsequent to June 30, 1948 he is
ineligible for the benefits of section 249 of the Act.

Respondent, a native of Curacao,

CHARGES:
Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) 1—Excludable at entry as person who admits commission of
crime involving moral turpitude.
Lodged: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)1—Excludable at entry, conviction of crime involving
moral turpitude.
ON BEHALF OF RESPONDENT:
ON BEHALF OF SERVICE;
Alphonso A. Christian, Esquire
R. A. Vielhaber
P.O. Box 327
Appellate Trial Attorney
St. Thomas, Virgin Islands 00902
(Memorandum filed)

These proceedings have been certified to us for review and final
decision. The special inquiry officer on July 26, 1968 after a reopened hearing, affirmed an earlier decision of November 15, 1967
in which he found respondent deportable as charged, denied his
application for voluntary departure, and ordered that he be deported to Curacao, Netherlands Antilles. At the reopened hearing
respondent applied for waiver of excludability pursuant to section
212 (h), Immigration and Nationality Act. This was denied by the
special inquiry officer.

42

Interim Decision *1915
• The respondent is a 28-year-old married male alien, who is a
native of Curacao, Netherlands Antilles and a citizen of the Netherlands. Respondent's last admission to the United States was at
Charlotte Amalie, Virgin Islands, on or about May 23, 1967, at
which time he was admitted as a visitor for pleasure. At the time
he entered the United States he was married to a citizen of the
Netherlands and was the father of one child. In November 1967
he divorced this wife and he then married a United States citizen
on January 1, 1968 in Puerto Rico. Respondent is excludable
under section 212 (a) (9) of the Act as set forth more fully below.
It is on the basis of this marriage to a United States citizen that
the respondent is seeking a waiver of his excludability under section 212 (h), Immigration and Nationality Act. Respondent, however, does not concede that he is deportable. The special inquiry
officer found that he was deportable under the lodged charge and
not under the charge contained in the order to show cause, a conclusion with which we are in accord.
The facts are not in dispute that respondent, prior to his entry
to the United States, was convicted on at least three occasions of
crimes involving moral turpitude, to wit, theft in 1958, theft in
1960 and theft in 1968 (Exs. 5, 6 & 8). Respondent admits his
convictions. Therefore, respondent is an alien ineligible to receive
a visa and is excludable from admission to the United States
under section 212 (a) (9) , Immigration and Nationality Act.
Respondent seeks a waiver of his inadmissibility under section
212(h) of the Act on the basis that he is now the spouse of a
United States citizen, is otherwise admissible, and that his being

excluded and deported from the United States would result in extreme hardship to his United States citizen wife.
The respondent is not entitled to a waiver of his inad. aissibilitY

for the reason that when he entered the country on
May 23, 1967, he was not then married to his present spouse and
thus at that time had no relation to a citizen or permanent resident as specified in section 212 (h) of the Act. Consequently, authority for a waiver did not exist at the time of his entry? Further, section 212 (h) by its wording clearly contemplates that the
admission for which a waiver of inadmissibility is considered
must have been for permanent residence. In this case respondent
entered the country as a visitor for pleasure.
nuns pro tune

A waiver under section 212(h) as of the present time is also

inappropriate. The benefits of section 212(h) are not :available in
1

Matter of P—, 7 L & N. Dec. 718; Matter of Caudillo-Vilktlobos,

N. Dec. 15, 259; affirmed per curium 361 F.2d 329 (C. A. 5th, 1966).

48

11 L &

deportation proceedings unless granted in conjunction with adjustment of status under section 245 or under section 249. 2 Since
the respondent is a native and citizen of a Western Hemisphere
country, he is ineligible for adjustment under section 245. Also;
since he entered the United States subsequent to June 30, 1948,
he is ineligible for the benefits of section 249 of the Act.
The special inquiry officer denied voluntary departure in the
exercise of administrative discretion principally on the basis of
respondent's rather extensive criminal record. We will not disturb this decision.
Accordingly, we will affirm the decision of the special inquiry
officer in toto.
ORDER: It is ordered that the order of the special inquiry officer of July 26. 1968 denying respondent's application for voluntary departure and ordering his deportation to Curacao, Netherlands West Indies be and the same is hereby approved.

2

See Matter of DePmg) 8 I. & N. Dec. 68; Matter of DeGallotoalf, 8 I. &

N. Dec. 325.

44


Interim Decision # 2747

MATTER OF ESTRADA.

In Deportation Proceedings
A-30422678

Decided by Board December 20, 1979
(1) The deportation of the respondent, who was deported under section 241(a)(13) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(13)„ as an alien who knowingly and
for gain assisted, abetted or aided another alien to enter the United States illegally, is
not rendered unlawful or violative of due process when a conviction for aiding and
abetting the unlawful entry of an alien is set aside. A conviction is not necessary to a
finding of deportability under section 241(a)(13), and the respondent's own testimony
and affidavit regarding his role in bringing aliens into the United States constituted
sufficient evidence of deportability. Mendez v. INS, 563 F.2d 956 (9 Cir. 1977)
distinguished.
(2) Where the respondent's deportation was neither illegal nor in contravention of due
process, the Board is without jurisdiction to grant reopening or to order readmission.
8 C.F.R. 3.2.
CHARGE:
Order: Act of 1952—Sec. 241(a)(13) [8 U.S.C. 1251(a)(13)]—Aiding and abetting the
unlawful entry of aliens into the United States
ON BEHALF OF SERVICM
ON BEHALF OF RESPONDENT:
Jane Gersbacher, Esquire
Raymond Campos, Esquire
Trial Attorney
304 South Broadway, Suite 310
Los Angeles, California 90013
By: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

