Interim Decision #2276—Appendix

APPENDIX
MOTION OF COMMISSIONER

(April 3, 1974)
THE IMMIGRATION & NATURLIZATION SERVICE MOVES
THE BOARD OF IMMIGRATION APPEALS FOR RECONSIDERATION AND WITHDRAWAL of its order of May 31, 1973 in
the subject deportation proceedings, and for a termination of the
proceeding.
STATEMENT
On May 31, 1973, the Board affirmed the decision of the Immigration Judge directing the deportation of the alien by reason of
his conviction of a violation of a law or regulation relating to the
illicit possession of marijuana, in -violation of § 241(o.X11) of the
Immigration & Nationality Act. Deportability was based upon a
conviction under California law, for possession of marijuana. In its
decision the Board ruled that the alien remained deportable
notwithstanding the fact that he was a minor at the time the
conviction occurred and the conviction was later expunged under
§ 1772 of the California Welfare & Institutions Code, upon completion of youth offender treatment.
The respondent filed a Petition for Review of the order of the
Board in the Court of Appeals for the Ninth Circuit. He reasserted
his contention that in a similar case involving a federal conviction
of a youth offender under 18 U.S.C. 5010(b), and a federal expungement under 18 U.S.C. 5021(a), an order of deportation was not

upheld on the ground that Congress had shown a clear intention
that the expungement should free the youth offender of all taint of
a conviction (Morera v. INS, 462 F2d 1030 (CA. 1, 1972). The Court
of Appeals for the Ninth Circuit declined to apply the Morera
principle to the instant case, and affirmed the decision of the
Board. A petition for certiorari was then filed.
DISCUSSION
Attached herewith is a memorandum from the Solicitor General,
to the General Counsel, Immigration & Naturalization Service,
reflecting the view of the Solicitor General after a review of the
issues involved in the subject case, that the Morera decision should
653

Interim Decision #2276—Appendix
be extended to marijuana convictions of youth offenders where the
crime has been expunged under state laws similar to the expungement provisions of the Federal Youth Corrections Act as in the
instant case. Pusuant to this recommendation of the Solicitor
General the Immigration & Naturalization Service has now
adopted the position that marijuana violators, who are treated as
youth offenders, under state laws, will be dealt with in the same
manner as such offenders under federal law. It is to be noted that
this position does not apply to offenses involving narcotics and
drugs other than marijuana, nor to expungement under state laws
that do not have a federal counterpart.
In view of the foregoing it is respectfully urged that the order
entered by the Board on May 31, 1973 be withdrawn, and that the
proceedings be terminated.
MOTION IS MADE that the order entered by the Board on May
31, 1973 be withdrawn, and that the proceedings be terminated.

Office of the Solicitor General
Washington, D.C. 20530
27 MAR 1974
Charles Gordon, Esquire
General Counsel
Immigration & Naturalization Service
Washington, D.C.
Re: Manuel Andrade-Gamiz v. Immigration & Naturalization Service, U.S. Supreme Court, No. 73-5694
Dear Mr. Gordon:
A petition for certiorari has been filed in the above-entitled case
challenging a deportation order issued under 8 U.S.C. 1251(a)(11)
based on the petitioner-alien's California conviction in 1971 for
possession of marihuana (two or three cigarettes, as we understand it) in violation of state law. He was a minor at the time and
was commited to California Youth Authority. He was honorably
discharged about two years later, and his conviction has been set
aside pursuant to Section 1772 of the California Welfare and
Institutions Code, which provides for such expungement upon
satisfactory completion of youth offender treatment. Petitioner
contends, inter alia, that the Board of Immigration Appeals'
refusal, summarily affirmed by the Ninth Circuit, to take into
account the expungement of his conviction, erroneously construes
Section 1251(aX11) and conflicts with the First Circuit's decision in
Mestre Morera v. Immigration and

F2d 1030 (C.A. 1).
654

Naturalization Service, 462

Interim Decision #2276—Appendix
The purpose of this letter is to recommend that the Service
promptly (a) revise its policies with respect to the application of
Section 1251(aX11) to a person in petitioner's situation, and (b)
reconsider and set aside the instant deportation order. If such
action is taken, we can so represent to the Supreme Court and
suggest that the case is moot (or arrange for the petition to be
withdrawn) thereby avoiding a challenge to the application of
Section 1251(aX11) in what I regard as perhaps the weakest
possible context for the government. Our analysis of the problem
follows.
Deportation statutes, because of their drastic consequences,
must be strictly construed. E.g., Barber v. Gonzales, 347 U.S. 637,
642-643; Fong How Tan v. Phelan, 333 U.S. 6, 10. Accordingly, a
state conviction of a youth offender for a marihuana offense which
has been expunged following staisfactory rehabilitative treatment
should not be regarded as the basis of deportation in the absence
of persuasive reasons or a clear statement of congressional intent.
Under 8 U.S.C. 1251(a), various categories of aliens are 'subject to
deportation, upon order of the Attorney General. One category
includes, under specified circumstances, aliens "convicted of a
crime involving moral turpitude" (8 U.S.C. 1251(a)(4)), while another includes, inter al* narcotic drug addicts and persons "convicted of a violation of or a conspiracy to violate, any law or
regulation relating to the illicit possession of or traffic in narcotics
drugs or marihuana * * *." 8 U.S.C. 1251(a)(11).
Where a federal or state court conviction for a crime involving
moral turpitude is expunged or set aside pursuant to a federal or
state statute providing such a remedy (e.g., upon completion of
probation or after custody as a youth offender), the conviction is
no longer a basis for depbrtation under Section 1251(aX4). See, e.g.,
Garcia— Gonzales v. Immigration and Natwralization Service, 244
F2d 804, 810 (C.A. 9), certiorari denied, 382 U.S. 840; Matter of G--,
1 I. & N. Dec. 96; Matter of 0-7'—, 4 1. & N. Dec. 265; Matter of
G—, 9 T. &
Dee. 159, 165; Matter of Gutniek, 13 I & N. Dec. 672.
Prior to Morera, however, it has been held that a state conviction covered by Section 1251(a)(11) but set aside under an expungement law similar to the federal act nevertheless remained a
ground for deportation, regardless of the nature of severity of the
violation, even though a conviction for a crime of moral turpitude
thus set aside would not be a basis for deportation. This position
was asserted by the Attorney General in 1959 in Matter of A—F—,
8 I. & N. Dec. 429, where a deportation order under Section
1251(aX11) was based upon an alien's California conviction, notwithstanding the contention that the conviction might later be set
aside under Section 1772 of the California Welfare and Instutions
655

Interim Decision #2276—Appendix
Code providing for post-probation expungement' Following the
Attorney General's reasoning, some courts held that even where a
state narcotics or marihuana conviction is actually set aside under
a state law, the expunged conviction still requires deportation
under Section 1251(a)(11). See Garcia—Gonzales v. Immigration
and Naturalization Service, supra; de la Cruz—Martinez v. United
States, 404 F2d 1198 (C.A. 9), certiorari denied, 394 U.S. 955;
Gonzalez de Lara v. United States, 439 F.2d 1316 (C.A. 5).
In Morera, however, the First Circuit held that a federal marihuana conviction set aside under the Federal Youth Corrections
Act (8 U.S.C. 5021) following satisfactory completion of rehabilitatWe treatment or probation was not a basis for deportation under
Section 1251(a)(11). The court stated in Morera (462 F2d at 1032)
that that Act:
clearly contemplates more than a "technical erasure;" it expresses a Congressional concern, which we cannot say to be any less strong than its concern
with narcotics, that juvenile offenders be afforded an opportunity to atone for
their youthful indiscretions. * * * Pardon and leniency at most restore to an
offender his civil rights; neither is as clearly directed as the Youth Corrections Act toward giving him a second chance, free of all taint of a conviction
[citation omitted]. Indeed, the presence of ocalual 241(b) [8 U.O.C. 1251(b)1
suggests to us that if Congress had intended a section 5021 certificate to be
inoperative with respect to section 241(a)(11) (8 U.S.C. 1251(a)(11)], it would
expressly have said so.

