Interim Decision 40611

AIATiza OF M/V "Tam AN"
In Fine Proceedings
BA -1O/1.254
Decided by Board Alma 28, 1966
(1) Where, following immigration Inspection, the master of the vessel lifted
the seaman papers of the ST crew members denied conditional landing privileges, two professional guards were placed on duty on an around-the-clock
1Y-C71 3 crewmen escaped and the
basis, the Service was promptly no-La -in.-a1,
master and his officers were very cooperative with the Service, the $1,000
fine imposed as to each crewman under section 254(a) (2), Immigration and
Nationality Act, is mitigated to the extent of $500 per crewman; however,
further mitigation is unwarranted se the crewmen refused landing permits
were not confined to quarters, they were not periodically checked by the
ship's officers, there does not appear to have been any earnest effort by responsible parties to locate and/or apprehend the escapees nor have they
furnished any information leading to apprehension of the escapees, who, still
at liberty in this country, have not been promptly removed by and at the
expense of the responsible parties.
(2) In determining the extent of mitigation, it is incumbent upon the parties
responsible for the vessel's operation to afilrmatively establish the existence
of reasons for the relief of mitigation.
IN RE: 11/V "TUNG AN" which arrived at the port of Baltimore, Md., from foreign, on February 26, 1960. Alien crewmen involved: Lee Tim,
Leo Chi Wfd, and Ip Shui Chung.
Beers von FINE: Act of 1952 ,--Section 254(a) (2) [8 13.8.0. 1284].

The Acting District Director at Baltimore has held that the
vessel's Master, Eryl Hughes, and/or its agents, Rukert Marine

Corporation, have incurred liability to administrative penalties of
$3000, $1000 as to each of the alien crewmen named above, for
failure to detain them aboard the vessel at all times despite the
fact that they had not been granted conditional landing privileges.
However, said official found present herein factors which, in his
opinion, merited mitigation of the fines to the extent of $900, $300
per crewman. Thus, he permitted to stand. a total penalty of
$2100, $700 per crewman. The appeal from his decision, which
lot

Interim Decision #1611
. brings the case before this Board for consideration, seeks maximum
mitigation of the fines, to wit: down to $200 per crewman, for a
total penalty of $600.
It appears from the record before us that the following material
facts exist without substantial controversy. Immigration inspection, which was accorded the crew of this vessel immediately upon
its arrival from foreign (ante), resulted in the denial of .conditional landing privileges to 37 alien members of the crew, including the three named above. Accordingly, Forms I-95A "Refused"
were executed as to them and copies thereof handed the Master.
Thereafter,

and specifically on March 9, 1958, these three crewmen

disembarked from the ship and have not been located to date.
The foregoing establishes that liability to these fines has been
incurred, and this is uncontested. The statute makes no provision
for remission of the fines, so that they cannot be forgiven in full.
Thus, the only issue presented, for our consideration is whether more
mitigation than has already been authorized by the Acting District
Director is warranted in these premises and, if so, to what extent.
Two professional guards per shift were on duty on an around-theclock basis at all times while the vessel was in the port of Baltimore, with one guard being stationed at the gangway and the
other on the pier. The seaman's papers of the crew members who
had been refused conditional landing privileges were lifted by the
Master and retained in his possession at all times until turned over
to the immigration officer who investigated the escape of these three
crew members. The Master notified the Service of their escape
approximately one hour after it was brought to his attention. The
Acting District Director's opinion reflects that the Master and his
officers aboard the ship were quite cooperative with the investigating
Service officers.
The Acting District Director was of the opinion that the foregoing factors merited mitigation of the fines to the extent of $300
per crewman. It is our opinion that they call for $200 additional
mitigation per crewman, which means that we will permit to stand
a fine of $500 per crewman, for a total penalty of $1500. We cannot, however, agree with the appellant that reduction of the fines
to a point below that figure is warranted here, for the reasons
hereinafter discussed.
It is neither asserted nor demonstrated that the members of the
crew of this ship who were refused conditional landing privileges
were confined to their quarters. It is neither claimed nor demonstrated that the ship's officers were assigned the duty of constantly
checking to see to the continued presence of the detainees on board,
701.

Interim DecisiOn #1611
or that they' did so. The parties responsible for this vessel's operation have'furnisfled• no information which might lead to the apprehension of the escapees. It does not appear. that' earnest and continuing efforts were 'exerted by the parties-responsible for the
vessel's operation to the end that the escapees would be located
and/or apprehended. Since the record indicates that they are still
at large in the United States, it is readily apparent that they have
not been removed from this country promptly by and at the expense
of the parties responsible for the -vessel's operation. Under these
conditions; 'reduction of the fines to an extent over and above that
herebibefore indicated just is not warranted.
We note the claim by the agents that the professional guards it
employed to watch over these . detainees were guilty of negligent
performance Of their duty on various occasions. This, how -ever, is
no, basis for further reduction of the fines against . the 'agents who
are clearly responsible for the actions of the parties on whom they
relied to meet the absolute statutory duty of detention' existing in
this case. In addition, thti record clearly reflects that the deficiencies
on the part of the guards were called to the attention of their
superiors and corrected well before the time herein involvid.
We also note that the agents have claimed that clear guidelines.
should be laid down for the benefit of all agents and other parties
responsible for the operation of vessels with alien crews arriving
in United States ports so thit detention orders of the Immikration.
and Naturalization Service as to crewmen may be properly implemented. Suffice it to say,.in this connection, that Such guidelines
have long -since been. laid down by this Board (Matter of .117V
"Clydefl,e7,d," 10 L & N. Dec. 165), and our experience shows that
shipping circles at various ports throughout the country are thoroughly familiar with them. The only further comment required on this
point is that, obviously, those guidelines are, as they must be, gen-

eral in nature and have to be viewed in the light of the factual circumstances presented by each individual case in arriving at's proper
evaluation of the mitigation to be authorized in any particular
instance.
We further note that the agents have indicated that the Acting
District Director's decision is unfair in that it fails to state clearly
the reasons why he did not authcirize maximum mitigation of these
lines. This complaint overlooks the fact that it is incumbent upon
the parties responsible for the vessel's operation to of
establish the existence of reasons for the relief of mitimttion. It
cannot meet this duty in a negative manner.
102

Interim -Decision. *1611

Finally, it is of no assistance to this appellant that five additional
professional guards were hired after these three crewmen escaped.
Clearly, this action on their part had no bearing whatsoever upon
the matter now under consideration. Again, in this connection,
the number of professional guards hired and the mitigation awarded
on the basis thereof depends on the facts and circumstances peculiar
to each case, and the other -precautionary measures taken in conjunction therewith by 'the parties responsible for the vessel's operation. Hdre, only two professional guards were on duty over a
considerable period of time to watch over 87 detained alien crewmen. Those crewmen were not confined to quarters, thaii:were not
periodically checked by the ship's officers and it has not been
shown that the layout of the pier at which the vessel was berthed
was of such a nature as to be of assistance to the two professional
guards on duty in keeping the crewmen confined aboard the vessel.
Under these circumstances, mitigation of the fines to the extent of
$500 per crewman is all that is warranted.
ORDER: It is ordered that the Acting District Director's decision of May 10, 1966, be amended to provide for mitigation of the
fines to the extent of $1500, $500 per crewman, and that as so
amended the decision of said officials be and the same is hereby
affirmed. The penalty permitted to stand is $1500, $500 per crewman.

703


Interim Decision # 1973

MATTER OF POULIN.

In Exclusion Proceedings
A-18151469
Decided by Board May 2, 1969
Notwithstanding an alien upon entry presented an immigrant visa supported
by a certification from the Secretary of Labor, reported to the certified
job and actually pursued it for a short period of time, he was not in possession of a valid Labor certification at entry where it was his intention
throughout to pursue other employment for which he did not have a certification.
Ever.inuntn: Act of 1952—Section 212 (a) (20) [8 U.S.C. 11823—Immigrant,
no visa.

On October 22, 1968, the special inquiry officer directed that
the applicant be excluded and deported from the United States on
the above-stated ground. The applicant waived his right to appeal
from that decision of the special inquiry officer. However, the
District Director at Portland, Maine, certified the case to this
Board for review and final decision.
The record relates to a 31-year-old married male alien, a native
and citizen of Canada, who was admitted to the United States for
permanent residence on July 29, 1968. He then presented an immigration visa which was supported by a certification from the
Secretary of Labor. That labor certification showed that the applicant was destined to the Bates Manufacturing Co., Inc., Lewiston, Maine, for employment as a "weaver learner," at a salary of
$1.65 an hour.
The applicant did work for the Bates Manufacturing Co. for
one day, but then quit because he became ill. He then remained in
Lewiston, Maine, for two days until he felt better. Thereafter, he
returned to Canada where his wife, their child, and his parents,

all natives and nationals of Canada, reside.
The applicant remained in Canada until -September 10, 1968,
when he applied for admission into this country as a returning

resident, to take employment in the woods. At that time he pre-

264

Interim Decision #1973

sented no documents, but inquired as to whether his Alien Registration Receipt and Border Crossing Identification Card (Form
I-151) was available to him. He was thereupon referred for a
hearing before a special inquiry officer, with the above-described
result.
The applicant testified that at the time of his original entry on
July 29, 1968, he only intended to work for the Bates Manufacturing Co. until he could obtain his Alien Registration Receipt and Border Crossing Identification Card. He stated that a
Canadian named Toulouse, of Lac Megnatic, P.Q., Canada, assisted him in applying for his visa, and told him that although he
would obtain the labor certification for the Bates Manufacturing
Co., he need not continue to work for that company after he entered the United States and obtained his 1-151, and that thereafter he could go anywhere he wished. He admitted that at the time
of his original entry he intended, after obtaining his 1 151, to
work on lumbering operations with his brother and his brotherin-law, both of whom are permanent residents of the United
States.
The applicant set forth that he has been working on lumbering
operations in the United States for the past 13 years. He indicated that he was previously admitted each year under bond to
work in the woods, but that it has now become very difficult to
obtain admission under bond for such work, and that one must
obtain a visa to get regular employment in lumbering operations
in the woods in Maine. It was because of these difficulties that he
applied for an immigrant visa, after consulting with the Canadian named Toulouse. He conceded that at the time of his original
entry into the United States he intended to work in the woods
with his brothers, and that he had no wish to work for the Bates
Manufacturing Co.
Summarizing briefly, the applicant obtained his visa and his
original admission into the United States so that he could work in
the woods with relatives. The labor certification he then presented, and on the basis of which his visa was issued, showed
that he was destined to the Bates Manufacturing Co. for employment as a weaver learner. He had consulted with an individual in
-