The respondent has filed a motion to reopen his deportation proceedings, and is requesting that an order be entered to admit him as a
lawful permanent resident. The motion will be denied.
The respondent is a 25-year-old native and citizen of Mexico who was
admitted to the United States as an immigrant on May 13, 1973. On
August 16, 1976, an immigration judge found the respondent deportable under section 241(a)(13) of the Immigration and Nationality Act,
8 U.S.C. 1251(a)(13), as an alien who knowingly and for gain assisted,
abetted or aided an alien to enter the United States unlawfully. This
Board affirmed the immigration judge's decision on October 27, 1977,
187

Interim Decision #2747
and our decision was in turn affirmed by the Ninth Circuit Court of
Appeals on June 28, 1978. A petition for rehearing was denied by the
Ninth Circuit on July 24, 1978. The respondent was deported from the
United States on August 17, 1975.

After his deportation, the respondent filed a Motion to Vacate, Set
Aside or Correct Sentence with the United States District Court,
District of Arizona, which had on May 27, 1976, convicted him of aiding
and abetting the unlawful entry of an alien into the United States. On
April 18, 1979, the respondent's guilty plea was set aside, and on June
21, 1979, the respondent's attorney was informed that the United
States Attorney's office in Phoenix had decided not to proceed further
in their case against the respondent. The instant motion, filed on
August 10, 1979, is based primarily on the fact that the respondent's
conviction was set aside.
As pointed out in the Immigration and Naturalization Service's
opposition to this motion, 8 C.F.R. 3.2 provide&
A motion to reopen or a motion to reconsider shall not be made by or in behalf of a
person who is the subject of deportation proceedings subsequent to his departure from
the United States.

As this motion was made long after the respondent's deportation,
deportation proceedings are no longer pending against the respondent,

and we are thus without jurisdiction to reopen them. Cf. Matter of
Palma, 14 I&N Dec. 486 (BIA 1973).
In his motion, the respondent cites Mendez v. INS, 563 F.2d 956 (9
Cir. 1977), wherein the Court held that if an alien's deportation is
illegal or in contravention of due process, he may be readmitted with
the same status he held prior to his departure, and will be permitted to
pursue any administrative and judicial remedies to which he is entitled. Mendez, however, is clearly distinguishable from the present
case. In Mendez, the alien was convicted of burglary and given a
1 year's sentence, and no was found deportable under section 241(a)(4)
of the Act, as an alien convicted of a crime involving moral turpitude
with a sentence imposed of 1 year or longer. Prior to the deportation of
the respondent in Mendez, his 1 year sentence was vacated, and a 9month sentence was imposed. A week after this reduction in sentence,
the Service notified the respondent to appear for deportation, but did
not notify his counsel. The respondent appeared as ordered, explained
that a shorter sentence had been imposed, but was nevertheless deported the same day, without an opportunity to contact counsel. The
Court found a violation of due process,on these facts, and ordered the
respondent readmitted in order to pursoe any possible remedies.
In the present case, the respondent's conviction was set aside long
after his deportation, not prior to it. Moreover, as the respondent here
188

Interim Decision #2747
was found deportable under a section of the Act which does not require
a criminal conviction, it does not appear that even a more timely
setting aside of the conviction would have wiped out the grounds for
his deportation.' The respondent's own testimony and affidavit regarding his role in bringing aliens into the United States illegally constitute clear, convincing, and unequivocal evidence of deportability. The
conviction is not necessary to this finding. Finally, the respondent's
counsel in this case had notice of the respondent's imminent deportation, and in fact filed an application for stay of deportation on his

behalf.2
We do not find that the respondent's departure on August 18, 1978,

under an order of deportation, was in contravention of due process. As
the deportation was lawful, we are constrained by 8 C.F.R. 3.2 to deny
this motion for lack of jurisdiction.
ORDER1 The motion is denied.

' Section 241(a)(13) of the Act provides for the deportation of any alien who:
(13)prior to, or at the time of any entry, or at any time within five years after entry,
shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided
any other alien to enter or to try to enter the United States in violation of law.

As pointed out in the respondent's, motion, the stay application was not denied until
after the respondent's deportation. This is unfortunate, but we note that the respondent
had no entitlement to a stay. S C.F.R. 234.4.

189


Interim Decision *1969

NUTTER OP SAVETAMAL

In Section 212 (e) Proceedings
A-13981887
Decided by Regional Commissioner May 8, 1969
Exceptional hardship within the meaning of section 212(e) of the immigration and Nationality Act, as amended, is established by an exchange alien
whose lawful permanent resident spouse, a medical doctor, would be forced
to give up an established career and start over again upon his return to
the United States after a two-year absence, should he accompany her
abroad; should he remain in this country, he would be faced with the unusual hardship of maintaining two households and, further, their U.S. citizen child, approximately two years of age, would be deprived of the affection, emotional security and direction of its father which is most
important during its formative years.

