Interim Decision #2145

MATTER OF KWOK

In Visa Petition' Proceedings
A-19406572
Decided by Board April 25, 1972
(1) The validity of the infancy adoption of beneficiary in mainland China in 1936
is not vitiated by the fact beneficiary is a female, since Article 1072 of the Civil
Code of the Republic of China specifically provided for the adoption of either
males or females. [Matter of Yin, 13 I. & N. Dee. 624, distinguished.]
(2) The contention that an adoption must be accomplished by a juridical act
before it can be recognized as valid for immigration purposes, is rejected.
Matter of Fong, 10 I. & N. Dec. 497; Matter of Chin, 12 I. & N. Dec. 240; Matter
of Jae, 12 L & N. Dec. 296; Matter of Chan, 12 I. & N. Dec. 513; among other
prior precedent decisions which recognized Chinese adoptions, even though
created without benefit of a juridical act, are reaffirmed.
(3) The long-standing rule that the validity of an adoption for immigration
purposes is governed by the law of the place where the adoption occurred
(Matter of

5 L & N_ Dee.

as,

6 I. & N. Doe. 760), io reaffirmed.

ON BEHALF OF PETITIONER:

ON BEHALF OF SERVICE:

R. A. Vielhaber
Appellate Trial Attorney

Benjamin Gim, Esquire
217 Park Row
New York, New York 10038

The United States citizen petitioner applied for preference
status for the beneficiary as his adopted daughter under section
203(a)(1) of the Immigration and Nationality Act. The facts are not
in dispute. The District Director, on January 14, 1971 found that
an adoption had occurred under the laws of China and approved
the petition. However, his initial approval was revoked on July 22,
1971 on the basis of this Board's decision in Matter of Yiu, 13 I. &
N. Dec. 624 (B IA, 1970). The District Director construed Matter of
Yin to rule out a valid adoption in the present case because the

beneficiary is

a female. The petitioner appeals from the revocation.
His appeal will be sustained.

The record indicates that the beneficiary was adopted in China
in May of 1936. The beneficiary was ten months old at the time of
adoption. The petitioner's husband, who is now deceased, evidently
gave his consent to the adoption_ The beneficiary resided with the

petitioner from 1936 until 1955. Although no written adoption

127

Interim Decision #2145
agreement was presented, the District Director was correct in his
initial determination that an "infancy" adoption was proved in
this case. See Matter of Ace, 12 L & N. Dec. 296 (B IA, 1967).
Petitioner's counsel protested the proposed revocation on the
ground that it was incorrect to apply Matter of Wu, supra, to the
present case. Counsel's contention was entirely correct. As he
pointed out, the Yiu decision was concerned with a 1949 Hong
Kong adoption and was decided on the basis of Chinese customary
law as it was applied in Hong Kong. Our opinion in Matter of Yiu,
supra, expressly held that the provisions of the Civil Code of the
Republic of China did not apply. The present case, on the other
hand, involves a Chinese adoption that took place on the mainland
of China in 1936. Consequently, the Civil Code of the Nationalist
Republic will be controlling. We note that the portion of the Civil
Code dealing with adoption, Book IV (Family), was promulgated on
December 26, 1930 and came into force on May 5, 1931.
As counsel indicated, the Civil Code of the Republic of China did
not prohibit the adoption of females. Article 1072 specifically
provided for the adoption of either males or females. See Matter of
Chan, 11 I. & N, Dec. 219 (BIA, 1965).
Ordinarily we would simply sustain the appeal and reinstate the

approval of petitioner's petition. However, the Service has raised
an additional issue which must be disposed of before the present
appeal may be resolved.

The issue is a crucial one with potential impact, not only upon
all Chinese adoptions, but also upon adoption cases from many
other countries. The Service would have us recede from a long line
of decisions in which we recognized adoptions in China as valid for
purposes of section 101(bX1)(E) of the Immigration and Nationality
Act. The contention is that Chinese adoptions, even though valid
under the laws of China, nevertheless do not constitute "adoptions" for immigration purposes because, it is argued, an accepta-

ble adoption may be created only as a result of a "juridical act." In
essence, the Service would have us recede from the long- standing
rule that the validity of an adoption upon which an immigration
status is grounded is governed by the law of the place where the
adoption status was created, Matter of R—, 6 I. & N. Dec. 760 (BIA,
1955).
Historically, the courts have recognized Chinese adoptions as
valid for purposes of the immigration laws. One court, in Ex Parte
Fong Yin?, et al., 134 Fed. 938 (S.D.N.Y., 1905), held as follows:
The evidence shows that the practice of adopting children in China is very
common, that it takes place substantially without legal formalities, but that
the rights and obligations of children adopted and recognized as such are

similar to those of natural children. Under these circumstances I can see no

128

Interim Decision #2145
difference between the legal status of adopted children and of natural
children.

