Interim Decision #2732

MATTER. OF BOSUEGO

In Deportation Proceedings
A-34162475
Decided by Board October 5, 1979
Decided by Board July 8, 1980
(1) Inasmuch as an alien who falls within the purview of the first clause of section
212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(19), is permanently ineligible for admission to the United States, she may be found to have been
excludable under that section at the time of her latest entry, and to be thereby
deportable under section 241(a)(1) of the Act, 8 U.S.O. 1261(s)(1), on tho basis of
misrepresentations made in connection with an application for a visa for an earlier
trip to this country.
(2) The circumstances existing at the time thg respondent appeared before the consul
control in determining whether her representations on her visa application, admittedly made with knowledge of their falsity, concerned facts material to her eligibility for
a visa. Matter of Avalos Zavala, 11 I&N Dec. 196 (BIA 1965).
(3) Under Woodby v. INS, 385 U.S 2'76 (1966), the ultimate burden of proving all the
facts necessary to sustain a determination of deportability must remain with the
Government; the element of materiality is a fact crucial to a finding of deportability
bottomed on a section 212(a)(19) charge.
(4) In order to sustain its Woodby-imposed burden in the case of an alien not excludable
on the true facts, the Service must show that the alien's misrepresentation is material
within the meaning of the definition set out by the Attorney General in Matter of Sand B C , 9 I&N Dec. 436 (A.G. 1961), to wit, it tended to shut off a line of inquiry
relevant to the alien's eligibility for a visa which might well have resulted in a proper
determination that she be excluded.
(5) The Attorney General assigned the alien the burden of persuasion and proof on the
question whether the inquiry cut off by the alien's misrepresentation might have
—

—

resulted in a proper determination that she be excluded Matter

of S and B C . id.
—

—

—

(6) Pursuant to the command of Woodby v. INS, supra, only after the Service has shown
that facts possibly justifying denial of a visa or admission to the United States would
have likely been uncovered and considered but for the misrepresentation is the alien
required under Matter of S and B C , supra, to establish that no proper determination of inadmissibility could have been made.
(9) Where the true facts concealed by the respondent, that she was a college graduate
with a sister residing in the United States, would not in and of themselves have barred
her admission as a nonimmigrant and where the record contains no additional facts
which would have influenced the consul one way or another in determining whether
she was inadmissible as a mala fide nonimmigrant or on section 212(a)(19) grounds,
the Service failed to establish a factual foundation for a finding that further inquiry
—

—

—

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Interim Decision 112732
might well have resulted in a proper determination of inadmissibility and the burden
accordingly Miter shifted to the respondent to show that no such finding could have
properly been made. Woodby v. INS, supra, compels conclusion that the Service's case
is insufficient to sustain a determination of deportability for failure to establish the
materiality of the respondent's misrepresentations
CHARGES:

Orden Act of 1952—Sec. 241(a)(1), I&N Act [8 U.S.C. 1251(a)(1))]—Secured visa by
fraud or misrepresentation of material fact
Sec. 241(a)(1), I&N Act [8 U.S.C. 1251(a)(1))]—Immigrant
without valid visa

BEFORE THE BOARD
(October 5, 1979)
ON BEHALF OF SERVICE

ON BEHALF OF RESPONDENT:

Patrick T. McDermott
Lyn I. Goldberg, Esquire
Trial Attorney
3067 Fifth Avenue
San Diego, California 92103
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated June 16, 1977, an immigration judge found the
respondent deportable as charged pursuant to section 241(a)(1) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as an alien
excludable at entry under section 212(a)(19) of the Act, 8 U.S.C.
1182(a)(19), for having procured a visa by willfully misrepresenting
material facts.' He further found that relief under section 241(f) of the
Act, 8 U.S.C. 1261M, is not available to the respondent. The immigration judge certified his decision to the Board for review pursuant to 8
C.F.R. 3.1(c). The proceedings will be terminated.
The respondent is a 41-year-old female alien, a native and citizen of
the Philippines. The record reflects that she entered the United States
in December of 1967 in possession of a C-1 nonimmigrant transit visa.
She remained longer than authorized. At a deportation hearing held in
March of 1S70, an immigration judge found the respondent deportable

as an overstay pursuant to section 241(a)(2) of the Act, 8 U.S.C.
' The immigration judge erroneously concluded that a charge of deportability predicated upon excludability at entry under section 212(a)(20) of the Act, 8 U.S.C.
1182(a)(20), for lack of a valid immigrant visa, could not be sustained where brought
simultaneously with another charge of excludability under section 212(a) which is based
upon the same conduct. See Cacho v. INS, 547 F.2d 1057 (9 Cir. 1976); Persaud v. INS, 537
F.2d 776 (3 Cir. 1976); Matter of Da Lomba, 16 I&N Dec. 616 (BIA 1978); Matter of
Gonna/ex, 16 I&N Dec. 564 (BIA 1978), °I'd sub nom. Gonzalez-Morquecho v. INS, 605
F.2d 562 (9 Cir. 1979); Matter of Martinez-Lopez, 10 I&N Dec. 409, 424 (BIA 19132; A.G.
1964).

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Interim Decision #2732
1251(a)(2), but granted her 30 days within which to voluntarily depart
the United States in lieu of deportation. She apparently left this
country within the allotted time.
In January of 1972, the respondent was married in the Philippines to
a United States citizen who is a native and resident of the Philippines.
She was thereafter issued an immigrant visa predicated upon her
status as an immediate relative of a United States citizen and she
entered the United States with that visa in late December 1972.
-

At these deportation proceedings, conducted in May of 1977, the
Service introduced into evidence sworn statements of the respondent,
executed on November 24, 1969, and on August 23, 1976, in which she
admitted that she had misrepresented certain facts to United States
consular officials on two separate occasions. According to her affidavits, the respondent informed the consul at the time she applied for
her nonimmigrant transit visa in 1967 that she had no close family ties
in the United States and that she had not yet completed her college
education when she in fact had a sister residing in this country and had
already received her college degree. When she applied for her immigrant visa in 1972, she deliberately concealed her prior residence in
this country from 1967 to 1970. The respondent testified at the hearing
to the truth and accuracy of those statements (Tr. pp. 10, 12). The
Government thereupon rested its case as to deportability (Tr. p. 13).
The immigration judge found that the respondent's misrepresentations in applying for her immigrant visa in 19'72 were not material and
therefore could not serve as the basis of a finding of deportability.
However, he found that the respondent was excludable under section
212(a)(19) at the time of her entry as an immigrant in 1972, and is
thereby deportable under section 241(a)(1) of the Act, on the basis of

her 1967 statements to the consul? The question before us, then, is
whether the Government has established by the requisite standard of
proof that the respondent's statements in connection with her 1967
nonimmigrant visa application, admittedly made with knowledge of
their falsity, concerned facts material to her eligibility for a visa. We
conclude that the Government has not sustained its burden.
The materiality requirement of section 212(a)(19) is satisfied 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. Matter of S and B--C , 9 I&N
—

—

2 An alien who falls within the purview of the first clause of section 212(a)(19) as one
who "... seeks to procure, or has sought to procure, or has procured a visa or other
documentation ... by fraud, or by willfully misrepresenting a material fact..." is
permanently ineligible for admission to the United States. See Matter of Healy and
Goode/al, Interim Decision 2716 (BIA 1979).

127

Interim Decision #2732
Dec. 436 (BIA 1960; A.G. 1961). The circumstances existing at the time
the alien appeared before the consul are controlling.
Mlle important factor is how the case would have appeared to the consul had he been
in possession of all the facts at the time application was made. If having been in

possession of all the facts, it would have appeared probable to the consul that
respondent was in admissible, then concealment of those facts was a material matter.
Matter of Avalos Zavala, 11 I&N Dec. 196, 199 (BIA 1965).