This case is before me on appeal from the decision of the District Director who denied the application April 4, 1969 on the
ground that "exceptional hardship" as contemplated by the statute had not been established.
The applicant, a medical doctor, is a citizen of Thailand, born
September 21, 1935 in Bangkok. She was admitted to the United
States as an exchange visitor June 24, 1963. She is married to
Dr. Charoen Savetamal a lawful permanent resident alien of the
United States. They have a United States citizen daughter born
June 4, 1967 at Raleigh, West Virginia. As an exchange alien, the
applicant is required by law to reside and be physically present in
Thailand for a period of at least two years following her departure from the United States unless a determination is made that
the foreign residence requirement would impose "exceptional
hardship" upon her resident alien spouse or citizen child.
The applicant's spouse is a medical doctor who has established
a practice at Beaver Dam, Wisconsin. The record contains a letter
from the Chairman of the Dodge County Health Planning Committee which states that he is the only urologist in the community. Compliance with the foreign residence requirement by the

249

Interim Decision #1969
applicant would result in an exceptional hardship to the resident
alien spouse should he accompany her abroad as he would be
forced to give up an established career and start over again upon
his return to the United States after a two year absence. Should
he remain in the United States, he would be faced with the unusual hardship of maintaining two households. Furthermore, the
United States citizen child would be deprived of the affection,

emotional security and direction of its father which is most important during its formative years. Under these circumstances I •
believe the waiver should be granted.
It is ordered that the appeal be sustained and that the District
Director seek the necessary favorable recommendation by the Department of State.
It is further ordered that the case be processed to completion
consistent with this order and the recommendation of the Department of State.

250


Interim Decision #2550

MATTER O F CHANG

In Deportation Proceedings
A-18473666
Decided by Board January 18, 1977
(1) Respondent conceded deportability under section 241(a)(2) of the Immigration and
Nationality Act as a nonimmigrant who remained in the United States beyond the date
authorized. The only issue on appeal is denial of voluntary departure.
(2) Respondent was convicted of a violation of 21 U.S.C. 848(b)—the unlawful use of a
communication facility to facilitate commission of the felony of conspiracy to import a
quantity of cocaine from Peru into the United States, a felony under 21 U.S.C. 963. This
was a conviction of a crime relating to the illicit traffic in narcotic drugs as described in
section 212(a)(23) of the Act
(3) Respondent was statutorily ineligible for voluntary departure under section 244(e)
because by virtue of the conviction, a finding of good moral character for the required
period was precluded by virtue of section 101(0(3) of the Act.
CHARGE:

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

ON BEHALF O F SERVICE:

Esther M. Kaufman, Esquire
2946 Upton Street
Washington, D.C. 20008

Paul C. Vincent
Appellate Trial Attorney

BY: Milhollan, Chairman; Torrington. Maniatie, and Appleman, Board Members. Board
Member Wilson dissents without opinion.

In a decision dated January 20,1976, an immigration judge found the
respondent deportable as charged, denied his application for voluntary
departure as a matter of discretion and ordered his deportation to Peru.
The respondent has appealed. The appeal will be dismissed.
The respondent, a native and citizen of Peru, has conceded deportability as a nonimmigrant student who has remained in the United States
beyond the date authorized. Thus, his deportability under section
241(a)(2) has been established by evidence which is clear, convincing,
and unequivocal. The only issue on appeal concerns the denial of his
application for voluntary departure.
90

Interim Decision #255(
Under section 244(e) of the Immigration and Nationality Act, a deportable alien may be extended the privilege of voluntary departure i
he can establish that he has been a person of good moral character for a'
least five years immediately preceding his application. Section 101(0(3
of the Act, however, bars the finding of good moral character if the aliei
has been convicted of a crime described in section 212(a)(23), within th«
five-year period.
Section 2l2(a)(23) provides:
Any alien who has been convicted of a violation of, or a conspiracy to violate, any lai
or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana
or who has been convicted of a violation of, or a conspiracy to violate, any law o
regulation governing or controlling the taxing, manufacture, production, compounding
transportation, sale, exchange, dispensing, giving away, importation, or exportation c
opium, coca leaves, heroin, marihuana, or any salt derivative or preparation of opium o
coca leaves, or isontpecaine or any addiction-forming or addiction-sustaining opiate; o
any alien who the consular officer or immigration officers know or have reason to believ
is or has been an illicit trafficker in any of the aforementioned drugs;

On June 20, 1975, the respondent was convicted in the United State
District Court for the Northern District of California of violating 2
U.S.C. 843(b)—the unlawful use of a communication facility to fadlitat
the commission of a felony, to wit, a knowing, unlawful, and intention;
conspiracy to import into the United States from Lima, Peru, a quantit
of cocaine, a Schedule I Controlled Substance in violation of 21 U.S.C
963. The immigration judge concluded that 21 U.S.C. 843(b) is not a lai
relating to the illicit traffic in narcotic drugs as it prohibits the use of
communication facility to facilitate the commission ofany felony offens
against the laws of the United States. That conclusion is incorrect.
In 1970, the Congress enacted the Comprehensive Drug Abuse Pre
vention and Control Act, Pub. L. 91-513, Title II, § 101, 84 Stat. 124
(1970). As part of that legislation, the Congress declared in sectio
843(b) of Title 21 that:
It shall be unfcwftri for any person knowingly or intentionally to use any eommunicatic
facility in committing or in causing or facilitating the commission of any act or aa
constituting a felony under any provision of this subchapter or subchapter I l o f t h
chapter. Each separate use of a communication facility shall be a separate offense undi
this subsection. For purposes of this subsection, the term "communication facilit;
means any and all public and private instrumentalities used or useful in the transmissM
of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephon
wire, radio, and all other means of communication. (Emphasis added.)

As the text indicates, violations of sections 843(b) occur only when
communication facility is used to facilitate the commission of one of tr
felonies enumerated in subsections I or II of the Comprehensive Dru
Abuse Prevention and Control Act. In the respondent's case, a teli
phone was used to further the commission of a conspiracy to impo,
91

Interim Decision #2550
cocaine-a felony under section 963, subchapter II of the Comprehensive
Drug Abuse Prevention and Control Act.'
Hence, we find that the respondent's conviction was of a violation of a
law relating to the illicit traffic in narcotic drugs. As a result, he is
statutorily ineligible for voluntary departure by virtue of section
101(f)(3) of the Immigration and Nationality Act.
ORDER: The appeal is dismissed.