This holding was specifically endorsed in Johnson v. Shue Hong,
300 Fed. 89 (1 Cir., 1924).
The general rule in favor of recognizing adopted children as
children was changed by the Immigration Act of 1924. That
statute ordered that adoptions occurring after January 1, 1924

would no longer be recognized for immigration purposes. In
Tillinghast v. Chin Mon, 25 F.2d 262 (C.A. 1, 1928), cert. dismissed
278 U.S. 666 (1929), the court stated that the 1924 Act took into
account the construction of the prior act found in Johnson v. Shue
Hong, supra. Thus, from 1924 onward, adoptions were given no
recognition for immigration purposes until the 1957 amendment to
the Act of 1952 which created section 101(b)(1XE). The rule set
forth in Ex Parts Fong Yim et al., supra, and endorsed in Johnson
v. Shue Hong, supra, then, is back in operation by virtue of the
1957 amendment to the 1952 Act.
The Service's position ignores many judicial and administrative
precedents recognizing Chinese adoptions as valid for immigration
purposes. The Service bases its argument almost entirely on a
definition of the word "adoption" appearing in Matter of Chan,
supra, which equates adoption with a "juridical act." In that case
two definitions of adoption were set forth. The first, taken from
Bouvier's Law Dictionary (3d revision), is as follows: "Adoption is a

juridical act creating between two persons certain relations,
purely civil, of paternity and filiation." The second, taken from 2
Corpus Juris Secun,du?n, 367, reads as follows: "Adoption, in legal
contemplation, is the act by which parties thereto establish the
relationship of parent and child between persons [not] so related...."
It is well-settled that under the Chinese Civil Code an adoption
did not require the permission or approval of a court or other
governmental agency. The same was true of adoptions under the
Ching Code. Hence, no "juridical act" was required under Chinese

law. As regards the present case, Article 1079 of the Civil Code
merely required that "Adoption must be effected in writing, unless
the person to be adopted has been brought up as a ■ Child of the
adopter since infancy." The word "infancy," as used in this connection, has been defined by the Supreme Court-of China to relate to
a child who is under the age of seven years.
This Board has published a number of precedent decisions
concerning adoptions which took place under the Civil Code of the
Republic of China. In no case was it found that a Chinese adoption
was invalid because there was no juridical act of adoption. In the

following cases we recognized the Chinese adoptions as valid for
129

Interim Decision #2145
purposes of section 101(b)(1XE), despite the absence of any juridical
act: Matter of Fong, 10 I. & N. Dec. 497 (BIA, 1964); Matter of Chin,
12 I. & N. Dec. 240 (BIA, 1967); Matter of Jue, supra, and Matter of
Chan, 12 I. & N. Dec. 513 (BIA, 1967). A child adopted according to
the Civil Code was found to qualify as a "child" for purposes of the
Act of December 28, 1945, in the following reported cases: In the
Matter of W—M—S—and W—O—W—, 3 I. & N. Dec. 131 (BIA, 1948
and A.(L, 1948) and In the Matter of .W—M--G—, 3 I. & N. Dec, 608
(BIA, 1949). See also Matte of Yue, 12 I. &.N. Dec. 747 (BIA, 1968)
for a case arising under the Ching Code.
Inasmuch as the Service's objection rests upon the technical

ground that one of the definitions of "adoption" contained in
Matter of Chan, supra, seemingly requires a juridical act, we
should examine that definition to ascertain- its derivation and
proper legal effect. We note that Bouvier's Law Dictionary (3d
revision) may hardly be classed as a contemporary source of law,
being first written in 1838 and last revised in 1914. The definition
of adoption equating adoption to a juridical act is not the primary
definition of adoption set forth in Bouvier's Law Dictionary. The
first definition listed is the following: "The act by which a person
takes the child of another into his family and treats him as his

own." The definition found in that work that equates adoption to a
juridical act is credited to "6 Demolombe, § 1," a reference to a
commentary on the Code Napoleon. Hence, the definition of
adoption upon which the Service relies has no validity in connection with non-civil law countries such as China.
In addition, Matter of Chan, 11 I. & N. Dec. 219 (BIA, 1965), in
which the restrictive definition appears, was decided on other
grounds. In Chan we held that no adoption had been established
because the facts merely disclosed a loco parentis relationship,
with no adoption intended. The statement that an adoption contemplated a juridical act was pure dictum not essential to the

resolution of the case.
Since Congress did not provide us with a definition of "adoption," we should apply the terrain its plain and ordinary meaning.
Webster's New International Dictionary, 2d edition, defines adoption as "Voluntary acceptance of a child of other parents to be the
same as one's own child." Absent a more particular formulation
from Congress, we shall employ this definition. We note that it is
in general accord with (1) the definition of adoption found in
Corpus Juris Secundum, supra, and (2) the first definition of
adoption found in Bouvier's Law Dictionary.
We reject.the argument that an adoption must be accomplished
by a juridical act before it can be recognized as valid under section
101(b)(1XE) of the Act. We reaffirm our prior precedent decisions
130

Interim Decision #2145
which recognized Chinese adoptions, even though created without
benefit of a juridical act. We also reaffirm our long-standing rule
that the validity of an adoption for immigration purposes is
governed by the law of the place where the adoption occurred.
In the present case a valid infancy adoption under Article 1079
of the Civil Code was intitially established to the satisfaction of the
District Director. The approval of the petition was subsequently

revoked, but, as we have seen, for improper reasons. The beneficiary, then, qualifies as a "child" for purposes of section
101(b)(1)(E). The approval of preference status should be reinstated. The appeal will be sustained and the following order will be
entered.
ORDER: It is hereby ordered that the District Director's
revocation of the approval of the petition granting preference
classification to the beneficiary be and the same is hereby set
aside, and the approval of the beneficiary's preference classification be and the same is hereby reinstated as of the date of original
approval.

