Interim Decision #1671

Mega , of

NATJPAIRI

In Visa Petition Proceedings
A-13638868
Decided by Regional Commissioner November 08, 1988
Petitioner, who studied law, was issued a license to practice law, and practiced law in Tonga from 1952 to 1963, is qualified, as a lawyer, for class!.
dcation as a member of the professions within the meaning of section 101(a)
(32) of the Immigration and Nationality 'Act, as amended by P.L. 89-236,
and notwithstanding the prerequisite of U.S. citizenship may preclude him
from immediately engaging in his profession in this country, be is eligible
for preference status under section 203(a) (3) of the Act, as amended, since
he is continuing his study of law and •allegedly desires and Intends to
practice his profession as soon as found legally qualified to do so. -

Discussion: This case comes forward on. appeal from the decision
of the District Director, San Francisco, who denied the petition. on
May 31, 1966, iii that .the petitioner has abandoned his practice as
a lawyer and does not intend to continue practice as a lawyer.
Counsel for petitioner requested oral argument on appeal, which
was granted and oral argument was heard July 20, 1968_

Petitioner is a 40-year-old married male, a native and citizen of
Tonga. He was admitted to the United States at Honolulu, Hawaii,
May 28, 1963; to May 27, 1964, as a student destined to Utah State
University, where he enrolled in a business and social science course.
He attended school for one year and then came to California. While
attending school in Utah he was variously employed as a laborer by
a packing company and by Gibbon and Reed Company of Salt Lake
and as a parking lot attendant by the University of Utah. Upon
arrival in California in the fall of 1964 he obtained employment with
the Peninsula Golf and Country Club in San Mateo, California, as
a dishwasher.
On February 4, 1966, he submitted the instant petition for classification for preference under section 203(a) (3) of the Act, as
amended, in his own behalf. In'tbis petition he shows his profession

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Interim Decision #1671
or occupation as "lawyer" and states that he intends to 'engage in ,
that profession. Section 203(a) (3) of the Act, as amelided, provides
that visas shall be made available "to qualified immigrants who are
members of the professions, or whebecause 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.'
Section 101(a)'(32) of the Act definbV the term "profession" and
includes the profession of "lawyer"..
Section 212(a) (14) of the Act provides for the exclusion of certain
aliens unless the Secretary of Labor has certified that there are not
sufficient workers in the United States who are able, willing, qualified and available and that the employment of such aliens will not
adversely affect the *ages and working conditions of workers in the
United States in similar employment. Part 204.2(f), Title 8, Code
of Federal Regulations, specifies that such a certification is required
before a visa petition•may be approved to accord an alien preference
elmEsifieation under section 9 (a) (8) of the Act.

The Department of Labor reviewed the petitioner's application for
certification and his qualifications for the profession of lawyer and
on April 29, 1966, issued the appropriate certification and concluded
that petitioner appeared qualified for classification as a lawyer.
The conclusion of the Department of Labor, that petitionerappeared to qualify as a lawyer is advisory by nature. We find that
he is so qualified. The fact that a person obtained a baccalaureate

degree in any field does not necessarily qualify him for recognition
as a member of the professions. Generally, though, a person may be
considered as a member of a profession if he has successfully completed an education which is equivalent, at a minimum, to a baccalaureate degree following four years of university level studies,
which qualifies him to enter a field of endeavor requiring highly
specialized knowledge of eln advance type, for which such education
is a realistic prerequisite. However, a person may also establish.
that he is a member of the professions by other means; such as independent study, ability, talent, honors and experience. In Matter of
Strippa, Interim Decision #1602, It is stated, "Cognizance may be
taken of the fact that an individual may be accorded recognition as
a member of a particular profession where he may lack the requisite
high education but has had special training and,extensive practical
experience in such work."
As evidence of his qualifications as a lawyer, petitioner presented a
letter under the seal of the Justice - Department, Nuku'alofa,. Tonga,.
.

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Interim Decision #1671
dated December 13,
Tonga as follows:

1962, by the Registrar of the Supreme Court of

"TO WHOM IT MAX CONCERN:
Thin le a certificate from the Tonga Government Law Society certifying

law units that TEVITA NAUEAHU TAT.AKAT has passed.
1949-1952 Written in Tongan
Grading
Constitution Law
----A
Magistrate & Supreme Court Lew
A
Evidence Law
Criminal Law
A
Lands Lavr
Contract Law —
•
1961 Written in Eng lisR
A
Constitution Law
A
Magistrate & Supreme Court Law
Evidence Law
Criminal Law
. Lands Law
Contract Law ------------------- A.
The above named person studied law under the auspices of the Tonga
Government Law Society from 1954-1961 and he was examined by His
Lordship Justice D. B. Hunter, B.A., LLB (Australia) who is the Judge
of the Supreme Court of Tonga."

He also presented a "lawyer's license" under the seal of the
Supreme Court of Tonga, issued by the Regihtrar of the Supreme
Court of Tonga, showing the issuance of a lawyer's license to pracflail law dated January 12, 1962.
In his "Statement of Qualifications" petitioner shows that he studied law with the Tonga Government Law Society in Tonga from
1946 to 1952 and was issued a lawyer's license to praCtice law in the
Tongan language and further studied with the same law society in
the English language from 1954 to 1961 and was issued a license to
practice law in the English language in 1961. He has also alleged.
that from January 1952 to May 1963 he was engaged in the "general
practice of law; represent clients in both criminal and civil matters;
drafting contracts and all necessary legal documents and appear in
courts as required." He has also stated that from February 1956 to
May 1963 he was employed by the Audit Department of the Govern•ent of Tonga, where he checked and reviewed records of all goyerninent departments to assure compliance with Tongan laws.
On appeal counsel presented a letter with the seal of the Justice
Department •f Tonga by the Registrar of the Supreme Court of
Tonga dated August 2, 1966 as follows:
"This is to certify that TBV1TA, NILUR4X177. Zat'LLET, formerly a resident
of Nuku'alofa, Tongatapu in the raga= of Tonga was (Blamed as Lawyer

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Interim Decision #1671
in the year 1952 to act* as a Representative in the Courts of Tonga, and obtained first issue of his Lawyer's License- under the hand and seal of the
Supreme Court Judge of Tonga in that year.
The Ica renewal of his Lawyer'a License was in 1982.ft

Counsel also presented a letter from the "Lawyer and Legal
Advisor and Representative in Parliament," Tonga Government,
dated July 25, 1966, -which attests to the petitioner's qualifications
and ability and work performed. as a lawyer in Magistrate and Su. prams Courts of Tonga from 1952 to 1963.
Counsel in his brief points out that petitioner has not been permitted to practice law in the State of California because "the practice
of law in the State of California is limited to United States citizens." He points out that petitioner still has the desire and intent
to practice his profession as soon as the legal requirements of the
State of California can be met. As evidence of petitioner's continued
efforts to qualify he has presented. a letter from the Blackstone
School of Law dated June 16, 1966, by the Vice-President of the
school, which reads: "This is in answer to your letter of the 14th,
regarding Mr. Naufahu's enrollment with us. Yes, he is enrolled
with us and has been for a little over a year." (Petitioner started the Blackstone Law course in February 1965.)
Comma' also points out that the "Business and Professional Code
of California, section 6060, provides that law office study may be
substituted for college or university study for admission. to the Bar
in the state." It is further noted that in Matter of Sta4roatiattes,
Dec. No. 1594, decided by the District Director on June 8, 1966, it is
'stated: "The Immigration and Nationality Act, as amended, does not
specify that a member of the professions must be coming to this
country to engage immediately in the practice of his profession in

order to qualify for third preference status . . .", and "In many
instances and. frequently beams of factors over which the alien has
no control comh as licensing andcother. local restrictions, he may be
forced. to accept any available employment for a period of time after
arrival before entering into professional practice."
Since an applicant for a. visa under section 203(a) (8) may be a
member of a profession for which a license, or eyen citizenship may
be a. prerequisite before he may engage in his professional endeavor,
we do not read. into the statutes or regulations, a requirement that the

applicant must be-able to engage in. the qualifying profession immediately if admitted to the United States. It is sufficient if he can
show a bona fide purpose or intent to work in the United States in
his qualifying endeavor. •
.

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Interim Decision #1671
The petitioner is continuing his study of law and has alleged that
he is continuing with the desire and intent to practice his profession
as soon as found legally qualified.
Considering all factors as described above, it must be found that
the petitioner is a member of the professions and intends and desires
to practice his profession. in the United States and that he meets the
requirements for preference classification under section 203(a) (3) of
the Act. The appeal will be sustained and the petition granted.
ORDER: It is ordered that the appeal be sustained and the peti• ton granted.

808


Interim Decision #2836

MATTER OF HEDRICK
In Visa Petition Proceedings
A-22711481
Decided by Regional Commissioner September 16, 1980
To qualify for the blanket labor certification as provided for in 20 C.F.R. 656.10(d)(2), the
beneficiary must be qualified to enter or have qualified to enter the United States
under section 101(a)(15)(L) of the Act, S U.S.C. 1101(aX15)(L); and the requisite
qualifying experience must have been with the international corporation while the
beneficiary was outside of the United States and immediately preceding entry into the
United States.
ON BEHALF OF PETITIONER:

Thomas P. Ondeck, Esquire
Baker & McKenzie
515 Connecticut Avenue,

N.W.

Washington, D.C. 20006

This matter is before me on appeal from the District Director's
decision of December 10, 1979, denying the petition to classify the
beneficiary as a financial executive under section 203(a)(6) of the
Immigration and Nationality Act, 8 U.S.C. 1152(a)(6), as amended. The
appeal will be dismissed.
The petitioner is an international corporation engaged in the manufacture and sale of metal-cutting equipment. It has some 184 offices
and manufacturing facilities in 19 countries, annual sales in excess of
$200 million, and approximately 4,100 employees. The beneficiary is a
44-year-old native and citizen of Canada who entered the United
States in July 1972, as a nonimmigrant "H-1" temporary worker in
order to work for the petitioner as a financial and administrative
executive. He has been employed in that capacity continuously since
that time. Previously, the beneficiary had been employed by the petitioner's Canadian affiliate from July 1969 to August 1971. From August
1971, until his entry into the United States on July 30, 1972, he served
as the secretary-treasurer of a separate unrelated Canadian corporation. The instant petition was filed February 28, 1979.
Under section 212(a)(14) of the Immigration and Nationality Aet, 8
U.S.C. 1182(a)(14), aliens seeking classification under section 203(a)(6)
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Interim Decision #2836
of the Act are required to first obtain certification of the United States
Department of Labor. In lieu of individual certification, the petitioner
seeks to qualify the beneficiary under the blanket labor certification
provisions of Schedule A, Group IV of 20 C.F.R. section 656.10(d) which
provide for the blanket certification of:
(1) Aliens who have been admitted to the United States in order to work, and who are
currently working, in managerial, or executive positions with the same international corporations or organizations with which they were continuously employed
for one year before they were admitted; and
(2) Aliens who will be engaged in the United States in managerial or executive
positions with the same international corporations or organizations with which
they have been continuously employed for the immediately prior year.