Canada who had advised him that he need only enter upon such

employment and then could leave immediately upon receipt of his
Alien Registration Receipt and Border Crossing Identification
Card, with which he could then go to work anywhere he pleased.

He then intended, as is the case now, to work in this country as a

265

Interim Decision #1973
commuter and reside in Canada with his wife and child while not
actually employed in the woods in this country.
Section 212 (a) (14) of the Immigration and Nationality Act
provides that an alien shall be ineligible to receive a visa and for
admission into the United States unless he is in possession of a
certification issued by the Secretary of Labor. 29 CFR 60.5 states
that the requisite labor certification is invalid if the representations upon which it is based are incorrect, and that it covers only
the position described in the request therefor. Application of the
foregoing facts of record in the light of these provisions of the
law and the related regulations convinces us that the special inquiry officer's decision to exclude the applicant was correct.
The applicant did not have a certification covering the work he
actually intended to do in the United States, to wit, lumbering operations in the woods. Therefore, he was not in possession of a
valid labor certification at the time of his entry into the United
States on July 29, 1968. He was, accordingly, not then eligible for
the visa which he presented. Hence, he is not now a bona fide returning resident alien inasmuch as he has never procured a labor
certification for the employment to which he is destined, nor has
he ever procured any visa other than the one which he presented
on July 29, 1968.
In conclusion, the purpose of section 212 (a) (14) of the Immigration and Nationality Act is to protect the American workingman by keeping the labor market from being flooded, and wages
and working conditions from being depressed. Here, there is no
certification that there were not sufficient workers in the United
States able, willing, qualified, and available to do the work the applicant intended to do at the time of his original and present application for admission, nor is there any certification that his employment in that industry would not adversely affect wages and
working conditions of American workers similarly employed. As
a matter of fact, the contrary is indicated by the applicant's testimony that he has worked in the woods under bond each year
since he was 18 years of age, but that it is now difficult to be admitted under bond to do that work. All we can add, in this
connection, is that the statute states that the provisions of the
section here pertinent shall apply to special immigrants born in
,

Canada other than'the parents, spouses, and children of United

States citizens or residents lawfully admitted for permanent residence; and that the applicant, a special immigrant born in Canada, is not the parent, spouse or child of a United States citizen
or an alien lawfully admitted for permanent residence.
266

Interim Decision #1973
Under the foregoing circumstances, we concur in the special inquiry officer's conclusion that the applicant is excludable as an
immigrant not in possession of a valid immigrant visa or other
entry document valid in lieu thereof. Accordingly, the special inquiry officer's decision is approved.
ORDER: It is ordered that the special inquiry officer's decision

of October 22, 1968, directing that the applicant be excluded and
deported from the United States, be and the same is hereby affirmed,

267


Interim Decision #2689

MATTER OF KANEDA
In Deportation Proceedings

A-22205731
Decided by Board February 28, 1979
(1) Virginia Code Section 18.2-251 is a counterpart to the Federal First Offender Statute,
21 U.S.C. 844(b)(1); and a marihuana charge dismissed pursuant to such a statute may
not be used as a basis for deportability under section 241(a)(11) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(11).
(2) The test for whether a state statute constitutes a counterpart to the Federal First
Offender Statute is whether it complies with the Congressional intent to give an
offender a second opportunity without the conviction remaining for some state purpose.
(3) The time a respondent was incarcerated prior to the dismissal of the charge is not
determinative on the issue of whether a drug charge was properly dismissed pursuant
to a state first offender statute _
(4) Defeating deportability is a permissible purpose of a state first offender statute.
Rehman v. INS, 544 F.2d 71 (2 Cir. 1976).
(5) Absent a showing of lack of jurisdiction, a Virginia State trial judge's order rescinding
sentence, and placing an alien under probation on condition he serve and pay the
previously imposed sentence, and that on completion the charge would he dismissed
pursuant to Virginia Code Section 18.2-251, as a first offender, followed by a later order
dismissing the charge, had the effect of defeating deportability based on that conviction.
(6) Lack of jurisdiction to dismiss a criminal charge after conviction must be affirmatively
shown. Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); Matter of O'Sullivan, 10 I. &
N. Dec. 320 (BIA 1963).
CHARGE:
Order. Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]--Convicted of possession
of marihuana
ON BEHALF OF RESPONDENT:
Eau S. Masse], Esquire
122 E. 42nd Street
New York, New York 10017

ON BEHALF OF SERVICE:
George Indelicato
Appellate Trial Attorney

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

The respondent appeals from a decision by the immigration judge
dated May 15, 1978, finding the respondent deportable under section
677

Interim Decision #2689
241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(11),
as an alien convicted of possessing marihuana under the law of the State
of Virginia and denying him the privilege of voluntary departure. The
appeal will be sustained and the deportation proceedings will be terminated.
The respondent is a 21 year old native and citizen of Japan who
-

-

entered the United States on September 3, 1976, as a nonimmigrant
student in order to attend Syracuse University. On February 25, 1977,
he was arrested by Virginia authorities, while he was riding an Amtrak

train, for possession of approximately 4,448 grams of marihuana. On
July29, 1977, he pleaded guilty to a misdemeanor charge of possession of
marihuana in violation of Virginia Code Section 18.2 248. He was then
sentenced to a term of 12 months confinement in the county jail, four
months of which were suspended, as well as a fine (Ex. 2).
On October 28„ 1977, the same Virginia judge entered an order
rescinding the respondent's sentence, placing him under probation on
the condition thathe serve and pay the previously imposed sentence and
fine, and providing that upon completion of the jail term the marihuana
charge would be dismissed pursuant to Virginia Code Section 182-251.
the State's first offender statute. On August 15, 1978, the Virginia judge
entered an order dismissing the charge against the respondent pursuant
to Virginia Code Section 18.2-251.
-

The first issue we must address in this case is whether the Virginia
statute is a counterpart to the Federal First Offender Statute, 21
U.S.C. 844(b)(1). In Matter of Work, Interim Decision 2589 (BIA 1977),

we held that when a conviction has been expunged under the provisions
of a state statute that is the counterpart of 21 U.S.C. 844(b)(1), that
conviction may not be used as a basis for deportability under section
241(a)(11) of the Act. In Werk, we extended to expungements under
first offender statutes the same rationale we had previously applied to
expungements of convictions pursuant to the Federal Youth Corrections Act (18 U.S.C. 5010, et seq.) and its state counterparts. See Matter
Zingis, 14 I. & N. Dec. 621 (BIA 1974); Matter of Andrade, 14I, & N.
Dec. 651 (BIA 19'74). The rationale behind the above statutes was to
give qualifying offenders a second opportunity to lead law-abiding lives
and that discharge and dismissal under such statutes shall not be
deemed conviction of a crime. See H.R. Rep. No. 91-1444, 91st Cong.,
2nd Sess., 1970 U. S. Code Cong. & Admin. News 4566, at 4616.
The test for whether the Virginia statute constitutes a counterpart to
die Federal First Offender Statute is whether it complies with the
Congressional intent to give an offender a second opportunity without
/laving the conviction remain for some state purpose. Thus, in Matter of
l'aragianis, Interim Decision 2537 (BIA 1976), we rejected a resporrd ent's argument that a New Hampshire statute was a counterpart to the
678

Interim Decision #2689
Federal statute because under the New Hampshire law the expunged
conviction could be subsequently considered for sentencing in a later
conviction and, therefore, the conviction was still operative for some
state purpose.
Another limitation on the effectiveness of an expunged conviction for
removing deportability is where such expungement is available to all
convicts and not limited to a small class such as youthful or first offenders as in the Federal statutes. See Matter of Moeller, Interim Decision
2543 (BIA 1976).