As I understand it, the Immigration and Naturalization Service
not only follows Morera, but also, as a matter of policy, does not
deport a person whose conviction is likely to be set aside pursuant
to the Youth Corrections Act.
Because the instant case does not involve a conviction set aside
under the Youth Corrections Act, the decision below does not

1 At the time of the decision in Matter of A
F , Section 1251(a)(11) referred
only to "narcotics" and made no mention of marihuana, and the Ninth Circuit
had recently held that a conviction involving only marihuana was therefore not
a basis for deportation under Section 1251(a)(11). See Hoy v. Mendoza-Rivera, 267
F.2d 451 (C.A. 9), affirming Mendoza-Rivera v. Del G11.07151,0, 101 P. Supp. 473 (S.D.
Cal.). In 1960 Congress amended Section 1251(a)(11) to include marihuana
offenses specifically. '74 Stet. 504; see S. Rep. No. 1651, 86th Cong., 2d Sess., at pp.
13-14.
2 The court was referring to 8 U.S.C. 1251(b), which provides that Section
1251(a)(4) shall not require deportation if the alien has been fully and unconditionally pardoned by the President or the governor of any state or if the
sentencing judge recommends against deportation; however, Section 1251 (b) is
by its terms expressly inapplicable to an alien charged with being deportable
under Section 1251(a)(11).
—

656

—

Interim Decision #2276—Appendix
present a square conflict with the holding in Morera.3 However,
given the role necessarily played by state law in deportation
proceedings, the accommodation of competing policies in Morera is
not rendered irrelevant here simply because Morera involved a
conflict between two federal statutes, rather than a federal statute and a state statute, as here. Given Morera, there is little, if
any, reason to justify a different result where the expungement of
a youth offender's conviction occurred pursuant to state law. The
same result can and, I think, should be reached in such a case.
It has sometimes been suggested, as a reason for disregarding
expungement under state law when basing deporation under
Section 1251(aX11) on a state conviction, that deportation is a
federal matter which should not be subjected to the varied
consequences that states may choose to attach to convictions for
offenses that justify deportation. See, e.g., Gonzalez de Lara v.
United States, supra, 439 F2d at 1318-1319; de la Cruz Martinez v.
Immigration and Naturalization Service, supra, 404 F2d at 1200;
of Gutierrez-Rubio v. Immigration and Naturalization Service, 453
F2d 1243 (C.A. 5) (deportation under 8 U.S.C. 1251(aX14)). This
approach assumes, in effect, that all issues concerning deportation
must be governed solely by federal law.
It is true, of course, that in the first instance federal law
normally governs the construction of federal statutes. In many
cases, however, the federal rule of construction may call for
reference to and the reliance upon state law. See, e.g., Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 209-210; De
Sylva v. Ballentine, 351 U.S. 570, 580-581; ef. United States v.
Yazell, 382 U.S. 341, 354-358. In the context of deportation, it is
unquestionable that state law has a role to play, in that certain
convictions for violation of state law are grounds for deportation,

and pardons by governors may bar a state conviction from being
so used.
Indeed, in Matter of G—, supra, 9 I. & N. Dec. at 169, the

Attorney General recognized that the Supreme Court's per curiam
reversal of a deportation order under Section 1251(a) (4) in Pino v.

3 The court of appeals below stated in its brief order that "Morera is not the
law of this circuit," citing Hernandez-Valensuela v. Rosenberg, 304 F.2d 639 (C.A.
9). The latter case, however, held merely that a conviction which might some day
be set aside pursuant to 18 U.S.C. 5021 was still a conviction for deportation
purposes. In Morera the defendant's conviction had beeh set aside pursuant to

Section 5021 of the Federal Youth Corrections Act prior to the court of appeals'
decision, and the cases are not necessarily in conflict.

657

Interim Decision #2276—Appendix
Landon, 349 U.S. 901,4 indicated that the question whether a
conviction should be treated as a basis for deportation is not
"purely a 'federal question.' "
In addition, as to crimes of moral turpitude not involving
narcotics or marihuana, the Service, with the approval of the
Attorney General and the courts, has been taking into account the
effect of state post-conviction expungement laws in determining
that an otherwise final conviction should not be regarded as a
basis for deportation. 5
Expungement statutes concerning youth offenders, perhaps
even more than other expungement laws, reflect a policy of
providing a clean start which would be virtually negated if
deportation under federal law were still a consequence of an
expunged state marihuana conviction of a youth. A disparity in
treatment of state and federal youth offenders is particularly
inappropriate in view of the fact that, quite frequently, the
underlying facts involve violation of state and federal law, and
may be the basis of either state or federal prosecution. Indeed, as to
persons under twenty-one, federal law encourages the United
States Attorney to forego prosecution and surrender the juvenile
to state authorities if "it will be to the best interest of the United
States and of the juvenile offender" to do so. 18 U.S.C. 5001. Where
a choice can be made, it is generally the practice that the less
serious offenses are handled by state prosecution, and that federal
prosecutions are reserved for the more serious offenses.
Thus, to confine the result in Morera to youth offender convictions expunged under the federal law would tend to produce the
anomalous situation where, for example, a youth offender prosecuted federally and convicted of a serious marihuana offense
would not be deportable if the conviction were expunged, while one
4 The facts in Pino are set forth in the lower court decisions. See Pin() v.
Nicolls, 119 F. Supp. 122 (D. Mass.), affirmed, 215 F.2d 237 (C.A. 1). The question

was whether an alien had been "convicted" where he had been found guilty,
received a suspended sentence and been placed on probation for ono year, after
which, under a unique Massachusetts procedure, the sentence had been revoked
and the case placed "on file," subject to being called up at any time for
imposition of sentence or other disposition. The Court held that there was no
conviction for deportation purposes.
s It should be noted that state expungement statutes have been allowed to
pretermit deportation even where there is no comparable federal statute applicable to a similar federal conviction. For example, while the Federal Youth
Corrections Act provides relief comparable to that authorized by Section 1722 of
the California Welfare and Institutions Code, involved in the instant case, no
federal statute authorizes expungement more generally following completion of
probation, as does section 1203.4 of the California Penal Code, pursuant to which
expungement has been held repeatedly to bar deportation based on the expunged conviction for a crime of moral turpitude.

658

Interim Decision #2276—Appendix
prosecuted in state court and convicted on a trivial marihuana
offense would therefore be deportable, even if the conviction were
expunged.
Such disparity is difficult to justify or defend, and should be
avoided if possible by a reasonable construction of the statute. At
a minimum, I think that, consistent with Morera, the Service
would be warranted in construing Section 1251(aX11) as not requiring deportation on the basis of a state marihuana conviction of a
youth offender which has been expunged or set aside pursuant to •
a law comparable to the Federal Youth Corrections Act, if the
youth offender upon conviction could have obtained expungement

under the federal law if he had been subjected to federal prosecution. This construction is consistent not only with Morera, but also
with the general statutory scheme.
The crucial legislative development relied upon by the Attorney
General in Matter of A—F--, as indicating a strong congressional
policy favoring deporation of aliens involved in narcotics traffic,
was the Narcotics Control Act of 1956, 70 Stat. 575. That act added
language to Section 1251(b) to exclude deportations under Section
1251(a)(11) from its provision that a pardon or recommendation of
the sentencing judge against deportation would bar deportation

under Section 1251(aX4), based on conviction of a crime of moral
turpitude. Prior to 1960, however, Section 1251(a)(11) applied in
terms only to marihuana offenses. Therefore, the 1956 amendment
does not necessarily reflect a clear national policy as to marihuana
offenses.6
Moreover, the fact that the 1956 amendments excluded narcotics
offenses from the provision for pardons, but did not purport to
exclude them from the settled policy and practice of not treating
expunged convictions as convictions for deportation purposes, can
be said to suggest that no change was intended in that regard. See

Morera, supra, 462 F.2d at 1032.
Significantly, it was held in Morera that neither the 1956
amendment to Section 1251(b) nor the 1960 inclusion of marihuana
offenses in Section 1251(a)(11) interferes with the analogous treatment of marihuana convictions set aside under the Federal Youth
Corrections Act (18 U.S.C. 5021), as not being grounds for deportation under Section 1251(a)(11).
In any event, whatever may have been Congress' policy toward
6 While the inclusion of marihuana offenses in Section 1251(aX11) in 1960 did
reflect a judgment that such offenses could be a basis for deportation, the
legislative history of that amendment (see p. 3, supra, n.1) does not suggest a
specific congressional intent that expungement of a marihuana conviction (or

indeed of any conviction covered by Section 1251(a)(11)) should be completely

disregarded for deportation purposes.

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Interim Decision #2276—Appendix
narcotics offenders at the time of the decision in Matter of A—F— ;
recent legislation indicates a different Congressional policy toward
persons convicted of simple possession of marihuana. Thus, in 1970
Congress found that "there is a lack of an authoritative source for
obtaining information involving the health consequences of using
marihuana." 21 U.S.C. 186. Accordingly, Congress established the
National Commission on Marihuana and Drug Abuse and directed
it to conduct a comprehensive study of the use and effects of
marihuana. 84 Stat. 1280-1281, 21 U.S.C. 801, note! In 1970, as an
interim measure for the period during which the Commission's
report was being prepared and considered, Congress reduced the
penalties for initial marihuana offenses—from a mandatory term
of at least five and up to twenty years (see 21 U.S.C. (1964 ed.)
176a) to a maximum term of one year for possession—and provided
a new procedure whereby a charge and finding of guilt for a first
offense of simple possession could be expunged and not treated as
a conviction for any purpose. 21 U.S.C. 844. In its report in 1972 the
Commission recommended that possession and personal use of
marihuana be decriminalized. See Report of the Commission on
Marihuana and Drug Abuse 152-161.
If it was appropriate to consider a heightening of federal
concern about narcotics offenders as requiring their exclusion
from the usual consequences of expungement of convictions for
deportation purposes, it would seem equally appropriate to consider a lowering of sanctions for such offenses, at least as to
possession of marihuana, as removing pro tanto the policy basis for
such exclusion.
The foregoing analysis and recommendation does not necessarily apply to offenses involving narcotics and drugs other than
marihuana, which is the only controlled substance involved in the
instant case, nor to expungement under state laws that do not
have a federal counterpart.
If the Service does change its policy in this regard or if for that
or any other reason the instant deportation order is set aside,
please communicate the facts to Mr. Norton of this office (739-2186)
so that we may appropriately prepare our response to the pending
petition.
I thank you for your consideration of this matter.
Sincerely,
/s/ Robert IL Bork
ROBERT H. BORIC
Solicitor General
7 Congress also directed the Secretary of Health, Education and Welfare to
make annual reports to Congress on the health consequences of marihuana use
and on related recommendations. 21 U.S.C. 187.