The District Director noted that under these provisions the alien
must have been continuously employed for one year immediately prior
to his admission to the United States by the same international corporation organization. The recordshows, and the petitioner does not dispute,
that the beneficiary was employed by an unrelated company for the year
preceding his entry into the United States in 1972. Therefore, the District Director found that the beneficiary was ineligible for blanket labor
certification under Schedule A, Group IV, and he denied the petition.
On appeal, the petitioner argues that under the literal wording of
the second part of Schedule A, Group II (i.e., 20 C.F.R. section

656.10(d)(2)) an alien need only have been continuously employed for
the same international corporation for the year immediately prior to
filing the petition, and not necessarily for the year immediately
preceding the alien's entry into the United States. Under this interpretation the beneficiary would qualify for blanket labor certification
by virtue of his continuous employment in the United States for the
petitioner during the last 8 years. For the reasons which follow, I find

that the District Director properly construed the regulation.
Schedule A, Group IV, is closely patterned after the statute relating
to nonimmigrant "L-1" • intra-company transferees, section

101(a)(15)(L) of the Act, with the exception that aliens having only
"specialized knowledge" are not within the provisions of Schedule A,
Group IV. The blanket labor certification of Schedule A, Group IV,
includes only those aliens who have been admitted as managerial or
executive L-1 intra-company transferees or who, except for the nontemporary need for their services in the United States, would qualify
for managerial or executive L-1 status. This position is supported by
the United States Department of Labor Operating Instructions
Handbook, E.T. Handbook No.. 656, Employment and Training Administration, pp. 656-A-91 and 52 (October 27, 1977), which states:
Documentation as to the qualification of aliens seeking labor certification under Group
IV of Schedule A shall conform to that required by the Immigration and Naturaliza572

Interim Decision #2836
tion Service in support of petitions for issuance of L-visas (visas provided under the
Act for intracompany transferees). This documentation is a statement by the U.S.
employer describing the capacity in which the alien has been employed abroad and the
capacity in which the alien will be employed in the United States. By definition of
Group IV of Schedule A, the capacity of employment must be managerial or executive
and the overseas employment must be, or have been, with the same international
corporation or organization with which the alien was continuously employed for one
year before admission. If the alien has not yet been admitted to the United States, the
alien must be currently, and continuously for the immediately prior year have been,
employed overseas by the same international corporation or organization in a managerial or executive position. (Emphasis supplied.)
-

With this background in mind, we turn to construction of 20 C.F.R.
section 656.10(d), Schedule A, Group IV. Section 656.10(d)(1) [`Tart
(1)1 pertains to aliens "who have been admitted to the United States"
whereas section 656.10(d)(2) ["Part (2)1 pertains to aliens "who will be
engaged in the United States," (emphasis supplied), i.e., aliens who are

presently outside the United States and have not yet been admitted.

This explains why Part (1) contains the words "continuously employed
for one year before they were admitted" and Part (2) states only
"continuously employed for the immediately prior year." Aliens
within Part (1) are already in the United States and therefore specific
reference is made to their one year's employment outside the United
States immediately prior to admission; however, aliens within Part (2)
are still outside the United States and therefore, by necessary implication, their employment "for the immediately prior year" must also
have taken place outside the United States. Accordingly, I hold that
regardless of whether an alien is presently within or without the
United States, in order for him to qualify for blanket labor certification under Schedule A, Group IV of 20 C.F.R. section 656.10(d) the alien
must have been continuously employed abroad with the same international corporation or organization for one year immediately prior to
his admission to the United States.
The beneficiary was employed abroad by a company unrelated to the
petitioner for the year immediately prior to admission to the United
States in 1972. Therefore, under the above standard, the beneficiary is
ineligible for blanket labor certification under Schedule A, Group IV.
Otherwise lacking a valid labor certification, he is likewise ineligible
for classification as a sixth-preference immigrant under section
203(a)(6) of the Act. The District Director's decision to deny the
petition was proper.
ORDER, The appeal is dismissed.


interim Decision #1811

MATTER or Ho, ET AL.
In Deportation Proceedings
A-15985021
Decided by Board November 22, 1967
.An order to Blum =Ube in not defective for failure ho apecify the alternative

:country of deportation and the subdivision of section 243(a) of the Immigration and Nationality Act under which the alternative country of deportation
is designated.*
'Camas:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant crewmen, remained 'longer.
•Orr BEHALF OF RESPONDENTS:
Sides E. Coven, Esquire
One East 42d Street
New York, New York 10017

ON BEHALF Or SERVICE:

Irving A. Appleman
Appellate Trial Attorney

The respondents, six alien crewmen who are natives of the mainland
-of China and citizens of the Republic of China on Formosa, have been
found deportable under the provisions of section 241 (a) (2) of the
"immigration and Nationality Act (8 U.S.O. 1251(a) (2) ) as aliens
who were admitted as nonimmigrant crewmen pursuant to section
101(a) (15) of the Act and have remained in the United States longer
than permitted. Separate orders entered by the special inquiry officers
provide for the voluntary departure of five of the respondents and the
-deportation of one of them to the Republic of China on Formosa and
in the alternative to Hong Kong. The five orders granting voluntary
departure also provide for the deportation of the five named respond-cuts to designated countries and in the alternative to Hong Kong in
the event they fail to depart as required under the orders granting
voluntary departure.
The deportability of the six respondents is established by the evidence adduced during their separate hearings and all of the respondents admit the factual allegations set forth in their separate orders
-

• Reaffirmed, 389 F.2d 978 (C.A. 2, 1908). Vert. den. 390 U.S. 1010.

516

Interim Decision #1811
to show cause. Counsel on appeal seeks a termination of the six proceedings on the ground that the separate orders to show cause are
defective because they did not state that the Government was going
to request that Hong Kong be named as an alternative country of
deportation and did not inform the aliens under which provision
of section 243(a) the Government was relying upon when designating

the alternative country of deportation.
The six respondents last entered the United States as crewmen
through three ports on the East Coast (New York, Boston and Baltimore) and one port on the West Coast (San Francisco) during the
months of January, February, March and May of 1967. They were
admitted as nonimmigrant crewmen for the period of time their vessel
was to remain in port, but in no event to exceed 29 days, They have
remained in the United States beyond the period of their temporary
admission without authority and are deportable as charged in their
respective orders to show cause.
The sole issue before us is whether there should be a termination
of the six proceedings on the ground that the separate orders to show
cause are fatally defective. Counsel argues that the six respondents
have been denied due process in that the respective orders to show

cause do not specify the country to which the Government would
request their deportation other than the country of the respondents'
citizenship or nativity. Counsel argues that section 243(a) of the
Immigration and Nationality Act spells out the countries to which
an alien may be deported after having been found deportable and
provides seven or eight alternatives in the event the alien cannot be
deported to the country of his nativity or citizenship. Counsel maintains that for this reason the order to show cause must notify the
alien as to the alternative country of deportation because such knowledge on the part of the alien plays an important part as to what type
of relief he would request during the course of the hearing.
8 CFR 242.1 provides, inter cilia, that every proceeding under the
immigration laws "to determine the deportability of an alien in the
United States is commenced by the issuance and service of an order
to show cause by the Service." The order to show cause states thereon
that "Upon inquiry conducted by the Immigration and Naturalization
Service, it is alleged that :" and informs the alien of the nature of the
proceeding, the legal authority under which the proceeding is conducted, a concise statement of factual allegations informing the alien
of the acts or conduct alleged to be in violation of the law and a
designation of the charges against the alien and of the statutory provisions alleged to have been violated. The order to show cause does no
more than obtain direct jurisdiction over the person of the alien and

517

Interim Decision #1811
sets in motion an inquiry which follows broad lines (cf. Haynes v.

Landon, 115 F. Supp. 506).
There is no provision in either the statute or the regulations promulgated pursuant thereto which requires the designation of a country to
which the Service proposes to deport an alien and there is sound legal
logic for this omission. If deportability is not established, then the
question of the place of deportation becomes moot. Practically speaking, then, the procedure urged upon us by counsel would constitute a
legal conclusion prior to any hearing of evidence which would serve
as the basis for such conclusion. Furthermore, the courts have held
that a warrant of deportation, which issues only after deportability
has been established and discretionary relief disposed of, is not required to set forth the country to which an alien is to be deported
(cf. Chee Hook Chan v. Burney, 206 F. Supp. 894 and Ping v. Kennedy, 292 F.2d 740). A fortiori, there is no such requirement insofar
as an order to show cause, which merely commences a deportation
proceeding.
We find no merit to counsel's argument that the order to show cause
must state which provision of section 243(a) the Service relies upon
when designating an alternate country of deportation. Section 243 (a)

permits an alien to designate a country to which he wishes to be deported with a provision that the alien shall be deported to that country provided it is willing to accept him. Five of the respondents in the
instant case designated no country to which they wished to be deported and the sixth designated Singapore.
When an alien fails to make the designation provided by step No. 1
in section 243(a), the section then provides that the alien may be deported to the country of which he is a subject national or citizen, if
such country is willing to accept him, and if the country of which the
alien is a subject, or a national is unwilling to accept him section 243 (a)
provides for an alien's deportation to any one of seven categories of
countries within the discretion of the Attorney General. The statute
specifically provides that there is no necessity for giving any priority
or preference because of the order of the countries referred to in the
seven categories.
One of the seven categories to which an alien may be deported in
the event that the country of his nativity or citizenship or the country
designated by him refuses to accept him is any country ". . . in which
he resided prior to entering the country from which he entered the
United States." AU of the respondents in the instant case testified
that they had resided in Hong Kong prior to shipping aboard the
vessels on which they last entered the UnitedStates. Accordingly, the
special inquiry officers were proceeding within the scope of the statute
518

Interim Decision #1811
when they designated Hong Kong as an alternate country to which
the respondents could be deported.
The respondents during their separate hearings were accorded due
process as spelled out in sections 242 and 243 of the Immigration and
Nationality Act and the regulations promulgated pursuant thereto.
Furthermore, we find nothing in counsel's argument of any claim that
the procedure followed by the special inquiry officers was prejudicial
to any of the aliens involved. They were given an opportunity to designate a country to which they wished to be deported. There was no
claim of persecution pursuant to section 243(h) of the Immigration
and Nationality Act during the course of the hearing. We affirm the
orders entered by the special inquiry officers and will dismiss the six
appeals.