After reviewing the Virginia statute we conclude that it is the counterpart to 21 U.S. 844(b)(1) Like the Federal statute the class of offenders eligible for discharge under Virginia Code Section 18.2-251 is
limited to first offenders. The operative language in both statutes is
very similar. Both statutes state that an offender can only use the
statute once, and do not provide for any of the other collateral consequences that would normally follow a conviction under another statute.
See Appendix A.
The second issue we must address is whether the Virginia judge
actually complied with the Virginia statute. The Service contends that
under the dismissed charge the respondent was incarcerated longer
than he would have been under the July 29, 1977, sentence. The Service
further points out that the wording of the October 28, 1977, order
explicitly stated that the conviction was rescinded and the charges
dismissed "for purposes of any deportation proceeding". Thus, the Service contends that the trial judge's action only constituted a recommendation against deportation under section 241(b) of the Act, 8 U.S. C.
1251(b), which is unavailable to those convicted of a drug offense. See
generally, Appleman, The Recommendation Against Deportation., 58
A. B. A.J. 1294 (1972). Finally, the Service contends that the respondent
was ineligible for first offender treatment because his July 29, 1977,
guilty plea was a prior conviction.
The time which the respondent had to spend incarcerated as a result
of the trial judge's order is not determinative against the respondent.
Altogether the respondent was incarcerated for five and a half months.
The respondent in Andrade served two years in a California Youth
Authority institution. See Matter of Andrade, supra, at 654. Neither is
the fact that the judge intended to defeat the respondent's deportation
relevant to this case. In Rehman v. INS, 544 F.2d 71 (2 Cir. 1976), the
court specifically stated that defeating deportability was a permissible
purpose of a state first offender statute. 544 F.2d at 75.
The final argument of the Service that the trial judge lacked jurisdiction to give the respondent first offender treatment is also defective.
The trial judge specifically rescinded the respondent's conviction in his
October 28, 1977, order. We have held that where a conviction is revoked
679

Interim Decision #2689
and the charge dismissed by a trial judge that conviction cannot be used
to sustain a finding of deportability. Matter of G—, 7 I. & N. Dec. 171
(BIA 1956). We have also specifically held that when the Service claims
that a trial judge lacked authority to dismiss a criminal charge after a
conviction, such lack of jurisdiction must be affirmatively shown. Matter
of Sirhan, 13 I. & N. Dec. 592 (BIA 1970); Matter of O'Sullivan, 10 I. &
N. Dec. 320, 339 (BIA 1963). Here the Service has submitted no evidence that the trial judge lacked jurisdiction under Virginia law to
rescind the respondent's conviction. Furthermore, the prosecution has

not challenged the trial judge's rescission and dismissal of the charges
which also indicates that the trial judge's actions were proper.
Moreover, since the Congressional purpose behind the Federal Youth
Offender Act and the Federal First Offender Act is to give such offenders another change to lead law-abiding lives, without the stigma of a
criminal conviction, we must focus on the ultimate consequences to the
respondent subsequent to his release and the dismissal of the charges
pursuant to Virginia Code Section 18.2-251. The record contains an
order signed by Judge E. Ballard Baker of the Circuit Court of Henrico
County, Virginia, dated August 15, 1978. The order states that the

respondent complied with all conditions imposed by the court and that,
therefore, the charge against him was dismissed.
In deportation proceedings the burden is on the Government to prove
deportability by clear, convincing, and unequivocal evidence. Woodby v.
ENS, 385 U.S. 277 (1966) and 8 C.F.R. 242.14(a). Deportation statutes
are to be construed narrowly against the Service. Barber v. Gonzales,
347 U.S. 637, 642 (1954). Here, the Service has not produced any
evidence that the respondent is still subject to any of the collateral
consequences normally associated with a prior conviction of a crime.
We, therefore, find that the Service has failed to prove by clear, convincing, and unequivocal evidence that the dismissal of the respondent's
marihuana charge pursuant to the Virginia First Offender Statute failed
t o remove the basis for deportability under section 241(a)(11) of the Act_
Accordingly, the appeal will be sustained and the deportation proceedings terminated.
ORDER: The appeal is sustained and the deportation proceedings are
t erminated.

680

Interim Decision #2689—Appendix
APPENDIX A

Virginia Statute
§18.2-251.
Whenever any person who has not previously been convicted of any
offense under this article or under any statute of the United States or of
any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, or has not previously had a proceeding
against him for violation of such an offense dismissed as provided in this
section pleads guilty to or enters a plea of not guilty to possession of a
controlled substance under §18.2-250, the court, upon such plea if the
facts found by the court would justify a finding of guilt, without entering
a judgment of guilt and with the consent of the accused, may defer
further proceedings and place him on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an
adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person
and dismiss the proceedings against him. Discharge and dismissal under
this section shall be without adjudication of guilt and is a conviction only
for the purposes of applying this section in subsequent proceedings.
(Code 1950, §54-524. 101.3, 1972, c. 798; 1975, cc. 14, 15; 1976, c. 181.)

681


MATrEa of W—
In VISA PETITION Proceedings
A-10073806
Decided by Board May

n, 1962

Visa petition—Section 205(c), 1952 act, as amended—Retrospective as well as
prospective in application.
Benenciary, to leriT, was accorded nonquota status as the spouse of a United
States citizen under section 101(a) (27) (A) in connection with adjustment
of status under section 245 of the 1952 Act. That adjustment was based
upon her marriage to a United States citizen which was entered into for
the purpose of evading the immigration laws. A visa petition on her behalf
by a United States citizen spouse to whom she was subsequently married
may not be approved because of he proscription of section 205(c),, as
amended by section 10 of the Act of September 26, 1901. That statute has
retrospective as vvoll as prospective application to nonquota status previously acquired by virtue of a sham marriage.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the District Director, New York District, dated April 3, 1962,
denying the visa petition for the reasons set forth in the order which
will be referred to below.•
The petitioner, a native-born citizen of the United States, filed
a Form 1-130, petition to classify status of alien for issuance of
immigrant visa, on January 8, 1962. He seeks nonquota status on
behalf of his spouse, the beneficiary, a native and citizen of Jamaica,
British West Indies. The parties were married on January 1, 1960,
at NAW York, New York. The petition sets forth that he was married once previously and the beneficiary twice previously. The petitioner's prior marriage was terminated by decree of divorce entered
September 30, 1959, in the Circuit Court, 10th Judicial District of
Alabama.
The file relating to the beneficiary discloses that she was actually
married three times previously. Her first marriage to D—B— was
terminated on July 18, 1943, by death; her second marriage, to

B

G W , was terminated by decree of divorce in the Circuit
Court of Russell County, Alabama, on June 12, 1956; her third mar—

—

—

702

was
terminated by his death on April 13, 1958.
The order of the District Director, New York District, dated
April 3, 1962, reflects that the beneficiary was admitted to the United
States as a nonimmigrant visitor on August 6, 1954. On January 17,
1957, she applied for adjustment of her status to that of a lawful
permanent resident under section 245 of the Immigration and Nationality Act, claiming that she was entitled to nunquuta classification on
the basis of her marriage to R—, a United States citizen. (The application indicates that her status was changed to that of a student
on September 6, 1954.) Her application was granted and her status
was adjusted to that of a permanent resident on August 7, 1957.
Thereafter, as the result of an investigation conducted by the Service
and by a special grand jury, evidence was obtained that the beneficiary's marriage to R— was a sham marriage. The beneficiary, in
sworn statements made before a Service officer on June 3, 1959, and
on October 6, 1960, admitted that she had paid the sum of $500 to a
third party for the purpose of arranging the marriage in order to
obtain permanent residence in the United States. She admitted that
pursuant to this arrangement she married R— on November 28, 1956,
without any intention of living with him and that she had never had
any marital relations with him. (Action has been instituted by the
Service to rescind her adjustment of status pursuant to section 246
of the Immigration and Nationality Act.) The order of denial of
the District Director is predicated upon section 205 ( c) of the Immigration and Nationality Act, as amended by section 10 of the Act of
September 26, 1961, providing that no petition shall be approved if
the alien previously has been accorded, by reason of marriage determined by the Attorney General to have been entered into for the
purpose of evading the immigration laws, a nonquots, status under
section 101(a) (27) (A) as the spouse of a citizen of the United
States. The order concludes that since the beneficiary previously on
August 7, 1957, was accorded nonquota status through the adjustment of her status to that of a lawful permanent resident, such
adjustment being based upon her marriage to a United States citizen, which, by her own admission, was entered into for the purpose
of evading the immigration laws, that pursuant to section 205(0)
riage, l,u J—F—R---, a native born citizen of the United States,

the present vim petition may not be approved_

In connection with the appeal, petitioner has filed a brief in
which he points out that he married the beneficiary in good faith on
January 1, 1960; that the amendment to section 205(c) of the Immigration and Nationality Act, on which the denial of the visa is based,
was not enacted until September 26, 1961. He point3 out that his
marriage preceded the enactment of the amendment and at the time
of his marriage his wife was eligible for nonquota status. He argues
703

that the amendment cannot be applied retroactively and suggests
that a true construction of the amendment should be that the one
who makes application for an alien, who was married subsequent to
September 26, 1961, for the purpose of evading the immigration
laws, would be barred from obtaining nonquota status.
Section 205(c), as amended by section 10 of the Act - of Septem,
ber 26, 1961, provides that no petition shall be approved if the
alien previously has been accorded, by reason of marriage determined
by the Attorney General to have been entered into for the purpose
of evading the immigration laws, a nonquota status under section
101(a) (27) (A) as the spouse of a citizen of the United States. On
its face, the statute has retrospective as well as prospective application to nonquota status previously acquired by virtue of a sham
marriage. There is no support either in the statutory language or
in the legislative history for the position argued for by the petitioner.' The retrospective or retroactive application of immigration
laws has received judicial sanction?
In the instant case, the beneficiary was previously accorded nonquota status as the spouse of a United States citizen under section
101(a) (27) (A) in connection with her application for adjustment of
status to that of a lawful permanent resident pursuant to section 245
of the Tmmigration and Nationality Act. The evidence establishes
that the previous marriage to a citizen was entered into for the purpose of evading the immigration laws. The case falls within the
proscription of section 205(c), as amended by section 10 of the
Act of September 26, 1961. The appeal from the denial of the visa
petition will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed
1 2 U.S. Code Congressional and Administrative News (87th Cong., 1st Sces.,
1961, p. 2980) states that section 10 proposes to strengthen the existing law
by giving the Attorney General a new legal instrumentality to counteract the
increasing number of fraudulent acquisitions of nonquota status through sham
marriages between aliens and United States citizens.
3 Untied States ex rel. Hartsiades v. Shaughnessy, 342 U.S. 580; GaZvan v.
Press, 347 U.S. 522; MarceZlo v. Bonds, 349 U.S. 302; Lehman y. Carson, 353
U.S. 685.