660


Interim Decision #2048

MATTER OF BONILLA

In Deportation Proceedings
A-17151187
A-17151408-10
Decided by Board May 13, 1970
Respondent, who entered the United States upon representations as the unmarried child of a permanent resident father when in fact his father was
not a permanent resident, and who, now married to a permanent resident,
possesses the requisite family relationship, comes within the purview of
section 241 (f) of the Immigration and Nationality Act, as amended, since
he was "otherwise admissible" at entry notwithstanding the lack of a
labor certification under section 212(a) (14) of the Act (Castillo-Godcry v.
Rosenberg, 415 F.2d 1266 (C.A. 9, 1969)).
[Muslemi v. I. & N.S., 408 F.2d 1196 (C.A. 9, 1969), and Matter of
Tsaconas, 12 I. & N. Dec. 332, distinguished.]
CHARGE:

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)]—Excludable at time of entry as alien not of status specified
in immigrant visa under section 203(a). (All al-

iens)

ON BEHALF OF SERVICE:
Donald B. Anderson
Acting Trial Attorney
(Brief filed)

ON BEHALF OF RESPONDENTS:

Hideki Nakamura, Esquire
63 Merchant Street
Honolulu, Hawaii 96813
(Brief filed)

The respondents, four brothers, are natives and citizens of the
Republic of the Philippines. Three of the brothers have been
found deportable under the provisions of section 241 (a) (1) of the
Immigration and Nationality Act in that, at the time of thier
entry as immigrants at the port of Honolulu, Hawaii during February of 1966, they were excludable as aliens who were not of the
status specified in their immigrant visas, inasmuch as they were
not the unmarried sons of an alien lawfully admitted for permanent residence (section 203 (a) (2), Immigration and Nationality
Act). An order entered by the special inquiry officer on April 8,

577

Interim Decision #2048
1969 granted those three brothers the privilege of voluntary departure, and provided for their deportation in the event they fail
to depart when and as required. There was no appeal to this
Board from the order entered against those respondents.
The special inquiry officer in his order of April 8, 1969 terminated the deportation proceedings in the case of the fourth
brother, Francio B. Bonilla (A-17151408), pursuant to the provi;ions of section 291 (f) of the Immigration and Nationality Act.
The Service appeals from this order.
The special inquiry officer in a supplemental decision certified
he case to this Board for final decision. The special inquiry
,fficer states his reasons for certification as follows:
.. . the very recent decision of the Ninth Circuit Court of Appeals on
larch 19, 1969, in Muslemi v. INS, 908 F.2d 1196, in effect overruled the
ecision by the Board of Immigration Appeals, in the Matter of Tsaconis,
nt. Dec. 1759 and as it appears further that other decisions by the Board
f Immigration Appeals were affected in the same manner, e.g., Matter of
'astillo-Godoy, Int. Dec. 1812; Matter of Becerra, Int. Dec. 1908; and Matr Senior, Int. Dec. 1898, I believe that it is advisable that this case be
:rtified to the Board of Immigration Appeals insofar as the decision relates
the respondent, Francio B. Bonilla.

The facts pertinent to the respondent, Francio B. Bonilla, have
!en fully set forth in the special inquiry officer's opinion of
pril 8, 1969. Briefly, they establish that he as well as his three
'others secured second preference immigration visas from the
nsul at Manila upon the representation that they were the unarried sons of Romualdo Bonilla, a permanent resident alien. It
is thereafter established that Romualdo Bonilla was not in fact
permanent resident alien and deportation proceedings under
:tion 241(a) were instituted. The respondent, Francio B. BonL, moved for a termination of the deportation proceeding
iinst him on the ground that he is eligible for relief under seen 241(f) of the Act because, after entry, he married a lawful
ident alien in the County of Kauai, Hawaii on December 20,
;8 and that a visa petition executed by his wife has been apTed by the District Director at Honolulu on April 8, 1969 (Ex.
,

Ve affirm the conclusion of the special inquiry officer that the
pondent, Francio B. Bonilla, comes within the purview of sec241 (f) of the Act. The Supreme Court has held that section
(f) "waives any deportation charge that results directly from
misrepresentation regardless of the section of the statute
er which the [deportation] charge was brought, provided that
alien was 'otherwise admissible' at the time of entry." The

578

Interim Decision #2048
Court further held that quota restrictions could not preclude an
immigrant from being considered "otherwise admissible," INS
N. Errico, 385 U.S. 214, 217, 17 L. Ed. 2d 318 (1966).
The trial attorney argues that the respondent, Francio B. Bonilla, is not saved from deportation by the provisions of section
241(f) because he was not "otherwise admissible" at the time of
his entry on February 25, 1966, since at that time he was required to have a labor certification under section 212(a) (14)
which he did not have. The trial attorney has relied on our decisions in Matter of Castillo-Godoy, 12 1. & N. Dec. 520 (BIA,
1967), and Matter of Becerra, Interim Decision No. 1908 (BIA,
1968). 1 However, since the trial attorney took that position, this
Board's holding in the precedent cases cited has been rejected by
the Court of Appeals for the Ninth Circuit, Castillo-Godoy v. Rosenberg, 415 F.2d 1266 (9 Cir., 1969) ; Becerra Monje v. INS,
418 F.2d 108 (9 Cir., 1969) The court in Castillo-Goday held
essentially that a labor certification at the time of entry was a
quantitative requirement which, like the quota limitation, was
intended to be waived by the application of section 241 (f) to
aliens who entered the United States on the basis of fradulent
misrepresentations, if they have the required familial relationship. The respondent, Francio B. Bonilla, meets this test.
We next turn to a consideration of the special inquiry officer's
statement in his supplementary opinion that the very recent decision of the Ninth Circuit in the case of Muslemi v. INS, 408 F.2d
1196 (9 Cir., 1969), has "in effect" overruled our decision in Matter of Tsaconas, 12 I. & N. Dec. 332 (BIA, 1967). Unlike the respondent in this case, both Muslemi and Tsaconas entered as nonimmigrants. The court in Muslemi recognized this distinction and
said, "We need not decide in general whether [section 241 (1)]
save aliens who have fraudulently entered the country on nonimmigrant visas and who have the requisite family ties from deportation on any charge. We need decide only whether petitioner is
saved from deportation on the specific charge entered against him
in this proceeding," 408 F.2d at page 1199. The court found that
the "no immigrant visa" charge laid under section 212(a) (20) resulted directly from Muslemi's fraudulent concealment of his intention to remain in the United States permanently and that he
was accordingly, saved from deportation on the charge entered
against him "if he were otherwise admissible for entry as an imThis E ,-)ard in the Castillo-Godcry and Becerra cases took the position that
'liens who entered without the required labor certifications were not "other• ise admissible" within the meaning of section 241(f).

579

iterim Decision #2048
igrant at the time of his entry according to the Immigration
id Nationality Act, 8 U.S.C. 1182." The Muslemi case was reanded by the court for a determination of whether petitioner
as "otherwise admissible" at the time of his entry. That issue is
)w before us for determination in that case.
In our view, the Ninth Circuit's Muslemi decision did not purort to reject the rationale of our decision in Tsaconas. The
tter has been sustained on judicial review, Tsaconas v. INS,
97 F.2d 946 (7 Cir., 1968). See also De Vargos v. INS, 409
.2d 335 (5 Cir., 1969).
Since there was no appeal by three of the respondents, our
rder will be limited to affirming the termination of the deportaon proceedings in the case of the respondent, Francio B. Bonla, and dismissing the Service appeal in his case.
ORDER: It is ordered that the termination of the deportation
roceeding by the special inquiry officer in the case of Francio
Bonilla be and the same is hereby affirmed and the appeal by
le Service in his case is hereby dismissed.

580


Interim Decision #1524

•

MATTER

or KA02MANN

In Section :412(e) Proceedings A-14448204
Decided by District Director August QS, 1965
A former exchange visitor siren, a research associate of international reputation as an instrument maker and designer whose services are urgently needed in an Mr Force research project dealing with instrumentation with which
he was associated while in the United States as an exchange visitor, and
his wife and 2 dependent children, are granted waivers of the foreign residence requirement of eeetion 212(e). Immigration and Nationality Act, as
amended, since his admission is deemed to be in the public interest because
the unavailability of his services through compliance with the requirement
would La detrimental to a program of official interest to the Department of
, Defense, and the Department of State bas recomMended favorably in the
matter.