Had the respondent in the instant case been truthful when she
applied for her nonimmigrant transit visa in 1967, the consul would
have known that she was then a college graduate who had a sister
residing in the United States. The likelihood that knowledge of those
facts would have led to a finding that the respondent was inadmissible
as a mala fide nonimmigrant or on section 212(a)(19) grounds' is,
however, undeterminable from the record before us. The record contains no reference whatever to other pertinent factors, such as the
presence or absence of family and community ties in the Philippines at
the time of application, which would have influenced the consul's
determination with respect to the respondent's bona fides as a nonimmigrant. See Vol 9, Foreign Affairs Manual, Part II, 22 C.F.R. 4125,
note 2. No attempt was made by the Service to develop the relevant
facts in existence when the respondent presented herself before the

consul and, absent any such development, we are unable to evaluate
the effect of her misrepresentations upon the consul's decision to issue
her nonimmigrant visa.
We obviously do not condone the respondent's repeated, deliberate
deceptions in her dealings with officials of the United States Government. However, the burden is on the Government in deportation
proceedings to prove each element of the ground of deportability

charged by clear, unequivocal, and convincing evidence. Wooclby v.
3 0f some interest in this regard, although not binding upon the Service, are the
pertinent substantive notes of the Department of State Foreign Affairs Manual which
serve as official Department guidelines to United States consular officers abroad In
determining whether a visa applicant is properly found inadmissible and, hence, ineligible for a visa under section 212(a)(19). The notes provide in part:
In order to sustain a finding of materiality, it must be shown that the information
foreclosed by the misrepresentation was of basic significance to the alien's eligibility for a visa. The information concealed by the misrepresentation must, when
balanced against all the other information of record, have been controlling or
crucial to a final decision of the alien's eligibility to receive a visa. EXAMPLE: If an
alien were trying to establish his ties abroad by submitting false evidence of
particular employment in an effort to establish his bona fides as a nonimmigrant
and it appeared. that the alien had other ties meriting consideration, the misrepresentation would not be considered to be material unless the consular officer
could state categorically that had he known the true state of affairs, no visa could
properly have been issued. Vol. 9, Affairs Manual, Part H, 22 C.F.R. 41.91(a)(19),
note 6.33.

128

Interim Decision #2732
INS, 385 U.S. 276 (1966). In light of our conclusion that the Service has
failed to establish the materiality of the respondent's misrepresentations, a showing crucial to a finding of excludability under both section
212(a)(19) and section 212(a)(20) in this case, we have no alternative but
to terminate the proceedings. We accordingly need not reach the issue of
the respondent's eligibility for relief under section 241(f) of the Act.
ORDER: The deportation proceedings are terminated.

BEFORE THE BOARD
(July 8, 1980)
ON BEHALF OF RESPONDENT:

Lyn I. Goldberg, Esquire
Central Federal Tower
225 Broadway, Suite 1313
San Diego, California 92101

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This case is before us on the motion of the Immigration and Naturalization Service to reconsider our decision dated October 5, 1979, in
which we directed termination of the deportation proceedings. The
motion for reconsideration will be granted. Upon reconsideration, the
deportation proceedings will again be ordered terminated.
In a decision dated June 16, 1977, an immigration judge found the
respondent deportable as charged under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as an alien excludable at entry under section 212(a)(19) of the Act, 8 U.S.C. 1182(a)(19),
for having procured a nonimmigrant visa in 1967 by willfully misrepresenting material facts.' The misrepresentations consisted of the
respondent's statements to the consul that she had no close family ties
in the United States and that she had not yet completed her college
education when she in fact had a sister residing in this country and had
already received her college degree.
On review, we determined that the Service had failed to establish
that the misrepresentations at issue, admittedly made with knowledge
of their falsity, were material to the respondent's eligibility for a
' The immigration judge concluded that a subsequent misrepresentation of the respondent, willfully made in connection with an application for an immigrant visa in
1972, was not material and therefore could not serve as a basis of deportability. The
Service challenges that finding, as well as our October 1979 decision to terminate
proceedings, in its present motion for reconsideration. The Service's objection to the
foregoing portion of the immigration judge's decision, a proper subject for appeal or
cross appeal, is not timely made.
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Interim Decision #2732
nonimmigrant visa and we accordingly terminated the deportation
proceedings for failure on the part of the Service to sustain its burden
of proof under Woocltry v. /NS, 385 U.S. 276 (1966). In its motion for
reconsideration, the Service contends that our decision in the case is
inconsistent with the Attorney General's holding in Matter of S— and
B—C—, 9 I&N Dee. 436 (A.G. 1961), and is therefore erroneous as a
matter of law. We disagree.
In Matter of 8— and B—C—, supra, the Attorney General held that
a misrepresentation made in connection with an application for a visa
or other documentation, or with entry into the United States, is
material for purposes of section 212(a)(19) 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. The Attorney General stated that the application of the foregoing test will turn on the answers to three questions, which the Service
set forth as follows in its motion:
First, does the record establish that the alien Is excludable on the true facts? If it d000,

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? ... Third, if a relevant line of
inquiry has been cut oil, 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 (Emphasis supplied.)

The Service maintains that our October 1979 decision impermissibly
placed the burden upon the Service to establish that further inquiry
would have resulted in the denial of the respondent's application for a
nonimmigrant visa. It submits that the Attorney General assigned the
burden of persuasion and proof on that issue to the alien, not to the
Service.
The Service inaccurately describes our holding in the case. We
observed that had the respondent been truthful when she applied for

her nonimmigrant visa, the consul would have known that she was
then a college graduate who had a sister residing in the United States,
facts which the Service concedes would not in and of themselves have
barred the respondent's admission as a nonimmigrant. Noting the
absence in the record of reference to any other pertinent facts bearing
upon the respondent's bona fides as a nonimmigrant,' we concluded
The record and the Service's moving papers refer to a previous, unsuccessful attempt
by the respondent to obtain a nonimmigrant visa. We do not believe it appropriate to
consider that factor in light of a stipulation entered into by counsel and the Service at
the hearing that any reference to the earlier application be disregarded, an undertaking
which, incidentally, foreclosed development of the circumstances surrounding the denial
of that application.
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Interim Decision #2732
that the likelihood that knowledge of the true facts would have led to a
finding that the respondent was excludable as a male, fide nonimmigrant or on section 212(a)(19) grounds was simply not determinable
from the record before us. We stated:
... No attempt was made by the Service to develop the relevant facts in existence when
the respondent presented herself before the consul and, absent any such development,
we are unable to evaluate the effect of her misrepresentations upon the consul's
decision to issue her nonimmigrant visa.

The import of our decision is that the Service erred in failing to show
that further inquiry might have resulted in a proper denial of the
respondent's visa application, not in failing to establish that such
inquiry would have resulted in the denial of the application. Thus
characterized, and for reasons discussed below, we are satisfied that
our decision is correct.
The Supreme Court in Woodby v. INS, supra, concluded that ". .. it is
incumbent upon the Government in [deportation] proceedings to establish the facts supporting deportability by clear, unequivocal, and convincing evidence." 386 U.S. at 277. Under Woodby, the ultimate burden
of proving all the facts necessary to sustain a determination of deportability must remain with the Service. The element of materiality
is a fact crucial to a finding of deportability bottomed on a section
212(a)(19) charge.
In order to sustain its Woodby-imposed burden in the case of an
alien who is not excludable on the true facts, the Service must show
that the alien's misrepresentation is material within the meaning of
the definition set out by the Attorney General in Matter of S — and
B— C--, supra, to wit, that the misrepresentation tended to shut off a
line of inquiry relevant to the alien's eligibility which might well have
resulted in a proper determination that he be excluded. Only after the
Service has shown that facts possibly justifying denial of a visa or
admission to the United States would have likely been uncovered and
considered but for the misrepresentation is the alien required under
S— and B—C— to establish that no proper determination of inadmissibility could have been made by the consul or the inspecting immigration officer.
In the instant case, where further inquiry might have led and
whether it might have resulted in the proper denial of the visa is
purely speculative. Unlike suspected grounds for exclusion which rest
criminal convictions, membership in proscribed
upon solid facts,
political organizations, etc., excludability as a male fide nonimmigrant
is by nature a subjective determination, but one nonetheless susceptible of review. The present record contains no cognizable facts
whatever, apart from the facts actually misrepresented, which would
have influenced the consul one way or another in deciding whether to
131

Interim Decision #2732
issue the visa and therefore provides no basis for evaluating whether a
proper determination to deny the visa might have been made'
The Service has failed to establish a factual foundation for a finding
that further inquiry foreclosed by the respondent's misrepresentations might well have resulted in a proper determination that she be
excluded. The burden accordingly never shifted to the respondent to
establish that a proper finding of inadmissibility could not have been
made. Under the circumstances, Woodby requires us to find the Service's case insufficient to sustain a determination of deportability. The
proceedings. will be terminated.
ORDER: The motion for reconsideration is granted.
FURTHER ORDER: The deportation proceedings are terminated.

' We recently had occasion to note in a different context that given the serious
consequences of a finding of excludability under the first clause of section 212(a)(19),
dealing with the procurement of documents, the factual basia of such finding ought to be

given close scrutiny, particularly where the alleged fraud or misrepresentation involves
a disputed issue as to the alien's subjective intent. Matter of Healy and Goodchild,
Interim Decision 2716 (BIA 1979).