ORDER: It is directed that the appeals of the six aliens named
herein be and the same are hereby dismissed.

519


MATTER OF E--

In DEPORTATION Proceedings
A-5886545
DA! lidPfl

by Marel July 97, 1961

Suspension of deportation — Discretionary denial — Behavior reflecting undesirability as permanent resident.
Suspension of deportation lo denied ac matter of diacrction to alien whose

behavior pattern, manifested by record of convictions and arrests, fraudulent procurement of United States birth certificate, and refusal to cooperate with Congressional committee, casts doubt upon his desirability as a
lawful permanent resident.
CHAROE :

Order : Act of 1052—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Two convictions after entry, to wit: Robbery with pistol (two offenses).
BEFORE THE BOARD

DISCUSSION: This is an appeal from the order of the special
inquiry officer finding respondent deportable upon the ground stated
above and denying his application for suspension of deportation.
Respondent, a 48-year-old married male, a native and citizen of
Italy, was admitted to the United States for permanent, residence
in 1916. It is conceded that respondent is deportable by reason of
two convictions—one, January 13, 1933, for robbery with a pistol
committed on May 31, 1932, and the second, January 23, 1933, for
robbery committed on March 1, 1932. The issue is whether respondent should be granted suspension of deportation.
Respondent was married in 1931 to a citizen of the United States.
There are no children of the union. Respondent's wife is not employed and has no independent income. She is allegedly under doctor's care. The nature of the illness is not stated and the treatment
appears to consist of "taking things easy." Respondent is a juke
box operator. He operates about 28 machines and nets about $8,000
a year. The family assets consist of the juke box business worth
about $20,000, a home worth about $10,000, about $2700 in the bank,

and an automobile, furniture, etc., worth about $10,000. He has
about $4,000 in debts. Respondent was arrested 11 times from 1930

372

0 1933. Five arrests for disorderly conduct resulted in discharges;
two arrests for carrying concealed weapons resulted in sentences of
30 to 00 days, respectively; two for assault and robbery were
stricken with leave to reinstate; and two resulted in the convictions
which formed the basis for the deportation proceedings. As a result of the convictions, respondent was imprisoned. He served over
nine years and was released on parole on April 24, 1942. He was
given a final discharge in April 1945. Upon respondent's parole
from prison, he registered as an alien (May 1, 1942). About this
time he procured a birth certificate showing birth in Illinois so that
he could obtain a barber's license.
Respondent alleges that from his release on parole in 1942 until
July 194(5, he was employed by the National Malleable & Steel Castings Company as a steam fitter, earning about $75 a week., and that
from July 1946 to September 1952, he was employed by General
Motors ae a steam fitter at a salary of about $90 a week. (However,
a verification of employment reveals that he was employed by
Malleable from June 1942 until July 1946, and by General Motors
from April 1948 to September 1951. There is thus a period of two
years which is not accounted for.) From September 1952 to September 1957, he was employed as a mechanic and a collector of
juke box receipts for the A. A. Swingtime Music Company. From
September 1057 until the present, he has allegedly been, with his
wife, owner of a juke box business under the name of E. & E.
Amusement Company.
On February 24, 1959, respondent, in response to a subpoena, appeared before the Select Committee on Improper Activities in the
Labor or Management Field, 85th Cong., 2d Sess., and 86th Cong.,
1st Sess. Respondent was sworn but on a claim of privilege refused
to answer any questions concerning his occupation, the operation
of his business, whether was his partner, and whether mail
was received at a grill owned in part by S—E. When accused by
counsel for the Committee of having been set up by Lormar Record
Company and as operating with S—E--- as the E. & E. Company
in a scheme to force operators of juke boxes to purchase records
from the Lormar Record Company and to harrass and bring pressure on the operators to naah.e them conform with the wishes of an
underworld syndicate, he also took refuge in a claim of privilege.
Before Service officials respondent was questioned concerning his
appearance before the Committee and his failure to answer the
a...vat eight months
questions of the Committee. He stated thatb
he
had
been
called
to
Washington,
he
had
been interviewed
before
by an investigator of the COmmittee and had furnished him with
all the records and information requested. Re2pOndent alleged that
he had told the investigator that he was the sole owner of E. & E.

373

Company and that neither 8— nor C—E— had anything to do
with his juke boxes. His explanation for his refusal to testify before the Committee is ambiguous. The question and answer are
set out in full:
Q. would you care to offer explanation as to why you refused to answer
questions there when you had, before that, cooperated fully with . Afr. MrShane,

the Committee investigator?
A. Well, do you want me to be truthful? What choice did I have! I know
I was born in Italy ; if I had gone up there and answered all them questions—
what. was I going to answer. So, I figured only one thing for me to do and
that is for me to take the Fifth Amendment, because I knew I was going to
get in trouble sooner or later. So, I knew what was going to happen is what
is happening today. I knew that everything in my business was aboveboard.
At oral argument, counsel stressed the fact that respondent had
rehabilitated himself. after -release from confinement; that there is
no derogatory information concerning him since his release except
for the refusal to testify before the Congressional committee; that.
this refusal must be considered in light of the fact that respondent
had fully cooperated with the Committee's investigator; that he had
been assured by the investigator that he would not be subpoenaed
before the Committee; that when he received the subpoena he responded immediately and came without counsel and without discussing it with anyone and that his refusal to testify was due to
nervous tension, surprise at being called after the assurance he had

received, and the lack of awareness of the purpose of the investigation. Counsel points to respondent's testimony before the Service
denying that he was connected with anything illegal or the E—
brothers. Counsel points to the favorable factors, the long residence, the absence of derogatory information, the family relationship, respondent's self-support and his accumulation of assets, his
lack of knowledge of his native land or the language, and the hardship his wife would endure if he is deported. He contends that the

actions before the Committee should not result in respondent being
labeled as an undesirable, in view of the positive matters of record.
Despite the favorable factors of record, the long residence, the
marriage to a United States citizen, the period of gainful employment, we believe that the application for discretionary relief must
be denied. Respondent's record of arrests and convictions, his disregard for law in procuring a birth certificate showing birth in
Illinois, and his refusal to cooperate with the Senate Committee
reveal a pattern which raises considerable doubt as to respondent's
desirability as a legal permanent resident. Respondent's record for
a period of over three years reveals convictions for carrying a concealed weapon and robbery with a gun. This period, terminated
by his imprisonment for nine years, was followed upon his release
by the willful and deliberate procurement of a birth certificate to
374

which he was not entitled. It is indeed signifirnnt that, incarceration for nine years, reaching the age of 29, and being on parole

did not prevent respondent from such deliberate violation of law.
Finally, we have the refusal to cooperate with the Senate Committee
when it called upon him for assistance. Under such circumstances,
it appears to us that a most deserving case, free from any doubt,
must be made to justify the grant of a privilege which would absolve an alien from liability to deportation and clear the way to
an ultimate application for citizenship. Such a case is not made out.
The fact that respondent testified before the Service that he had
no connection with the underworld does not excuse his conduct before the Senate Committee. The Committee sought information at
a time when 'it was attempting to obtain instruction which would
enable it to make recommendations for the passage of legislation.
Respondent's testimony comes now too late. Moreover, the Committee apparently had before it information contradicting what respondent stated that he had told its investigator. The Committee
may have had the ability to test the information respondant now

gives. It should have had the chance to compare the testimony he
allegedly gave its investigator and the information they had from
which they drew contrary conclusions.'
We think the application for suspension was properly denied as a
matter of discretion. The appeal should be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
1 In view of our disposition, no further inquiry need he made as to the failure to establish the nature of employment between July 1946 and April 1948,
nor as to the fact that the record contains no clear denial by respondent that
he was not set up as part of a device to force companies to buy records from
Lormar Company and that the III- brothers had never had some interest in
seeing respondent established in business.

875


interim .yecistuit

If- GC1Z.V

MATTER OF REYES
In Visa Petition Proceedings
A-21247850
Decided by Board January 6, 1978
(1) "Common-law" marriages are not valid in San Luis Potosi, Mexico.
(2) A child of a "common-law" marriage in San Luis Potosi, Mexico, is illegitimate.
(3) Under Article 314 of the Constitution of Mexico of 1917, an illegitimate child may be
legitimated only by the subsequent marriage of its parents, and a visa petition by a
putative father on behalf of the child of a "common-law" relationship therefore was
properly denied absent proof of legitimation.
ON BEHALF OF PETITIONER:

Ricardo J. Mendez, Esquire
Ramey, Halley & Menaer,
129 East Market Street, #901

Indianapolis, Indiana 446204

BY: Milhollan, Chairman; Wilson, Maniatis. Aooleman. and Maguire. Board Members

This case presents an appeal from a decision of the District Director
on January 24, 1977, denying the visa petition filed in behalf of the
beneficiary as the son of the petitioner on the ground that the latter is
not legally married to the beneficiary's mother and thus cannot confer
nnmediate relative status upon the beneficiary. The appeal will be
dismissed.
The beneficiary, age 19, is a native and citizen of Mexico, who was
born out of wedlock. His parents have never married but lived together
common-law in San Luis Potosi, Mexico. The petitioner conceded that
the mother of the beneficiary has now abandoned him and that her
Present whereabouts is unknoWn. A determination made by the Hispanic Law Division of the Library of Congress in February 1976, and
now a part of this record, reflects that common-law marriages are not
valid in San Luis Potosi and that all children. born thereof are illegitimate. It further reflects that Article 314 of the Constitution of Mexico of
1.917 provides that such children . may be legitimated solely by the
subsequent marriage of their parents.
A person may qualify as a "child" within the context of the immigration laws only where the parent-child relationship exists by reason of
436

111LW:1111 1JelltbilM

any of the circumstances set forth in section 101(b)(1) of the Immigration and Nationality Act, as amended. The tern' "child," as defined in
that section, does not include illegitimate children not claiming an immigration status by virtue of their relationship to their mother under
section 101(b)(1)(D). The child must either be legitimate under section
101(b)(1)(A) or legitimated in accordance with the provisions of section
101(b)(1)(C) of the Act:
... 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.
(Emphasis supplied.)