704


Interim Decision #1290
MATTER OF PERALTA.

In DEPORTATION Proceedings
A-11402870

Decided by Board June 19, 1963
(1) An applicant for suspension of deportation within the provisions of section
244(b), Immigration and Nationality Act, as amended, is exempt from the
requirement of any specified period of physical presence.
(2) While such an applicant is also exempt from the necessity of establishing
good moral character for the period coextensive with the physical presence
period, he must establish good moral character between the date he filed his
application and the date it is finally adjudicated. Conduct prior to date of
filing can be considered in determining whether good moral character has
been established during the period in question.
(3) In computing the 24-month period of active-duty status under section 244(b)
of the Act, as amended, annual active training duty as a member of the Reserves can be credited to active-duty service but unused accrued leave cannot
be so credited.
-

CELLI= :
Order: Act of 1952 Section 241(a) (9) [8 U.S.C. 1251(a) (9) 7
ply with conditions of admission—student.
—

Failed to com-

—

The special inquiry officer granted suspension of deportation and
certified his order to the Board for final decision. The order will be

approved.
The issue concerns the effect of military service in the United States
on the necessity of an applicant for suspension of deportation establishing that he has seven years continuous physical presence in the
United States.
Respondent, a 25-year-old, single, male alien, a native and citizen
of the Philippines, was admitted to the United States as a student on
October 5, 1957. He has not attended school since June 14, 1962; he
is clearly deportable on the charge in the order to show cause.
On March 11, 1969, the respondent was inducted into the Anny of the
United States at Oakland, California; he was on active duty until
February 28, 1961, when he received an honorable release to the Reserves. He is obligated to serve in the Reserves until March 10, 1965.
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Interim Decision #1290

He attended the annual active duty for training required of Reserves
from June 17 to June 30, 1962.
Respondent is applying for suspension of deportation under section
244(a) (1) of the Immigration and Nationality Act as amended by

Public Law 87-885, October 24, 1962, 87 Stat. 1247 (8 U.S.C.A. 1254
(Supp. 1962) ) which provides for suspension of deportation of an
alien. who:
(1) is deportable under any law of the United States except the provisions
specified in paragraph (2) of this subsection ; has been physically present in the
United States for a continuous period of not less than seven years immediately
preceding the date of such application, and proves that during all of such period
he was and is a person of good moral character;

Respondent, who has not been in the United States for seven years,
believes that the requirement as to length of residence is waived by
section 211 (b) of the Act which provides:
The requirement of continuous physical presence in the United States specified
in paragraphs (1) and (2) of subsection (a) of this section shall not be applicable to an alien who (A) has served for a 10111.1111411 period of twenty four months
in an active-duty status in the Armed Forces of the United States and, if
separated from such service, was separated under honorable conditions, and (B)
at the time of his enlistment or induction was in the United States.
-

The exemption from physical presence in the United States can be
read in two ways : It can mean that a total presence of seven years
in the United States is required but that the presence need not be a continuous one; it can also mean that seven years presence in the United
States is not required. We believe that the second premise was intended
by Congress and that the necessity for any definite period of presence
has been eliminated.
Representative Walter who handled the legislation made the following statement on the floor of the House concerning the section:
The inclusion in the benefits of this legislation of aliens who served honorably
for a stated period or time In the Armed rorces of tne united States represents
the incorporation into a permanent statute of a policy traditionally adhered to by
the Congress in the enactment of private relief bills for the alien servicemen or
ex-servicemen. (103 Cong. Rec. 22153 (daily ed. October 12, 1952.) )

Since it was the purpose of Congress to minimize the number of private
relief bills for alien servicemen—a purpose which can best be accomplished by taking a broad view of the legislation, and since remedial
legislation should be broadly interpreted, we hold that it was the intent
of Congress to eliminate any specified period of residence in the United
States for a person who has the necessary honorable service in the
Armed Forces.

This conclusion brings us to the question whether the respondent
had honorable service "for a minimum period of twenty-four months
in an active-duty status." The military report of the respondent's

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Interim Decision #1290
transfer from active duty (Form DD-214) reveals, induction on
March 11, 1959, release to the Reserves on February 28, 1961, credit
with a. total active service of 1 year, 11 months, and 20 days, and a
lump-sum payment for 47 days accrued leave. Respondent has also
supplied evidence that he complied with a Reserve obligation by
attending annual active duty for training (ANACDUTRA) from
June 17 to June 30 (Ex. 2). We find that the accrued 47 days of

leave during his active military service may not be used to compute the
period of active-duty, but that the service from June 17-30, 1962, can
be used for such purpose.
The definitions of pertinent terms follow :
"Active duty" means full-time duty in the active military service of the United
States. It includes duty on the active list, full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department
concerned (10 U.S.C. 101 (22) ).
"Active service" means service on active duty (10 U.S.C. 101 (2A) ).
"Inactive-duty training" means—(A) duty prescribed for Reserves by the Secretary concerned under section 206 of title 37 or any other provision of law; and
(B) special additional duties authorized for Reserves by an authority designated
by the Secretarytconcerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to
which they are assigned.
It includes those duties when performed by Reserves in their status as members
of the National Guard (10 U.S.C. 101(31) ).
Leave taken prior to discharge or separation from the service will be considered
as active military service but unused accrued leave settled and compensated
for under the Armed Forces Leave Act of 1946, as amended, will not be considered
as active military service (AR 630-5, Sec. III par. 22 (a )2).

We can thus see that the accrued leave cannot be credited as activeduty service but that it is proper to utilize the annual training duty.
Respondent therefore has the required period of military service of
the requisite character.
Our conclusion that Congress eliminated any specified period of
physical presence for the qualified serviceman requires consideration
of the question whether the exemption also eliminated the necessity
for establishing good moral character for a specified period. In a
somewhat similar situation regarding naturalization benefits awarded
to servicemen, the court held that elimination of the specified period of
residence which had been referred to in the general requirement that
good moral character be established for a fixed period, Alirninated for
the serviceman, the obligation of establishing good moral character
except for the period from the time of filing the application for
benefits to the time of 'final adjudication. (Conduct prior to the date
of the filing could be considered as bearing upon the question of
whether good moral character within the requisite period had been
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Interim Decision #1290
established.) (In Re Petition for Naturalization of Suey Chin, 173
F. Supp. 510, 512-3, S.D.N.Y. (1959) ; see also Yuen Jung v. Barber,
184 F. 2d 491, 9th Cir. (1950) .) It appears to us a similar rule must
apply here. In the instant case, affidavits of friends, service investigations, cheek of records of police and the Federal Bureau of Investigation has failed to reveal any derogatory information. Respondent
is eonsideied a person of good moral character and loyal to the United

States. We believe that respondent has established good moral character. No change will be made in the order of the special inquiry
officer granting suspension.
ORDER: It is ordered that no change be made in the order of the
special inquiry officer.

303


Interim Decision #2588

MATTER OF FULGENCIO
In Deportation Proceedings
A-21160869
Decided by Board May 26, 1977
(1) Respondent, who conceded deportability, filed an application for adjustment of status
to that of a lawful permanent resident under section 245 of the Immigration and
Nationality Act, claiming an exemption from the labor certification requirement of
section 212(a)(14) of the Act on the ground that she would not be engaging in skilled and

unskilled labor while in the United States.
(2) Respondent, who is 54 years of age, lived with her daughter and son-in-law in

the

United States who were both employed. They provided respondent with finerwial

support. Respondent hoped to have her husband, who would be retired, join her in the
United States at a subsequent time.
(3) Respondent is middle aged, and potentially employable for many years to come. It is
unlikely that ohe will depend on her daughter and eon-in-law for support while real-ding

in the United States particularly after her husband joins her in the United States. On
this record, it has not been established that respondent will not eventually obtain
employment in the United States and circumvent the labor certification requirement.
Since respondent has not satisfactorily established that she will not perform skilled or
unskilled labor in the United States, she has not demonstrated that she is entitled to an
exemption from the labor certification requirement. Since she has no labor certification
and cannot establish exemption from that requirement, the section 245 application will
be denied.