132


MATTER or M—P-

In DEPORTATION Proceedings
A-2467230

Decided by Board June 27, 1962
Creation of record of lawful entry– Section 249, 1992 act—Record of lawful ad-

mission for permanent residence still "available" notwithstanding subsequent
deportability.
Requirement in section 249 of the 1952 Act that no record of lawful admission
is otherwise available" precludes creation of record of lawful admission
for alien lawfully admitted for permanent residence in 1925 who last entered in 1957 and who became deportable in 1959. (Matter or it—, 8-598,
distinguished.)
CHARGE:
Order : Act of 1952—Section 241(a) (4) [8 U.S.C. 1251 (a) (4)3—Convicted
of crime involving moral turpitude within 5 years after entry and
sentenced for a year or more

BEFORE THE BOARD

DISCUSSION: The respondent has been found deportable as an
alien convicted of a crime involving moral turpitude committed
within 5 years after entry and thereafter sentenced to confinement
for a year or more (8 U.S.C. 1251(a) (4)). An appeal from the special inquiry officer's order of deportation entered on June 1, 1959, was
dismissed by this Board on October 23, 1959. The respondent now
moves a reopening of the proceedings to receive an application for
adjustment of status under section 249 of the Immigration and Nationality Act (8 U.S.C. 1259) and to petition for waivers of his
ineligibility under section 5 of the Act of September 11, 1957 (Public
Law 85-316; 8 U.S.C. 1182b). •A memorandum in opposition to the
motion has been submitted by the examining officer.
The respondent, a native and national of Mexico, male, married,
60 years of age, last entered the United States through the port of
San 1761dro, California, on or about•September 25, 1957, following a

one-day visit to Mexico. He was convicted on March 26, 1959, in the
for assault with a deadly

Superior Court of Los Angeles, California,

weapon (section 245, California Penal Code) committed on Febru-

ary 3, 1959. He was sentenced on April 22, 1959, to confinement

747

in

the California State Prison for a period not to exceed 10 years. It
is alleged that the respondent will be released from the State Penitentiary on or about May 7, 1962.
The respondent is married to a lawful resident alien and is the
father of one resident alien and 6 citizen children. He has resided
in the United States since his lawful admission for permanent residence at El Paso, Texas, on April 1, 1925. It is alleged in respondent's motion that his wife and one minor child need his support. The
family income is derived from a small bakery owned by the respondent. It is also alleged that the respondent's wife cannot operate the
bakery at a profit without the services of the respondent.
The respondent rests his claim to eligibility for adjustment of his
status under section 249, supra, on a decision by the Assistant Corn:--vissioner of the Immigration and Naturalization Service, Matter of
R—, 8 598 (March 9, 1960). The alien in Matter of R—, supra,
originally entered the United States as a nonpreference quota immigrant on May 28, 1926. He visited in Canada during August of
1954 and reentered at St. Albans, Vermont on or about August 4,
1954. He falsely represented himself to be a citizen of the United
States on the occasion of his reentry.
Section 249, supra, provides, inter alia, that the Attorney General,
in his discretion, under certain conditions, may create a "record of
lawful admission for permanent residence" for aliens who enter the
United States prior to June 28, 1940, "if no such recora is otherwise
available." (Emphasis supplied.) The Assistant Commissioner held
in Matter of R—, supra, that no record of lawful admission was
available within the meaning of section 249 because the alien's illegal
reentry on or about August 4, 1954, vitiates the prior record of lawful admission. The alien R— was permitted to adjust his immigration status under section 249 notwithgtanding the fact that his original entry was for lawful permanent residence.
The examining officer is of the opinion that Matter of R—, supra,
is not controlling in this case because the respondent's last entry
on or about September 25, 1957, is a lawful entry within the meaning
of 8 CFR 211.1(b) (1).' The examining officer reasons that the respondent's "status has not changed" within the meaning of section
101(a) (90) of the Immigration and Nationality Act 2 (8 U.S.C.
1101(a) (20)) and therefore, he cannot qualify under section 249
I This regulation provides in substance that a resident alien may reenter the
United States after a temporary absence abroad not exceeding one year upon

presentation of his Alien Registration Recepit Card (Form 1 7151).
2 Section 101(a) (20), Immigration and Nationality Act, provides:
The term "lawfully admitted for permanent residence" means the status of
having been lawfully accorded the privilege of residing permanently in the

United States as an Immigrant in accordance with the immigration laws, such

status not having changed.
748

is
available.
The respondent, on the other hand, maintains that the order of
deportation now outstanding vitiates his prior entries for "lawful
permanent residence" and, therefore, "no such record is otherwise
available" within the meaning of sections 249 and 101(a) (20), supra.
Ho reasons that his "status having changed" to that of an unlawful
resident alien, no record of lawful entry would be available as of
the date of his application for relief under section 249.
The phrase "such status not having changed" as used in section 101
(a) (20) of the Immigration and Nationality Act contemplates primarily aliens who have changed their status from immigrants to
noniramigrants. Matter of S—, 6 392 (Atty. Gen., 1955). The
status of an alien whose original and subsequent entries have been
for "lawful permanent residence" 3 does not change when he becomes
excludable or deportable. Such an interpretation would render
ineffective any waivers of inadmissibility now provided by the immigration laws. Accordingly, a record of respondent's admission fur
lawful permanent residence is available within the meaning of section
249, supra. The motion will be denied.
We are unaware of any provision of the immigration laws which
would permit the respondent to adjust his immigration status while
he remains in the United States. His status could be adjusted by the
advance grant of permission to reapply for admission to the United
States after deportation (8 U.S.C. 1182(a) (17) ) and following his
departure the respondent could seek a waiver of the criminal ground
of exclusion under section 212(g) of the Immigration and Nationality Act (8 U.S.C. 1182(g)) when applying for a visa with which to
return to his family in the United States (8 CFR 212.2 and 212.7).
An appropriate order will be entered.
ORDER: It is directed that the motion be and the same is hereby
denied.
because a record of his lawful admission for permanent residence

-

3

This conclusion is in full accord with our decision in Matter of

/If—,

5-642,

where we held that an alien who had been admitted for permanent residence
was considered to have had hie status changed by a subsequent entry without
inspection.

749


Interim Decision #2479

MATTER OF PICHARDO AND BRUGMAN
In Visa Petition Proceedings

A-20581862
A-20581864
Decided by Board March 5, 1976
Since the law a' the Dominican Republic on mutual consent divorce obtained by foreigners
does not state that both parties to such a divorce must be foreigners in order to render
applicable the exception of the waiting period for pronouncement, in the absence of any
evidence to the contrary, it is concluded that a mutual consent divorce obtained in the
Dominican Republic in which one of the parties is a foreigner may be pronounced at any
time. Hence, the mutual consent divorce obtained in the Dominican Republic on February 26, 1974, by the United States citizen peititioner from his previous spouse, a
citizen of the Dominican Republic residing in New York, which was pronounced on the
same day the judgment was rendered, is valid in the Dominican Republic and is entitled
to recognition under the law of New York where petitioner subsequently married the
beneficiary.
ON BEHALF CF PETITIONER:

ON BEHALF OF SERVICE:

Robert Greenstone, Esquire
225 Broadway
New York, New York 10007

Olga Springer
Appellate Trial Attorney

The United States citizen petitioner applied for immediate relative
status for the beneficiaries as his spouse and stepson under section
201(b) of the Immigration and Nationality Act. In a decision dated
October 23, 1974, the district director denied the petitions and subsequently- his decision was certified to us for review. The decision will be
reversed and the record remanded to the district director.
The petitions were denied on the ground that the petitioner's marriage to the female beneficiary was invalid because of the existence of a
prior undissolved marriage entered into by the petitioner. The petitioner, however, claims that he had obtained a divorce by mutual consent from his previous spouse, a citizen of the Dominican Republic
residing in New York, before marrying the beneficiary. In support of
this claim, he has submitted a copy of a divorce decree dated February
26, 1974 from the Court of the First Instance of the Judicial District of
San Cristobal, the Dominican Republic, and a copy of the Pronouncement of the Divorce, also dated February 26, 1974.
606