1
21 U.S.C. 963 provides:
Any person who attempts or conspires to commit any offense defined in this subchapter is
punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or
conspiracy.

92


Interim Decision #2672

MATTER OF BIEBL
In Visa Petition Proceedings
A-21041737
Decided by Board September 18, 1978
(1) Under law of Connecticut at least one of the spouses must establish a domicile in the
jurisdiction in which a foreign divorce decree is sought in order to give a court jurisdiction to grant a divorce. Litvaitis v. Litvaitis, 162 Conn. 540, 295 A.2d 519 (1972).
(2) Under law of Connecticut, for purposes of establishing the jurisdiction of a court to
grant a decree of dissolution of marriage, "domicile" is that place where a person has
voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a
present intention of making it his home, unless or until something which is uncertain or
unexpected shall happen to induce him to adopt some other permanent home, Spaulding
v. Spaulding, 177 Conn. 220, 368 A.2d 14 (1976).
(a) Where petitioner and his first spouse were domiciled in New York at the time they
obtained a divorce decree in the Dominican Republic according to the Dominican
Republic law, dissolution of prior marriage not recognized for immediate relative
benefits under section 201(b) of the Act, 8 U.S.C. 1151(b); hence, a second marriage, in
Connecticut, will not support a visa petition.
ON BEHALF OF PETITIONER: Joseph Abrams, Esquire
Abrams and Abrams
One Penn Plaza
New York, New York 10001

BY:

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

The United States citizen petitioner submitted on November 28, 1977,
Petition to Classify Status of Alien Relative for Issuance of Immigrant
Visa on behalf of his stepdaughter under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b), In his decision dated April
25, 1978, the Acting District Director denied the petition. The petitioner
has appealed. The appeal will be dismissed.
The petitioner, a 57-year-old male, married the beneficiary's mother
in- Connecticut on November 5, 1977. The 15-year-old beneficiary is a
native and citizen of Germany, born on September 6, 1963.
In visa petition proceedings, the burden of establishing the claimed
relationship is upon the petitioner. Matter of Brantigan, 11 I. & N. Dec.
493 (BIA 1966). In order to qualify as a "stepchild" the beneficiary must
orace have qualified as the "child" of the petitioner under ocetion
1 01(b)(1) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1).
604

Interim Decision #2672

Nazareno v. Attorney General, 512 F.2d 936 (D.C. Cir. 1975), cert.
denied, 432 U.S. 832 (1975).
The only subdivision of section 101(b)(1) which may possibly be relevant to this case is (B) which provides:
(1) The term "child" means an unmarried person under twenty-one years of age who is—
(1) a stepchild, whether or not born out of wedlock, provided the child had riot
reached the age of eighteen years at the time the marriage creating the status of
stepchild occurred; . . . .

The marriage between the petitioner and the beneficiary's mother
which took place in Connecticut on November 5, 1977, is the second
marriage for each. The first marriage of the beneficiary's mother was
dissolved on July 11, 1972, in Germany. The dissolution of that marriage
is not in question.
The petitioner's first marriage was dissolved on May 23, 1977, in the
Dominican Republic. Contained in the record is a certificate of the Court
of First Instance of Judicial District of Santo Dominican showing: that
Guenther L. Kuehl personally appeared before that Court; that Gisela
Kuehl appeared before that court by her attorney in fact; that both
parties were domiciled at 507 Croton Avenue, Peekskill, New York.
The validity of a marriage generally is determined according to the
law of the place of celebration. Matter of Gamero, 14 I. & N. Dec. 674
(BIA 1974); Matter of Levine, 13 I. & N. Dec. 244 (BIA 1969); Matter of
P , 4 L & N. Dee. 610 (BIA 1952, A_G. 1952) Thus, the validity of the
petitioner's present marriage to the beneficiary's mother depends upon
whether Connecticut would recognize the Dominican Republic divorce
decree purportedly terminating the petitioner's prior marriage.
The Supreme Court of Connecticut has held that at least one of the
spouses must establish a domicile in the jurisdiction in which a foreign
divorce decree is sought in order to give a court jurisdiction to grant a
—

divorce; that principle has been held to apply to divorce decrees granted

in foreign jurisdictions, even though a domicile is not required by the
laws of the foreign jurisdiction. Litvaitis v. Litvaitis, 162 Conn. 540, 295
A.2d 519 (1972).

Subsequently, the Supreme Court of Connecticut held, for purposes
of establishing the jurisdiction of a court to grant a decree of dissolution
of marriage, "domicile" is that place where a person has voluntarily
fixed his habitation, not for a mere temporary or special purpose, but
with a present intention of making it his home, unless or until something
which is uncertain or unexpected shall happen to induce him to adopt
some other permanent home. Spaulding v. Spaulding, 171 Conn. 220,
368 A.2d 14 (1976).
Inasmuch as the certified Dominican Republic divorce decree contained in the record shows that both the petitioner and his first spouse
were domiciled in New York on May 23, 1977, neither spouse has met
605

Interim Decision #2672
the domiciliary requirement set out in Connecticut law. The petitioner's
divorce is not entitled to recognition under Connecticut law. See Lit-

vaitis v. Litvaitis, supra; Spaulding v. Spaulding, supra.
Accordingly, as the petitioner's prior marriage was not dissolved as a
result of the decree rendered on May 23, 1977, the petitioner was not
free to marry the beneficiary's mother on November 5, 1977. Consequently, the "stepchild" relationship for immigration purposes was
not established between the petitioner and the beneficiary.
The decision of the Acting District Director was correct. Accordingly,
the appeal will be dismissed.
ORDER: The appeal is dismissed.