CHARGE:

Order Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Nonimmigrant visitor—
remained longer.

ON BEHALF' OF RESPONDENT:

ON BEHALF OF SERVICE:

Edwin R. Rubin, Esquire
George Indelicate
Wasserman, Orlow, Ginsberg & Rubin
Appellate Trial Attorney
Suite 636, Public Ledger Building
Sixth and Chestnut Streets
Philadelphia, Pennsylvania 19106
EPY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

In a decision dated September 15, 1976, the immigration judge found
the respondent deportable as charged, denied her application for adjustment of status under section 245 of the Immigration and Nationality
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Interim Decision #2588
Act, and granted her the privilege of voluntary departure in lieu of
deportation. The respondent appealed from that decision. The appeal
will be dismissed.
The respondent is a 54-year-old female alien who is a native and
citizen of Portugal. She was admitted to the United States on or about
December 14, 1974, as a nonimmigrant visitor for pleasure. The respondent was authorized to remain in the United States until March 15,
1975. On April 20, 1976, following her failure to depart from the United
States, she was permitted by the Immigration and Naturalization Service to depart voluntarily on or before May 20, 1976, without the
issuance of an Order to Show Cause. The respondent failed to depart the
United States.
An Order to Show Cause was issued against the respondent on August 12, 1976. She was charged under section 241(a)(2) of the Act. At
her hearing before an immigration judge on September 9, 1976, the
respondent, through counsel, admitted that she remained in the United
States beyond the date authorized by the Service and conceded deportability. The immigration judge found the respondent deportable. We
conclude that deportability was established by clear, convincing and
unequivocal evidence.
At her hearing, the respondent filed an application for adjustment of
status pursuant to section 245 of the Act. We note that, prior to her
hearing, the respondent filed an Application for Status as Permanent
Resident (Form 1-485) with the Immigration and Naturalization Service on June 30, 1975. In a decision dated April 20, 1976, the District
Director denied the respondent immigrant status in the nonpreference
category. The respondent filed a motion to reconsider with the District
Director on May 20, 1976. The District Director denied that motion in a
decision dated July 8, 1976.

The respondent claims that she should be permitted to adjust her
status to that of a lawful permanent resident alien without being required to obtain a labor certification. She contends that she is not
performing skilled or unskilled labor in the United States and that,
therefore, she is exempt from the labor certification requirement of
section 212(a)(14) of the Act.
The record reveals that the respondent resides with her daughter and

her son-in-law in the United States. Her daughter and son-in-law, who
are lawful permanent residents, are both employed and presently provide financial support for her. The respondent's husband is 55 years old
and resides in Portugal. He is employed in a cork factory.
The respondent stated at her hearing that about one month after she
arrived in the United States she decided she wanted to remain in this
country. She stated that she did not intend to work in the United States.
The respondent also stated that periodically she cooks for her daugh231

Interim Decision #2588
ter's family, takes care of her grandchildren and does other household
chores in her daughter's home on a voluntary basis. She indicated that
she was not having marital problems and expressed the desire to eventually have her husband join her in the United States if that were
possible. The respondent indicated that her husband will retire from his
job in Portugal at some time in the future; that when he joins her in the
United States he will be in a retirement status; and that her daughter
and son-in-law will provide for their material needs.
8 C.F.R. 212.8(a) provides, in pertinent part, that the labor certification requirement of section 212(a)(14) of the Act shall not be applicable
to an applicant for admission to the United States or to an applicant for
adjustment of status under section 245 who establishes that he will not
perform skilled or unskilled labor.
The respondent seeks an immigrant visa in the nonpreference category. A labor certification is ordinarily required for such a visa. The
Congressional purpose of this requirement is to protect the American
labor market.' We are not convinced by the respondent's evidence that
she or her husband or both of them would not eventually obtain jobs in
the United States. The respondent and her husband are middle aged
persons who are potentially employable for years to come. It appears
unlikely that they would depend on their daughter and son-in-law, a
family of modest means,' for total and permanent economic support
while residing in the United States.

In his order, the immigration judge relied upon the decision in Matter
of Wang, Interim Decision 2404 (RC. 1975), to support his decision in
this case. The facts in Matter of Wang, supra related to a 36-year-old
native of China and resident of Hong Kong who applied for adjustment of
status for herself and her child as nonpreference immigrants. In that
case, the adult applicant claimed that because of her financial status it
was not necessary for her to work in the United States and therefore she
was exempt from the labor certification requirement of section 212 (a)(14)
of the Act. The husband and father of the applicants, a native of China,
resided and worked in Hong Kong and provided total economic support
for them The Regional Commissioner held that:
I t, therefore, appears to be most inappropriate to favorably consider an application such
as we have from the adult applicant. The adjustment of the adult applicant -without
r.equiring a labor certification after which she would be in position to accomplish the
a dmission of her to-be-employed husband as a second preference relative, also without a
labor certification, is seen by us to be a transparent attempt to circumvent the protection which Congress sought to confer on American workers through the labor certification requirement of Section 212(a)(14) of the Act.
bit is our conclusion that the applications should be denied in the exercise of the Attorney
General's discretion on the ground that the adult alien's application is dearly an attempt
to rireurnvant the intent of section 4212(a)(14) of the Act.
See H.R. Rep. No. 745 (p. 14), S. Rep. No. 748 (p. 15), 89th Cong., 1st Sess. (1965).
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Interim Decision #2588
The respondent argues that the immigration judge's reliance on Matter
of Wang, supra, is incorrect as a matter of law and inappropriate on the
facts.
We find that there are clearly factual differences between the cited
ease and the case that is before us now. Although Matter of Wang is
factually distinguishable from the instant case, it is apparent that in
Matter of Wang the Regional Commissioner correctly expressed the
Congressional intent with respect to the labor certification requirement
and properly applied the statute in order to give full effect to that
intent. What is common to both cases is a situation which could lead to
the circumvention of the requirements of labor certification as provided
in section 212(a)(14) of the Act.
We conclude that the respondent has not established to our satisfaction that she and her husband will not perform skilled or unskilled labor
in the United States. Hence, she has not demonstrated that she is
entitled to an exemption from the labor certification requirement.
Further, the respondent has not shown that she is in possession of a
valid labor certification. Therefore, we conclude that she has not presented prima fade evidence to establish statutory eligibility under
section 245 of the Act. Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondent is permitted to deport from the United States voluntarily

within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director; and in the event of her
failure to depart, the respondent shall be deported as provided in the
immigration judge's order.

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Interim Decision #3839

Matter of Mario FRANCISCO-ALONZO, Respondent
Decided June 2, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In determining whether a conviction is for an aggravated felony crime of violence
under 18 U.S.C. § 16(b) (2012), the proper inquiry is whether the conduct encompassed
by the elements of the offense presents a substantial risk that physical force may be used
in the course of committing the offense in the “ordinary case.”
FOR RESPONDENT: Juan C. Gomez, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Andrew Brown, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
PAULEY, Board Member:

In a decision dated October 4, 2010, an Immigration Judge determined
that the respondent was not removable as an alien convicted of an
aggravated felony under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), and granted a motion
to terminate removal proceedings. On October 27, 2011, we sustained an
appeal by the Department of Homeland Security (“DHS”) and remanded
the record to allow the respondent to apply for relief from removal.
On remand, the respondent filed two motions to terminate, which the
Immigration Judge denied. However, in a decision dated April 2, 2014, she
granted the respondent’s motion to reconsider the denial of the motions,
agreed with his arguments, and ordered the proceedings terminated.
Because of our prior remand order, the Immigration Judge certified the
case for our review. The DHS has challenged the Immigration Judge’s
termination of proceedings, and the respondent has requested summary
affirmance of her decision. The Immigration Judge’s decision will be
vacated and the record will be remanded for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala and a
lawful permanent resident of the United States. He admits that on
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Interim Decision #3839

February 10, 2009, he was convicted of felony battery in violation of
section 784.041(1) of the Florida Statutes, for which he was sentenced to a
term of imprisonment of 24 months.1 Based on this conviction, the DHS
issued a notice to appear charging that the respondent is removable as
an alien convicted of an aggravated felony—specifically, a “crime of
violence” for which the term of imprisonment is at least 1 year, as defined
in section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2006).2
In her initial decision, the Immigration Judge granted the respondent’s
motion to terminate proceedings, finding that his felony battery conviction
was not categorically for a crime of violence under 18 U.S.C. § 16(b)
(2006).3 We reversed, concluding that because the Florida felony battery
statute required that any intentional touching or striking must cause “great
bodily harm, permanent disability, or permanent disfigurement,” to commit
the offense in the ordinary case, the assailant would necessarily use
sufficient physical force to meet the definition of a “crime of violence”
under 18 U.S.C. § 16(b).
In so ruling, we rejected the Immigration Judge’s consideration of
the “eggshell plaintiff” circumstance, in which a relatively mild touching
causes great bodily harm to the victim because of his rare fragility. We
referred to our decision in Matter of Ramon Martinez, 25 I&N Dec. 571
(BIA 2011), which cited James v. United States, 550 U.S. 192, 208 (2007),
for the proposition that, in § 16(b) cases, we look to the risk of violent force
that is present in the “ordinary case” arising under the statute of conviction.
After reviewing Florida case law on felony battery, we determined that the
1

Section 784.041(1) of the Florida Statutes provides, as follows:
A person commits felony battery if he or she:
(a) Actually and intentionally touches or strikes another person against the will of
the other; and
(b) Causes great bodily harm, permanent disability, or permanent disfigurement.