Interim Decision #2479
The district director, however, found that the petitioner had not fully
complied with the pronouncement requirement as set out in the Dominican law on divorce I in that the pronouncement was made the same day
the divorce was decreed. As a consequence, he concluded that the
divorce was invalid in the Dominican Republic. He relied on our opinion
in Matter of Darwish, 14 I. & N. Dec. 307 (BIA 1973) in denying the
petition.
In Matter of Tagle, a recent decision, 15 I. & N. Dec. 595 (BIA
1976), we held that under the law of the Dominican Republic on divorce
as amended in 1971, a mutual consent divorce obtained by foreigners
may be pronounced at any time. The eight-business-day waiting period
required in mutual consent divorces obtained by Dominicans is inapplicable in such a case.
The Dominican statute does not state that both parties to such a
divorce must be foreigners for the exception to the waiting period to
apply. In the absence of any evidence to the contrary, we conclude that
a mutual consent divorce in which one of the parties is a foreigner may
be pronounced at any time. Inasmuch as.the petitioner, a United States
citizen, was a party to the divorce proceedings, the divorce was
properly pronounced on the day the judgment was issued, and thus. is
valid in the Dominican Republic.
The petitioner's divorce is entitled to recognition under New York
law. See Rosenstiet v. Rosenstiel, 262 N.Y.S.2d 186, 209 N.E.2d 709
(1965), cert. denied 384 U.S. 971 (1966). See also Matter of Assan, 15 I.
& N. Dee. 211 (BIA 1975).
The district director's decision with respect to the Dominican law is
incorrect. His decision will be reversed. The record will be remanded,
however, in order that the district director may determine if the marriage between the petitioner and the beneficiary is bona Me. See Matter
of Phillis, 15 I. & N. Dec. 385 (BIA 1975).
ORDER: The decision of the district director is reversed; the record
is remanded to the district director for further proceedings consistent
with the above opinion.

1 Civil Code of the Dominican Republic LaW 1306-bis (1937) as amended by Law 142
(1971).

607


Interim Decision #2280

MATTER OF FONG
In Deportation Proceedings
A-14214045
Decided by Board April 23, 1974
Notwithstanding the contrary position of the United States Court of Appeals for
the Ninth Circuit (within jurisdiction of which instant case arose) the immigration judge is bound by the decision of the Attorney General in Matter of
Lee,13 I. & N. Dec.214 (1969), and must find respondent, an alien who entered
the United States in 1955 without inspection upon a false claim to citizenship,
ineligible for the benefits of section 241(f) of the Immigration and Nationality
Act, as amended, and must accept and adjudicate her application for suspension of deportation as a deportable alien.
CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Entered the
United States without inspection.
ON BEHALF OF SERVICE:

ON BIXIALF Or RESPONDENT:

Robert S. Bixby, Esquire
30 Hotaling Place
San Francisco, California 94111

Bernard J. Hornbach
Trial Attorney

This is an appeal by the Service from an order of an immigration
judge adjourning indefinitely the hearing in respondent's case. We
sustain the appeal and remand to the immigration judge for
further hearing.
Respondent is an alien widow, a native and citizen of China, who
was admitted to the United States on or about January 26, 1955 as

a citizen, without inspection as an alien, on her false claim to
United States citizenship. She has three minor children who are
United States citizens. An Order to Show Cause in deportation
proceedings was issued on January 28, 1974, charging that respondent is deportable under section 241(a)(2) of the Immigration
and Nationality Act as an alien who had entered without inspection.
At a hearing before an immigration judge on February 15, 1974,
at which respondent was absent but was represented by present
counsel, the latter admitted the truth of the factual allegations of
the order to show cause and conceded deportability. Counsel
670

Interim Decision #2280
applied for suspension of respondent's deportation under section
244(a) of the Act, on the claim that her deportation would result in
extreme hardship to her three citizen children. The immigration
judge orally continued the hearing indefinitely, without receiving
or adjudicating the suspension application. In the formal written
order before us on appeal, the immigration judge concluded that
he was bound by the decisions of the United States Court of
Appeals for the Ninth Circuit' to hold that termination of the
proceedings is required under section 241(f) of the Act and that as
a nondeportable alien the respondent is ineligible for relief under
section 244(a)(1). The immigration judge pointed out that, pending
ultimate definitive decision on the section 241(f) issue, 250 cases
involving that issue have been held in abeyance, encompassing
both aliens who are and are not otherwise eligible for suspension
of deportation. In keeping with that policy, the immigration judge
ordered that the hearing in this case be adjourned indefinitely.
The first question presented is whether we have authority to
review such an order of an immigration judge, As to this, the
immigration judge expressed some doubt. (Opinion, p. 3, n. 4). We
are troubled by no such doubt. Under 8 CFR 3.1(b)(2) we have
power Lu review "[d]eciiinis of [immigration judges] in deportation
cases, as provided in Part 242 of this chapter ..." 8 CFR 24221,

governing appeals, places no limitation on the nature of the
decisions we may review_ Tinder R CFR RAM), we are empowered

to "exercise such discretion and authority conferred upon the
Attorney General by law as is appropriate and necessary for the
disposition of the case." The order entered by the immigration
judge in this case, though interlocutory in, form, is far-reaching in
effect and raises an important issue in the administration of the
immigration laws. The question is presented in a setting which
gives it sufficient finality to warrant decision by us at this time.

The immigration judge also questions whether, in view of his
physical location within the jurisdiction of the. Ninth Circuit Court
of Appeals, he is not bound to follow the decision of that court in
Lee Fook Chuey v. INS, supra, with respect to section 241(1),
rather than that of this Board in Matter of Perez-Echeuerria,
Interim Decision No. 2200 (BIA 1973). Under 8 CFR 3.1(g), decisions of the Board, unless modified or overruled by us or the
Attorney General, "shall be binding on all officers and employees
of the Service in the administration of the act." Immigration
judges, though endowed with the power to exercise their own
independent judgment as quasi-judicial officers, are still "officers
and employees of the Service." If they were individually free to
I See, e.g., Lee Fook Chuey v. INS, 439 F.2d 244 (9 Cu. 1971), Perez-Echeverria
v. INS, Cir. No. '73-2186, February 27, 1974).

671

Interim Decision #2280
disregard the precedents established by our decisions, the need for
nationwide uniformity underlying our delegated power of review
under 8 CFR 3.1(b) would be frustrated and the provisions of 8
CFR 3.1(g) would be rendered nugatory.
Moreover, we as well as the immigration judges are bound by
the decisions of the Attorney General. In Matter of Lee, 13 I. & N.
Dec. 214 (A.G. 1969), the Attorney General overruled our prior

holding with respect to section 241(f). He has not accepted as
definitive the later decision in Lee Fook Chuey v. INS, supra.
Therefore, neither we nor the immigration judges may accept it as
definitive. In Reid v. INS, 492 F.2d 251 (CA. 2, 1974), the Attorney
General's construction of section 241(1) was recenty endorsed. This
conflict between Courts of Appeals in different circuits should
pave the way for ultimate definitive decision in the Supreme

Court. Even if certiorari petitions are applied for and granted,
however, it will be at least a year before a Supreme Court decision
on the merits can normally be expected. The question confronting
us is whether, in the interim, it is better to proceed administratively in cases such as respondent's or, as the immigration judge
has done, hold them in abeyance.
In essence, the question is one of sound administration rather
than law. The competing interests involved are the alien's desire,
on the one hand, to proceed as speedily as may be with his
application for suspension; and the Government's interest, on the
other hand, in not expending valuable time and resources in
processing suspension cases which could abort on a definitive
ruling in the Supreme Court in the not-too-distant future. On
balance, we conclude that it is better administration of the law to
proceed with the suspension applications.
Since the immigration judge is bound by the Attorney General's
decision in Matter of Lee, supra, he should have no difficulty in
finding the alien deportable as a prerequisite to suspension eligibility. The suspension application, once processed and granted,
would be referred to Congress. If, ultimately, the Attorney General's reading of section 241(f) is sustained by the Supreme Court,
the Government will have lost nothing and the alien will have
gained valuable time on his road to permanent residence. And
even if the ultimate decision on section 241(1) requires termination
of the deportation proceedings, the alien will have lost nothing, for
he will not have been prejudiced by any unnecessary delay; and all
the Government will have lost will be the resources invested in the
aborted suspension proceedings. The Service is evidently willing to
take its chances on such an investment, or else it would not have
appealed fawn the immigration judge's decision in this ease.
Insofar as concerns the other cases referred to by the immigra672

Interim Decision #2280
tion judge, in which the aliens qualify for no form of discretionary
relief from deportation except voluntary departure or possibly
termination under section 241(f), we agree that good administration requires that such cases be held in abeyance pending ultimate
resolution of the section 241(0 issue in the Supreme Court.
We disregard as obiter dictum the immigration judge's statement (Opinion, p. 16) that, in cases where aliens otherwise eligible
for suspension are in a position to adjust their status by going to
Canada, he would deny such suspension applications as a matter
of discretion. We are satisfied that, when the cases are presented,
the immigration judge will adjudicate each case on its own merits,
without in advance setting up arbitrary generalized standards for
the exercise of his discretion.
ORDER: The appeal is sustained.
Further order: The hearing is reopened and the record is
remanded for further proceedings consistent with the foregoing
opinion.