606


INUIT.=

Ur

In DEPORTATION Proceedings
A-10828430
Decided by Board February 28,1961
Deportability—Adverse court decision under section 503 of the :'•:Tationality
A -!:, of 1940 makes alien deportable.
Where respondent was admitted in 1952 to prosecute an action 1!7 ,
5O1 of the Nationality Act of 1940 and the court issued a final
judgment in 1958 declaring that respondent is not a national or citizen of
the United States following which respondent was notified of a departure
date and failed to depart, it was held that the adverse judgment by the
court in the section 503 proceedings without more required respondent's
deportation.
{2) Hence, respondent was properly found deportable under section 241(a) (2)
of the Immigration and Natiot ality Act as having remained in the United
States in violation of law.
(Note: Mutter of T—, 8-244, distinguished.)
CHAR4E :
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant remained longer than permitted.
BEFORE THE BOARD
DiSCUSSION: This case is before us on appeal from a decision

of a special inquiry officer directing the respondent's deportation.

The respondent is a male, about 20 or 25 years old, and apparently unmarried. He is a native of China and claims United States
citizenship. His only entry into the United States occurred on
January 28, 1952, at which time he was admitted as a nonimmigrant visitor under section 3(2) of the Immigration Act of 1924
[8 U.S.C. 203] for the purpose of prosecuting his suit under section
.503 of the Nationality Act of 1940 [8 U.S.C. 903] for a judgment
declaring him to be a national of the United States. A judgment
adverse to this respondent was entered in the United States District
Court for the Southern District of California, Central Division, and
this was affirmed by the United States Court of Appeals for the
Ninth Circuit on November 6, 1958 (Wong Ho a. Guardian ad 1'e:tent
of Wong Kwok Wei v. Pullet, 261 F.2(1 456 (CA. 9, 1958)). The

235

sole issue involved is whether the respondent's deportability has
been established.
We have carefully reviewed the entire record. The respondent
admitted the allegations of the order to show cause except that he
did not admit his alienage and did not admit that. he is a citizen of
China. He as3crtcd that he was born in China on April 30, 1935,

and that he is the son of W—H---. It. is not disputed that the
latter was a United States citizen who had resided in this country
prior to the birth of the respondent. The alleged mother of the
respondent has never been in the United States and W—H—'s last
trip to China was from May 30, 1934, to June 23, 1937. At the
trial, there was medical testimony, based on. X-rays, indicating that
the respondent was born about 1941. In the respondent's suit under section 503 of the Nationality Act of 1940, the District Court

found that he was not born on April 30, 1935, but after that date,
and that, he had not sustained his burden of proving (1) that he
is the true and lawful blood son of W H—, and (2) that he is a
national or citizen of the United States.
At the hearing, counsel again asserted that the respondent is a
United States citizen and that he is actually the son of W—H—.
The special inquiry officer held that the respondent was precluded
from presenting further evidence on the issue of alienag-e for two
reasons: (1) under the doctrine of collateral estoppel by judgment.,

and (2) because of the specific provision in section 503 relating to
deportation if the court decides that the plaintiff in the suit is nota national of the United States.
We will first discuss the second reason, that. is, the statutory
provision. Exhibit 2 is a certificate of identity issued by the
American consular officer which contains a statement to the effect
that it, is issued upon condition that the individual shall be subject

to deportation if the. final outcome of his action is adverse to his
claim of United States nationality, and item 11. of the application
for the certificate of identity is, in part. as follows: "I understand
that my admission to the United States shall be * * * upon the
condition that I shall be subject to deportation if the final outcome
of such court action is not to the effect that I am a national of
the United States and if I then fail to depart without delay from the
United States in accordance with directions from the Immigration and Naturalization Service." In view of the savings clause
contained in section 400(al of the Immigration and Nationality Act
[8 U.S.C_. 1101. Note; 66 Stat. 280], section 503 of the Nationality
Act of 1940 [54 Stat. 1171; 8 U.S.C. 903] is continued in force and
effect as to this respondent. Section 50 provided that an action
might be instituted against the head of a governmental department
for a judgment declaring a person to be a national of the United
236

States where he had been denied a citizenship right or privilege
upon the ground that he was not a national of the United States.
This section further provided, in part, as follows:
If such person is outside the United States and shall have instituted
such an action in court, he may * * obtain from a diplomatic or consular
officer of the United States in the foreign country in which he is residing a
certificate of identity stating that his nationality status is pending before the
court, and may be admitted to the United States with such certificate upon
the condition that he shall be subject to deportation in case it shall be deciefrd
(Emphasis
by the court that he is not a national of the United States. *
supplied. )