For purposes of section 101(a)(43)(F) of the Act, a “crime of violence” is defined in
18 U.S.C. § 16 (2012) as
2

(a) an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial
risk that physical force against the person or property of another may be used in the
course of committing the offense.
3

The Immigration Judge found that the DHS abandoned any argument that the offense
was a crime of violence under 18 U.S.C. § 16(a).

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Interim Decision #3839

“ordinary” prosecution of a battery offense did not involve an eggshell
victim.
The Immigration Judge subsequently granted the respondent’s motion
to reconsider because of the intervening issuance of the United States
Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).
She concluded that in determining whether an offense is an aggravated
felony under the categorical approach, the Court had moved from
employing the “ordinary case” analysis to the “least culpable conduct” test.
Applying this interpretation of Moncrieffe, the Immigration Judge found
that the “least culpable conduct” prosecuted as a felony battery in Florida
could be a mere touching where the requisite harm resulted because, for
example, the victim had a “preexisting health condition.”

II. ANALYSIS
The issue before us is whether, in determining if the offense of felony
battery in violation of section 784.041(1) of the Florida Statutes is a
categorical crime of violence under 18 U.S.C. § 16(b), we should employ
the “ordinary case” analysis of James or the “least culpable conduct” test of
Moncrieffe.4 We review this question of law under a de novo standard.
8 C.F.R. § 1003.1(d)(3)(ii) (2014).
A. Categorical Approach
“To determine whether a state law offense qualifies as a crime of
violence for immigration purposes, we employ a categorical approach,
looking to the ‘elements and the nature of the offense of conviction, rather
than to the particular facts relating to [the alien’s] crime.’” Cole v. U.S.
Att’y Gen., 712 F.3d 517, 527 (11th Cir. 2014) (quoting Leocal v. Ashcroft,
543 U.S. 1, 7 (2004)); see also Dixon v. U.S. Att’y Gen., 768 F.3d 1339,
1343 (11th Cir. 2014); Matter of U. Singh, 25 I&N Dec. 670, 677−78
(BIA 2012). In applying the categorical approach, we must therefore
compare the language of the Florida felony battery statute with the
definition of a “crime of violence” under 18 U.S.C. § 16.
In determining whether a State statute is a categorical match to § 16(a)
or other similar “elements-based” offenses in the Act, we consider whether
4

It is undisputed that we may use only the categorical approach in this case and that the
modified categorical approach is inapplicable because the Florida felony battery statute is
not divisible. See United States v. Eady, 591 F. App’x 711, 720 (11th Cir. 2014) (stating
that the modified categorical approach cannot be applied to felony battery under section
784.041(1) because it “has a single, indivisible set of elements”).

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Interim Decision #3839

the elements of the statute of conviction are the same or narrower than
those of the generic offense. Descamps v. United States, 133 S. Ct. 2276,
2281 (2013). More precisely, with regard to § 16(a), the question is
whether the “use, attempted use, or threatened use of physical force against
the person or property of another” is an element of the State offense.
See, e.g., Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1336 (11th Cir. 2011);
see also United States v. Estrella, 758 F.3d 1239, 1244−45 (11th Cir. 2014)
(stating that when determining whether a State statute qualifies under the
“elements-based” definition of a “crime of violence” in the U.S. Sentencing
Guidelines, the central question is “whether the crime of conviction ‘has’
the element” of the generic offense). In deciding whether the State statute
creates a crime that lies outside of the generic offense, we consider whether
there is “a realistic probability” that the State would apply its statute
to conduct that falls outside the generic definition of the offense.
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); see also Ramos
v. U.S. Att’y Gen., 709 F.3d 1066, 1072 (11th Cir. 2013). To demonstrate a
“realistic probability,” the offender may point to his own case, if applicable,
or to “other cases” in which the State court did, in fact, apply the statute in
the “special (nongeneric) manner for which he argues.” Gonzales
v. Duenas-Alvarez, 549 U.S. at 193.
However, we have applied a different approach in considering whether a
State offense qualifies as a crime of violence under § 16(b). Matter of
Ramon Martinez, 25 I&N Dec. at 574. In analyzing such cases, we have
looked to the Supreme Court’s guidance in Leocal v. Ashcroft, 543 U.S.
at 10, where the Court instructed that § 16(b) covers offenses that involve a
person acting in reckless disregard of the risk that physical force might be
used against another. This reckless disregard refers not to “the general
conduct or to the possibility that harm will result from a person’s conduct,
but to the risk that the use of physical force against another might be
required in committing a crime.” Id.; see also Dixon v. U.S. Att’y Gen., 768
F.3d at 1344. Moreover, the Court stated that in considering whether an
offense qualifies as a crime of violence “by its nature” under § 16(b), we
should focus on the “ordinary” meaning of the term “crime of violence.”
Leocal v. Ashcroft, 543 U.S. at 11 (stating that the “ordinary meaning of
this term, combined with § 16’s emphasis on the use of physical force
against another person (or the risk of having to use such force in
committing a crime), suggests a category of violent, active crimes”);
see also Matter of Ramon Martinez, 25 I&N Dec. at 574.
We have also relied on James v. United States, 550 U.S. 192, where the
Court compared a State criminal offense under Florida law to a provision
similar to § 16(b) in the Armed Career Criminal Act at 18 U.S.C.
§ 924(e)(2)(B) (2006), which relates to convictions for a “violent felony.”
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Interim Decision #3839

See, e.g., Matter of U. Singh, 25 I&N Dec. at 677−78; see also Johnson
v. United States, 559 U.S. 133, 140 (2010) (recognizing the similarity in the
two statutes).5 In its “residual clause,” § 924(e)(2)(B)(ii) includes in the
definition of a “violent felony” any felony that “otherwise involves conduct
that presents a serious potential risk of physical injury to another.”
In concluding that the Florida offense of attempted burglary qualified as
a “violent felony,” the Court noted in James that the residual clause “speaks
in terms of a ‘potential risk,’” which involves “inherently probabilistic
concepts.” James v. United States, 550 U.S. at 207 (emphasis added).
Thus, the Court held that it is not necessary to determine whether all
prosecutions of the State crime must create a risk of injury to others in
order for the State statute to be a categorical match with § 924(e)(2)(B)(ii).
See id. at 208 (stating that the categorical approach does not require that
“every conceivable factual offense covered by a statute must necessarily
present a serious potential risk of injury”). Instead, “the proper inquiry is
whether the conduct encompassed by the elements of the [State] offense, in
the ordinary case, presents a serious potential risk of injury to another.” Id.
(emphasis added).
Because § 16(b) defines the term “crime of violence” in “probabilistic”
terms similar to the residual clause in § 924(e)(2)(B)(ii), we have applied
James in § 16(b) cases and considered “the risk of violent force that is
present in the ‘ordinary’ case arising under the statute of conviction.”
Matter of Ramon Martinez, 25 I&N Dec. at 574; see also Matter of
Chavez-Alvarez, 26 I&N Dec. 274, 282 (BIA 2014), rev’d on other
5

The term “violent felony” is defined in 18 U.S.C. § 924(e)(2)(B) in pertinent part as
any crime . . . that—
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another . . . .

(Emphasis added.) Noting that § 924(e)(2)(B)(i) is “very similar” to § 16(a), the
Supreme Court stated that “in the context of a statutory definition of ‘violent felony,’ the
phrase ‘physical force’ means violent force—that is, force capable of causing physical
pain or injury to another person.” Johnson v. United States, 559 U.S. at 140. The Court
held that battery under section 784.03 of the Florida Statutes―which is similar to section
784.041(1) but does not require “great” bodily harm―is not a “violent felony” under
§ 924(e)(2)(B)(i). However, the Court did not decide whether the offense “involves
conduct that presents a serious potential risk of physical injury to another” within the
meaning of the residual clause of § 924(e)(2)(B)(ii), which is similar to § 16(b) in terms
of the “risk” involved.