131


Interim Decision #2552

MATTER OF RICE

In Visa Petition Proceedings
A-21266592
A-21266593
Decided by Board January 27, 1977
(1) Article 66 of the Philippine Civil Code provides that when one or both of the contracting parties to a marriage are citizens or subjects of a foreign country, it shall be
necessary, before a marriage license can be obtained, to provide themselves with a
certificate of legal capacity to contract marriage, to be issued by their respective
diplomatic or consular officials. However, despite the lack of such a certificate a marriage license was issued and the marriage was contracted.
(2) The officer Ix charge concluded that the waxiiage was void wider Philippine law and

invalid for imtriigration purposes, and denied the immediate relative visa petitions filed
by petitioner for his wife and daughter under section 201(b) of the Immigration and
Nationality Act.
(3) Where the petitioner and beneficiary had the intent and capacity to marry when the

license was presented to the municipal judge who performed the ceremony, the marriage was valid, notwithstanding failure to obtain the certificate of legal capacity from
the consul under Article 66, and the visa petitions will be granted.
ON BEHALF OF PETITIONER: Pro se
BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

The United States citizen petitioner applied for immediate relative
status for the beneficiaries as his wife and child under section 201(b) of
the Immigration and Nationality Act. In a decision dated October 15,

1976, the Officer in Charge denied the petitions. He has certified his
decision to the Board for review pursuant to 8 C.F.R. 3.1(c). His
decision will be reversed and the visa petitions will be approved.
The adult beneficiary is a native and citizen of the Philippines. She
and the petitioner married on June 15, 1972, while the petitioner was
serving in the United States Armed Forces. Both parties were 18 years
old. A daughter was born of this union in the Philippines. The child did
not acquire United States citizenship because her birth occurred a
month before her fatherreached the age of 19. See section 301(a)(7) of
the Immigration and Nationality Act_ The couple's son, born three

years later, did derive United States citizenship from the petitioner.
96

Interim Decision #2552
The petitioner now seeks immediate relative status for his wife and
daughter in order to bring the family back to his home state of Tennessee.
The Officer in Charge concluded that the petitioner's marriage is
invalid under the law of the Philippines, and hence, must be considered
invalid for immigration purposes. This conclusion is based on the petitioner's admission that he failed to comply 'with Article 66 of the Philip-

pine Civil Code.
The Officer in Charge is correct in applying the general rule that the
validity of a marriage is determined by the law of the place of
celebration—in this case—the Philippines. Matter ofGarnero,'14 L & N.
Dec. 674 (BIA 1974); Matter of P—, 4 I. & N. Dec. 610 (BIA 1952; A.G.
1952); Matter of Levine, 13 I. & N. Dec. 244 (BIA 1969).
In order to determine whether noncompliance with Article 66 invalidated the petitioner's marriage, we must refer to Title III of the Civil
Code of the Philippines. Title III sets out numerous procedures to
govern the licensing and solemnization of marriages. It also indicates
which irregularities in the licensing and solemnizing process will render
a marriage void, ab initio and which may subject the validity of a
marriage to attack in a suit to annul.
Article 66 is one of several licensing provisions which are aimed at
assisting in the enforcement of other marriage laws, by requiring persons who are not qualified to marry, to reveal such fact before the
marriage is contracted. All applicants for marriage licenses must supply
information, under oath, concerning age, relationship between them, if
any, prior marriages, and whether such marriages have been dissolved
by death or annulment (Article 59). In the case of foreigners, such as
the petitioner, a certificate from diplomatic officials is required under
Article 66 to help insure that the party has the required capacity to
contract the marriage. Article 66 provides—
When either or both of the contracting parties are citizens or subjects of a foreign
country, it shall be necessary, before a marriage license can be obtained, to provide
themselves with a certificate of legal capacity to contract marriage, to be issued by their

respective diplomatic or consular officials.

As the text of Article 66 indicates, a license should not be issued to a
foreigner unless the certificate of capacity is furnished. However, in the

petitioner's case, despite the absence of such a certificate, a license was
issued. Hence, the question becomes—is the marriage which is subsequently entered into void or voidable because of this procedural irregularity?
Under the applicable provisions of the Civil Code of the Philippines
(Articles 53, 80, 81, 82, and 83), the following requirements are essential
to the validity of a marriage; (1) the contracting parties must have the
legal capacity to marry each other; (2) their consent to the marriage
97