We believe it is crystal clear from section 503 in its entirety that
intended that where the claim of United States nationality
was made in good faith and the person making it was outside the
United States, he should be permitted to enter this country in order
to prosecute his suit, but if the court decided against him, that fact
alone -would require his deportation. In the respondent's case, it
was decided by the ecu./ [Itio he is not a national of the Unites
States and the case, therefore, differs from Matter of T—, 8 - 244
(1959) in which there was no decision by the court and the suit was
merely dismissed upon stipulation of the parties.
Exhibit 6 shows that on May 26, 1959, the respondent was notified that, in view of the adverse court decisions, the time for
which he was originally admitted had expired; he was directed to
depart from the United States on or before June 30, 1959; and he
was informed that failure to do so would result in the institution
of deportation proceedings. The order to show cause contains the
assertion that the respondent was admitted to the United States as
a nonimmigrant under section 3 of the Immigration Act of 1924 for
the purpose of proceeding with his action in a federal court for a
judgment declaring him to be a national of the United States, and
it was charged that he is deportable under section 241(a) (2) of
the Immigration and Nationality Act. This statutory provision re-quires the deportation of any alien who "* * * is in the United States
in violation of this Act or in violation of any other law of the
United States * * *." Since the respondent has remained in the
United States for a longer time than permitted and is now in the
United States in violation of the provisions of section 503 of the
Nationality Act of 1940, we hold that he is deportable on the charge
stated in the order to show cause, and his appeal will be dismissed.
The alternative basis for the special inquiry officer's decision was
his ruling that' the doctrine of collateral estoppel by judgment applies in this case so as to preclude the respondent from presenting
further evidence to establish his claimed United States citizenship.
This was the only issue which counsel discussed at the oral argument. Since we have concluded. that the respondent's deportation
Congress

237

is required because of the judicial decisions adverse to him and
the specific language of section 503 of the Nationality Act of
1940, we do not consider it necessary to discuss herein the collateral estoppel question or counsel's contentions concerning it.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

238


ALATTER OF

J—D—D--

In DEPORTATION Proceedings
A-10554745

Decided by Board April 13, 1962
lisrepresentation—Section 212(a)(19)—Materiality.
Willful misrepresentations as to name, marital status, and existence of minor
children held not material in this case: connection between the possible
line of inquiry the misrepresentations cut off and raqpnnripnt's

P1Igihll ity

for admission is so remote, tenuous, and fanciful as not to satisfy the test
of materiality. (Compare Matter of
9-602.)
CHAaox:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable
at time of last entry: procured visa by fraud or willfully misrepresenting a material fact.
BEFORE THE BOARD

DISCUSSION: On June 2, 1961, the special officer found the respondent to be subject to deportation on the charge set forth
above. On appeal, the Board by order dated October 23, 1961,
remanded the case to the special inquiry officer for consideration
in the light of the Attorney General's ruling in the Matter of Sand B—Cf—, 9-436 (Oct. 2, 1961), and further directed that the
decision of the special inquiry officer be certified to the Board. By
order dated December 29, 1961, the special inquiry officer again found
the charge sustained and granted the respondent the privilege of
voluntary departure in lieu of deportation. This decision has been
certified to the Board.
The respondent was admitted to the United States at El Paso,
Texas, on August 3, 1956, as a nonquota immigrant upon surrendering a nonquota immigrant visa which had been issued to her by
the American Consulate at Juarez, Mexico, on August 3, 1956. This
visa had been issued on the basis of an application for a visa which
she had executed on August 3, 1956, before the American viceconsul, in which the respondent stated in Item 1 that her family
name was "J—Ii—G--"; and replied "None" to Item 3 which called
for other names by which she had been known; in Item 18 she
636

indicated :Mc war ;Jingle and in Item '27 , which requested the namec -

and residence of spouse and minor child, she stated "I have never
been married and have no children. Nunca he lido casada ni tengo
hijos," In truth and in fact, respondent at that time had been
married to one A—D—S— in Juarez, Mexico, on May 20, 1954, by
civil ceremony; and had two children by this marriage, one of
whom was born April 7, 1954, and the second of whom was born
on March 7, 1955, both in Mexico. The respondent testified that
she had been separated from her husband for about 5 years and
that since being separated she had not talked with him-but that
she had seen him two times from a distance in Juarez, Mexico.
The respondent explained that she was separated from her husband at the time she made her application and she stated that she
was single on the visa application because she was not asked if
she was married but only if she was single. She further explained
that she was of the Catholic faith and, as she had married D—
only by a civil ceremony, she did not believe that she was actually
married to him and for this reason she was not accustomed to
using his surname. She testified that she had never denied having
children and said that she was never asked, but if she had been
asked, she would have admitted that she had the children. The
respondent also testified that she did not intend to deliberately lie
to the consul in making her visa application.
A sworn statement was taken from the respondent by an immigration officer on February 15, liP.G1, in which she stated that she answered Item . 27 in the way she did because she was separated and
thought it would be easier to arrange a visa if she said that she
was alone and admitted that she knew that she was not telling the
truth when she made the visa application. A birth certificate of the
second child shows that the respondent personally appeared to register the birth of the child and stated the child was the second child
of her marriage to the father,
She explained that she
registered the.child in this way so that he would not be shown as
illegitimate.
The special inquiry officer has found not credible the respondent's present testimony that she did not consider herself as married
because she was of the Catholic faith and the marriage ceremony
was a. civil one only, and that she was not accustomed to using the
surname "D—" for this reason and that she was single because she
was separated from her husband. He puts more credence in her
earlier statement that she was never married and had no children
because she was separated and thought it would be easier to arrange
a visa by showing she was single at which time she knew she was
not telling the truth.
The special inquiry officer has found that the respondent made
a