673


Interim Decision #2712

MATTER OF HERNANDEZ

In Visa Petition Proceedings
A-21134950
Decided by Board June 21, 1979
(1)Under Article 86 of the 1965 Constitution of Guatemala, all children are equal before
the law and have identical rights.
(2)Article 209 of the Civil Code of Guatemala provides that children born out of wedlock
have the same rights as those born in wedlock.
(3)Article 211 of the Civil Code of Guatemala providca that acknowledgment of children
may be effected in the birth records by virtue of a personal appearance by a parent
before the official of the Civil Registry.
(4) When the country where the beneficiary was born and resides eliminates all legal
distinctions between legitimate and illegitimate children, all natural children are
deemed to be the legitimate offspring of their natural father from the time that
country's laws are cbanged.Lauv.Kiky, 563 F.2d 543 (2 Cir. 1977); Matter of Sanchez,
16 MN Dec. 611 (BIA 1979); Matter of Wong, 16 1&N Dec 646 (BIA 1979).
-

ON BEHALF OF

BY:

PErrricninte Carlos B. Fernandez, Esquire
700 S.W. 22 Avenue
Miami, Florida 33135

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb,

Board Members

On January 8, 1979, the Acting District Director denied the visa
petition filed by the petitioner on behalf of the beneficiary as his
daughter under the provisions of section 203(a)(2) of the Immigration
and Nationality Act, 8 U.S.C. 1153(a)(2). The petitioner appeals from
that decision. The appeal will be sustained and the visa petition
approved.
- The petitioner is a native and citizen of Guatemala who was admitted as a lawful permanent resident of the United States on July 20,
1975. The beneficiary is also a native and citizen of Guatemala who was
born out of wedlock to the petitioner and a woman named Gloria
Mazariegos Alvarez in Guatemala City, Guatemala, on January 8,
1974. According to the beneficiary's birth certificate, the petitioner
registered the beneficiary's birth with the Civil Registrar for
Guatemala City following her birth.

Interim Decision #2712
The Acting District Director denied the visa petition ruling that the
beneficiary was not entitled to preference immigration status because
she was never legitimated. The petitioner countered the Acting District Director's conclusion by stating that under Articles 209 and 211,
Fifth Chapter of the Civil Code of Guatemala, the beneficiary is
deemed to be legitimate.
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). The applicable statute is section 101(b)(1) of the Act, 8 U.S.C.
1101(b)(1), and its pertinent subsections are (A) and (C), which provide:
The term "child" means an unmarried person under twenty-one years of age who
is—
(A) a legitimate child; or
(C) a child legitimated under the law of the child's residence or domicile, or under
the law of the father's residence or domicile, whether in or outside the United
States, if such legitimation takes place before the child reaches the age of
eighteen years and the child is in the legal custody of the legitimating parent or
parents at the time of such legitimation.

The term "legitimate" as used in section 101(b)(1)(A) normally
refers to a child born in wedlock. See Matter of James, 15 MN Dec.

544 (BIA 1975); Matter of Dela Rosa, 14 I&N Dec. 728 (BIA 1974);
Matter of Kubicka, 14 I&N Dec. 303 (BIA 1972). However, when the

country where the beneficiary was born and resides eliminates all
legal distinctions between legitimate and illegitimate children, all
natural children are deemed to be the legitimate or legitimated
offspring of their natural father from the time that country's laws
are changed. See Chin Lau v. Kiley, 563 F.2d 643 (2 Cir. 1977); Matter.

of Sanchez, 16 I&N Dec. 671 (BIA 1979); Matter of Wong, 16 I&N Dec_
646 (BIA 1978). The test we have applied for preference immigration
purposes is equality of filial rights when compared with those of
children born in wedlock. Compare Matter of Sanchez, supra, with
Matter of Clahar, 16 I&N Dec. 484 (BIA 1978); Matter of Reyes,16 I&1•1
Dec. 475 (BIA 1978).
Our research of Guatemalan law leads us to conclude that under
Article 86 of the 1965 Constitution of Guatemala' presently in force,
all children are equal before the law and have identical rights. The
1965 Constitution followed the previous Guatemalan Constitutions of
19452 and 1956,3 which had specifically abolished all legal differences
between children regardless of whether or not they have been born
' Constitution of the Republic of Guatemala, ism [Pau American Union, Washington, D.C., 1966 (English Version)].

Constitution of March 13, 1945, Article 74.
' Constitution of February 6, 1956, Article 90.

8

Interim Decision #2'712
out of wedlock.
Article 209 of the Civil Code of Guatemala, adopted pursuant to
Decree-Law 106 of September 14, 1968, provides that "children born
out of wedlock have the same rights as those born in wedlock.. .."
Article 211 further provides that acknowledgment of children may be
effected in the birth records by virtue of a personal appearance by the
parent before the officials of the Civil Registry.
In view of the Guatemalan law before us and the beneficiary's birth
certificate, we conclude that the petitioner has met his burden of
proving that he is entitled to the immigration benefits sought. Matter
of Branagan, supra. The 1965 Constitution was in effect when the
beneficiary was born on January 8, 1974, in Guatemala. Her birth was
acknowledged by her petitioning father before the Civil Registrar of
Guatemala City. Therefore, the beneficiary qualifies for preference
immigration purposes as the "child" of her lawful permanent resident father as defined in section 101(b)(1) of the Act because she was
legitimate at birth under Guatemalan law. Accordingly, the appeal
will be sustained and the visa petition approved.
ORDER: The appeal is sustained, and the visa petition is
approved.
APPENDIX A

Constitution of the Republic of Guatemala, 1965.
Art. 86 [par. 2]. All children are equal before the law and have identical rights.

Civil Code of Guatemala, July 1, 1964.
Art. 209. Children born out of wedlock have the same rights as those born in
wedlock; this notwithstanding, in order that they be allowed to live in the conjugal
home, express consent of the other spouse must be granted.
Art. 211. Voluntary acknowledgment [of children] may be effected:
1) in the birth records, by virtue of personal appearance before the Official of
the Civil Registry.


Cite as 27 I&N Dec. 825 (BIA 2020)

Interim Decision #3983

Matter of Jonathan Said HERRERA-VASQUEZ, Respondent
Decided May 8, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The absence of a checked alien classification box on a Notice to Appear (Form I-862)
does not, by itself, render the notice to appear fatally deficient or otherwise preclude an
Immigration Judge from exercising jurisdiction over removal proceedings, and it is
therefore not a basis to terminate the proceedings of an alien who has been returned to
Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec.
762 (BIA 2020), followed.
FOR RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Associate Legal Advisor

Meggan G. Johnson,

BEFORE: Board Panel: MANN, Board Member; MORRIS, Temporary Board Member;
Concurring Opinion: KELLY, Board Member.
MANN, Board Member:

In a decision dated May 30, 2019, an Immigration Judge terminated these
removal proceedings on the basis that the Notice to Appear (Form I-862)
served on the respondent was defective. The Department of Homeland
Security (“DHS”) has appealed from that decision. We requested and
received supplemental briefs from the DHS and amici curiae.1 There has
been no response to our request or the DHS’s appeal from the respondent.
The appeal will be sustained, the proceedings will be reinstated, and the
record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY
According to the respondent’s Record of Deportable/Inadmissible Alien
(Form I-213), a United States Border Patrol agent encountered and arrested
him at 2:40 a.m. on April 1, 2019, in San Ysidro, California, at a location
approximately a quarter mile north of the United States border with Mexico.
The respondent was transported to the Imperial Beach Border Patrol Station
where he “admitted to be a citizen and national of Honduras without the
1

We acknowledge with appreciation the briefs submitted by the DHS and amici.