- Mr. Peter Z. Kaufmann, a native of Austria and national of
Israel, was born in Vienna on October 12, 1917 He was admitted
to the United States pursuant to section 101(a) (15) (J) - of, the
Immigration and Nationality Act, as amended, as an exchange visitor
on January 3, 1963, under program No. P—I-11'04 of the Mellon
Institute, Pittsburgh, Pennsylvania. He was accompanied to this
country by his wife, Hanna Stein Kaufmann, his daughter, Dorit, •
now 15 years of age, and his son, Noam, now 9 years •of age. All
three dependents were also admitted under sea*, 101(a) (15) (3),
in order to accompany Mr. Kaufmann during the period of his
participation, in the exohange program. Mr. Kaufmann participated
as a visiting research-associate' in the program of the Mellon Institute until his departure from the United States on July 20, 1964.
Section 212(e) of the Immigration and Nationality Act, as Amended, provides in part as follows:
No person admitted under section 101(a) (15) (3) or acquiring such status
after admission shall be eligible to apply tkr an immigrant visa, or for Permanent •esidence, or for a nonimmigrant visa under Section 101(a) (15) (II)
until it is established that such person has resided and been physically present
in the country of his nationality or his last residence, or in another : foreign

391

Literira Decision #1524
country for an aggregate of at least two years following departure from the
United States:. Provided, That such residence in another foreign country
shall be considered to have satisfied the requirements of this subsection if the
Secretary of State determines that it has served the purpose and the intent
of the Mutual Educational and Cultural Exchange Act of 1961: Provided
further, That upon the favorable recommendation of the Secretary of State,
pursuant to the request of an .interested United States Government agency,
or of the Commissioner of Immigration and Naturalisation after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such sponse or child is a citizen of the
United States or a lawfully resident alien), the Attorney General may waive
the requirement of such two-year foreign residence abroad in the case of any
anon whose admission to the United States is found by the Attorney General
to be in the public interest * • "

Information received from the office of Director of Defense Research and Engineering, Department of Defense, shows that .Mr.
ICaufmann completed his studies in mechanical engineering in the
Technical College, Prague, Czechoslovakia, in 1939, and from 1946
to the present time he has been had of the Technical Service Department of Chemistry, Israel Institute of Technology, Ilaifa, Israel.
He has an international reputation as a remarkably able instrument
maker and designer. His services are urgently required for a posi' tiou at the Mellon Institute as Senior Research Associate and fulltime .contributor to an Air Force ;research prOjeet dealing with instrumentation with which he was associated during his stay in the
United States as an exchange visitor. By reason of his outstanding
training and experience,

he -would make

a

notable addition to United

States capabilities in the field of instrumentation.
The office of the Director 'of Defense Research and Engineering,Department of Defense, has requested that Mr. Kaufmann, his wife,
and children, be granted waivers of the foreign residence requirement. The Secretary of State has reviewed the request and recommends that the waivers be granted.
Compliance with the two-year foreign residence requirement, thereby making Mr. Kaufmann's services unavailable for another Year,
- would be detrimental to a research and development program of
official - interest to the Department of Defense.' It ,is, therefore,
found that his admission to the United States with his farnily would
be in the public interest. Eligibility laving been established, the
waivers will be granted. .
ORDER: It is ordered that the two -year foreign residence requirement of section. 212(e) of the Immigration and Nationality Act, as
amended, be waived in the cases of Mr. Peter Z. Kaufmann, his
wife, Hanna Stein Kaufmann, and his children, Dorit and Noam.
Kaufma
nn.
392


I1ATTER OF H—

In DEPORTATION Proceedings
A-6942345
Decided by Board March 31, 1961
Decided by Board July 26, 1961
Deportability—Section 241(a)(4)—Sentenced to confinement or confined.

con
victed of crime involving moral turpitude committed within 5 years after
entry must he sentenced to confinement or confined for a year or more is
not satisfied when respondent who has served in excess of one year under
original sentence of 1 1/2 to 15 years is awarded new trial by Michigan court
following which he is placed on probation for 10 months.
(1) Respondent has not been sentenced to confinement for a year or more,
since effect of court's action in granting new trial was to vacate prior sentence. Thereafter, the only legally existing sentence was the sentence to
10 months' probation. (2) Time served by respondent under original sentence does not constitute confinement. For purposes of section 241(a) (4)
an alien has not been "confined" unless his incarceration has been pursuant
to an existing sentence to confinement.

Requirement in section 241(a) (4) of Aul. dial an Wien who has been

CHARGES :
Order: Act of 1952 — Section 241(a) (4) [8 U.S.C. 1251(a) (4)1 — Convicted
of crime Sentenced to confinement for year or more (First
Charge)
Lodged: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
of crime Confined therefor for a year or more. (Second Charge)
—

BEFORE THE BOARD

(March 31, 1961)
DISCUSSION: The epecial inquiry officer terminated proceeding°

and certified the case; the examining officer also filed an appeal and
has submitted a helpful brief. No change will be made in the special
inquiry officer's order.
Respondent, a 24-year-old single male, native of England and citizen of Great Britain, last entered the United States in June 1954.
On July 10, 1958, he was convicted in a circuit court in Michigan
for breaking and entering in the nighttime and was sentenced to
imprisonment for a term of 18 months to 15 years; he was confined
from July 14, 1958, to August 3, 1959. On July 30, 1959, the same
380

.oust directed that a new trial be granted and that respondent be
released from custody; on August 17, 1959, the court on a plea of
guilty entered an order placing respondent on probation for a period
of 10 months. The effect of these orders is in issue.
Deportation is sought under that portion of section 241(a) (4),
Immigration and Nationality Act, requiring the deportation of an
alien who—
is convicted of a crime involving moral turpitude committed within Eve years

after entry and either sentenced to confinement or confined therefor in a
prison or corrective institution, for a year or more * * *.

The special inquiry officer did not sustain either charge. As to
the first charge, which requires the Service to establish the existence
of a sentence for a year or more, the special inquiry officer held
that the only binding sentence was the one to probation. As to the
second charge, the special inquiry officer ruled that confinement
most be the result of a sentence to confinement for a year or more,
and that since the only sentence here was not to confinement at all
the charge could not be sustained.
The Service contends that no effect should be given to the second
sentence of the court, and that the revoked sentence to 18 months
or more given at the first trial is the controlling one in this deportation proceeding. The Service relies upon Un!itecl States ex rel.
Piparkoff v. ii.q)crily, 267 F.2d 72 (CA. 2, 1959), which involved
section 241(b) of the Immigration and Nationality Act, 8 U.S.C.
1251(b). This section, which is not involved here, provides that a
court may relieve a convicted alien from liability to deportation
by making a recommendation against his deportation at the time of
first imposing judgment or passing sentence. This provision concerns a purely federal matter; for a recommendation under it to be
effective, there must he strict compliance with the section. However, the section is not applicable where a recommendation against
deportation is not involved, and the section no more requires us to
ignore the valid order of a court, although modification of its judgment relieves an alien from liability to deportation, than it would
require us to ignore an original order sentencing an alien liable
to greater punishment to imprisonment of only 11 months, when
the court states that ith net- kill is taken to prevent the possibility
that the alien may be deported (Mai ter of G , 9—I ; c,tt, r of I.—.
6-5112).
In support of its position, the Service cites two cases as setting
up a federal standard which requires us to ignore the second order
of the court and give credit only to the first. It is sufficient to say
that a similar argument involving the same cases was rejected by the
Attorney General (Matter of G , 9-150). Other cases cited by the
Service are dist inguishable. Matter of A P' , 8 421), is eoillinekt.
—

—

—

381

—

-

to narcotic cases (Matter of G, supra). Matter of L—, 8-3S9, concerns a section of law which does not involve 11 sentence to confinement.
In Matter of C—, 8 276, the action of a court changing a sentence
was expressly recognized.
The record does not show that the court was without jurisdiction
to enter the second order; the order is, therefore, not subject to
collateral attack in these proceedings. Nothing is presented in
this record which would indicate that the State of Michigan would
refuse to give recognition to the court's order of August 17, 1959.
Under these circumstances, the order must be given full faith and
credit (Matter of P—, 3-187; Matter of G—, 1 - 96 (Atty. Gen.,
1942) ; Matter of J—, 6-562; see Matter of V—, 7- 577; 15 Am. Jun,
Cr. Law, section 504). We believe that it was proper for the special
inquiry officer to dismiss the first charge.
We come now to the Service contention that the alien is deportable
because he has been confined for a year or more. Prior to the 1m
migration and Nationality Act, a person confined for a year or more
but not under a "sentence to imprisonment" was not deportable
(Matter of P—, 3-187). 1 The term "sentenced to imprisonment"
was one of art meaning one actually confined under a sentence to
imprisonment for a year or more (Berman v. Reimer, 123 F.2d 331
(C.A. 2, 1940) ; United States ex rel. Robinson v. Day, 51 F.2d 1022
(C.A. 2, 1931)). The term "sentenced to confinement" which supplanted it in the Immigration and Nationality Act would, without
more, seem to call for actual confinement; however, the phrase "or
confined" added to it was made authority for eliminating the necessity
of actual confinement. 2
The necessity for actual confinement was eliminated because if
the phrase "sentenced to confinement" were interpreted as requiring

actual confinement, it would have merely duplicated the meaning of
the "or confined" phrase which followed it, thus resulting in a
situation where each phrase would have provided for the deportation
of an alien confined under a sentence to confinement. The first
phrase was, therefore, given the meaning apparent upon its face and
"A peibun may

have been cuufined fur a year ur more, although there is

no sentence to such confinement where after he had served a year or more

the court ordered a new trial and resentenced him to less than a year (Matter of P—, 3-187) ; a person refused bail may he so confined while awaiting
trial and final disposition of couvictluu; ur he may be confined for a year

d5

a

condition of probation although this is not considered a sentence to confinement
by the state court (Matter of F—, 1-343).
2 Prior to the Immigration and Nationality Act, the phrase read "sentenced
to imprisonment." The word "confinement," a broader term, was apparently
substituted to cover a detention in a "corrective institution" as well as a
prison (United States ex rel. Rizzio v. Kenney, 50 F.2d 418 (D.C. Conn., 1931),
illustrates the problem).