Upon review of the record, we conclude that the beneficiary has not
been legitimated since his parents never legally married. In visa petition proceedings, the burden is on the petitioner to establish eligibility
for the benefits sought. See Matter of Gilpin, Interim Decision 2503
(BIA 1976); Matter of Pearson, 13 I. & N. Dec. 152 (BIA 1969); Matter
of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). We are satisfied that the
petitioner has failed to sustain his burden. Accordingly, the appeal will
be dismissed.

ORDER: The appeal is dismissed.

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Interim Decision #3904

Matter of Blanca Eloisa PANGAN-SIS, Respondent
Decided October 6, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien seeking to qualify for the exception to inadmissibility in section 212(a)(6)(A)(ii)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(ii) (2012), must satisfy
all three subclauses of that section, including the requirement that the alien be “a VAWA
self-petitioner.”
FOR RESPONDENT: Lauren D. Cusitello, Esquire, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sarah L. Martin, Associate
Legal Advisor
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MULLANE, Board Member:

In a decision dated December 17, 2015, an Immigration Judge terminated
the removal proceedings against the respondent. The Department of
Homeland Security (“DHS”) has appealed from that decision. The appeal
will be sustained, the removal proceedings will be reinstated, and the record
will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent was initially charged with, and conceded, removability
under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act,
8 U.S.C. § 1182(a)(7)(A)(i)(I) (2012), as an alien who is not in possession of
a valid immigrant visa or entry document. On November 5, 2014, the DHS
withdrew this charge and charged the respondent with removability under
section 212(a)(6)(A)(i) of the Act, for being present in the United States
without being admitted or paroled. On December 17, 2015, the respondent
conceded removability on the amended charge. The Immigration Judge
terminated proceedings, because he concluded that the respondent qualifies
for the exception to this ground of removability under section 212(a)(6)(A)(ii)
of the Act.

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II. ANALYSIS
Section 212(a)(6)(A) of the Act provides as follows:
(i) In General
An alien present in the United States without being admitted or paroled, or who
arrives in the United States at any time or place other than as designated by the
Attorney General, is inadmissible.
(ii) Exception for Certain Battered Women and Children
Clause (i) shall not apply to an alien who demonstrates that—
(I) the alien is a VAWA self-petitioner;
(II) (a) the alien has been battered or subjected to extreme cruelty by a spouse
or parent, or by a member of the spouse’s or parent’s family residing in the same
household as the alien and the spouse or parent consented or acquiesced to such
battery or cruelty, or
(b) the alien’s child has been battered or subjected to extreme cruelty by a
spouse or parent of the alien (without the active participation of the alien in the
battery or cruelty) or by a member of the spouse’s or parent’s family residing in
the same household as the alien when the spouse or parent consented to or
acquiesced in such battery or cruelty and the alien did not actively participate in
such battery or cruelty, and
(III) there was a substantial connection between the battery or cruelty described
in subclause (I) or (II) and the alien’s unlawful entry into the United States.

The issue presented in this case is whether an alien who seeks to qualify
for the exception to inadmissibility under section 212(a)(6)(A)(ii) of the Act
must satisfy all three subclauses of the exception, including the requirement
that the alien be a VAWA self-petitioner. 1 We review this question of law
de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2017).
The Immigration Judge concluded that the language of section
212(a)(6)(A)(ii)(III), which references subclauses (I) and (II) in the
disjunctive, indicates that Congress intended that aliens need only satisfy
either subclauses (I) or (III), or subclauses (II) and (III). He concluded that
even though the respondent is not a VAWA self-petitioner and thus cannot
satisfy subclause (I), she was “fleeing from an extended period of domestic
1

“VAWA” is the short title for the Violence Against Women Act of 1994, which was
enacted as Title IV of the Violent Crime Control and Law Enforcement Act of 1994, Pub.
L. No. 103-322, 108 Stat. 1796, 1902. To qualify as a “VAWA self-petitioner,” an alien
is generally required to show that his or her abuser is a spouse or parent who is either a
United States citizen or a lawful permanent resident. See section 101(a)(51) of the Act,
8 U.S.C. § 1101(a)(51) (2012) (also including certain applicants under the Nicaraguan
Adjustment and Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160, 2193;
the Cuban Refugee Adjustment Act of 1966, Pub. L. No. 89-732, 80 Stat. 1161; and the
Haitian Refugee Immigration Fairness Act of 1998, Pub. L. No. 105-277, 112 Stat.
2681-538).

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Interim Decision #3904

violence” in Guatemala at the hands of her Guatemalan citizen spouse,
satisfying subclauses (II) and (III), and entitling her to the exception to the
ground of removability.
The DHS argues that the respondent must satisfy all three subclauses of
section 212(a)(6)(A)(ii) of the Act and that because the respondent is not a
VAWA self-petitioner as required under subclause (I), she does not qualify
for this exception. The respondent agrees with the Immigration Judge’s
interpretation of the statute. She contends that the statute is ambiguous,
given the lack of a conjunction after subclause (I) and the disjunctive in
subclause III. The respondent argues that because subclause (III) requires a
“substantial connection” between the battery or cruelty described in
subclause (I) or (II), an alien need only satisfy either (I) or (II), but not both.
A. Statutory Language
In interpreting section 212(a)(6)(A)(ii) of the Act, we look first to the
plain meaning of its statutory language and give effect to that meaning
when possible. See Robinson v. Shell Oil Co., 519 U.S. 337, 340–41 (1997);
Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir. 2004). Moreover, in
“ascertaining the plain meaning of the statute, [we] must look to the
particular statutory language at issue,” its context, and “the language and
design of the statute as a whole.” Nadarajah v. Gonzales, 443 F.3d 1069,
1076 (9th Cir. 2006) (quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281,
291 (1988)); see also Robinson, 519 U.S. at 341; Matter of Richmond,
26 I&N Dec. 779, 783 (BIA 2016).
As a general matter, the placement of the word “and” at the end of the
second to last subclause in a statute indicates that all subclauses of the statute
must be satisfied. See generally 1A Norman J. Singer & J.D. Shambie
Singer, Sutherland Statutes and Statutory Construction § 21:14 (7th ed.),
Westlaw (database updated Nov. 2016) (“Where two or more requirements
are provided in a section and it is the legislative intent that all the
requirements be fulfilled in order to comply with the statute, the conjunctive
‘and’ should be used.”). Thus, the most natural reading of section
212(a)(6)(A)(ii) is that the respondent must satisfy subclauses (I), (II), and
(III) of that section, but subclause (III) may be satisfied two different ways.
However, since the language in subclause (III) refers to “subclauses (I) or
(II)” in the disjunctive, we agree with the respondent that the language of
section 212(a)(6)(A)(ii) of the Act is ambiguous.

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B. Legislative History
“Where the statutory language is unclear, we consider legislative history
to help discern congressional intent.” Matter of L-A-C-, 26 I&N Dec. 516,
518 (BIA 2015). The statutory language at issue in this case was added by
section 301(c)(1) of the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”) of 1996, Division C of Pub. L. No. 104-208,
110 Stat. 3009-546, 3009-578. The legislative history of the IIRIRA does
not contain any explicit consideration of the statutory language in question
and thus is of limited assistance in interpreting Congress’ intent. However,
a review of the legislative history of the VAWA and the reasons for its
enactment are instructive in discerning congressional intent for this
provision. See United States v. Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995)
(“Particular phrases must be construed in light of the overall purpose and
structure of the whole statutory scheme.”).
Under the Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163,
aliens who married United States citizens or lawful permanent residents were
granted immediate lawful permanent resident status. Concerns about
marriage fraud under such a framework prompted Congress to pass the
Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639,
100 Stat. 3537, which created a 2-year conditional period before lawful
permanent resident status could be granted to the alien spouse. See section
216 of the Act, 8 U.S.C. § 1186a (2012); see also Matter of Munroe, 26 I&N
Dec. 428, 430 (BIA 2014). However, because the United States citizen or
lawful permanent resident spouse’s consent and cooperation were required
to file a joint petition to remove the conditional status, these amendments
resulted in giving the United States citizen or lawful permanent resident
spouse considerable leverage over their foreign national spouse. In turn, this
created a situation in which abused alien spouses were reluctant to leave their
United States citizen or lawful permanent resident abuser for fear of losing
their potential to adjust their status. William A. Kandel, Cong. Research
Serv., R42477, Immigration Provisions of the Violence Against Women Act
(VAWA) 21–22 (2012).
Congress sought to remedy this situation by creating the battered spouse
waiver, which was included in the Immigration Act of 1990, Pub. L. No.
101-649, § 701(a)(4), 104 Stat. 4978, 5085, and which is codified in section
216(c)(4)(C) of the Act. This provision waives the requirement to submit a
petition and appear for an interview to remove conditional resident status for
aliens who entered their marriage in good faith, but who (or whose child)
was battered or suffered extreme cruelty by the United States citizen or
lawful permanent resident spouse (or parent). According to the House
Judiciary Committee Report related to this provision, its purpose “is to
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ensure that when the U.S. citizen or permanent resident spouse or parent
engages in battering or cruelty against a spouse or child, neither the spouse
nor child should be entrapped in the abusive relationship by the threat of
losing their legal resident status.” H.R. Rep. No. 101-723(I), at 78 (1990),
reprinted in 1990 U.S.C.C.A.N. 6710, 6758.
To further expand protection for battered alien spouses of United States
citizens and lawful permanent residents, Congress passed the VAWA in
1994, which included provisions allowing an alien who is battered or subject
to extreme cruelty at the hands of a United States citizen or lawful permanent
resident spouse to adjust his or her status through the self-petitioning process.
The House Judiciary Committee Report accompanying the legislation
explained its purpose as follows:
Domestic battery problems can become terribly exacerbated in marriages where
one spouse is not a citizen, and the non-citizens [sic] legal status depends on his or
her marriage to the abuser. Current law fosters domestic violence in such situations
by placing full and complete control of the alien spouse’s ability to gain permanent
legal status in the hands of the citizen or lawful permanent resident spouse. . . .
....
. . . The purpose of permitting self-petitioning is to prevent the citizen or resident
from using the petitioning process as a means to control or abuse an alien spouse.