825

Cite as 27 I&N Dec. 825 (BIA 2020)

Interim Decision #3983

necessary legal documents to enter, pass through, or remain in the United
States.” He “also admitted to illegally crossing the United States/Mexico
international boundary on or about April 1, 2019, without being inspected
by an Immigration Officer at a designated Port of Entry.” The respondent
conceded that he was a member of a migrant “caravan.”
On April 3, 2019, the DHS personally served the respondent with a notice
to appear that bears the heading, “In removal proceedings under section 240
of the Immigration and Nationality Act.” On the first page of the notice to
appear, the DHS alleges that the respondent is not a citizen or national of the
United States; that he is a native and citizen of Honduras; that he arrived in
the United States at or near San Ysidro, California, on or about April 1, 2019;
that he was not then admitted or paroled after inspection by an immigration
officer; and that he is an immigrant not in possession of a valid unexpired
visa, reentry permit, border crossing card, or other valid entry document
required by the Immigration and Nationality Act.
The next section of the notice to appear states, “On the basis of the
foregoing, it is charged that you are subject to removal from the United
States” under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality
Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2018), as an alien who, at the time of
application for admission, did not possess a valid entry document. The notice
to appear contains the respondent’s signature, acknowledging that the DHS
personally served it on him. It informed him that his removal hearing would
be held on May 30, 2019, at 12:30 p.m. in the San Diego Immigration Court
and listed his address as a “Domicilio Conocido” (“Known Domicile”) in
Tijuana, Baja California, Mexico. However, the DHS did not check any of
the three alien classification boxes on the notice to appear to indicate whether
he was alleged to be (1) an arriving alien, (2) an alien present in the United
States who has not been admitted or paroled, or (3) an alien who has been
admitted to the United States but is removable for reasons stated elsewhere
on the notice to appear.
The DHS also provided the respondent with a document entitled “Migrant
Protection Protocols Initial Processing Information” (“MPP Sheet”). The
MPP Sheet, which is written in the English language and translated into
Spanish, instructed him to arrive at a specific location at the San Ysidro port
of entry at 9:00 a.m. on May 30, 2019, so that he could be transported to the
San Diego Immigration Court for his hearing. Following the service of the
notice to appear and MPP Sheet, the respondent was returned to Mexico to
await removal proceedings pursuant to section 235(b)(2)(C) of the Act,
8 U.S.C. § 1225(b)(2)(C) (2018).
The respondent did not appear at the Immigration Court on May 30, 2019.
During the hearing, the DHS requested that the Immigration Judge order the
respondent removed from the United States in absentia pursuant to section
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Interim Decision #3983

240(b)(5)(A) of the Act, 8 U.S.C. § 1229a(b)(5)(A) (2018). Instead, the
Immigration Judge terminated the proceedings.

II. ANALYSIS
A. Notice of the Hearing
In his decision, the Immigration Judge expressed a concern that the
respondent was not given proper notice of how to attend his hearing.
Subsequently, we issued Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA
2020), holding that where, as here, the DHS returns an alien to Mexico to
await a removal hearing pursuant to the Migrant Protection Protocols and
provides the alien with sufficient notice of that hearing, an Immigration
Judge should enter an in absentia order of removal if the respondent fails to
appear and is removable. The record indicates that the respondent received
sufficient notice of the hearing pursuant to Matter of J.J. Rodriguez. There
is no indication in the record that he did not understand the instructions for
appearing at the hearing or that he made any attempt to appear.
Moreover, according to the Form I-213, the respondent understood that
he would be returned to Mexico and should not attempt to enter the United
States “until he returns to the appropriate port of entry on the date of his
hearing before an immigration judge.” See Matter of Gomez-Gomez, 23 I&N
Dec. 522, 524 (BIA 2002) (stating that a Form I-213 is presumptively
trustworthy). The Immigration Judge also acknowledged that many other
aliens who were returned to Mexico under the Migrant Protection Protocols
attended their hearings that day. We conclude that termination of the
respondent’s removal proceedings on the basis that he did not receive
adequate notice of his removal hearing is foreclosed by our decision in
Matter of J.J. Rodriguez.
B. Sufficiency of the Notice To Appear
However, this case differs from Matter of J.J. Rodriguez in several
respects. First, unlike the respondent, who was alleged to have arrived in the
United States without presenting himself at a port of entry, the alien in that
case applied for admission at a designated port of arrival. Matter of J.J.
Rodriguez, 27 I&N Dec. at 762. Second, the respondent’s notice to appear
did not indicate, by a checked alien classification box, whether he was
alleged to be an arriving alien, an alien present in the United States but not
admitted or paroled, or one who has been admitted but is removable. Third,
in Matter of J.J. Rodriguez, we did not address whether the notice to appear
provided sufficient information to establish notice of the type of proceedings
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Cite as 27 I&N Dec. 825 (BIA 2020)

Interim Decision #3983

being initiated and the proper grounds for removability. In light of these
distinctions, we requested and received supplemental briefing from the DHS
and amici curiae regarding (1) whether, under the Migrant Protection
Protocols program, the DHS may return an alien to a contiguous territory
pending removal proceedings if the notice to appear does not allege that the
person is an arriving alien or entered the United States via a port of entry or
by interdiction and (2) whether the DHS has statutory authority to apply the
Migrant Protection Protocols program to aliens who did not present
themselves for inspection at a port of entry.
The notice to appear is the charging document that commences removal
proceedings under section 240 of the Act. See Inspection and Expedited
Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 449 (Jan. 3, 1997)
(Supplementary Information). Historically, the DHS has used a version of
the notice to appear that contains three possible allegations referring to the
circumstances of an alien’s arrival or presence in the United States.2
The statute and the regulations set forth the requirements for a notice to
appear, which include:
(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are conducted.
(C) The acts or conduct alleged to be in violation of law.
(D) The charges against the alien and the statutory provisions alleged to have been
violated.

Section 239(a)(1)(A)–(D) of the Act, 8 U.S.C. § 1229(a)(1)(A)–(D) (2018);
see also 8 C.F.R. § 1003.15(b)(1)–(4) (2020).
Amici argue that absent a checked box designation, a notice to appear
fails to meet the statutory and regulatory requirement to advise the
respondent of the nature of the proceedings. However, neither section
239(a)(1)(A) of the Act nor the regulation at 8 C.F.R. § 1003.15(b)(1)
explicitly requires that the DHS check one of the three alien classification
boxes on the notice to appear, so long as the required information is provided.
Had Congress wanted the DHS to place an alien on notice of the applicable
designation, it could have included such a requirement in section 239(a)(1)
2

The version of the notice to appear in this case, which was revised on August 1, 2007,
includes the following alien classification checkboxes:
◻ 1. You are an arriving alien.
◻ 2. You are an alien present in the United States who has not been admitted or
paroled.
◻ 3. You have been admitted to the United States, but are removable for the reasons
stated below.

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Interim Decision #3983

of the Act. Cf. Kucana v. Holder, 558 U.S. 233, 248 (2010) (stating that if
Congress wanted to preclude judicial review over decisions not specified as
discretionary by statute, it could have done so).
In this regard, we have previously held that an Order to Show Cause
(Form I-221) issued pursuant to the former regulations at 8 C.F.R. § 242.1
(1975) provided adequate information because it was “sufficiently explicit to
inform the alien . . . what actions were in violation of the law, and what law
he violated, so as to enable him to mount a defense.” Matter of Chery and
Hasan, 15 I&N Dec. 380, 381 (BIA 1975);3 see also Matter of Raqueno,
17 I&N Dec. 10, 12–13 (BIA 1979) (“An Order to Show Cause is designed
to inform an alien of the charges against [him] with sufficient precision to
allow [him] to properly defend [himself].” (citing Matter of Chery and
Hasan, 15 I&N Dec. 380)); Matter of Ho, 12 I&N Dec. 516, 517–18 (BIA
1967), aff’d sub nom., Ho Yeh Sze v. INS, 389 F.2d 978, 981 (2d Cir. 1968).
This standard is instructive in interpreting our current regulations at 8 C.F.R.
§ 1003.15(b)(1)–(4), whose provisions are substantively similar to the former
regulations.
Overall, our review of the respondent’s notice to appear satisfies us that
it sufficiently enabled him to mount a defense to the inadmissibility charge
against him. The notice to appear placed the respondent on notice of the
nature of the proceedings, advising him that he was being placed “[i]n
removal proceedings under section 240 of the Immigration and Nationality
Act,” as opposed to some other immigration proceeding, such as expedited
removal, or any other form of criminal, civil, or administrative proceedings.
See Nature, Black’s Law Dictionary (11th ed. 2019) (defining “nature” as
“[a] fundamental quality that distinguishes one thing from another; the
essence of something”).
Among other things, the respondent’s notice to appear described his right
to be represented, the conduct of the hearing, and the consequences of failing
to appear.4 Specifically, the notice to appear directed the respondent, “[Y]ou
3