382

.sentence to confinement, not followed by confinement, was declared
basis for deportation (Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959) ;
lrrellano-Flores v. Hoy, 262 F.2d 667 (C.A. 9, 1958) ; United States
;x rel. Fells v. Garfinkel, 158 F. Supp. 524 (W.D. Pa., 1957), aff'd
251 F.2d 846 (C.A. 3, 1958) ; Matter of 0—, 7-539, 545-548; Matter
of M—, 6-346; Matter of 1—, 6-562, 568).
Because the words "sentenced to confinement" no longer required
a confinement, a new class of aliens became subject to deportation—
those who had been given a suspended sentence to a year or more
(the alien who had been confined under a sentence to a year or more
remained deportable). To these two classes of deportable aliens,
the examining officer would add a third class—a class, it must be
noted, which was not deportable under laws previous to the Immigration and Nationality Act. In the third class would fall the alien
confined for a year or more although, he had not been sentenced to
such confinement. We do not think the law authorizes the creation
of this third claps.

We believe that the examining officer's interpretation must be
rejected because it is in conflict with precedents holding that a
suspended sentence makes an alien deportable. This is the conflict.
We have already explained that the words "sentenced to confinement" standing alone are words of art requiring confinement, and
that they are now deprived of their added meaning by the fact that
they would otherwise have merely duplicated the alternative "or
confined," each phrase providing for the deportation of an alien
confined under a sentence to confinement. It was, therefore, reasonable to conclude that the first clause was no longer to be considered
one of art but was meant to be taken at face value, i.e., that a sentence without confinement (a suspended sentence) was sufficient.
If now, the "or confined" clause is given a meaning which is compatible with requiring the alien "sentenced to confinement" to be
confined (that a confinement for a year without a sentence to such
confinement is sufficient), then it would be improper to interpret
the "sentenced to confinement" phrase as not requiring confinement,
for this would violate well-established precedent. Then, if the
first clause would still require an alien to be confined under a sentence to confinement, a suspended sentence would be eliminated as a
ground of deportation; however, it would be improper to do this because such elimination would be in conflict with judicial decisions
which hold that a suspended sentence is sufficient. As long as the
courts require the first phrase to include a suspended sentence, it
would be improper to construe the second clause as is now suggested.
Moreover, a Congressional comment appears to envision the existence
of a sentence to confinement to make an alien deportable. In com383

menting on the language in question, a Senate Report summarizes it
as requiring the deportation of "Aliens who, within five years of
entry, are convicted of a crime involving moral turpitude and sentenced to confinement for a year or more" (p. 21, S. Rept. No. 1137,
82d Cong., 2d Sess.).
We find that a sentence to confinement must exist before an alien
may be found deportable under that part of section 241(a) (4) with
which we have been concerned. (See, Matter of N—, 8-660; .latter
of V , 8-360.)
ORDER: It is ordered that the appeal of the examining officer be
and the same is hereby dismissed.
It is further ordered that no change be made in the order of the
special inquiry officer.
—

BEFORE THE BOARD

(July 26, 1961)
DISCUSSION : By order dated March 31, 1961, the Board held
that the special inquiry officer had properly terminated proceedings.
The Service moved to vacate the order or, in the alternative, for reopening of proceedings so that an additional charge may be lodged.
Respondent, a 24-year-old single male, a native and citizen of
Great Britain, last entered the United States in June 1954. On
July 10, 1958, he was convicted in a circuit court in Michigan of a
crime involving moral turpitude and was sentenced to imprisonment
for a term of 18 months to 15 years. He was confined under that
order from July 14, 1958, to August 3, 1959. On July 30, 1959, the
court directed a new trial be granted and that respondent be released from the custody of the Corrections Department and returned
to the custody of the sheriff "pending trial." On August 17, 1959,
the court on respondent's plea of guilty entered an order placing
him on probation for a period of ten months from the date of the
new order. The issues before us were (1) whether respondent had
been sentenced to confinement for a year or more; and (2) whether
a person who has served a period of more than a year is deportable
although a sentence to confinement does not exist in his case. We
held that since the only binding sentence had been one to probation
for a period of ten months, respondent was not deportable on the
first charge which required a sentence to a year or more. We held
that responder t was not deportable on the second charge for no
such charge was authorized by law.
The Service is of the belief that the original sentence to 18 months
or more was not vacated but was only modified, and that the modification is prospective affecting only the portion of the original
confinement not served, so that it may be said that a sentence to
a year or more exists. It seems to us that whether the action of
384

the court is a modification of the first sentence or not the only
sentence existing is one to less than a year, and that is controlling.
Moreover, we view the second order of the court not as a modification of sentence, but rather as the entry of a new sentence. The
court could grant a new trial and enter a new sentence, but it was
without authority to reduce a sentence after it had been partly
served (People v. Fox, 20 N.W.2d 732). Moreover, it is well established that the grant of a new trial vacates the judgment (Caine
v. Collins, 166 A.2d 675; Gonzales v Trujillo, 291 P.2d 1063; In re
Doelle, 35 N.W.2d 251). We must conclude that the court here
did what it said it was doing—granting a new trial which was followed by a sentence. The existing sentence which must be recognized by this Board is the one to probation for a period of ten
months. Such a sentence does not satisfy the requirement of the
law that there be a sentence to confinement for a year or more. The
first charge clearly is not sustained.
The Service motion holds that a convicted alien who has been confined for a year is deportable even though the confinement was not
under a sentence to confinement.' We have dealt fully with this
contention in our original order. It appears unnecessary to repeat
the reasons for our belief that confinement must be under a sentence to confinement and the language in question interpreted in
the light of history provides for deportation of two classes of aliens
(the alien who has received a suspended sentence and the alien
confined for some period of time under a sentence to confinement

for a year or more) and cannot bear the additional class the Service
is attempting to add (United States ex rel. Fells v. Garfinkel, 158 F.
Supp. 524 (W.D. Pa.), aff'd 251 F.2d 846 (C.A. 3, 1958) ; Burr v.
Edgar, 292 F.2d 593 (C.A. 9, 1961) ; Holzapfel v. Wyrseh, 259 F.2d
890 (C.A. 3, 1958) ; see Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959),
and Arrellano-Flores v. Hoy, 262 F.2d 667 (CA. 9, 1958) ; Tadashi
Miyaki v. Robinson, 257 F.2d 800 (C.A. 7, 1958), cert. den. 358 U.S.

894; Matter of AT—, 8- 660; Matter of

, 8-360; Matter of

7-577 ; Matter of 0—, 7 539, 545-548; Matter of M—,
-

6- 346;

Matter of J . 6- 562, 568).
Matte?. of 31—, 6-346, upon which extensive reliance is placed by
the Service, concerned only the issue as to whether a person
convicted and sentenced but not confined (a suspended sentence)
was deportable. We decided that the words "sentenced to confinement," unlike a similar phrase in previous laws which did
require confinement, was qualified by the use of the words "or confined" so as to make a conviction and sentence to confinement. with
—

Service statement of section 241(a) (4) of the Immigration and Nationality Act, found in footnote 1 on page 3 of its motion, supplies a comma
where none is present

654377-63------26

lu the law.

385

out actual confinement sufficient as, of course, a sentence and conviction followed by confinement continued to be, The issue involved
here was absent in that case, but the language used there instead of
being inconsistent with that of our original order in this case is,
in our opinion., merely restated by us.
The motion states that the Board's interpretation raises constitutional problems. We have merely recognized what is provided for
by state procedure. If a constitutional problem exists, it is not
within our sphere. Other matters raised by the Service are either
not material or are answered by the original order.
The motion reveals that on October 10, 1960, respondent was convicted for felonious assault with a deadly weapon. The Service
charges that his conviction involves moral turpitude and respondent
is now deportable under that portion of section 241(a) (4) which
requires the deportation of an alien convicted after entry of two
crimes involving moral turpitude. The Service is apparently desirous of lodging this new charge in the event we do not sustain the
charges now of record. We shall, therefore, order reopening of
proceedings for this purpose and for such further action as the
special inquiry officer shall deem appropriate.
ORDER: It is ordered that the motion for reconsideration be and
the same is hereby denied.
It is further ordered that proceedings he reopened for the purposes heretofore stated.

086


Interim Decision #1830

Mazur OF

BraTimps-SA.EN2

In Deportation Proceedings
A-11377975
Decided by Board December 22, 1967
.Respondent's departure from the 'United States under an order issued in depor.

tation proceedings granting him voluntary departure but providing for his
deportation if he failed to depart as required, was not a departure under an
order of deportation but under a grant of voluntary departure; hence, such
departure did not break the continuity of his residence for the purposes of
Section 249 of the Immigration and Nationality Act, as amended.
CHARGE:

Osuas: Act of

1952—Section 241(a) ( 2)

(8 U.Z.C. 1201(a) (2)3—Entered

without inspection.
ON BERATE

or RESPONDENT:

ON BFMATZ OF SERVICE:

Bernabe Q. Maldonado
Trial Attorney
(Brief Sled)

Arnulfo Guerra, Ilsquirs
Roma, Texas

The special inquiry officer certified his order denying respondent's
application for adjustment of status under section 249 of the Act. The
facts are fully stated by the special inquiry officer. The issue presented
is whether au alien who departed from the United States voluntarily
after an order was issued in deportation proceedings giving him the
privilege of departing voluntarily but providing for his deportation
if he failed to depart as required, has broken the continuity of domestic residence required by section 249 of the Act.
The special inquiry officer found that respondent's timely -departure
on January 7, -1959 under an order issued in deportation proceedings
giving him voluntary departure, but requiring his deportation if he
did not depart as required was under an order of deportation and
therefore broke the continuity of his residence.
The special inquiry officer is in error. Respondent's departure was

not under an order of deportation; it was under a grant of voluntary
departure. The order of deportation was conditioned upon the alien's
failure to depart. The condition never came into 'being; therefore, the
order of deportation never became effective.
593

Interim Decision #1830
In Matter of Young, Int. Dec. No. 1429, the Board held that an alien
who departed voluntarily pursuant to an order of voluntary departure
made in deportation proceedings had not broken the continuity of
his residence in the United States for the purpose of section 249. The
special inquiry officer sought to distinguish the instant case from
Young by reliance on language there that Young had not left as "the
result of exclusion or expulsion proceedings" (at p. 4) while in the
instant case a deportation order was outstanding. The language in
Young is general but a careful reading of the case shows that the
deciding factor in the case was the absence of a departure which could
be regarded as having executed an order and warrant of deportation.
It is clear there was a deportation proceeding there and that it had
brought about Young's departure.