H.R. Rep. No. 103-395, at 26, 37 (1993), 1993 WL 484760; see also 140
Cong. Rec. H10,693, H10,693 (daily ed. Oct. 4, 1994) (statement of Rep.
Schumer), 1994 WL 545675, at *H10,693-01 (stating that the VAWA
“permits immigrant spouses of United States citizens to escape from their
abusive spouses without risking deportation”).
This legislative history makes clear that in enacting these laws, Congress
intended to protect vulnerable aliens from domestic abuse at the hands of a
United States citizen or lawful permanent resident spouse. The Violence
Against Women Act of 2000 (“VAWA 2000”), Division B of Pub. L. No.
106-386, 114 Stat. 1491, which reauthorized the 1994 VAWA and contained
the Battered Immigrant Women Protection Act of 2000, id. § 1501, 114 Stat.
at 1518, reflects Congress’ continued focus on the status of the abuser as a
United States citizen or lawful permanent resident. The House Conference
Report also states that the VAWA 2000 is “designed to improve on efforts
made in VAWA 1994 to prevent immigration law from being used by an
abusive citizen or lawful permanent resident spouse as a tool to prevent an
abused immigrant spouse from reporting abuse or leaving the abusive
relationship.” H.R. Rep. No. 106-939, at 111 (2000) (Conf. Rep.) (Joint
Explanatory Statement), 2000 WL 1479163, at *111; see also Matter of
A-M-, 25 I&N Dec. 66, 74–75 (BIA 2009).

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C. Scope of Section 212(a)(6)(A)(ii) of the Act
Given Congress’ consistent focus on preventing United States citizens
and lawful permanent residents from using their status to abuse and control
their alien spouses and children, the most reasonable interpretation of the
exception in section 212(a)(6)(A)(ii) of the Act is that an alien must satisfy
subclauses (I), (II), and (III) of that provision. The disjunctive language in
subclauses (II) and (III) does not contravene this interpretation. Consistent
with the overall legislative purpose of the VAWA, subclause (II) reflects a
desire by Congress to expand the protection for abused aliens to cover abuse
committed not only by United States citizen and lawful permanent resident
spouses and parents but also by members of the household where the abuser
is acting at the direction of the United States citizen and lawful permanent
resident. Subclause (III) also expands eligibility for the exception by only
requiring that abuse suffered either under subclause (I) (in connection with
an alien’s VAWA self-petitioner status) or under subclause (II) be
substantially connected to the unlawful entry. The practical effect of this
interpretation is that a spouse of a United States citizen or lawful permanent
resident who suffers abuse is covered. However, coverage is not extended to
aliens who are married to non-United States citizens and non-lawful
permanent residents, because such persons lack “immigration leverage” over
their spouses.
The respondent’s contention that interpreting section 212(a)(6)(A)(ii) this
way effectively renders subclause (II) superfluous is not persuasive. While
subclauses (I) and (II) overlap, there are important differences between the
subclauses that cannot be overlooked. For example, subclause (II) covers
abuse that the alien may suffer after attaining VAWA self-petitioner status.
As discussed above, it also covers abuse committed by members of a
spouse’s or parent’s household. Consistent with the legislative history of the
VAWA, that provision still requires that such abuse be connected to a United
States citizen or lawful permanent resident spouse or parent who is directing
the abuse. Although subclauses (I) and (II) may overlap in certain
circumstances, this overlap reflects Congress’ intent to ensure that there
would not be a gap in coverage for aliens who are abused by, or with the
consent of, United States citizen or lawful permanent resident spouses or
parents.
The Immigration Judge’s interpretation, on the other hand, would vastly
expand the reach of this provision. Allowing an alien to qualify for the
exception in section 212(a)(6)(A)(ii) of the Act by satisfying only subclauses
(II) and (III) would effectively remove the connection to a United States

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citizen or lawful permanent resident abuser. 2 It would thus apply to any
domestic abuse situation in the world. The respondent’s case illustrates this
expansive interpretation because she alleges that she was abused by her
Guatemalan spouse, who is not a United States citizen or lawful permanent
resident. Congress was concerned with “placing full and complete control
of the alien spouse’s ability to gain permanent legal status in the hands of the
citizen or lawful permanent resident spouse,” not with creating an exception
to a ground of inadmissibility for domestic abuse of an alien that takes place
outside the United States. H.R. Rep. No. 103-395, at 26. It is unlikely that
Congress intended to create such a sweepingly broad exception to this very
common ground of inadmissibility.
Furthermore, interpreting the exception to only require satisfaction of
subclauses (II) and (III) would leave this respondent in an unusual situation,
because she would not be removable for entering the United States without
inspection, yet she would have no legal status in the United States. Congress
could not have intended such a result. Examining the VAWA framework as
a whole, it is clear that Congress intended to remove obstacles for a
vulnerable subset of abused aliens seeking to adjust their status through the
VAWA. Thus, we agree with the DHS that it is more reasonable to conclude
that Congress enacted the exception to prevent the ground of inadmissibility
from being used to disqualify a VAWA self-petitioner from adjusting her
status. See section 245(a) of the Act, 8 U.S.C. § 1255(a) (2012).
Accordingly, all three subclauses, including subclause (I) requiring
VAWA self-petitioner status, must be satisfied to qualify for the exception
under section 212(a)(6)(A)(ii) of the Act. 3

2
Although the VAWA self-petitioning provisions can apply to abuse committed abroad,
a connection to a United States citizen or lawful permanent resident abuser is still required.
See sections 204(a)(1)(A)(v), (B)(iv) of the Act, 8 U.S.C. §§ 1154(a)(1)(A)(v), (B)(iv)
(2012).
3
Our interpretation of the section 212(a)(6)(A)(ii) exception does not leave aliens such
as the respondent without a possible remedy under the immigration laws. Aliens who
suffer battery or extreme cruelty from a non-lawful permanent resident or non-United
States citizen spouse, who are not VAWA self-petitioners may apply for asylum,
withholding of removal, and protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature
Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18,
1988). See Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). Moreover, they would not
be prohibited from contesting the ground or grounds of removability.

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III. CONCLUSION
Considering the language of the statute, the legislative history and overall
purpose of the VAWA, and the policy considerations raised by the DHS, we
hold that an alien who seeks to qualify for the exception to inadmissibility
under section 212(a)(6)(A)(ii) of the Act must satisfy all three subclauses of
that section, including the requirement that the alien be a VAWA
self-petitioner. Because the respondent is not a VAWA self-petitioner, she
has not established her eligibility for the exception to inadmissibility.
Therefore, the Immigration Judge improperly terminated proceedings.
Accordingly, the DHS’s appeal will be sustained, the removal proceedings
will be reinstated, and the record will be remanded to give the respondent an
opportunity to pursue any form of relief for which she may be eligible.
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.

137


Interim Decision #2870

MATTER OF SABAN
In Exclusion Proceedings
A-23193117
' Decided by Board June 11, 1981
(1) When the applicant files an application for asylum after he. has been placed in exclusion

proceedings, the immigration judge must adjourn the hearing for the purpose of requesting-an advisory opinion from the Bureau of Human Rights and Humanitarian Affairs
(BHRHA), Department of State. 8 C.F.R. 208.10(b).
(2) Prior to the issuance of a final order of exclusion and deportation, a BHRHA advisory
opinion, received in connection with an asylum request made in exclusion proceedings,

must be made part of the record and the applicant given an opportunity to inspect,
explain, and rebut it. 8 C.F.R. 208.10(b).
(3) Immigration judge erred when he ordered asylum applicant excluded prior to receipt
of a BHRHA opinion, but stated that he would reopen the proceedings when such

opinion was issued.
EXCLUDABLE:
Order: Aet of 1952—Sec. 212(a)(14) [8 U.S.C. 1182(a)(14)1—Not in possession of valid
labor certification
Sec. 212(a)(19) f8 U.S.C. 1182(a)(19)1—Attempted to enter United
States by fraudulent documentation
Sec. 212(a)(20) (2

1182CaX20h — Not in possession of a valid,

unexpired visa
ON BEHALF OF APPLICANT: Margaret H. McCormick, Esquire
McCormick & Hallagen
30 West Washington Boulevard
Chicago, Illinois 60602
By:

Milhollan, Chairman; Maniatis, Maguire, and Morris, Board Members

This is an appeal from a decision of the immigration judge, dated
March 13, 1981, finding the applicant excludable as charged and ordering his exclusion and deportation from the United States. The appeal
will be sustained and the record will be remanded.
The applicant is a resident of Belgium and a citizen of Yugoslavia,
who applied for admission to the United States on February 23, 1981, by
first claiming to be a United States citizen and then by presenting a
fraudulent alien registration card. A form 1-122, Notice to Applicant for
70