At the time of our decision in Matter of Chery and Hasan, 15 I&N Dec. at 380–81, the
regulations at 8 C.F.R. § 242.1(b) required a statement of the nature of the proceedings, the
legal authority under which they were conducted, the factual allegations, the charges
against the alien, and the statutory provisions alleged to have been violated. See
Immigration and Naturalization Service, Department of Justice, 22 Fed. Reg. 9765, 9796
(Dec. 6, 1957).
4
The notice to appear placed the respondent on notice that he could be represented at the
hearing, and he was given a current list of attorneys and organizations that provide free
legal services and allowed a period of time to secure counsel. See section 239(a)(1)(E) of
the Act; 8 C.F.R. § 1003.15(b)(5). It also warned the respondent of the requirements that
he must “immediately provide (or have provided)” the DHS and the Immigration Court
“with a written record of an address and telephone number (if any) at which [he] may be

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Interim Decision #3983

are ordered to appear before an immigration judge . . . to show why you
should not be removed from the United States.” It set forth the factual
allegations against him, namely, that he recently arrived in the United
States, was not inspected or admitted by an immigration officer, and
lacked valid documentation to enter the country. It also stated the charge
against the respondent, specifying that he was inadmissible under section
212(a)(7)(A)(i)(I) of the Act because he did not possess valid entry
documents. We conclude that this notice to appear placed the respondent on
notice of all the information required by sections 239(a)(1)(A)–(D) of the
Act and 8 C.F.R. § 1003.15(b)(1)–(4).
We have also considered amici’s concerns regarding the potential
consequences of a notice to appear that has no checked box. For example,
amici suggest that if no box is checked, an Immigration Judge may not have
jurisdiction to adjudicate a potential application for adjustment of status,
because 8 C.F.R. § 1245.2(a)(1)(ii) (2020) generally divests Immigration
Judges from considering such an application filed by an arriving alien.
However, such a concern is speculative at this point. There is no indication
that the respondent is the beneficiary of an approved (or even pending)
immigrant visa petition.
Moreover, in requiring that a notice to appear advise the respondent of
the “nature of the proceedings against” him, neither section 239(a)(1)(A) of
the Act nor 8 C.F.R. § 1003.15(b)(1) mandates that a notice to appear set
forth an alien’s eligibility for every form of relief from removal for which he
might be eligible. See Matter of Raqueno, 17 I&N Dec. at 13 (“There is no
need, under the law or the regulations, for allegations in an Order to
Show Cause of elements [that are] unnecessary to the charge as that charge
is defined in the statute.”). Once an alien appears, it is the duty of the
Immigration Judge, not the DHS, to advise the alien of any apparent
eligibility to apply for relief from removal. 8 C.F.R. § 1240.11(a)(2) (2020).
For the reasons stated above, we conclude that the respondent’s notice to
appear was proper and met the requirements of section 239(a)(1) of the Act
and 8 C.F.R. § 1003.15(b). It contained the nature of the proceedings against
the respondent, the legal authority under which the proceedings would be
conducted, his acts or conduct alleged to be in violation of law, and the
statutory provisions that he is charged with violating. Moreover, it advised
him that he may be represented by counsel and warned him that he was
contacted” and “with a written record of any change of [his] address or telephone number,”
as well as the consequences under section 240(b)(5) of the Act of “failure to provide
address and telephone information.” Sections 239(a)(1)(F)(i)–(iii) of the Act. Finally, the
notice to appear contained the time and place at which the removal hearing would be held
and the consequences under section 240(b)(5) of “the failure, except under exceptional
circumstances, to appear.” Sections 239(a)(1)(G)(i)–(ii) of the Act.

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required to provide the DHS and the Immigration Court of his address.
The notice to appear contained the time and place at which the removal
hearing would be held and the consequences of his failure to appear. Finally,
it complied with the statutory and regulatory requirements identified in
Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019), and Matter of
Bermudez-Cota, 27 I&N Dec. 441, 447 (BIA 2018).
“It is well settled that an Immigration Judge may only ‘terminate removal
proceedings under [specific] circumstances identified in the regulations’ and
where ‘the charges of removability against a respondent have not been
sustained.’” Matter of J.J. Rodriguez, 27 I&N Dec. at 763 (quoting Matter
of S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018) (alteration in
original)). An Immigration Judge is not authorized to terminate proceedings
because a notice to appear has no alien classification box checked when the
Act and its implementing regulations do not require one. See United States
v. Garza-Sanchez, 217 F.3d 806, 810 (9th Cir. 2000) (“We may not read into
[a] regulation a requirement that it does not impose by its precise terms.”).
Accordingly, we conclude that the record does not support the Immigration
Judge’s sua sponte termination of the proceedings on the basis that the notice
to appear did not sufficiently put the respondent on notice of the nature of
the proceedings against him.5
C. Burden of Proof
The Immigration Judge also terminated proceedings upon his finding that
the charge of removability did not sufficiently place the respondent on notice
of the burden of proof.6 We disagree. Sections 240(c)(2) and (3) of the Act
5

As we have recently held, the rules regarding the initiation of proceedings in 8 C.F.R.
§ 1003.14 (2020) and related regulations are “claims-processing rules,” which do not
implicate the subject matter jurisdiction of the Immigration Court, but which may be
challenged in a timely manner. Matter of Rosales Vargas and Rosales Rosales, 27 I&N
Dec. 745, 751–53 (BIA 2020). Since the respondent did not appear at his hearing, he did
not challenge any deficiencies in the notice to appear. Accordingly, there is no claim of
prejudice to the respondent, so termination is inappropriate for this reason as well. See id.
at 753–54. Even if the respondent had challenged any deficiencies in the notice to
appear, jurisdiction over the case was established because the notice to appear satisfies
the regulatory requirements of 8 C.F.R. § 1003.15. See Karingithi v. Whitaker, 913 F.3d
at 1160 (holding that a notice to appear that met the regulatory requirements vested
jurisdiction in the Immigration Judge).
6
The Immigration Judge questioned the fact that the notice to appear alleged both that
the respondent was not admitted or paroled after inspection by an immigration officer and
that he was an immigrant not in possession of valid documentation. However, the DHS
charged the respondent with having no valid entry documents under section 212(a)(7) of
the Act, but not under section 212(a)(6). No argument has been made that the DHS could

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set forth the applicable burdens of proof on each party depending on whether
the respondent is an applicant for admission or was previously admitted but
is subject to removal.
In the case of an applicant for admission, the alien is charged as
inadmissible under section 212(a) of the Act. The alien bears the burden of
establishing either under section 240(c)(2)(A) that he is “clearly and beyond
doubt entitled to be admitted” or under section 240(c)(2)(B) “by clear and
convincing evidence, that [he] is lawfully present in the United States
pursuant to a prior admission.” In the case of an alien who has been admitted
to the United States, the charge will fall under section 237(a) of the Act,
and the DHS will bear the burden of establishing “by clear and convincing
evidence that . . . the alien is deportable.” Section 240(c)(3)(A) of the Act.
The required contents of the respondent’s notice to appear, namely, the
allegations and the charge, make clear that he is charged with being
inadmissible under section 212(a) of the Act. As an applicant for admission,
therefore, he bears the burden of proof as a matter of law.7 Section 240(c)(2)
of the Act.
not, in its discretion, charge an alien with either or both of these violations of the Act,
which are not inconsistent or mutually exclusive. Cf. Matter of E-R-M & L-R-M-, 25 I&N
Dec. 520, 523 (BIA 2011) (holding that “the DHS has discretion to put aliens in section
240 removal proceedings even though they may also be subject to expedited removal under
section 235(b)(1)(A)(i) of the Act” because “the broad discretion given to the Executive
Branch regarding charging decisions in the criminal context . . . also appl[ies] to charging
decisions by the Executive Branch, that is, the DHS, in the immigration context”).
7
Regarding the checkboxes on the notice to appear, both the first box (arriving alien) and
the second box (alien present in the United States who has not been admitted or paroled)
apply to applicants for admission. In either case, the charge of removability would fall
under section 212(a) of the Act and the alien would bear the burden of proof under section
240(c)(2).
Amici argue that there is a significant difference under the regulations regarding the
burden of proof between an arriving alien and an alien present without being admitted. As
applied to the facts of this case, we disagree. Both categories are indisputably applicants
for admission. As the DHS argues, the checkboxes, at most, subdivide applicants for
admission into two categories—arriving aliens and other applicants for admission. That
information does not alter the facts that the notice to appear plainly placed the respondent
in removal proceedings and that he is an applicant for admission.
Under 8 C.F.R. § 1240.8(c) (2020), where the DHS alleges that an alien is present
without being admitted or paroled, it bears the initial burden of establishing alienage. If
the DHS proves alienage, the burden shifts to the alien to show by clear and convincing
evidence that he is lawfully in the United States pursuant to a prior admission. Id. However,
we need not now resolve whether an indication of this difference in the initial burden of
proof must be included in the notice to appear under the statute or the regulations.
Since the respondent did not appear for the hearing, the applicable burden of proof on the
DHS in presenting its motion for an in absentia removal order is “clear, unequivocal, and
convincing evidence” under section 240(b)(5)(A) of the Act.