The special inquiry officer believed that the provisions of 8 CFR
243.5 distinguish the instant case from Young; however, he does not
explain his conclusion and we are puzzled by it since this regulation
provides that an alien who departed when an order of deportation is
outstanding shall be considered deported "except that an alien who
departed before the expiration of the voluntary departure time
granted in connection with an alternate order of deportation shall not
be considered to have been so deported." The regulation does not
require respondent to be considered as one who was deported; rather,
it requires him to be considered as one who was not deported.
lJnder; the law and regulations respondent was not deported; there
is no reason to 'treat him as if he were. Deportation terminates residence in the United States. It prevents the deportee from obtaining a
visa for return, unless he gets permission, and it makes his reentry a
felony if he returns without permission. On the other hand, voluntary
departure permits the return of a qualified alien to the United States
for either temporary or permanent residence. There is no inconsistency
in permitting an alien illegally in the United States to depart to obtain documents which will enable him to reenter legally for permanent
residence, and considering him as retaining his domestic residence.
Mrvica v. Esperdy, 376 U.S. 560, does not apply because the alien
there was deported. He "was not intended to be readmitted as a resident" (at p. 567). The Court refused to consider what the situation
might have been "in the absence of a valid deportation" (at p. 567).
The trial attorney contends that respondent's departure under the
order of voluntary departure was an abandonment of residence (even
though he returned on the same day) because he could not have known
when he would return since it would take an indefinite period to obtain
the immigrant visa. We think the reasoning is strained. The record
594

Interim Decision 4t1880
shows respondent never intended to abandon his residence in the
United States.
The special inquiry officer stated. that if the respondent's residence
was not broken by his departure on January 7, 1959 he was clearly
eligible for relief. We agree with the special inquiry officer. Respondent has been in the United States since he was a small child, he is married to a legally resident alien, has two United States citizen children,
and is highly regarded by his employer and neighbors. Respondent's
application will be granted.
ORDER: It is ordered that the order of the special inquiry officer of
September 7, 1967 be and the same is hereby withdrawn.
It is further ordered that respondent's application for lawful admission for permanent residence, limier section 249 of the Immigration Nationality Act be and the same is hereby granted.


Interim DeCision #1594
•

3Lenzu or STazetiemenrs •

In Visa Petition Proceedings
A-10904242

-

Decided Disfrtiet Director June 8,1986
Since a biologist is a member of the professions within the meaning of section
203(a) (3), Immigration and Nationality Act, as amended by P.7s 83-236, a
visa petition to accord third preference status to beneficiary, a qualified
biologist, may be approved notwithstanding his current employment in the
'United States in a *nonprofessional occupation.
'3

•

The petitioner, a Clinical Professor of Anaesthesia at Harvard
University and f)irector of Anaesthesia at the Peter Bent Brigham
Hospital, Boston, Massachusetts, seeki to. have the beneficiary clessifield under. section 203(a) (8) of the Immigration. and Nationality.
Act, as amended, which provides for immigrant visas to he made
available "to qualified immigrants who are members of the professions, or who because of their exceptional•ability in-the sciences
or the arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the United States."
The beneficiary is a 36-year-old native and citizen of Greece.
He attended the University of Istanbul from March. 1954 to November 1055 and the University of Thessaloni for the academic year
1955-1956. • His studies-at each of these universities. included chemistry. He was awarded the degree of Bachelor. of Arts in Biology
by Boston University in 1962 after attendance there since 1958.
He attended West Virginia University from September 1962 to
June 1965 in an unsuccessful attempt to obtain a master's degree
in anatomy. He has employment at the Peter Bent Brigham Hospital as a laboratory technician.
On March 4, 1966, the Department of Labor, after reviewing
the beneficiary's qualifications, issued a certification pursuant to
section 212(a) (14) of the Act, as amended. The certification is to
the effect that there are not sufficient qualified biologists available
in the United Statet and that the employment of biologists will
not adversely affect wages and working conditions of workers-in
the 'United States similarly employed.

843

Interim Decision #1594
Section 101(a) (32) of the Immigration and Nationality Act, as
amended, provides that the term "profession" shall include but not

be limited toarchitects, engineers, lawyers, physicians, surgeons, and
teachers in elementary or secondary schools, colleges, academies, or
seminaries. As the professions listed are not all-inclusive, we may
•consider other commonly used definition's Of bhe term. .
-.Webster's New International- Dictionary, contains the following
definition of "profession":
The occupation, if not purely commercial, mechanical, agricultural, or the like,
to which one devotes oneself; a calling in which one professes to have acquired
some special knowledge osed . b? war either of inetroctini.gukkini, or advising
others or of serving them in some ait; • as, the piofeisron-Of arms, orteaching,
of

. .

Pertinent hereto is-a- decision' of 'the Supreme Court tlf-thtelTidted
States holding that a chemist, coinin g to the 'United' tf104 'to iv.irk
on a sugar plantation is a person 'belonging to a "recilikiiss
.

fessioe within the meaning of the Act of March 3, 1891, excepting
him from the contract labor prohibition of the Act of February 26,
1885, then in effect. The Court said, in pint: •
Although the study of chemistry is the study of science, Yet a chemist who
occupies himself in the practical use of'his knowledge of chemistry, as his services may be demanded, may' Certainly, ht. this time, be fairly regarded 'as in the
practice of, a profession. " One definition of a profession .is an "employment,
especially an employment requiring a learned education, as those of divinity,
law and physic." (Worcester's Dictionary, title profession.) In,, the Century
Dictionary the definition of the word "profession" is given, among others, .as
"A vocation in which a professed knowledge of some department Of science or
learning is used by its practical application to the affairs of others, either in
advising, guiding, or teaching them, or in serving their interests or welfare in
the practice of an art founded on it. 'Formerly, theology. law and medicine
were specifically known as the professions'; but.as the applications of science
and learning are extended to miler departments or affairs, Otter vocations also
receive the name. The word implies professed attainments in special knowledge, as distingnished from mere akin. A practical dealing with affairs, as
distinguished from mere study or investigation; and an: application. of such
knowledge to uses for others, as a vocation, as distinguished !rota its pursuit
for its own purposes." There are professors of chemistry In all the chief collegit of the country. It is a science, the knowledge of which is to be acquired
only after patient study and application. The chemist who places his knowledge acquired from a study of the science to the use of others, is he may be
employed by them, and as a vocation for the purpose of his own maintenance,
must certainly be regarded as one engaged in the practice of a profession
which is generally recognized in this country.

. The biological sciences are discussed in the "Occupational Outlook

Handbook", a publication of the Department of Labor, pages 133' United Stater v. Laws,163

U.S. 258,,266 (1896).

644

Interim. Decision. *1594
138. A. related bachelor's degree is the minimum educationid

re-

quirement for a beginning job as a biologist. Biological scientists
engage in a wide field cif activities, including teaching; management
and administrative work such as planning, supervision and edthinistration of programs c;d research or of testing of foods, drugs and
other products. A substantial number are engaged in research and
development. Willie some conduct basic- :research, from tuth
research has stemmed the development of insecticides,' diseaseresistant crops, and antibiotics.
We find the beneficiary is a qualified biologist; that the occupation
of biologist is comparable to that of the chemist and the.digineer;
and that as a biologist this beneficiary is a member of the ,profnsaions
within the meaning of the Immigration and Nationality Act, as

amended.
The Immigration and Nationality Act, as amended, does not
specify that a member of the professimis must be coming to . this .
country to engage immediately in the practice of his profession
in order to qualify for third preference'status. 1n fact, no prospective employer is required and the alien may petition in his own
behalf. Thus if the beneficiary in the instant case were not presently
employed the petition would be cleirly approvable. The question
before us, therefore, is whether the alien's present' employment in
a non-professional occupation as a laboratory technician precludes
approval of a petition to accord him a third-preference olassification
es a member of the profegaions.
In many instances and frequently because of factors over which the
alien has no control such as licensing and, other local restrictions,
he may be forced to accept any available employment for a period
of time after arrival before entering into professional practice.
On March 18, 1965 the Secretary of Labor testified before a supcommittee of the. House Committee on the Judiciary regarding
certain aspects of H.R. 2580 which, as amended, was enacted as
P.L. 89-236. In advocating -that specific job offers not be required
for highly educated and specialized immigrants, such as those now ,
encompassed in• the third preference, the Secretaly stated that the
addition to this country of those immigrants would be. a definite
boon to the American culture and workforce. He agreed that this
would be so even if the alien would not occupy one of the specific
skills for which he merited consideration as a preference alien, and
stated that the alien should be "free to climb." 2
2 Hearingt on H.R. 2580 before a Subcommittee of the House Committee on
the Jualetary, 88th Goa., Itit Seas., ser. 7, •Lt 125 (1065).