willful misrepresentation to the American vice-consul regarding
037

her marital status, concealed the fact that she had two children
and concealed her married name from the consul, all of which she
did for the purpose of facilitating the issuance of the immigrant
visa to her. He has concluded that the misrepresentations were
material because her action tended to shut of a line of inquiry
which was relevant to her eligibility for a visa and 'which well
might have resulted in a determination that the visa should not
be issued to her; that the consul would have had an opportunity
to make an investigation and that the disposition of the respondent's visa application might well have hinged upon her establishing
to the satisfaction of the consul what arrangements she was making
for the care and support of her two children.
The test of materiality under section 212(a) (19) of the 'miniation and Nationality Act has been formulated by the Attorney
General in Matter of S— and B—C—, supra, which holds that a
misrepresentation made in connection with an application for a visa
or other documents or with entry into the United States, is material
if either (1) the alien is excludable on the true facts, or (2) the
misrepresentation tends to shut off a line of inquiry which is relevant
to the alien's eligibility, and which might well have resulted in a
proper determination that he be excluded. This test should also be
applied to misrepresentations relating to identity. The fact that
the 1952 Act provides for exclusion of aliens who "procure" documents by misrepresentation suggests an intent that the misrepresentation must have had at least some tendency to achieve a result
which would not have been achieved without it.
The application of the test set forth will turn on the answer to
three questions:
First, does the record establish that the alien is excludable on
the true facts? If it does, then the misrepresentation
was material. If it does not, then the second and third
questions must be considered.
Second, did the misrepresentation tend to shut off a line of inquiry which is relevant to the alien's eligibility? It
should be emphasized that a remote, tenuous or fanciful
connection between a misrepresentation and a line of
inquiry which is relevant to the alien's eligibility is
insufficient to satisfy this aspect of the test of materiality.'
Third, if a relevant line of inquiry has been cut off, might that
inquiry have resulted in a proper determination that
the alien be excluded? On this aspect of the question
the alien bears the burden of persuasion and proof.
Having made a willful misrepresentation which tends
to cut off a relevant line of investigation, he cannot now

try out his eligibility as if nothing had happened.
638

in 9 d50 there ex isted two sets of misrepby the alien: (a) misrepresentations of his and his wife's
identity in obtaining agricultural worker's permits in 1952 and 1954,
and (b) failure in his 1956 visa application to disclose his prior
residence in the United States and use of an alias in connection with
those entries in 1952 and 1954. While conceding that the use of a
false name in '1952 and 1954 shut off investigation at that time, the
Attorney General held there was nothing in the record to indicate
that if he had used the true name of himself and his wife the resultant
investigation would have revealed a ground of exclusion and held the
misrepresentation as to name not material. As to the 1956 misrepresentation the Attorney General stated that in view of his holding
as to the 1952 and 1954 misrepresentations, the Board's reasoning that
such misrepresentation concealed a ground of exclusion could not
stand.
The special inquiry officer has found that the respondent's action
in concealing her marital status and the fact that she had two
children tended to shut off a line of inquiry which was relevant
to her eligibility for a visa ; that had the consul been correctly
informed by the respondent that she had been married and separated
from her husband and that she had two children, the disposition
of the' respondent's visa application might well have hinged upon
her establishing to the satisfaction of the consul what arrangements
she was making for the care and support of her two children.
However, it has not been shown how such a line of inquiry would
be relevant to the alien's eligibility as contrasted to her failure to
reveal that she was married but separated, and her failure to disclose her married name which, the special inquiry officer has conceded, would not under section 212(a) of the Act have caused her to
be found to be excludable from the United States. Upon full consideration of the nature and circumstances of the misrepresentations,
we find that the connection between the misrepresentations and the
possible line of inquiry which an investigation might have developed
presented so remote, tenuous, or fanciful a connection to her eligibility for admission under the immigration laws as to be insufficient
to satisfy the second question as to materiality set forth by the
Attorney General in Matter of S— and B—C—, euprcz. The appeal
will he sustained and the proceedings terminated.
ORDER: It is ordered that the appeal be sustained and the proceedings terminated.

in the case of 13--C

resentations

639


Interim Decision #1911

MATTER OF Doo
In Deportation Proceedings
A-15149545
Decided by Board October 18, 1968
Where a Service investigator, in possession of the name and a picture of respondent and information of his possible illegal presence in this country,
made an investigative search of a restaurant where respondent was employed, during the course of which interrogation respondent identified himself and voluntarily produced and turned over to the investigator his
Form 1-95 ("Crewman Landing Permit"), such Form 1-95 is admissible
in evidence in deportation proceedings.
CfLARGE ;

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2)]—Crewman
—remained longer.
ON BEHALF OF REsPONDENT:
David Carliner, Esquire
Warner Building
Washington, D.C. 20004

ON BEHALF

or SERVICE:

B. A. Vielhaber
Appellate Trial Attorney

The special inquiry officer on May 31, 1968 found respondent
deportable as charged and ordered that he be deported to the Republic of China on Formosa on the charge contained in the order
to show cause. The instant appeal ensued.
The respondent is a 45-year-old male, a native and citizen of
China, who entered the United States at Portland, Maine on or
about August 12, 1966, at which time he was admitted as a crewman authorized to remain in the United States for the period of
time his ship remained in port, not to exceed 29 days. He failed
to depart with his vessel. Respondent does not concede deportability. In fact he remained mute during the hearing on advice of
counsel. Respondent did not apply for any form of discretionary
relief.
Counsel for respondent argues that the proceedings should be
terminated because there was admitted into evidence over his
objection respondent's "Crewman .Landing Permit," Form 1-95