Interim Decision #2870
Admission Detained before Immigration Judge, was issued to the
applicant. At the exclusion hearing, the applicant conceded excludability.
An application for asylum was filed with the immigration judge pursuant to 8 C.F.R. 208-3(b), Nonetheless, the immigration judge entered a

final order of exclusion without adjourning the hearing, indicating that
he would reopen the proceedings after an advisory opinion was returned
from the Department of State, Bureau of Human Rights and Humanitarian Affairs (BHRHA).
We note at the outset that the transcript of the proceedings and the
immigration judge's decision are not in the record file. Counsel for the
applicant stated in a letter to the immigration judge, dated April 6,
1981, that the applicant was willing to waive the transcription of the

record and the decision. Counsel then requested that this Board consider the single issue of law presented in this case. We agree to consider
this appeal because of the special circumstances of this case. The request
for expedition was made by the applicant. The Service has forwarded
the record file to us. It appears that both parties are willing to go
forward with this appeal. In addition, for the reasons stated below, our
decision will not adversely affect the applicant.
The asylum procedure for requests made after the institution of exclusion proceedings is set forth in 8 C.F.R. 208.10. 8 C.F.R. 208.10(b)
provides that: "fw]hen the asylum request is filed, the hearing shall be
adjourned for the purpose of requesting an advisory opinion from
BHRHA." This section further provides that: "[t]he BHRHA opinion
shall be made part of the record, and the applicant given an opportunity
to inspect, explain, and rebut it."
The immigration judge's entry of a final exclusion order is incorrect.
An asylum request was filed by the applicant at the exclusion proceedings.
The proper procedure then was for the immigration judge to adjourn
the hearing for the purpose of obtaining an advisory opinion from
•BHRHA. Moreover, the regulations provide that prior to any issuance
of a final exclusion order, the BHRHA opinion must be made part of the

record of the exclusion proceedings and the applicant given an opportunity to inspect; explain', and rebut the advisory opinion. Accordingly,
the appeal will be sustained, and the record will be remanded.'
ORDER The appeal is sustained.
FURTHER ORDER: The decision of the immigration judge is
vacated and the record is remanded for, consideration of the applicant's
application for asylum and for the entry of a new decision.
l An application for political asylum under section 208 of the Immigration and Nationality
Act, 8 U.S.C. 1158, made after the institution of exclusion or deportation proceedings,

shall also be considered as a request for withholding of deportation under section 243(h)
of the Act, 8 U.S.C. 1253(h). 8 C.F.R. 208.3(6) (effective June 1, 1980).

71


Interim Decision #2822

MATTER OF REYES
In Visa Petition Proceedings
A-22172079

Decided by Board August 28, 1980
(1) The term "legitimated" in section 101(b)(1)(C) of the Immigration and Nationality
Act, 8 U.S.C. 1101(b)(1)(C), has been interpreted by the Board to include those children
who were illegitimate at birth, but who thereafter through legally recognized means
attained the full legal status of legitimate children.
(2) A "legitimated" child is one placed "in all respects upon the same footing as if
begotten and born in wedloc.k...." Pfeifer v. Wright, 41 F.2d 464, 466 (10 Dir. 1930),

cert. denied, 283 U.S. 896 (1931).
(3) Excepting Matter of Lee,16 I&NDec. 305 (BIA 1977), the Board has never recognized
processes (legal or otherwise) that did not place an illegitimate child on an equal
footing with a legitimate child as satisfying the "legitimated" proviso of section
101(b)(1)(C).
(4) Where the beneficiary was born out of wedlock in the Dominican Republic, was not
legitimated under the means prescribed by the laws of that country, and did not attain
all of the rights and status of a legitimate or legitimated child when he was acknowledged by the petitioner in 1976, the Board cannot conclude that the beneficiary was
"legitimated" within the meaning of section 101(b)(1)(C).
(5) The Board withdraws from its decision in

Matter of Lee,16 1&N Dec. 305 (BIA 1977).

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

In a decision dated March 20, 1978, this Board dismissed the petitioner's appeal from a District Director's denial of a visa petition that
he had submitted on behalf of the beneficiary as his unmarried son.
The beneficiary had been born out of wedlock in the Dominican Republic and subsequently "acknowledged" by the petitioner under the laws
of that country. We concluded that an "acknowledged" child in the
Dominican Republic could not be equated with a "legitimated" child
within the meaning of section 101(b)(1)(C) of the Immigration and
Nationality Act, 8 U.S.C. 1101(b)(1)(C). Matter of Reyes, 16 I&N Dec.
475 (BIA 1978). On October 18, .1979, the United States District Court
for the Eastern District of New York remanded the case to the Board
for further consideration. Reyes v. INS, 478 F.Supp. 63 (E.D.N.Y.
512

Interim Decision #2822
1979).1 The Board was directed both to reconcile its decision in this case
with that in Matter of Lee,16 I&N Dec. 305 (BIA 1977), and to consider
whether the rulings with respect to the relevant laws of the Dominican
Republic were in fact "rationally related to the purposes of the Act."

On reconsideration, we reaffirm our decision in this case and overrule
Matter of Lee, supra, insofar as it is inconsistent with the decision
herein.
The record indicates that the beneficiary was born out of wedlock in
1962 in the Dominican Republic, a country in which legal distinctions
still exist between children born in and out of wedlock. Under the laws
of the Dominican Republic, for a child to be legitimated, there must be
an "acknowledgment of the natural offspring followed by the marriage
of the parties." See Matter of Doble-Pena, 13 I&N Dec. 366, 367 (BIA
1969). The beneficiary's natural parents did not marry. The petitioner,
however, acknowledged the beneficiary as his son in 1976, when the boy
was 14 years old. This "acknowledgment" did not place the beneficiary
in the same status as a legitimate or legitimated child, but did produce
"the same effects of legitimate filiation with the exception of the
distinctions made in matters concerning succession." See Matter of
Reyes, supra at 477.
In 1977, the petitioner sought preference status for the beneficiary as

his "unmarried son" under the provisions of section 203(a)(2) of the
Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). To qualify as a
"son" for preference purposes, the beneficiary must qualify as the
petitioner's "child", as defined in section 101(b) of the Act. See Nazareno v. A.G., 512 F.2d 936 (D.C. Cir. 1975), cert. denied, 423 U.S. 832
(1975); Matter of Coker, 14 I&N Dec. 521 (BIA 1974).
Section 101(b)(1) provides in relevant part that
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) of the Act was
The case was remanded to "the INS." The Board of Immigration Appeals is not part
of the Immigration and Naturalization Service. See 8 C.F.R. 8.1(a)(1). As the Board
entered the decision appealed from, however, reconsideration on remand is
appropriately before this Board.
Section 101(b)(1)(C) is relevant only to father-child relationships. Section
101(b)(1)(D) recognizes mother-child relationships, even where the child is illegitimate.
This distinction has been upheld by the Supreme Court in Fiallo v. sell, 480 U.S. 787
(1977).
CYA

Interim Decision #2822
initially interpreted by the Board within conventional common law
precepts as applying only to children born in wedlock. See Matter of
Kubicka, 14 I&N Dec. 303 (BIA 1972). The term has since been held,
however, to include children who are born out of wedlock within
jurisdictions that have eliminated all distinctions between legitimacy
and illegitimacy (i.e., where children have full filial rights and obligations as to both natural parents by virtue of birth alone). See Matter of
Pavlovic, Interim Decision 2799 (BIA 1980) (Yugoslavia); Matter of
Bautista, Interim Decision 2731 (BIA 1979) (Puerto Rico); Matter of
Wong,16 I&N Dee. 646 (MA 197S) (Peoples' Republic of China). There
is no claim presented in the case before us that the beneficiary qualified
as the petitioner's "legitimate" son.
The term "legitimated" in section 101(b)(1)(C) has been interpreted
by the Board to include those children who were illegitimate at birth,
but who thereafter through legally recognized means attained the full
legal status of legitimate children. The Board's interpretation of section 101(b)(1)(C) resulted from the commonly accepted definition of
"legitimation" as being the act of putting an illegitimate child in the

position or state of a legitimate child before the law by legal means.See
Gordon and Rosenfield, Immigration Law and Procedure (Revised
Edition 1977), sec. 2.18(b)(3); 10 C.J.S. Bastards sec. 7 (1938); Black's
Law Dictionary 811 (5th ed. 1979); Bouvier 's Law Dictionary 1927-28
(3rd ed. 1914). Thus, a "legitimated" child is one placed "in all respects
upon the same footing as if begotten and born in wedlock ...", is
"invested with all the rights of a lawful child ...", and his or her "civil
and social status becomes that of a lawful child of the natural father,
the child and father thereafter [standing) in their relations to each
other as though the birth had been during wedlock" Pfeifer v. Wright,

41 F.2d 464, 466 (10 Cir. 1930), cert. denied, 283 U.S. 896 (1931). Where
less than equality of status results, an act of legitimation is not deemed
to have occurred. See Pfeifer v. Wright, supra at 467; In re TomacelliFilomarino, 73 N.Y.S.2d 297, 299 (1947); In re Vincent, 71 N.Y.S.2d 165,
171-172 (1947); Vergnani v. Guidetti, 308 Mass. 450, 454, 32 N.E.2d 272,
274 (1941). Compare In re Lund, 26 Ca1.2d 472,159 P.2d 643 (1945). See
also Peignand v. INS, 440 F.2d 757 (10 Gk. 1971).

Legitimation laws have commonly required the subsequent marriage of a child's natural parents to effect legitimation, but other
methods of conferring the full status of a legitimate child are recognized in different jurisdictions. See, for example, Matter of Chambers,
Interim Decision 2730 (BIA 1979) (Maryland; legitimation by acknowledgment); Matter of Duncan, Interim Decision 2373 (BIA 1975) (Liberia; legitimation by judicial decree); Matter of Ramirez, 13 I&N Dec.
666 (BIA 1971) (Louisiana; legitimation by acknowledgment); Matter
of C—, 9 I&N Dec. 268 (BIA 1961) (Michigan; legitimation by
514