Interim Decision #2552
must be freely given; (3) the parties must have a marriage license,
except in marriages of "exceptional character"; and (4) the person solemnizing the marriage must be duly authorized. Due to the mandatory
nature of these requirements, failure to comply with any of them will
render the contract void, ab initio. There is no suggestion in the record
that either the petitioner or the beneficiary lacked the intent or the
capacity to marry when they presented their marriage license to the
municipal judge who performed the ceremony. Thus, we conclude that
despite the petitioner's failure to provide a certificate of capacity, his
marriage is not void under Philippine law.
On the issue of voidability, Article 85 allows parties or their parents
to challenge the validity of a marriage in certain situations, by bringing
a suit to annul. These provisions have no application here, however,

since the parties are attempting to establish the validity rather than the
voidability of their marital contract. Moreover, we note, parenthetically, that none of the grounds of which an existing marriage may be
annulled have to do with an improperly issued marriage license. (See
Articles 80, 81, 82, 83.)
We conclude that in this case, where the petitioner possessed the
I egal capacity to marry, his failure to obtain a certificate of legal capacity
did not invalidate his marriage under the law of the Philippines.' Accordingly, we will consider his marriage valid for immigration purposes.
The visa petitions predicaLed on Llie marriage will be approved.
ORDER: The decision of the Officer in Charge is reversed; the visa
petitions are approved.

'In Matter of Dagamac, 111. & N. Dec. 109 (BIA 1365), passing reference is made to
Article 66 of the Philippine Civil Code. The case, however, does not address the issue
raised here. In Dagamac, the petitioner did not Possess the legal capacity to lauLty the

beneficiary; hence, the mere lack of a certificate of capacity was not the critical issue.
98


Interim Decision #2421

MATTER OF TAMAYO

In Deportation Proceedings
A-31281888

Decided by Board August 19, 1975
Since, under the provisions of 29CFR 60.5, the validity of a labor certification is limited to
the particular job described in the job offer portion of the labor certification, respondent, who at the time he obtained his visa knew that the job offer in support of the labor
certification !iad been withdrawn, and who nevertheless proceeded to the United States
and obtained other employment, is deportable under section 241(a)(1) of the Immigration and Nationality Act for lack of a valid labor certification under section 212(a)(14) of
the Act, as amended, at time of entry, notwithstanding the employment with a different
employer,was in the same occupation, and was located in what may be considered by the
nprartment of Labor to be the same geographic employment region, as the employment

specified in the job offer.
CHARGE:
Order:

Act of 1952— Section 241(a)(1) [9 U.S.C. 1251(a)(1)]--Excludable et time of

entry under section 212(a)(14)

no valid labor certification

—

ON BEHALF. OF RESPONDENT:

ON BEHALF OF SERVICE:

Esther M. Kaufman; Esquire'
1823 L Street, N.W.
Suite 102
Washington, D.C. 20036

Irving A. Appleman
Appellate Thal Attorney

The alien respondent, a native and citizen of Colombia, has appealed
from the finding of deportability made by an immigration judge in a
decision dated June 18, 1973. The appeal will

be

dismissed.

The respondent was admitted to the United States in January of 1971
as an immigrant. His admission was in part predicated on his possession
of a labor certification issued in September of 1969. The Service contends that the respondent's labor certification was not valid on the date
of his admission to the United States. The Service therefore argues that
the respondent is now deportable as an alien who was excludable at
entry under section 212(a)(14) of the Immigration and Nationality Act.
The respondent's labor certification was issued on the basis of a job
offer which he received to work as a weaver for Bay State Mills, Inc. in
Holyoke, Massachusetts. In a letter dated September 15, 1970, and
addressed to the United States Consulate in Colombia, Bay State Mills
426

Interim Decision #2421
confirmed the existence of the job offer. However, the respondent has
testified that he received word in November of 1970, while he was still in
Colombia, that there was no longer a position available for him with Bay
State Mills.
The respondent, however, did not convey this information to the
consular official in Colombia. His immigrant visa, introduced into evidence as Exhibit 2, indicates that it was issued on December 7, 1970,
shortly after the respondent had received word that the job offer had
been withdrawn.
Although the respondent did not have a job awaiting him in the
United States, he nevertheless decided to journey here. The respondent
has testified that he was unemployed in Colombia at the time, and that
he contacted a friend in Rhode Island who encouraged him to come to
the United States by offering to assist the respondent in finding a job.
The respondent was admitted to the United States on January 9,
1971. Three days later he commenced employment as a weaver with
Cadillac Textiles, Inc. of Cumberland, Rhode Island. He had been
employed there ever since.
The record establishes that upon his arrival in the United States the
respondent did not intend to seek work at Bay State Mills, his only
certified employer. He did not present himself for work at Bay State
Mills in Holyoke, Massachusetts, and he has never worked for that
employer. The respondent, however, contends that the labor certification issued for employment with Bay State Mills is also applicable to his
employment in the same occupation with a different employer.
The vice president in charge of manufacturing for Cadillac Textiles
testified in behalf of the respondent at the hearing. He indicated that his
firm was in need of weavers at the time the respondent was hired. The
witness also testified that Cadillac Textiles has on occasion filed for labor
certification on behalf of other alien workers. Labor certification applications filed by Cadillac Textiles, however, have not been successful since
April of 1970.
In denying labor certification applications submitted by Cadillac Textiles, the Department of Labor at times has evidently considered the
New England region of Massachusetts, Connecticut and Rhode Island
to be the area from which Cadillac Textiles could expect to find available
employees. It is primarily on the basis of this fact that the respondent
contends that his labor certification covered his employment with Cadillac Textiles.
Section 212(a)(14) in part requires a finding that there are not sufficient workers available "at the place to which the alien is destined"
before the Department of Labor may issue a labor certification. Counsel
argues that the word "place" as used in section 212(a)(14) means the