30

Interim Decision * 1911
(Ex. 2), which had been illegally obtained from him while he was
under an illegal arrest because he had been arrested without a
warrant. Counsel contends that without this item of evidence deportability was not proved.
The facts as to what actually occurred when an officer of the
Immigration Service confronted the respondent at his place of
employment on May 28, 1968, are set forth fully in the special inquiry officer's decision and in the transcript of the hearing.
Briefly, the respondent, who is a cook at a restaurant in Washington, D.C., was approached by an investigator of the Immigration and Naturalization Service, and after identifying himself he
asked the respondent his name and the respondent readily furnished the came. The investigator then asked to sae any immigration papers which he might have and the respondent replied that
the papers were downstairs in a locker room. It appears that the
respondent, accompanied by the investigator, proceeded to the
locker room where the respondent voluntarily produced and
turned over to the investigator the Form 1-95. The respondent
was then taken to the offices of the Immigration Service, at which
time the order to show cause (Ex. 1), which had previously been
issued on May 22, 1968, but never served upon the respondent,
was then handed to him. Service is conceded.
Under section 287 (a) (1), Immigration and Nationality Act, (8
U.S.C. 1257 (a) (1) ), an officer of the Service is authorized without
a warrant to interrogate any alien or person believed to be an
alien as to his right to be in or to remain in the United States. In
this case the investigator had ample reason to believe that respondent was an alien remaining in the United States without
right, because the investigator had in his possession the name of
the alien and his picture (Ex. 3), and information that such alien
was possibly illegally in the United States. In other words, it was
clear that the Service was looking for him. Further, the respondent did correctly identify himself to the Service officer. Information obtained during an interrogation made pursuant to section
287 (a) (1) of the Act is admissible into evidence.1
Counsel contends that during the events leading up to and at
the time the Form 1-95 was actually turned over to the investigator there was in effect an arrest and since the arrest took place
without a warrant, it was illegal; thus the document was illegally
obtained and should not have been admitted into the record. We
do not hold that respondent was under arrest during the time he
was first interrogated and when he turned over the crewman
2

See Matter of Chen, 12 I. & N. Dec. 603, February 6, 1968.

31

Interim Decision #1911
landing permit to the investigator. The investigator had not told
the man that he was under arrest, had not stated in any manner
that the man was not free to go, but he did ask questions concerning his identity and any immigration documents he might have.
We refer to the case of People v. Rodney P. (Anon), New
York Court of Appeals, November 30, 1967, 36L.W. 2377, in
which the court held that statements made by a suspect who was
interrogated by police in his backyard without being warned of
his rights under the Fifth and Sixth Amendments, but who was
neither told he was under arrest nor physically restrained in any
way, are admissible, even if he was the focus of investigation, because there had not been an arrest, although he might have been
restrained had he attempted to leave. The court said in that case:
"This kind of questioning is little different from routine police investigation of crimes or suspicious conduct at a person's home,
his place of business (emphasis supplied), or on the street." The
court held that there had not been an arrest. We think that the
case before us is on all fours with that holding. Here, respondent

was neither told that he was under arrest nor was he physically
restrained in any way, although it is clear that if he had tried to
abscond he would have been restrained.
We hold that the crewman landing permit was correctly admitted into evidence.
Assuming arguendo that an arrest had been made, the facts in
this case (that he had jumped ship and that he had evaded the
Immigration Service officers for almost two years), amply justify
an arrest without a warrant under section 287(a) (2), Immigration and Nationality Act (8 U.S.C. 1357 (a) (2) ), which authorizes
the arrest of an alien who the officer has reason to believe is in
the United States in violation of law and is likely to escape before
a warrant can be obtained for his arrest.
Accordingly, we will dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.

32


Interim. Decisions #1634

MAZ-rx.x OP

Vos

In Visa Petition . Proceedings
A-17299947
Decided by District Director April 98, 1966
Since beneficiary, a qualified law librarian, is a member of the professions

within the meaning of section 101(a) (32) of the Immigration and Nationality Act, as amended by P.L. 89-236, a visa petition is approved to accord
his preference classification tinder section 203(a) (3) of the Act as a law
librarian.

Discussion: The petitioner seeks third preference quota status
under section 203 (a) (3) of the Immigration and Nationality Act
for the beneficiary, claiming that he qualifies its a member of -the
professions. The petitioner, The University of Texas, is an institution of higher learning, offering degrees in most of the recognized
arts and sciences.
The petitioner desires to employ the beneficiary as a law librarian
to catalogue and systematize books and articles on law, assist students of law and supervise the law library. The petitioner states

that qualified law librarians are not available and that competent
librarians in this field cannot be obtained through normal employment sources. A certification pursuant to section 212(a) (14) of the
Act, as amended, has been issued by the Department of Labor.
The beneficiary is s. 36-year-old single male, `a, native and citizen
of the Netherlands. Documentary evidence has been presented that
the beneficiary received his Master of Law degree from Nijmegen
University in Nijmegen, Netherlands, on June 26, 1961. He was
employed as a law librarian. at the Library of the Palace of Peace,
Carnegie Foundation, The Hague, Netherlands, from February 12,
1962, to April 1, 1966. While there, he was engaged in research for

students of law who patronized the library and in assisting the reading room public. He also catalogued and systematized books and
articles on law. He speaks, reads and writes several languages in- •
779

Interim Deeision# 1634
eluding English. The Bureau of International Education has certified that the beneficiary's Master of Law degree is equivalent to the

same post- graduate level accomplished in this country. The beneficiary's education in la-co and practical experience as a law librarian
qualifies him under section 101(a) (32) of the Immigration and
Nationality Act as a member of the professions.
ORDER: It is ordered that the third preference visa petition in

behalf of the beneficiary be approved in that, as a law librarian, ha
qualifies as a member of the professions.

180