Interim Decision #2822
acknowledgment).
Excepting Matter of Lee, supra, the Board has never recognized
processes (legal or otherwise) that did not place an illegitimate child
on an equal footing with a legitimate child as satisfying the "legitimated" proviso of section 101(b)(1)(C). See Matter of Clahar, 16 I&N
Dec. 484 (BIA 1978) (Jamaica); Matter of Remy,14 I&N Dec. 183 (BIA
1972) (Haiti); Matter of Greer, 14 I&N Dec. 16 (BIA 1972) (Montserrat,
B.W.I.); Matter of Gouveia, 13 I&N Dec. 604 (BIA 1970) (Guyana);
Matter of Doble-Pena, supra (Dominican Republic); Matter of Monma,
12 I&N Dec. 265 (BIA 1967) (Japan); Matter of Lauer, 12 I&N Dec. 210
(BIA 1967) (Germany); Matter of Mand,ewirth, 12 I&N Dec. 199 (BIA
1967) (Austria); Matter of Anastasiadis, 12 I&N Dec. 99 (BIA 1967)
(Greece); Matter of Van Pamelen, 12 I&N Dec. 11 (BIA 1966) (The
Netherlands); Matter of Maungea, 11 I&N Dec. 885' (BIA 1966) (Philippines); Matter of The, 10 I&N Dec. 744 (BIA 1964) (Indonesia); Matter
of Archer, 10 I&N Dec. 92 (BIA 1962) (Trinidad, B.W.I.); Matter.of C—,
9 I&N Dec. 597 (BIA 1962) (Spain); Matter of C—, 9 I&N Dec. 268 (BIA
1961) (Italy); Matter of J—, 9 I&N Dec. 246 (BIA 1961) (British Guiana); Matter of W—, 9 I&N Dec. 223 (BIA 1961) (Surinam); Matter of
F—, 7 I&N Dec. 448 (BIA 1957) (Portugal); Matter of D—, 7 I&N Dec.
438 (BIA 1957) (Italy); Matter of J , 7 I&N Dec. 338 (BIA 1956)
—

(France). Each of these cases, which arose in countries that both
distinguished between legitimate and illegitimate children and specified the method by which a child could be legitimated, involved children who did not attain the full legal status of legitimate children.
Applying these principles to the present case, where the beneficiary
was illegitimate at birth, was not "legitimated" by the means
prescribed under the laws of the Dominican Republic, and did not
attain all of the rights and status of a legitimate or legitimated child
when acknowledged by the petitioner, we cannot conclude that the
beneficiary was "legitimated" within the meaning of section
101(b)(1)(C) of the Act.
Regarding the question of whether the differences in status between
a legitimated child and an acknowledged child in the Dominican
Republic are such that they can be rationally related to the purposes of
the Immigration Act so as to warrant including the former, but not the
latter, within the scope of section 101(b)(1)(C), we initially note the
language of the Supreme Court in Fiallo v. Bell, 430 U.S. 787 (1977),
regarding the distinctions drawn by Congress in section 101(b)(1) of
the Act:
With respect to each of these legislative policy distinctions, it could be argued that the
line should have been drawn at a different point and that the statutory definitions
deny preferential status to parents and children who share strong family ties. But it is
clear from our cases, ... that these are policy questions entrusted exclusively to the
roc

Interim Decision #2822
political branches of our Government, and we have no judicial authority to substitute
our political judgment for that of the Congress. Rao at 798 (citations omitted).

Where Congress has specified those father-child relationships which
should be recognized for immigration purposes using terms of commonly understood legal meaning, the Board cannot "redefine" those
terms based on its own views as to how the purposes underlying the
immigration laws might be better achieved. In interpreting the language of section 101(b), although one must be mindful of the purpose of
the immigration laws to preserve the family unit, it must also be
recognized that section 101(b) in fact embodies the Congressional
conclusions as to which familial relationships warrant recognition. See

Fiallo v. Bell, supra at '197.
The requirement that legitimation occur before a father child relationship will be recognized, however, may have in part resulted from a
-

Congressional desire to adopt a rule of clear application, which operated to discourage incidents of fraud and to recognize such relationships only where a father had already demonstrated for all nonimmigration purposes that he wished the child to have equal status

under the law with his legitimate children. See Hallo v. Bell, supra at
795 n. 6. Cf. Peignand v. INS, supra (regarding the Nationality Act of
1940).
The fact that distinctions arise in "matters concerning succession"
in the Dominican Republic between legitimated and acknowledged
children may well be relevant to such legislative purposes. First, any
test dependent on a case-by-case assessment as to which distinctions
in law between legitimated and acknowledged children are meaningful
for immigration purposes would be far from a "bright-line test."
Peignand v. INS, id. Moreover, as to the goal of minimizing the
incidents of fraud, it could be concluded that fewer male fide applications (i.e., involving individuals attempting to bestow or derive
benefits from other than natural children) would result where the
individual was forced to give a child an essentially irrevocable equal
status under the eyes of the law with his own legitimate child in order
to accomplish the fraud. In this regard, we note that perhaps the most
significant legal distinctions between legitimate and illegitimate children (and certainly the most sensitive distinction giving rise to the
majority of litigation in this area) have been differences involving
inheritance rights. In any event, it is not the Board's role to probe and
test the justification for the legislative decision.
We recognize that the Board's decision in Matter of Lee, supra,
cannot be reconciled with the decision herein. Nor can the decision in
Matter of Lee be meaningfully distinguished from over twenty years of
Board precedent decisions, which were not referenced in that case. The
decision in Lee resulted in major part from a desire to reunite a
516

Interim Decision #2822
family' This humanitarian desire, however, cannot justify a redrafting of the immigration laws by the Board and we withdraw from our
decision in Lee. The petitioner's arguments herein should be addressed
to Congress. See Fiallo v. Bell, supra at 799 n. 8; Matter of A , 5 I&N
Dec. 272, 284 (A.G. 1954).
ORDER: The visa petition is denied.
—

'Legitimation requirements which mandate marriage of the natural parents often
make legitimation by the natural father impossible. This can of course be true even
where a strong family tie exists between the father and child. That such relationships
cannot be,cognized under the clear terms of section 101(b)(1) tempts one to define the
provisions therein so that all bona fide familial relationships can be recognized. We
believe this result can only be lawfully accomplished, however, by a redrafting of the
laws in question by Congress.
517


Interim Decision 41514

Mherizat or

PEAR PRODUCTIONS, Inc.

In Visa Petition Proceedings
• NYC–N=17769

Decided by District Director June 30,1965
Beneficiary, an internationally-lmown stage and film actor, whose services are
desired as .a panelist on a TV MUM is accorded nonimmigrant classification
under section 101(a) (15) (H) (i), Immigration and Nationality Act ; since he
is an actor of such renown that his name and reputation alone establish
without question that he is of distinguished merit and ability as contemplated by the statute, it is neither necessary nor purposeful to seek an advisory opinion from any relating organization or association as to his merit
and ability.

A petition by Peak Productions, Incorporated, 375 Park Avenue,
New York, New York, was submitted on June 9, 1965, to accord
Anthony Newley classifiCation under section 101(a) (15) (H) (i) of
the Immigration and Nationality Act. The company, established in
December 1958, is engaged in the production of television programs.
The services of the benfieiary are sought as a panelist for the Password television show to be aired on August 5, 1965. The beneficiaiy
is a 34-year-old male; native and citizen of England, reputed to be
an internationally known stage and film actor. He has entered the
United Stitteb tik a number of occasions as a nonimmig
' rant temporary worker.
Evidence has been presented that the beneficiary co-authored, directed, and starred in a Broadway stage show, Stop the World—I
Want to Get Off. This musical was'a hit in Great Britain and enjoyed a very successful run in New York from October 1962 to
February 1964. His performance therein brought him the London
Critics' Prize and a "Tony" nomination in New York. The beneficiary is presently performing in the Broadway hit show The Roar
of the Greasepaint—The Srnell of the Crowd. He also wrote and
serves as director of this show. David Merrick, who produced these
. shows, considers the beneficiary "A star of the first rank both hers
462,

Interim Decision *1544,
and in England." Merrick is a well-known producer of successful
plays and is therefore considered to be an expert in his field.
The beneficiary's acting career commenced in 1945. ' He has appeared in more than forty films, playing roles in The Adventures
of Dusty Bates, Oliver Twist, Don't Ever Leave Me, Vote for Huggett. A Boy, A Girl and A Bike, Top of the Form, Up To His Neck,
Cockleshell Heroes, Idle' on Parade, The Small World of Sammy .!
Lee, and others. He is a successful recording star with several of
his songs having been prominently placed in reeed popularity rating charts. The beneficiary appeared on the West End stage in
John Cranko's Cranks and was received so well that his name became
established in the London theatre. He appeared on the nationally
broadcast Ed Sullivan television show of May 30, 1965, and performed scenes -from his current show.
" The beneficiary is an entertainer of such renown that his name
and reputation by itself establishes without any question that he is

of distinguished merit and ability- Accordingly, it is not deeMed
necessary or purposeful to seek an advisory opinion from any relating organizations or associations as to whether he possesses the

distinguished merit and ability contemplated by the statute. It is
also recognized that a show such as Password must provide panelists
of distinguished merit and ability in order to attract enough viewers to succeed in what is a very competitive market.
Since the beneficiary is a person of distinguished merit and ability
and the petitioner desires him to perform temporary services of an
exceptional nature requiring a person of such merit and ability,
the petition will be approved.
ORDER: It ordered that the petition submitted by Peak Productions, Incorporated, in behalf of Anthony Newley be and the
same is hereby granted.

463


Interim Decision #1838

MATTER OP NAGY

In Deportation Proceedings
A-10986083

Decided by Board January 261 .1988
Respondent's conviction of transporting a stolen vehicle in foreign commerce
in violation of 18 II.S.C. 2312, resulting in his commitment as a young adult
offender under the Federal Youth Corrections Act, which conviction was subsequently set aside pursuant to 18 U.S.C. 5021 and a certificate to that effect
issued to respondent by the Youth Correction. Division, U.S. Board of Parole,
is not a conviction of a crime for deportation purposes.

Cam:
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)3—After entry
convicted of two crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct,
to wit, intent to commit larceny in bank (18 U.S.C.

2113(a)), and transportation in foreign commerce of
stolen motor vehicle (18 U.S.C. 2312).