geographic

region of the alien's prospective employment, and that the

427

Interim Decision #2421
statute does not authorize the Department of Labor to limit the applicability of a labor certification to one particular job. Counsel therefore
contends that the respondent's labor certification for employment as a
weaver in Holyoke, Massachusetts was also valid for employment as a
weaver in Cumberland, Rhode Island, because these two locations are
considered by the Department of Labor to be within the same employment region. We reject this contention.
The pertinent Department of Labor regulation, 29 CFR 60.5, in effect
at the time the respondent received his labor certification and at the
time of his admission to the United States provided:
Certificatons issued pursuant to this part are invalid if the representations upon
which they are based are incorrect. They are applicable only to - the positions as
described in the Form ES-575-B or as defined in the applicable schedule.

We have interpreted the second sentence of this regulation as limiting
the validity, of the labor certification to the particular job described in
the Form ES-575—B, which is the job offer portion of the labor certification application. Matter of Fotopoulos, 13 I. & N. Dee. 847 (BIA 1971 &
1972); Matter of Welcome, 13 I. & N. Dec. 352 (BIA. 1969); Matter of
Paco, 12 I. & N. Dee. 599 (BIA 1968). The current version of this
regulation also fails to support the respondent's contentions. The relevant portion of 29 CFR 60.5(0pretently states:
The validity of: ... (3) a labor certification issued pursuant to § 60.3(c) shall be
limited to the partienlar job and geographic loratinn sot forth on the Sob Offer for Alien

Employment form.

The Form ES-575—B attached as part of the respondent's immigrant
visa describes a job with Bay State Mills, Inc. in Holyoke, Massachusetts. This is the position to which the respondent's labor certification was applicable. The respondent's employment with Cadillac Textiles in Cumberland, Rhode Island was not covered by this labor certification.
Counsel asks that we recede from our prior decisions, and that we not
apply the quoted language of 29 CFR 60.5 Counsel, in making this
request, argues that 29 CFR 60.5 presents an unreasonably narrow

interpretation of the word. "place" as used in section 212(a)(14) of the
Act. As ind.cated, it is counsel's contention that the "place" referred to
in section 212(a)(14) is the general region of the alien's prospective
employment.
The regulation, however, is binding on us, Matter of Bilbao-Bastida,
11 I. & N. Dec. 615 (BIA 1966), aff'd Bilbao-Bastida v. INS, 409 F.2d
820 (C.A. 9, 1969), cert. denied, 396 U.S. 802 (1969); Matter of Tzirna,s,
10 I. & N. Dec. 101 (BIA. 1962), and, in any event, we are not the proper
forum in which to challenge its validity. Cf. Matter of Swissair Airlines
1184," 16 I. & N. Dee. 20.1 (BIA 1974). Further-

Aircraft 'Plight

428

Interim Decision t-zetiz.I.
more, we are not convinced that the regulation presents an unreasonable interpretation of the statute. We adhere to our prior decisions.
The respondent's labor certification was valid only for the job with
Bay State Mills as described in the job offer (Form ES-575-B) which
was submitted to the Department of Labor. At the time the respondent
obtained his visa, and at the time he, entered the United States, he knew
that the certified job was no longer available. Deportability has been
established by clear, convincing and unequivocal evidence.
The decision of the immigration judge was correct. The appeal will be
dismissed.
1 ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

I Board Member Irving A. Applemen abstained from consideration of this ease.

429


Interim Decision *1614

.gala-run or

-

PADILLA

In Deportation Proceedings
A-14080972

Decided by Board Arse 30, 1966
An alien admitted to the United States as an exchange visitor under section
201(a) (15) (3), Immigration and Nationality. Act, , as amended, is ineligible
for adjustment of status under section 245 of the Act unless she has complied with the foreign residence requirement of section 212(e) of the Act
or has been granted a waiver theref in accordance with the provisions of
that section, notwithstanding the country of her nationality has waived her
obligation to return thereto upon termination of her training in this country.
Ozarez:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)7—Nonimmigrant—Remained longer than permitted.