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grounds, Chavez-Alvarez v. Att’y Gen. of U.S., 783 F.3d 478 (3d Cir. 2015);
Matter of U. Singh, 25 I&N Dec. at 678.
Subsequent to James, the Supreme Court restated the method for
determining whether a State offense qualifies as a predicate
“element-based” aggravated felony under the categorical approach, namely,
that when comparing a State offense to a generic Federal offense, we must
examine “what the state conviction necessarily involved.” Moncrieffe
v. Holder, 133 S. Ct. at 1684 (citing Shepard v. United States, 544 U.S. 13,
24 (2005)). In so doing, the Court also ruled that it must presume that the
conviction rested on nothing more than the least of the acts criminalized
and then determine whether those acts are encompassed by the generic
Federal offense. Id. (citing Johnson v. United States, 559 U.S. at 137).
Moncrieffe has therefore changed how we consider the State offense in both
the context of the “elements-based” Federal offenses and the broadly
descriptive class of offenses in the Act, such as “sexual abuse of a minor”
under section 101(a)(43)(A). In cases involving such offenses, we must
now “look only to the minimum conduct that has a realistic probability of
being prosecuted” under the State statute. Matter of Esquivel-Quintana,
26 I&N Dec. 469, 472 (BIA 2015) (emphasis added) (citing Moncrieffe
v. Holder, 133 S. Ct. at 1684−85).
The question presented by the Immigration Judge’s decision in this case
is whether the “ordinary case” analysis in James, as applied to risk-based
offenses, has been discarded or superseded by Moncrieffe. We conclude
that it has not. Nothing in Moncrieffe purports to cast doubt on James,
much less overrule it. See Agostini v. Felton, 521 U.S. 203, 237 (1997)
(stating that lower courts should not conclude that more recent cases
have overruled an earlier precedent by implication); see also Descamps
v. United States, 133 S. Ct. at 2293 n.6 (expressing no view on whether the
State conviction qualified as a predicate offense under the “residual clause”
of § 924(e)(2)(B)(ii)).
The United States Court of Appeals for the Eleventh Circuit, in whose
jurisdiction this case arises, continues to apply the “ordinary case” analysis
in cases where the Federal offense (or category of offense) is defined in
probabilistic terms. See United States v. Keelan, No. 13-11878, 2015 WL
2215388, at *4 (11th Cir. May 13, 2015) (noting that “[a]ll other circuits to
have examined the issue have held the proper inquiry under § 16(b) is
whether the conduct encompassed by the elements of the offense raises a
substantial risk the defendant may use physical force in the ‘ordinary case’,
even though, at the margin, some violations of the statute may not raise
such a risk”); United States v. Travis, 747 F.3d 1312, 1314−15 (11th Cir.
2014); United States v. Eady, 591 F. App’x 711, 720 (11th Cir. 2014);
see also United States v. Avila, 770 F.3d 1100, 1107 (4th Cir. 2014);
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United States v. Fish, 758 F.3d 1, 10 (1st Cir. 2014); Rodriguez-Castellon
v. Holder, 733 F.3d 847, 854 (9th Cir. 2013). We therefore find it
appropriate to continue to employ the James “ordinary case” analysis in
considering whether a State offense is categorically a crime of violence
under § 16(b).
B. Application to Section 784.041(1) of the Florida Statutes
Under section 784.041(1) of the Florida Statutes a person commits
felony battery if he “[a]ctually and intentionally touches or strikes another
person against the will of the other” and in committing that act “[c]auses
great bodily harm, permanent disability, or permanent disfigurement.” We
conclude that such conduct, “by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the
course of committing the offense.” 18 U.S.C. § 16(b).
Our review of Florida case law reveals that in the “ordinary case,”
felony battery under section 784.041(1) is a “violent” crime because the
conduct required by the statute involves a substantial risk of physical
force being used in the course of committing the offense. Leocal
v. United States, 543 U.S. at 11. For example, in T.S. v. State, 965 So. 2d
1288 (Fla. Dist. Ct. App. 2007), the court agreed that there was sufficient
evidence to support a conviction where the perpetrator punched a
co-worker in the eye, causing her to suffer a fracture of the eye socket that
required reparative surgery. See also, e.g., Lewis v. State, 817 So. 2d 933
(Fla. Dist. Ct. App. 2002) (upholding the conviction where a punch to the
victim’s face required stitches and left a scar); Gaines v. State, 800 So. 2d
732 (Fla. Dist. Ct. App. 2001) (finding sufficient evidence for a felony
battery conviction where the victim was knocked to the ground and
sustained injuries that included a “busted” lip and loose tooth).
The Eleventh Circuit has determined that Florida felony battery under
section 784.041(1) meets the “risk of injury” requirement of similar Federal
statutes. See United States v. Eady, 591 F. App’x at 719−20 (ruling that
felony battery met the definition of a violent felony under the residual
clause of § 924(e)(2)(B)(ii)); United States v. Eugene, 423 F. App’x 908,
911 (11th Cir. 2011) (finding that felony battery was a crime of violence
under section 4B1.2(a) of the U.S. Sentencing Guidelines). We recognize
that the risk of injury is not the same as the risk of the use of violent
physical force. Leocal v. United States, 543 U.S. at 10 n.7. However, in
both Eady and Eugene, the analysis went beyond the consequences of the
conduct to the conduct itself, namely, the force used. See United States
v. Eugene, 423 F. App’x at 911 (stating that it was “impossible for one to
be convicted of felony battery in Florida without having used ‘physical
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force’”). Furthermore, because the felony battery statute requires “not just
a ‘potential risk’ of physical injury, but also that the physical injury actually
occur,” such a battery will “ordinarily” be committed “by conduct that is
purposeful, violent, and aggressive.” United States v. Eady, 591 F. App’x
at 720.
The Immigration Judge concluded that “it appears that mere touching
not amounting to force could be punished” under section 784.041(1).
However, she did not provide examples of any such prosecutions in
Florida. Instead, she cited to another alien’s bond decision, which was not
entered into the record. That decision is not relevant because it addressed
whether the alien’s conviction under section 784.041(1) was for a crime of
violence under 18 U.S.C. § 16(a).
In any case, it does not support the conclusion that section 784.041(1)
could be successfully applied to conduct that would not constitute a § 16(b)
crime of violence in the “ordinary case.” The “realistic probability”
doctrine in Moncrieffe differs from the “ordinary case” analysis in James.
Therefore even if a successful “eggshell” victim prosecution for felony
battery would arguably satisfy the “realistic probability” test for § 16(a), the
existence of such rare prosecutions would not suffice to show that they
represented the “ordinary” prosecution for purposes of a “substantial risk”
analysis under § 16(b).
Like the Immigration Judge, we can imagine the possibility of a State
prosecution for felony battery where violent physical force was not
involved but the victim suffered great bodily injury because of a preexisting
physical condition or frailty. However, we are not aware of any such
successful prosecutions under this Florida statute. Nor are we convinced
that they would constitute the “ordinary case.”

III. CONCLUSION
We conclude that in determining whether a conviction is for an
aggravated felony crime of violence under 18 U.S.C. § 16(b), the proper
inquiry is whether the conduct encompassed by the elements of the offense
presents a substantial risk that physical force may be used in the course of
committing the offense in the “ordinary case.” Applying this “ordinary
case” analysis, we determine that felony battery under section 784.041(1)
of the Florida Statutes is categorically a crime of violence under § 16(b).
The respondent is therefore removable as charged. Accordingly, we will
remand the record for the Immigration Judge to designate a country of
removal and enter an appropriate order. Although the respondent does not
appear to have sought any relief from removal since our prior remand for
that purpose, the Immigration Judge may determine whether to give the
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respondent another opportunity to request any relief for which he may be
eligible.
ORDER: The Immigration Judge’s April 2, 2014, decision 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.

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Matter of Bright Idada FALODUN, Respondent
Decided June 2, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Unlike a Certificate of Naturalization, a certificate of citizenship does not confer
United States citizenship but merely provides evidence that the applicant previously
obtained citizenship status.
(2) The institution of judicial proceedings to revoke naturalization are not required to
cancel a certificate of citizenship, which the Department of Homeland Security can
cancel administratively upon a determination that an applicant is not entitled to the
claimed citizenship status.
FOR RESPONDENT: Janet Hinshaw-Thomas, Accredited Representative, Lansdowne,
Pennsylvania
BEFORE: Board Panel: GRANT, MANN, and O’CONNOR, Board Members.
O’CONNOR, Board Member:

In a decision dated June 6, 2016, an Immigration Judge denied the
respondent’s motion to terminate his removal proceedings and ordered
him removed after rejecting his claim to United States citizenship. The
respondent has appealed from that decision. The appeal will be dismissed.
The request for oral argument is denied. 8 C.F.R. § 1003.1(e)(7) (2016).
The issue on appeal is whether the respondent has established his claim
to United States citizenship and thus is not subject to removal proceedings.
We review this question of law de novo. See 8 C.F.R. § 1003.1(d)(3)(ii).
The respondent is a native and citizen of Nigeria who was born in Benin
City, Nigeria, on June 30, 1981. He obtained lawful permanent resident
status in 1996 as the stepchild of a United States citizen who was married to
the respondent’s alleged adoptive father. The respondent’s claim to United
States citizenship derives from the naturalization of his putative custodial
adoptive father in 1995. On February 17, 1998, the respondent was issued a
Certificate of Citizenship (Form N-560).
In removal proceedings, evidence of foreign birth gives rise to a
rebuttable presumption of alienage, shifting the burden to the respondent to
come forward with evidence to substantiate his citizenship claim. Matter of
Rodriguez-Tejedor, 23 I&N Dec. 153, 164 (BIA 2001) (citing Matter of
Leyva, 16 I&N Dec. 118, 119 (BIA 1977)); Matter of Tijerina-Villarreal,
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13 I&N Dec. 327, 330 (BIA 1969). Assessing the respondent’s claim to
citizenship, the Immigration Judge noted that the evidence of record raises
serious questions whether the respondent has ever qualified as a United
States citizen. Specifically, the record includes an August 20, 2002, notice
of intent to cancel the respondent’s Certificate of Citizenship (“NOIC”)
issued by the former Immigration and Naturalization Service (“INS”),
alleging that the certificate had been obtained by fraud. The NOIC was based
on information obtained in connection with a Federal criminal investigation.
This investigation revealed that the respondent’s putative adoptive father was
actually his biological brother. Although the respondent claimed that his
biological father had died in 1983, records indicated that, as of 2002, he was
alive and living in Nigeria. The NOIC further alleged that the respondent
submitted a fraudulent adoption certificate. 1
In his October 23, 2002, response to the NOIC, the respondent presented
a letter from an attorney specifically denying each of the allegations in the
NOIC. He also submitted a purported death certificate for the person the
respondent alleged was his biological father. The death certificate was issued
more than 8 months after this individual’s death and just days before the
respondent’s response to the NOIC was due.
In a decision dated April 21, 2003, the District Director concluded that
the evidence the respondent provided in response to the NOIC was
insufficient to overcome the evidence supporting the cancellation of the
Certificate of Citizenship. He determined that the Nigerian adoption decree
submitted on the respondent’s behalf was fraudulent and that he did not
derive United States citizenship through his biological brother under former
section 321(a)(2) of the Immigration and Nationality Act, 8 U.S.C.
§ 1432(a)(2) (1996), which was in effect when the respondent turned 18 years
old. The District Director therefore cancelled the respondent’s Certificate
of Citizenship after concluding that it had been obtained by fraud. On
March 29, 2004, the Administrative Appeals Office (“AAO”) dismissed the
respondent’s appeal from the District Director’s decision. 2
1