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Section 235(a)(1) of the Act provides that an “alien present in the United
States who has not been admitted or who arrives in the United States,”
whether or not at a designated port of arrival, is deemed to be an applicant
for admission. In turn, an alien who has not demonstrated that he is within
any of the nonimmigrant classes specified in section 101(a)(15) of the Act,
8 U.S.C. § 1101(a)(15) (2018), is deemed to be an “immigrant.” Cf. Matter
of Healy and Goodchild, 17 I&N Dec. 22, 26 (BIA 1979) (holding that where
an alien has not established his entitlement to status as a nonimmigrant under
any of the classifications in section 101(a)(15) of the Act, he is properly
excludable as an immigrant without the requisite travel or entry documents).
While the exact reasons for the respondent’s application for admission into
this country are not identified in the Form I-213, there is no indication that
he is seeking admission as a nonimmigrant, such as a tourist, student, or
temporary worker. Moreover, applicants for admission bear the burden to
establish that they are clearly and beyond doubt entitled to be admitted to the
United States and are not inadmissible. Section 240(c)(2)(A) of the Act;
8 C.F.R. § 1240.8(c) (2020).
The fact that no box is checked on the notice to appear does not prevent
the Immigration Judge from evaluating the allegations of fact against the
respondent and any evidence presented by the DHS. The Form I-213 alone
may be sufficient to support a conclusion that the respondent is inadmissible
under section 212(a)(7)(A)(i)(I) of the Act, and is therefore subject to
removal, because he is an immigrant who, at the time of his application for
admission, was not in possession of a valid entry document. See Matter of
Gomez-Gomez, 23 I&N Dec. at 524 (stating that absent evidence that
information on a Form I-213 is inaccurate or obtained by coercion, the
document is inherently trustworthy and admissible to prove alienage or
deportability). Accordingly, since the respondent has not appeared, the DHS
has potentially proffered clear, unequivocal, and convincing evidence that he
is subject to removal from the United States as charged in the notice to
appear. Section 240(b)(5)(A) of the Act; 8 C.F.R. § 1240.8(c).
We disagree with amici’s contention that “[i]f [the] DHS does not give
notice of which admission status [the] DHS believes a respondent to hold,
even the most experienced immigration attorney will be at a loss to fully
advise a client as to the nature of the removal proceeding and their rights in
that proceeding based on the [notice to appear].” Amici assert that the aliens
who have been returned to Mexico under the Migrant Protection Protocols
are “asylum seekers.” Regardless of whether the notice to appear contains a
checked box, an alien seeking asylum is required to appear at his scheduled
removal hearings and file an Application for Asylum and for Withholding of
Removal (Form I-589). See 8 C.F.R. § 1208.3(a) (2020). An attorney will
be able to advise an alien that, in order to apply for asylum, he will need to
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appear at his removal hearings and file a Form I-589. In every proceeding,
the burden of establishing eligibility for asylum rests on the applicant.
Section 240(c)(4)(A) of the Act; 8 C.F.R. §§ 1208.13(a), 1240.8(d) (2020).
As explained in the MPP Sheet, the respondent was informed to attend his
removal hearing at the Immigration Court in San Diego, California, by
presenting himself at the port of entry in San Ysidro, California, on the
morning of May 30, 2019. Had he appeared at the hearing, he could have
submitted a Form I-589.8
The DHS may opt to provide more information in a notice to appear than
the law requires, or it may duplicate required information. 9 Ultimately,
however, we know of no statutory or regulatory requirement that the DHS
do either, and the respondent and amici have identified none.
D. Return to a Contiguous Foreign Territory Under
Section 235(b)(2)(C) of the Act
Congress has authorized that an alien “who is arriving on land (whether
or not at a designated port of arrival) from a foreign territory contiguous to
the United States” may be returned to that territory pending a proceeding
under section 240 of the Act. Section 235(b)(2)(C) of the Act. Once the
DHS places an alien into removal proceedings under section 240 of the Act,
the alien is entitled to the due process rights afforded in a removal
proceeding, even if the DHS elects to return the alien to Mexico under the
Migrant Protection Protocols program. In this case, we resolve the issue
before us narrowly on the question whether the Immigration Judge properly
terminated these proceedings for failure of the DHS to indicate the nature of
the proceedings.
Given that the respondent did not appear for his hearing, we do not
address the constitutional or statutory challenges to his return to Mexico
under the Migrant Protection Protocols, because the notice to appear alleged
he arrived in the United States and he has not been designated as an arriving
alien. Sections 235(a), (b)(2)(C) of the Act; 8 C.F.R. § 1001.1(q) (2020);
cf. Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 170 (BIA 2017) (“The
DHS’s decision to commence removal proceedings involves the exercise of
8

To the extent that amici are concerned that it is unclear whether the respondent is
eligible for a redetermination of his custody status, we note that bond proceedings are
separate and apart from removal proceedings. 8 C.F.R. § 1003.19(d) (2020). The
requirements for a notice to appear that are set forth in section 239(a)(1) of the Act and
8 C.F.R. § 1003.15(b) are applicable to these removal proceedings. We do not address the
requirements for the notice to appear in the context of other proceedings, such as those
relating to bond.
9
As the DHS argues, it may amend the notice to appear or file a Form I-261 (Additional
Charges of Inadmissibility/Deportability). 8 C.F.R. § 1240.10(e) (2020).

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prosecutorial discretion, and neither the Immigration Judges nor the Board
may independently review a decision by the DHS to forgo expedited removal
proceedings or initiate removal proceedings in a particular case.”).
The provisions governing the entry of in absentia orders of removal
apply equally to all aliens placed in removal proceedings, including any
alien who remains in a contiguous foreign territory pursuant to section
235(b)(2)(C) of the Act. Section 240(b)(5)(E) of the Act. “An alien does
not need to be physically in the United States for the Immigration Judge
to retain jurisdiction over pending [removal] proceedings and to conduct
an in absentia hearing.” Matter of Sanchez-Herbert, 26 I&N Dec. 43, 44
(BIA 2012). Since the DHS has elected to commence removal proceedings
against the respondent and to prosecute them to a conclusion, the
Immigration Judge is obligated to order his removal if the evidence supports
a finding of removability on the ground charged and the respondent has not
established eligibility for relief. Matter of Roussis, 18 I&N Dec. 256, 258
(BIA 1982).

III. CONCLUSION
For the reasons set forth above, we conclude that the absence of a checked
alien classification box on a notice to appear does not, by itself, render the
notice to appear fatally deficient or otherwise preclude an Immigration Judge
from exercising jurisdiction over removal proceedings, and it is therefore
not a basis to terminate the proceedings of an alien who has been returned
to Mexico under the Migrant Protection Protocols. Accordingly, we will
sustain the DHS’s appeal, reinstate the respondent’s removal proceedings,
and remand the record to the Immigration Judge for further proceedings.
On remand, if the DHS establishes the respondent’s removability based on
the facts and the evidence, the Immigration Judge should enter an order of
removal. Matter of Sanchez-Herbert, 26 I&N Dec. at 45.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
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 OPINION: Edward F. Kelly, Board Member
I join my colleagues in concluding that current law precludes termination
of these removal proceedings.
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However, I write separately to emphasize that our decision today
expresses no opinion as to the unresolved issue of the statutory or
constitutional authority for the Migrant Protection Protocols program, as
applied, because any challenge to that program in these removal proceedings
is collateral in nature. See, e.g., section 235(b)(2)(C) of the Immigration and
Nationality Act, 8 U.S.C. § 1225(b)(2)(C) (2018) (limiting the authority to
return aliens to contiguous territory pending removal proceedings to those
applicants for admission “who are arriving”); see also Innovation Law Lab
v. Wolf, 951 F.3d 1073 (9th Cir. 2020) (upholding a preliminary injunction
upon finding that the Migrant Protection Protocols program likely violates
the statute when applied to aliens who lack valid entry documents), stay
granted, No. 19A960, 2020 WL 1161432 (U.S. Mar. 11, 2020) (staying
execution of the preliminary injunction pending the timely filing and
disposition of a petition for writ of certiorari).

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