The case comes forward on appeal from an' order entered by the
special inquiry officer on May 17, 1966 denying the respondent's
application requesting that her immigration status be adjusted
under section 245 of the Immigration and Nationality Act on the

ground that she is ineligible for such adjustment but granting her
permission to depart voluntarily from the United States, in lieu of
deportation; and directing that she be deported from the United
States to the Philippine Islands, the country designated by the

respondent, in the event she- fails to, depart when and as required.
The respondent, a 26-year-old single female, native and citizen of
the Philippine Republic, has resided continuously in the United
States since her admission at Anchorage, Alaska on or about March
7, 1964 as an exchange visitor under section 101(a) (15) (J) of the
Immigration and Nationality Act, authorized to remain in the
United States in such status until April 13, 1966. Deportation
proceedings were instituted against the respondent on April 20, 1966.
A hearing in deportation proceedings was held at Chicago, Illinois
on May 17, 1966 at which time the respondent. and counsel admitted
the truth of the factu,s1 allegations set forth in the order to show
cause and conceded daportability on the ,charge stated therein. The
evidence of record clearly 'establishes thit the respondent is subject
708

Interim Decision #1614
to deportation under the provisions of section 241(a) (2) of the Immigration and Nationality Act, in that, after admission as a nonimmigrant under section 101(a) (15) (3) of the Act (exchange
alien) she has remained in the United States for a longer time than
permitted.

The respondent's application requesting that her - immigrant status
be adjusted to that of a permanent resident as provided under section 245 of the Immigration and Nationality Act was offered for
consideration by the respondent's counsel at the deportation hearing
held at Chicago, Illinois on May 17, 1966. The special inquiry officer refused to accept the aforementioned application on the ground
that the respondent was statutorily ineligible for such relief until
she had been accorded a waiver pursuant to section 212(e) of the
Immigration and Nationality Act. Counsel offered a letter dated
May 16, 1966, signed by the Consul General of the Philippine Republic at Chicago, Illinois, declaring that the Philippine Republic
had terminated the exchange status of the respondent and waived
her obligation to return, thereto after her two years' training in
this country. Counsel's assertion that failure to give full faith and

credit to the document signed by the Consul General of the Philippine Republic at Chicago, Illinois on May 16, 1966 was a derogation
of the respondent's righti under section 357- of the Immigration and
Nationality Act is without merit. The provisions of section 357
supra, relate solely to Title III of the Immigration and Nationality
Act (nationality and naturalization) and is not applicable to the
issues involved herein.
The respondent is eligible to obtain an adjuitment of her status
under section 245 of the Immigration and Nationality Act only if
is granted a waiver of the two years' foreign residence requirements as provided in section 212(e) of the Act. Section 516.1, 8
CFB, among other things, states that an alien who has or has had
the status of an exchange alien or of a nonimmigrant visitor under
section 101(a) (15) (3) of the Immigration and Nationality Act is
not eligible for the benefits of section 245 of the Act unless he has
complied with the foreign residence requirements of section 212(e)
of the Act or has been granted a waiver thereof. The special inquiry
officer's decision is completely dispositive of the points raised by
counsel on appeal. tpon full consideration of all the evidence of
record, together with counsel's exceptions on appeal, we must, for
the reasons stated, affirm the special inquiry officer's decision. Accordingly, the following order will be entered.
ORDER: It is ordered. that the appeal be dismissed.

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Interim Decision #3866

Matter of M-J-K-, Respondent
Decided June 29, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In cases involving issues of mental competency, an Immigration Judge has the
discretion to select and implement appropriate safeguards, which the Board of
Immigration Appeals reviews de novo.
FOR RESPONDENT: Megan E. Hall, Esquire, Westminster, Colorado
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Attorney

Kerri Calcador, Senior

BEFORE: Board Panel: NEAL, Chairman; GREER, Board Member; O’HERRON,
Temporary Board Member.
GREER, Board Member:

In a decision dated August 14, 2014, an Immigration Judge terminated
the respondent’s removal proceedings without prejudice, finding that the
respondent was not competent and that adequate procedural safeguards
were not available. The Department of Homeland Security (“DHS”) has
appealed from that decision. Holding that we review the question of the
adequacy of safeguards de novo, we conclude that unexplored safeguards
may allow the proceedings to move forward. Accordingly, the record will
be remanded for the Immigration Judge to consider the implementation of
additional safeguards.

I. FACTUAL AND PROCEDURAL HISTORY
Removal proceedings were commenced on February 19, 2014, when the
DHS filed a notice to appear with the Immigration Court in Aurora,
Colorado. The notice to appear alleges that the respondent is a native and
citizen of Jordan who was admitted to the United States as a lawful
permanent resident in 1982. It further alleges that the respondent is
removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien who has
been convicted of a crime of violence aggravated felony, as defined in
section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2012).
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Based on concerns about the respondent’s behavior, the Immigration
Judge in Colorado continued the case for a psychiatric evaluation and
granted the DHS’s motion to change venue to a mental health docket for
detainees in San Diego, California. Although the respondent did attend a
hearing on February 24, 2014, in Colorado, he thereafter engaged in
obstructive behavior and refused to attend several hearings scheduled
before another Immigration Judge in San Diego.
In the respondent’s absence, the San Diego Immigration Judge
determined that the respondent did not appear to be competent based on
evidence in the record, which included a psychological evaluation and the
U.S. Immigration and Customs Enforcement’s Form IHSC-883 (ICE
Health Services Corps Mental Health Review). The Immigration Judge
noted that a number of safeguards had been applied by the court, including
obtaining mental health evaluations, changing venue to a mental health
docket, and granting multiple continuances, but he found these safeguards
insufficient to ensure fairness in the proceedings. 1 He also concluded that
the additional safeguards of representation by counsel and administrative
closure would not be effective.
In particular, he found that the
psychological evaluation indicated that the respondent would not cooperate
with counsel and that there was no evidence about restoring competency
to support administrative closure. The Immigration Judge therefore
terminated the respondent’s proceedings without prejudice.
On appeal, the DHS argues that a remand is warranted for the
Immigration Judge to clarify his competency determination and to consider
additional safeguards, including service of the charging document under
Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013). The respondent, who is
now represented on appeal, asserts that the Immigration Judge’s decision
should be upheld. 2 Alternatively, the respondent requests that the record be
remanded for further proceedings.
Further, the DHS asserts that the Immigration Judge did not make a
clear finding with regard to the respondent’s competency, because the
respondent refused to attend the hearing. In contrast, the respondent argues
1