The respondent was convicted on February 14, 2003, in the United States District Court
for the District of Minnesota, of the Federal offenses alleged in the notice to appear, which
support the Immigration Judge’s determination regarding the respondent’s removability.
2
Prior to the creation of the Department of Homeland Security, appeals from the
cancellation of certificates of citizenship were within the jurisdiction of the Associate
Commissioner for Examinations in the INS. 8 C.F.R. § 103.1(f)(3)(iii)(Q) (2002). The
Secretary of Homeland Security now possesses this delegated authority, which has since
been reserved. 8 C.F.R. § 103.1(a) (2011); Immigration Benefits Business Transformation,
Increment I, 76 Fed. Reg. 53,764, 53,780 (Aug. 29, 2011). By regulation, the AAO has
exclusive jurisdiction to consider an appeal of a decision to cancel a Certificate of
Citizenship. See 8 C.F.R. §§ 103.3(a)(1)(ii), (iv), 342.8 (2016). Neither the Immigration

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On appeal from the Immigration Judge’s decision, the respondent argues
that the cancellation of his Certificate of Citizenship did not affect his claim
to United States citizenship status and that he was denied due process
because the Immigration Judge did not defer to a Federal court regarding his
citizenship claim. In support of this argument, he relies on the language of
section 342 of the Act, 8 U.S.C. § 1453 (2012), and Gorbach v. Reno,
219 F.3d 1087 (9th Cir. 2000) (en banc), which enjoined administrative
proceedings to revoke naturalization. 3
The respondent claims he derived United States citizenship under former
section 321(a) of the Act as the minor child of a custodial adoptive parent
when that person became a naturalized United States citizen in 1995. The
respondent’s application for a certificate of citizenship was approved, but
only in recognition of that derivative status. However, when the adoptive
relationship underlying his derivative United States citizenship claim was
found to be fraudulent, the respondent could no longer contend that he had
a valid claim to United States citizenship on that basis. The District Director
cancelled the improvidently issued Certificate of Citizenship pursuant to his
statutory authority under section 342 of the Act. See 8 C.F.R. part 342
(outlining the process for cancelling a Certificate of Citizenship illegally or
fraudulently obtained under the Act).
Both before the Immigration Judge and on appeal, the respondent appears
to conflate the grant of United States citizenship through the naturalization
process, which results in the issuance of a Certificate of Naturalization
(Form N-550), with the approval of an Application for Certificate of
Citizenship (Form N-600), which acknowledges that sufficient evidence has
been presented to support an applicant’s claim to have derived United States
citizenship. However, these are distinct applications in their purpose and
effect, as we explain below.
A person seeking United States citizenship through naturalization may
file an Application for Naturalization (Form N-400) if he or she is 18 years
old or older and meets certain requirements, including continuous residence
and physical presence, good moral character, and legal status. See 8 C.F.R.
§ 316.2 (2016); see also 8 C.F.R. parts 334–335 (2016). If the naturalization
application is approved and the applicant takes an oath of allegiance, a
Certificate of Naturalization will be issued to document the grant of United
States citizenship. See 8 C.F.R. parts 337–338 (2016).
Judges nor the Board have jurisdiction to consider the respondent’s challenge to the AAO
decision. See 8 C.F.R. § 1003.1(b).
3
Section 342 of the Act provides statutory authority for the cancellation of certificates of
citizenship. The portion of the statute on which the respondent relies states that the
cancellation of a certificate of citizenship “shall affect only the document and not the
citizenship status of the person in whose name the document was issued.”

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The respondent does not claim United States citizenship through
naturalization. Instead, he was issued his Certificate of Citizenship under
section 341 of the Act, 8 U.S.C. § 1452 (1996), based on his claim of
derivative citizenship through the naturalization of his brother, who the
respondent fraudulently claimed was his adoptive father. A certificate of
citizenship only provides documentation of United States citizenship for
persons who claim to have obtained that status derivatively. See 8 C.F.R.
§§ 341.1, 341.2(c) (2016). It does not confer United States citizenship but
only furnishes recognition and evidence that the applicant has previously
obtained such status derivatively, that is, upon the naturalization of a parent
or parents. See Section 341(a) of the Act. Thus, the issuance of a certificate
of citizenship, like a United States passport, only serves as indicia of
citizenship. It is not a grant of United States citizenship.
Because the respondent’s United States citizenship claim was based on
fraud, his Certificate of Citizenship is void. Once it was discovered that the
respondent’s Certificate of Citizenship had been issued in error, the District
Director had an affirmative duty to institute administrative proceedings to
cancel it. See Friend v. Reno, 172 F.3d 638, 647–48 (9th Cir. 1999); 8 C.F.R.
§ 342.1 (2016) (“If it shall appear to a district director that a person has
illegally or fraudulently obtained or caused to be created a certificate . . .
described in section 342 of the Act, a notice shall be served upon the person
of intention to cancel the certificate . . . .”).
The District Director had statutory authority to cancel a certificate of
citizenship that was illegally or fraudulently obtained under section 342 of
the Act, so his decision to cancel the respondent’s Certificate of Citizenship
is not ultra vires. In this regard, the respondent’s reliance on the language of
section 342, which provides that the cancellation of a certificate of
citizenship shall not affect “the citizenship status of the person in whose
name the document was issued,” is inconsequential because he was never
entitled to citizenship status. Cf. Matter of Koloamatangi, 23 I&N Dec. 548,
551 (BIA 2003) (holding that an alien who receives lawful permanent
resident status by fraud “is deemed, ab initio, never to have obtained [such]
status once his original ineligibility . . . is determined in proceedings”).
Administrative proceedings to cancel a certificate of citizenship under
section 342 of the Act, which provides statutory authority to cancel a
certificate of citizenship that was illegally or fraudulently obtained, are
different from denaturalization proceedings under section 340 of the Act.
The main difference between cancellation and revocation proceedings is that
cancellation only affects the document, not the person’s underlying
citizenship status.
A Certificate of Naturalization cannot be cancelled if it was issued to a
person who lawfully filed an Application for Naturalization and proceeded
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through the entire naturalization process to the oath of allegiance. In cases
where the person obtained citizenship though the naturalization process, his
or her citizenship status must first be revoked before the Certificate of
Naturalization can be cancelled. See section 340 of the Act, 8 U.S.C. § 1451
(2012). Unlike other immigration proceedings that the United States
Citizenship and Immigration Services handles in an administrative setting,
revocation of naturalization, often referred to as “denaturalization,” can only
occur in Federal court. See Gorbach, 219 F.3d at 1093–94, 1099. A person’s
naturalization can be revoked either by a civil proceeding filed in Federal
court pursuant to section 340(a) of the Act or by a criminal conviction under
18 U.S.C. § 1425 (2012), which results in the automatic revocation of
naturalization under section 340(e) of the Act.
However, the provisions relating to the revocation of naturalization under
section 340, including the cancellation of the Certificate of Naturalization
under section 340(f), do not apply to persons, like the respondent, who have
obtained citizenship status derivatively and whose Certificate of Citizenship
was cancelled under section 342 of the Act. It is for this reason that the
respondent’s reliance on Gorbach, where the court enjoined administrative
denaturalizations under section 340 of the Act, is misplaced.
The respondent has not shown that proceedings must be instituted to
revoke citizenship under the particular circumstances of this case. We
therefore find no support for his appellate argument that the Immigration
Judge was required to defer to a Federal court for a decision on his claim to
United States citizenship.
Because the respondent was born outside of the United States, he is
presumptively an alien, and he has the burden to establish that he is a United
States citizen for purposes of these removal proceedings. See, e.g., Matter
of Rodriguez-Tejedor, 23 I&N Dec. at 164. In order for the respondent to
derive citizenship under former section 321(a) of the Act, his biological or
adoptive father must himself have acquired United States citizenship. Since
the respondent did not submit sufficient evidence that he has met this
requirement, he cannot establish his claim to citizenship. As noted by the
Immigration Judge, the respondent did not avail himself of the opportunity
to present any additional testimony or other evidence in support of his claim
to United States citizenship, relying instead on the evidence already in the
record.
The respondent has not challenged the Immigration Judge’s findings
regarding his removability or requested any form of relief or protection from
removal. We will therefore affirm the Immigration Judge’s decision.
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

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