645

Interim Decision #1594.
It is concluded, therefore, that an alien's current employment in
the Uxiited States in a non-professional occupation does not preclude approval of a petition to accord him third preference classification if he is determined to be a qualified member of the professions.
On the basis of the foregoing, the petition will be approved.
ORDER: It is ordered that the petition be approved.


Interim Decision #2467

MATTER OF TANORI

In Deportation Proceedings
A-17262054
Decided by Board February 4, 1976
Where the deportability of respondent resulted from a conviction of a marijuana violation

which occurred prior to his temporary departure from the United States; evidence of
record establishes that he is statutorily eligible for discretionary relief under section
212(c) of the Immigration and Nationality Act; he has close family ties in the United
States, and there is no evidence of misconduct apart from the conviction of a marijuana
violation, the record is remanded in order to give the immigration judge an opportunity
to consider, in deportation proceedings, respondent's application for a 'mum pro tune
waiver under section 212(c) of the Act.
CUARCE:
Order: Act of 1952—Section 241(a)(11) 18 U.S.C. 1251(a)(11)]—Convicted for possession of marijuana for sale in violation of section 36-1002.06 of
the Arizona Revised Statutes.
OE BEHALF OF SERVICE:
Bernard J. Hornbach
Trial Attorney

ON BEHALF OF RESPONDENT:
Byron B. Park, Esquire
Edward R. Lit win, Esquire
681• Market Street, Suite 930
San Francisco, California 94105

In a decision dated- March 12; 1974, the immigration judge found the
respondent deportable on the above charge, and ordered him to be
deported to Mexico. On appeal to this Board, the respondent applied for
termination of proceedings or, in the alternative, remand for consideration of an app:ication for a nuns pro tune waiver under section 212(c) of
the Immigraton 'and Nationality Act. In our decision dated December
26, 1974, we 'found that respondent was deportable. Accordingly, we
denied his request for remand and dismissed the appeal. Respondent
appealed that decision to the United States Court of Appeals for the
Ninth Circuit. On June 18, 1975, the United States Attorney moved to
remand this case. On July 15, 1975, the Court of Appeals issued an order
granting that motion and remanding'this case to us for further administrative proceedings. The record will be remanded to the immigration
judge.
566

Interim Decision Fait)
The issues presented by the case are whether the respondent is
statutorily eligible for discretionary relief under section 212(c) of the
Act in a deportation proceeding, and whether respondent's case merits a
favorable exercise of discretion. The respondent is a 26-year-old alien,
native and citizen of Mexico. He was lawfully admitted for permanent
residence on March 4, 1966. On August 21, 1973, respondent was convicted in the Superior Court of the State of Arizona of possession of
marijuana for sale in violation of section 36-1002.06 of the Arizona
Revised Statutes.
The record contains a copy of a receipt from a jewelry store in San
Luis, Mexico which indicates that respondent made a payment of $30 for
a gold chain on August 21, 1973. Also of record is a copy of a letter from
respondent's sister, Esthela Tanori de Aguayo, which indicates that
respondent visited her in •San Luis, Mexico on August 21, 1973, and
returned to Salinas, California on the next day. Respondent stated in a
letter to his attorney on April 2, 1974, that he made a telephone call to
his wife in the United States from San Luis, Mexico on August 21, 1973,
but was unable to obtain a record of that call from the Mexican telephone company. In an application for advance permission to return to
unrelinquished domicile, respondent stated that he departed temporarily from the United States and entered Mexico on August 21, 1973 for a
period of 24 hours, and was readmitted to the United States at the San
Luis border station August 22, 1973.
Section 212(c) of the Act provides that aliens lawfully admitted for
permanent residence, who temporarily proceed abroad voluntarily and
not under an order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may be admitted in
the discretion of the Attorney General without regard to certain
specified grounds for exclusion enumerated in section 212(a) of the Act.
The grounds specified include an alien convicted of a marijuana violation
as set forth in section 212(a)(23) of the Act.
In this case respondent had been lawfully admitted for permanent
residence. His deportability resulted from a conviction of a marijuana
violation which occurred prior to his departure from the United States.
The evidence establishes that his departure was voluntary and temporary and not under an order of deportation. There is no evidence in the
record to controvert the fact that at the time of his last entry respondent
was returning to an unrelinquished domicile of seven consecutive years.
A waiver of the ground of inadmissibility under section 212(c) of the
Act may be granted nunc pro tune in deportation proceedings, Matter of
Edwards, 10 I. & N. Dec. 506 (BIA 1963, 1964); Matter of G--A—, '7 I.
& N. Dec. 274 (BIA 1956); Matter of S—, 6 L & N. Dec. 392 (BIA 1954;
Atty. Gen. 1955); Matter of F—, 6 I. & N. Dec. 537 (BIA 1955); Matter
of M — , 5 I. & N. Dec. 598 (BIA 1954); Matter of L--, 1 I. & N. Dec. 1
567

Interim Decision #2467
(BIA, Atty. Gen. 1940). (Decided under predecessor statute.) Under
section 212(c) of the Act, a waiver of the ground of inadmissibility may
be granted ill a deportation proceeding when, at the time of the alien's
last entry, he was inadmissible because of the same facts which form the
basis of his deportability, Matter of G—A--, supra; Matter of S—,
supra. We donclude that under the circumstances of this case, the
respondent is statutorily eligible for relief from deportation pursuant to

section 212(c) of the Act.
The respondent has been a permanent resident alien for more than
nine consecutive years_ He has close family ties in the United States
which include his parents and his wife who are also lawful permanent

residents.. The record reveals that he has one United States citizen
child, and that his wife was pregnant at the time he applied for discretionary relief under section 212(c) of the Act. Following his conviction,
the Superior Court of the State of Arizona ordered the suspension of the
imposition of sentence for a period of three years. On October 8, 1973 he
began a job training program in truck diesel mechanics at the Opportunities Industrialization Center in San Jose, California. The record
does not contain evidence of misconduct apart from the aforementioned
conviction. We shall remand the record in order to give the immigration
judge an opportunity to consider respondent's application for a nunc pro
tune waiver under section 212(c) of the Act.
ORDER: The record is remanded to the immigration judge for
further proceedings in accordance with the above opinion.

568


Interim Decision 4E1511

MALLEs

or .STorrcrererr

In Exclusion Proceedings
A-12424810
Decided by Board September 23, 1965
The absence of any regulatory provisions applicable to exclusion proceedings
which are similar to those in deportation proceedings regarding mentally
incompetent aliens is no bar to a similar hearing under section 236, Immigration and Nationality Act, as amended; therefore, where a mentally incompetent alien's presence at the exclusion proceedings was deemed impracticable, be had no relatives or friends to act on his behalf, and the special inquiry officer asked the acting superintendent of the hospital in which
the alien was confined to represent the applicant, and the latter, through his
representative, was advised of his right to appeal the U. S. Public Health
Service certification of "afflicted with psychopathic personality," the procedure of the special inquiry officer was proper and constituted a fair hearing.
txciammu.s: Act of 1952--Section 212(a) (4) [8 U.S.C. 1182(a) (4)1—.-Aftlicted
with psychopathic personality (paranoid personality per S.N.D.O.).

•

The case comes forward pursuant to certification' by the special
inquiry officer of his order entered May 26, 1965 finding the applicant excludable on the ground set forth above and ordering him
excluded and deported from the United States.
The record relates to a native and citizen of Bulgaria, 21 years
old, male, single, who was paroled into the United States on December 7, 1961 at the port of New York, purshant to section 1 of the
Act of July 14, 1960.2 Prior to entering the United States on Decem2 Section 1 of the Act of July 14, 1960 provides4bat under the terms of section 212(d) (5) of the Immigration and Nationality Act, the Attorney General
may parole into the United States, pursuant to such regulations as he may
prescribe, an alien refugee escapee defined in section 15(e) (1) of the Act of
September 11, 1257 if such alien (1) applies for parole while physically present within the limits of any country which is not Communist, Communistdominated, or Communist-occupied, (2) is not a national of the area in which
the application is made. and (3) is within the mandate of the United Nation:
High Commissioner for Refugees.
-

329

Interim Decision #1511 ber 7, 1961, the applicant had resided in Paris, France since April
1960; from June 1951 to April 1960 he resided in Istanbul, Turkey;
prior to June, 1951 he resided in Bulgaria.
In November of 1903 the applicant was arrested and indicted for

the offense of attempting to commit murder and for the offense of
aggravated battery. ; However, subsequent to the indictment, it was
determined that the applicant was mentally incompetent, he was
committed to the Illinois Security Hospital, at Menard, Illinois
and the indictment was quashed. Parole was revoked on March 22,
1965 and the applicant was detained for hearing before a special
inquiry officer.
Prior to the hearing Dr., Israel Newmark, physician in charge at
the Illinois Security Hospital, at Menard, testified that the applicant
was mentally incompetent to testifyi; that the applicant, if he knew
that these proceedings were for the purpose of determining his
excludability and possible deportation from the United States,
Would in all probability commit suicide. It was therefore determined
that the hearing should be held outside the presence of the applicant. The Acting Superintendents of the Illinois Security Hospital

was than asked to represent the applicant, it having been determined
that the applicant did not have any friend or relative who could
act in his behalf. A medical certificate was issued certifying that the applicant is
afflicted with psychopathic personality (paranoid personality per,
g.N.D.0.); signed by two medical doctors at the Public Health