We point out that, in effect, the Immigration Judge waived the respondent’s presence,
which is an appropriate safeguard under the facts in this case, where the respondent’s
behavior reflected that he could not contribute to, or participate in, the proceedings at that
time.
2
The respondent was not represented before the Immigration Judge, but he now has a
Qualified Representative appointed by the Executive Office for Immigration Review.
See generally Franco-Gonzalez v. Holder, No. CV 10-02211-DMG (DTBx), 2014 WL
5475097 (C.D. Cal. Oct. 29, 2014); 2013 WL 8115423 (Apr. 23, 2013); 2013 WL
3674492 (Apr. 23, 2013). On remand, the Immigration Judge should ensure compliance
with the applicable standards required by Franco-Gonzalez v. Holder.

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that the Immigration Judge did determine that he was not mentally
competent, despite the inability to conduct a judicial inquiry. Although the
Immigration Judge’s competency determination was, by necessity, made in
the respondent’s absence, he relied on relevant documentary evidence of
record to find that the respondent was incompetent. We find no clear error
in this determination. Matter of J-S-S-, 26 I&N Dec. 679, 683 (BIA 2015). 3

III. ISSUE
This case addresses the applicable standard of review for the adequacy
of safeguards applied by an Immigration Judge in cases involving mental
competency issues. We hold that the Immigration Judge has discretion to
select and implement appropriate safeguards, which we review de novo.

IV. ANALYSIS
We have held that the test for determining whether an alien is competent
to participate in immigration proceedings is whether he or she has a rational
and factual understanding of the nature and object of the proceedings, can
consult with his or her representative, and has a reasonable opportunity to
examine and present evidence and cross-examine witnesses. Matter of
M-A-M-, 25 I&N Dec. 474 (BIA 2011). When an Immigration Judge finds
that a respondent is incompetent, he or she “shall prescribe safeguards to
protect the rights and privileges of the alien.” Section 240(b)(3) of the Act,
8 U.S.C. § 1229a(b)(3) (2012).
Although the Act does not provide further guidance on the
implementation of safeguards, the regulations do address discrete
situations, including the proper service of the charging document; the
appearance of a guardian, near relative, or friend on behalf of the alien; and
the prohibition on the Immigration Judge’s acceptance of an admission of
removability from certain unrepresented aliens. 8 C.F.R. §§ 103.8(c)(2),
1240.43, 1240.48(b) (2016). The regulations do not otherwise identify
specific safeguards to be applied. Nor do they limit the alternatives
available to ensure the procedural fairness of the hearing.
While the application of safeguards in cases of mental incompetency is
mandatory under the Act, we have recognized that Immigration Judges
have discretion to determine which safeguards are appropriate under the
3

Because we find it necessary to remand the record for other reasons, the Immigration
Judge will have the opportunity to reassess the respondent’s competency in light of any
updated evidence. Matter of M-A-M-, 25 I&N Dec. 474, 480 (BIA 2011) (observing that
“[m]ental competency is not a static condition”).