The respondent, a native and citizen of Hungary, has been found
deportable as an alien who after entry has been convicted of two crimes
involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit, intent to commit larceny in a bank and transporting a stolen motor vehicle in foreign commerce in violation of 18

U.S.C. 2113(a) and 2312. An order entered by the special inquiry
officer on October 13, 1967 denies the respondent's motion for a termination of the proceedings and orders his deportation to Hungary.
An application for withholding deportation to Hungary pursuant to
section 213 (h) of the Immigration and Nationality Act was also denied. The case has been certified to the Board of Immigration Appeals
for final decision.
The respondent, an unmarried male alien, 30 years of age, last entered the United States through the port of Newark, New Jersey on or
about March 18, 1957. He was granted the status of a lawful permanent resident alien as of March 18, 1957 at Newark, New Jersey pursuant to the Act of July 25, 1958. He was convicted on March 14, 1960
in the United States District Court at Los Angeles, California of the
623

Interim Decision 4t1838
offense of entering a bank with intent to commit larceny therein in
violation of Title 18 of the United States Code, section 2113(a). He
was again convicted in the United States District Court at San Diego,
California on June 20, 1900 of the offense of transporting a stolen vehicle in foreign commerce in violation of United States Code, Title 18,
section 2312.
The respondent moves for a, termination of the proceeding on the

ground that his conviction for transporting a stolen motor vehicle
in foreign commerce has been set aside pursuant to section 5021 of
Title 18, U.S.C. Respondent takes the position that he no longer stands
convicted after entry of two crimes involving moral turpitude.
The respondent, when convicted on June 20, 1960 for violation of
18 U.S.C. 2312, was 22 years of age. He was adjudged to be a young
adult offender 1 purSuant to 18 U.S.C. 5010(b) and was committed
to the custody of the Attorney General or his authorized representative for treatment and supervision until discharged by the Youth
Correction Division. The United States Board of Parole, Youth Correction Division on October 13, 1965 issued a certificate to the re-

spondent setting aside his conviction under 18 U.S.C. 2312 pursuant
U.S.C. The cer-

to the authority contained in section 5021, Title 18,
tificate is a part of the record entered as exhibit 4-

The issue before us is whether the certificate granted the respondent
by the Youth Correction Division setting aside his conviction pursuant
to section 5021 of Title 18, U.S.C. 2 amounts to an expungement thereby eliminating the basis for his deportability under section 241(a) (4)
of the Immigration and Nationality Act (8 U.S.C. 1251 (a) (4) ). The
trial attorney maintains that a certificate issued under section 5021
of the Federal Youth Corrections Act is ineffective to prevent deportation because it amounts to a nonexecutive pardon.
1 18 U.S.C. 4209, Public Law 85-752 (August 25, 1938) extends the provisions
of the Federal Youth Corrections Act to young adult offenders who have attained their twenty-second birthday but not their twenty-sixth birthday at the
time of conviction.
2 18 U.S.C. 5021 provides as follows :
Section 5021. Certificate setting aside conviction.
(a) Upon the unconditional discharge by the division of a committed youth
offender before the expiration of the maximum sentence imposed upon him,
the conviction shall be automatically set aside and the division shall issue to
the youth offender a certificate to that effect.
(b) Where a youth offender has been placed on probation by the court, the
court may thereafter, in its discretion, unconditionally discharge such youth
offender from probation prior to the expiration of the maximum period of
probation theretofore fixed by the court, which discharge shall automatically
set aside the conviction, and the court shall issue to the youth offender a certificate to that effect.

624

Interim Decision #1838
The record contains a "Certificate Setting Aside Conviction," issued
by the Youth Correction Division, United States Board of Parole,
Department of Justice on October 13, 1965. It provides for the unconditional discharge of the respondent and states: "In that such unconditional discharge is effective before the expiration of the maximum sentence heretofore imposed, it has been further ORDERED by
said Youth Correction Division, United States Board of Parole, that

his conviction be set aside pursuant to section 5021, Title 18, U.S.
Code, and this certificate is hereby issued pursuant to that Order."
The respondent's conviction was set aside pursuant to section 5021
(a) of 18 "U.S.C. (supra). This provision was enacted by the 81st Congress on September 30, 1950 as a part of Public Law 865 known as
the Federal Youth Corrections Act. According to the legislative history and court decisions the purpose of Congress in passing the Act
was to make available for the discretionary use of federal judges a
system for the sentencing and treatment of youth offenders by permitting the substitution of correctional rehabilitation rather than
retributive punishment in a penitentiary. See United States Code Congressional and Administrative News, 81st Cong., 2d Sess. 3983, 3992.
Also Briewe v. United States,

246 F. Supp. 818 (D.C. Del., 1965) ;

Rawls v. United States, 331 F. 2d 21 (CA. 8, 1964).
The Deputy Attorney General, in his letter of Jima 21, 1950 to the
Congress recommending passage of the Federal Youth Corrections
Act noted the fact that if the offender had "responded to treatment"
and the Youth Division determined that "rehabilitation has been
accomplished" the offender could be "discharged unconditionally
before the full maximum term has expired, in which event the conviction shall be automatically set aside" and the youth offender issued
a "certificate" to that effect. See United. States Code Congressional
Service, 81st Cong., 2d Seas., pp. 3391-02. (Emphasis supplied.)
The court in Rogers v. United States, 326 F. 2d 56 (CA. 10, December 24, 1963) said :
The Act embodies the modern concept of the treatment of young violators of
the criminal laws. In place of punishment as the purpose of the pronotmeement
of criminal sentences, rehabilitation through treatment or "corrective and preventive guidance" is the end sought.

Since the respondent's conviction for transporting an automobile
in foreign commerce has been "set aside" pursuant to the Federal
Youth Corrections Act, does he now stand convicted after entry of two
crimes involving moral turpitude? The special inquiry officer concludes "that the certificate issued to the respondent under 18 U.S.C.
5021, setting aside the conviction stated hi allegation of fact No. 5 of
the order to show cause herein, constitutes a. non- executive pardon and
cannot, therefore, affect the finding of deportability heretofore made
625

Interim Decision #1888
in respondent's case." (P. 8 of special inquiry officer opinion of June 6,
1966, emphasis supplied.) The Court of Appeals for the District of
Columbia has ruled, however, that an offender committed under the
provisions of the Federal iouth Corrections Act ". . . presents a
marked and important difference from a criminal conviction which
can be relieved only by a presidential pardon and then only to a limited extent." Tatina v. United States, 810 F. 2d 854, 856 (0.A. D.C.,
1962).

The court in the Tatwa case (supra) had before it the question of
whether the District Court could vacate an original sentence entered
under the Federal Youth Corrections Act and impose a new sentence
under the Indeterminate Sentence Law rather than under the Youth
Corrections Act. The court held:
We are satisfied that the prospect of having the conviction "automatically"
set aside under 18 U.S.C. § 5021 (1958) is a difference so important as to outweigh the possibility of longer confinement and to warrant the conclusion that the
second sentence wee more severe than the first and could not be imposed after
appellant had commenced serving the sentence first imposed. The second sentence imposed will be set aside and the appellant will be resentenced under the
Youth Corrections Act . . .

The court in a footnote. stated:
The provisions of the Federal Youth Corrections Act, 18
§ 5021 (11358)
appear to provide greater relief than would a presidential pardon of the same
offense. The former acts to expunge the conviction and the record while the latter
"releases the offender from all disabilities imposed by the offense, and restores
to him all of his civil rights." Citing Knots v. United States, 95 U.S. 149, 153, 24
Led. 442 (1877). (Emphasis supplied.)

The court stated the most important feature of the Youth Corrections
Act (section 5021) was that a person sentenced thereunder "can, by
virtue of his own good conduct, be spired the lifelong burden of a
criminal record . (and) it can, by the choice and conduct of the individual, become a lionorimittal episode so far as the public records are
concerned." (Emphasis supplies.)
The appellate trial attorney in his memorandum of June 28, 1966
takes the position that 18 U.S.C. 5021(a) does not relieve the respondent from deportation. He cites two cases in support of his position. The
case of Hernandez-V aleneztela v. Rosenberg (304 F. 2d 639) presented
the question of whether there had been a final conviction for deportation purposes of an alien sentenced under the Youth Offenders Act fora
narcotic offense,. The case is distinguishable because the alien was never
granted a "Certificate Setting Aside Conviction." The court with regard to the possibility that the convinction might be set aside said : "It
is true that the sentence imposed carries with it the possibiliy of congressional grace upon unconditional discharge, but such possibility of
626

Interim Decision #1838
future grace in no respect affects the present fact of guilt." The court
concluded "that the possibility that a youth offender's conviction might
be set aside does not in a narcotic case deprive that conviction of the
finality necessary to warrant deportation." The case is also distinguishable because it appears that under 26 U S.C. 7237 (d)* the provisions of
the Youth Corrections Act is not available to a "young adult offender"
convicted of a narcotic violation. (Sea United States v. Lane, 284 F. 2d
935, C.A. 9, 1960; also United States v. Gibbs, 285 F. 2d 225 (CA. 9,
1960).)
The case of Tamer v. United States relied upon by the appellate
trial attorney (278 F. 2d 137, cert. den. 364 U.S. 863) is also a narcotic
conviction. The court had before it the issue of whether Tanzer was to
be regarded as a second offender. There is nothing in the opinion which
would indicate that Tanzer was convicted as a young adult or youth

offender. Furthermore, Tanzer relied upon 18 U.S.C. 3651 -which concerns suspension of sentence and probation of adult offenders. The
court's reference to 18 U.S.C. 5021 was merely dicta since the conviction was not set aside under the statute which governs in the case before

us. It would also appear that 26 U.S.C. 7237 (d) (supra) is applicable
to the Tanner case.
It is clear from the legislative history of the Federal Youth Corrections Act (Public Law 865, 81st Cong.) that Congress intended that a
"youth offender" would not have a continuing criminal record if his
conviction was set aside pursuant to section 5021 of the Act. Furthermore, the Court of Appeals for the District of Columbia in Tatum v.
United States (supra) has held that a certificate setting aside a conviction issued pursuant to 18 U.S.C. 5021 "expunges the conviction and
the record" and provides a greater relief than would a presidential
pardon. We conclude, therefore, that the respondent is not deportable
on the charge that after entry he has been convicted of two crimes in-

volving moral turpitude not arising out of a single scheme of criminal
misconduct because the conviction for transporting a, stolen motor
vehicle in foreign commerce in violation of 18 U.S.C. 2312 has been
set aside.
Our ruling with regard to the respondent's deportability renders
moot his application for relief under section 243 (h) of the Tmmigration and Nationality Act. An appropriate order will be entered.
ORDER: The order of deportation entered by the special inquiry
officer on October 13, 1967 is hereby withdrawn and the proceedings
pursuant to the order to show cause issued on August 17, 1960 are

hereby terminated.
a 26 U.S.C. 7237(d) provides in substance that there shall be no suspension
of imposition of sentence or granting•of probation upon conviction of a narcotic

violation.

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