Service. Attached to the medical certificate is a medical examination of the applicant on Form FS 398, showing the applicant to be
afflidted with psychopathic personality (paranoid personality per
S.N.D.O.), and signed -by the Medical Doetor-Surgeon General,
United States Public Health Service Hospital, Chicago, 'Illinois
(Ex. 6). The applicantithroughl his representative, was' advised of
his right, pursuant ta`section. 234 of the Immigration and 'Nationality
Act and section 34.14(a) (2), Title 42, OM, to"appeal- the -findings
, of the United States Public Health Service to a medical board but
Jana to do so.
Ordinarily in such cases the decision of the special inquiry officer
is final and there is no further appeal to this Board. However, the
special inquiry officer has certified his order to the Board because
there is no provision contained- in 8 OFR 236 similar to that provided in 8 CFR 242.11 which provides:

Incompetent respondents—When it is impractical for the respondent to be
present at the hearing because of mental incompetenci, the guardian, near rel,
ative, or friend who was served with a copy of the order to show cause shall
330

Interim Decision #1511
be permitted to appear on behalf of the respondent. If such a person cannot
reasonably be fotind or fails or refused to appear, the custodian of the respondent shall be requegted to appear on behalf of the respondent.
Section 212(d) (5) of the Immigration and Nationality Act, and

section 3 of the Act of July 14, 1960 provide that after the purpose
of the parole has been served, the alien shall be returned to the
custody from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of any other
applicant for admission to the "United States in accordance with
the provisions of- sections 235, 238 and 237 of the Immigration and
Nationality Act. The applicant therefore is in the position of an

entrant alien. Section 234 of the Immigration and Nationality Act
provides for the physical and mental examination of arriving aliens
by medical officers of the -United States Public Health Service. The
regulations, 42 CFR 34.7 (v) provides for the issuance of a Class
"A" 'certificate with respect to aliens who are afflicted with psychopathic personality. After the issuance of such a Class "A" certificate, the alien's only recourse is to a board of medical officers as provided in section 234 and 42 CFR 34.14. No appeal lies to the Board
of Immigration Appeals.
Section 236 provides that any arriving alien who has bean detained for further inquiry under section 235 may be excluded and
deported and the determination of such special inquiry shall be
based only on the evidence produced at the hearing. Neither section
280 of the Act nor the regulations, 8 CFR 238, contain any 'provision

similar to that cited by the special inquiry officer in section 242.11
regarding incompetent respondents. Nor is there any provision
similar to that contained in 8 CM 242.3 in deportation 'proceedings which provides that if the respondent is not competent to widerstand the nature of the proceedings, a copy of the order to show
cause, and the warrant 'of arrest, if issued, shall be served only
upon the perion in charge of the institution or hospital in which
the respondent is confined; in case of mental incompetency, whether
or not confined in an institution, a copy of the order and of the
warrant of arrest, if issued shall be served upon such respondent's
guardian, near relative or friend, whenever possible. •
However, the burden of proof under section 235-is greater than
that under section 241 inasmuch as any person coming into the
united States may be required to state under oath the purpose or
purposes for which he comes, the length •of time he intends to

remain in the -United. States, whether or not he intends to remain
in the United States permanently and, if an alien, whether he intsmda'
to become a citizen thereof, and such other items of information as
331

Interim . Decision 4t1511
shall aid the immigration officer in determining whether he is a
national of the United States or an alien and, if the latter, whether
he belongs to any of the excluded classes enumerated in section 212
of the Act. Deportation has been characterized as delayed exclusion.
It is felt that the ommission of regulations such as have already
been cited which apply to deportation proceedings under 8 CFR
242 is not a bar to a similar hearing under section 236. In like
vein, it has been held that a mentally incompetent United States
citizen, acting through a legally appointed guardian; is eligible to
Ale visa petition on behalf of a beneficiary.' In view of the provi-

of section 235 and section 236(d) of the Act relating to mentally incompetent aliens, together with 42 CFR, Part 34, we feel that
the procedure adopted by the special inquiry officer in the instant
ease was proper and constituted a fair hearing. The order of the
special inquiry officer will be approved.
ORDER: It is ordered that the order entered by the special inquiry
officer on May 26, 1165 excluding the applicant alien be and the
same is hereby affinned.
sions

'Hatter of T—, 9 I. & N. Dec. 503, citing Wong v. Hog, 173 F. Sapp. 856.

332


MATTER OF M—R-

In DEPORTATION Proceedings
A-12700022
Derided by Board March 21 , 1962
Misrepresentation—Section 212(a)(19)—Materiality.
Willful misrepresentations

as to name, marital status, and existence of minor

children held not material in this ca se • the faota fail to surrest a around

of exclusion, or even a substantial question of admissibility. (Compare
Matter of S— and B—C —, 9-436.)
CRA_RGE :

Order: Act of 1952—Section 211(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
under section 212(a) (19) in that procured visa by fraud or willfully misrepresenting a material fact.
BEFORE THE BOARD

DISCUSSION: The special inquiry officer ordered proceedings
terminated. The examining officer has filed this appeal and, together with it, a brief. The appeal will be dismissed.
Respondent, a 27-year-old widow, a native and citizen of Mexico,
was admitted to the United States for permanent residence on June
15, 1961, upon surrender of an inunigrain, visa obtained the previous ,
day from the American Consul in Juarez, Chihuahua, Mexico. The
Service claims this visa was obtained by fraud or willful misrepresentation of a material fact in that the respondent had failed to
reveal her true name, her marital status, and the fact that she had
children, when she applied for the visa.
Respondent went through both a civil and religious marriage in
Mexico in 1950. Her husband died in 1956. Three children were
born of the union. Respondent testified that she went to the American consulate to obtain information about coming to the United
States and was informed that a widow with '6 children could not immigrate unless she had some help to support her children. Not having such assistance available and being of the belief that she would
not be permitted to come to the United States if she were to tell the
truth, she applied for a visa in her maiden name, A—M--R—, a name
she had allegedly used since the death of her husband, although as a
602

widow bite could have used the name A—M-- vda. do P . When

she applied for the visa, she concealed the fact that she had 3 children and that she had been married.
In Mexico, respondent had been employed as a domestic. Her visa
file reveals that she was coming to the United States to take employment as a domestic at $25 a week, plus room and board. While
in Mexico, she was apparently supporting her children. Two of the
children entered the United States illegally and are now residing

with relatives. One child remains in Mexico with the respondent's
father. Respondent alleges she is supporting her father and this
child. The record shows that she now earns $20 a week and receives
room and board.
The service contends that had respondent revealed her name as a
widow, she would have been required to submit a police record in
that name (respondent did not submit such a report). It is contended that respondent's use of the maiden name and failure to reveal
that she was a widow cut off avenues of inquiry which were material because the issuance of the visa lies in the di:301.060n of the
consul and had the truth been known to him he would have been
required to determine if the salary the respondent was to receive
would be sufficient to support a family in the United States, and also
whether respondent had made adequate arrangements to care for her
children or planned simply to abandon them. The belief is expressed
that had the consul known the true facts he would probably have not
issued a visa to respondent. The examining officer concedes that had
the true facts been known inquiry would not have placed respondent
in an excludable class.
The special inquiry officer found that the misrepresentations were
willful; however, he concluded that the misrepresentations, though
concealing matters relevant and matters which the consul should have
known, were not material because the truth would have merely revealed that the respondent had 3 dependents, a fact which would
have revealed no statutory ground for respondent's exclusion. The
special inquiry officer pointed out there was no indication that respondent was attempting to abandon her children, and since she
could undoubtedly earn more in the United States than in Mexico
she would be in a better position to support her 3 young children who
were remaining behind, so that there was no question as to either
abandonment or the possibility of respondent becoming a public
charge while she continued to support her children.
Counsel points out that the respondent was asking for her visa
only for herself and not for her children and that her ability to
maintain herself in the United States was the issue before the consular official rather than whether respondent could afford to sup,

port a family in the United States.
603

The standards as to materiality were laid down by the Attorney
General in Matter of S— and B C , 9 136 (Oct. 2, 1961). 1 The
Attorney General's test for materiality in a case where the alien is not
excludable on the true facts but where a, relevant line of inquiry has
been cut off (and surely information as to correct name, marital status,
and family is relevant) requires a determination as to whether the
inquiry might have resulted in a proper determination that the alien
was excludable. (On this issue the alien bears the burden of proof.)
On the facts as they existed when the consul considered respondent's
application, we cannot conclude that he might have made a proper
determination that she was excludable for the record establishes that
respondent, coming to employment in which she was qualified and for
which she was assured a reasonable salary, together with room and
board, was not a person likely to become a public charge even though
she would devote a portion of her income to the support of her children
in Mexico. The facts fail to suggest a ground of exclusion or even the
existence of a substantial question as to respondent's eligibility to
enter. The misrepresentations, though willful and most deplorable,
were not material.
ORDER: It is ordered that the appeal of the examining officer be
and the same is hereby dismissed.
—

—

Roche v. United
1 At oral argument the Service representative stated that
Rtatex, 2R5 F.2/1 545 (Mar. 2. 1961), cert. den. 366 U.S. 948 (June 12, 1961),
which deals with criminal prosecution for fraud in immigration matters, requires the finding that the misrepresentation here was material. The Attorney
General's decision was made after certiorari was denied in Roche and wag
made without reference to Roche. We are bound to follow the Attorney General's decision.

604