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circumstances of a particular case. See Matter of M-A-M-, 25 I&N Dec. at
481−82; see also Matter of J-S-S-, 26 I&N Dec. at 682 (observing that “the
Immigration Judge is charged with prescribing safeguards when they are
found to be appropriate”); cf. Davis v. Walker, 745 F.3d 1303, 1310 (9th
Cir. 2014) (stating that Rule 17(c) of the Federal Rules of Civil Procedure
“protect[s] an incompetent person’s interests in prosecuting or defending a
lawsuit” and observing that “the district court has discretion to craft an
appropriate remedy to protect the incompetent person”). For example, in
Matter of E-S-I-, 26 I&N Dec. at 145, we explained that re-serving the
notice to appear is a potential safeguard in a case involving a competency
issue that surfaced after proceedings were underway. We concluded that
the Immigration Judge has discretion to evaluate whether this safeguard
would be of benefit under the circumstances of a given case.
The regulations governing the scope of our review provide that the
“Board may review questions of law, discretion, and judgment and all other
issues in appeals from decisions of immigration judges de novo.” 8 C.F.R.
§ 1003.1(d)(3)(ii) (2016). An Immigration Judge’s identification of the
relevant or available safeguards in a given case may involve fact-finding
based on evidence in the record or the Immigration Judge’s observations.
However, the ultimate determination of which safeguards to implement and
whether they are adequate to ensure the fairness of proceedings is
discretionary. Cf. Ridore v. Holder, 696 F.3d 907, 921−22 (9th Cir. 2012)
(stating that the Board may weigh the facts underlying an Immigration
Judge’s discretionary determination de novo). Given that an Immigration
Judge’s consideration of appropriate safeguards involves making a
judgment about the alternative options that may be applied, we review that
discretionary determination de novo under our regulations.
As we have previously emphasized, the “Act’s invocation of safeguards
presumes that proceedings can go forward, even where the alien is
incompetent, provided the proceeding is conducted fairly.” Matter of
M-A-M-, 25 I&N Dec. at 477. In other words, even though a respondent
lacks competency, the inquiry does not end there. Rather, when the
respondent cannot participate in the proceedings because of a lack of
competency, the question becomes whether sufficient relevant information
can otherwise be obtained to allow challenges to removability and claims
for relief to be presented in the absence of reliable testimony from the
respondent. See Matter of J-R-R-A-, 26 I&N Dec. 609, 612 (BIA 2015)
(explaining that where an asylum applicant with mental health concerns
cannot provide reliable testimony, the Immigration Judge should focus on
whether the applicant can meet his burden of proof based on objective
evidence of record and other relevant issues).

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Accordingly, we have held that the parties can explore various
alternatives with the Immigration Judge, short of obtaining testimony from
the respondent. See Matter of J-S-S-, 26 I&N Dec. at 682 (explaining our
collaborative approach of requiring neither party to bear a formal burden of
proof for determining mental competency, which enables both parties to
work with the Immigration Judge to fully develop the record). We
recognize that the Immigration Judge in this case had a medical expert’s
opinion that counsel would not be an effective safeguard. However, we
conclude that under the circumstances presented, it was improper for the
Immigration Judge to determine that no adequate safeguards were available
without first attempting to take other steps that could allow the proceedings
to continue. See 8 C.F.R. § 1003.25(a) (2016) (stating that a mentally
incompetent alien’s “presence may be waived provided that the alien is
represented at the hearing by an attorney or legal representative, a near
relative, legal guardian, or friend”).
As counsel was available in the form of a Qualified Representative, the
proper course would have been to apply the safeguard of legal
representation. The participation of counsel increases the likelihood of
finding a means to proceed fairly, despite the respondent’s refusal to appear
in court. For example, counsel might interact with the respondent,
communicate with family, caregivers, and witnesses, or take other actions
to advance the case. Such actions should include presenting legal
arguments regarding removability and eligibility for relief from removal
that are not dependent on the ability to communicate with the respondent.
Additionally, even without assistance from the respondent, counsel could
provide relevant objective documentation, such as background or country
conditions evidence, to assist in adjudicating an application for relief.4 For
these reasons, we find it appropriate to remand the record for the
Immigration Judge to consider the implementation of additional safeguards.
Further, although the DHS requested a continuance in order to re-serve
the notice to appear in accordance with Matter of E-S-I-, the Immigration
Judge did not assess whether good cause supported the continuance request,
other than to note that the DHS had already been granted numerous
continuances. See 8 C.F.R. §§ 1003.29, 1240.6 (2016); cf. Matter of
Hashmi, 24 I&N Dec. 785, 794 (BIA 2009) (stating that the “number and
length of prior continuances are not alone determinative”). In a case such
4

Immigration Judges should be particularly reluctant to terminate proceedings where,
as here, the alien has a history of serious criminal conduct and may pose a danger to
himself or others upon his release into the community. Cf. Matter of G-G-S-, 26 I&N
Dec. 339, 346 (BIA 2014) (observing that the claim that one’s “violent act was a result of
his mental illness does not lessen the danger that his actions posed to others”) .

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as this, where evidence may need to be gathered from sources other than
the respondent, continuances for service of the notice to appear under
Matter of E-S-I- could involve seeking an individual with knowledge of the
respondent’s background, such as a relative, friend, or legal guardian. See
Matter of E-S-I-, 26 I&N Dec. at 142.
Similarly, continuances for the respondent’s counsel to investigate
sources of biographical information may be warranted. Here, evidence
provided by the DHS indicates that the respondent was, at some point,
married to a United States citizen and that he has submitted a written filing
claiming to have two sons who attend college in the United States. See id.
at 143 (“[W]here a respondent lacks competency, [a] family member . . .
may be able to help the respondent communicate with the Immigration
Court and counsel and may be able to provide relevant information
regarding alienage, date of entry, removability, and eligibility for relief.”).
In addition, although the Immigration Judge did not find administrative
closure to be warranted, he should evaluate whether that option could serve
a purpose in this unique context while other avenues are explored by the
parties. See generally Matter of M-A-M-, 25 I&N Dec. at 483.
Accordingly, since the respondent is now represented by an attorney, we
will remand the record for the Immigration Judge to reassess the safeguard
afforded by counsel and to consider additional safeguards as well.
ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and for the entry of a
new decision.

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