Interim Decision #2571

MATTER OF CENATICE, et al.
In Exclusion Proceedings
A-20209069, -070, -071, -072,
-074, -079, -081,
-082, -084, -087,
-088, -090, and
-

099

Decided by Board March 28, 1977
(1) This proceeding involves 13 Haitians who applied for admission at Miami, Forida,
January 5, 1976, as refugees. They were subsequently detained for an exclusion hearing
during which time they submitted applications for asylum under 8 C.F.R. 108.1 and 108.2
which were denied. At the hearing they were found excludable under section 212(a)(20)
of the Immigration and Nationality Act and ordered deported, and they appealed.
(2) No entry is made when an alien is taken into custody upon his arrival in this country.
Subsequent proceedings are properly in exclusion. Relief under section 243(h) of the
Immigration and Nationality Act is not available. See Matter of Pierre, 14 I. & N. Dec.
467 (B1A 1973).
(3) An applicant for refugee status must conform to existing immigration law. If applying
for admission, he must apply to the District Director for asylum under 8 C.F.R. 108; and if
hie has already entered the country, he must apply in deportation proceedings under
section 243(h) of the Act. Applicants' claims under Articles 32 and 33 of the Protocol
Relating to the Status of Refugees may not be asserted in an exclusion proceeding.
(4) Aliens who have not made entry into the United States do not enjoy the protection of
tie United States Constitution and cannot claim entitlement to the constitutional rights
01 due process, equal protection, or right to counsel.
EXCLUDABLE:
Act of 1982--Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigiant—no visa (all appli-

cants)
ON BEHALF OF APPLICANTS: Susan E. Perry, Esquire
El Paso Legal Assistance Society
109 North Oregon Street
El Paso, Texas 79901
ET: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members

In a decision dated January 13, 1977, the immigration judge found the
applicants excludable under section 212(a)(20) of the Immigration and
Nationality Act and ordered them deported from the United States.
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Interim Decision #2571
The applicants have appealed from that decision. The appeal will be
dismissed.
Applicants, 13 natives and citizens of Haiti, arrived by boat at Miami,
Florida, on January 5, 1976, and applied for admission as refugees.
Apparently because the applicants did not possessvalid immigrant visas
as required by section 212(a)(20), they did not appear to the immigration
officer to be "clearly and beyond a doubt" entitled to enter the United
States and were detained under the provisions of section 235(b) of the
Act. 1 We note, however, that despite the explicit requirement of 8
C.F.R. 235.6(a) that the examining immigration officer give immediate
notice to the aliens detained of referral to a special inquiry officer
(immigration judge), such notice was not given until December 1, 1976,
approximately 11 months after the applicants' arrival at Miami. 2 It also
appears that the applicants have been in detention since their arrival in
this country, first in Florida and then, after September 1, 1976, at the
Alien Detention Facility in El Paso, Texas.
The applicants' claim for refugee status centered on allegations that
they had departed Haiti after a "narrow escape from the secret police"
the previous October, had spent two and a half months in Cuba while
their boat was being repaired, and then left for the United States to
seek political asylum. Apparently the applicants submitted requests to
the District Director in Miami for admission as refugees, as required by
8 C.F.R. 108.1 and 108.2, but the District Director, after consultation
with the Director of the Office of Refugee and Migration Affairs, Department of State, denied their applications.' An exclusion hearing was
eventually held in January 1977 at which. the immigration judge found
that withholding of deportation pursuant to section 243(h) of the Act'
does not apply to aliens seeking admission to the United States, but only
to those already within this country. The immigration judge also found
that statements taken from the applicants at the time of their arrival
were admissible even though they were made without benefit of repre' Section 235(b) of the Act states, in pertinent part, that "Every alien . . . who may not
appear to the examining immigration officer at the port of arrival to be clearly and beyond
a doubt entitled to land shall be detained for further inquiry to be conducted by a special
inquiry officer (immigration judge)."
2 8 C.F.R. 235.6(a) states that "If, in accordance with the provisions of section 235(b) of
the Act, the examining immigration officer detains an alien for further inquiry before a
special inquiry officer, he shall immediately sign and deliver to the alien a Notice to Alien
Detained for Hearing by Special Inquiry Officer (Form 1-122)." (Emphasis supplied.)
We note that, despite the immigration judge's recitation that the applicants applied to
the District Director for admission as refugees and were denied, copies of their applications as well as copies of the District Director's written decisions do not appear in the
record.
4 Section 243(h) of the Act authorizes the Attorney General "to withhold deportation of
any alien within the United States to any country in which in his opinion the alien would be
subject to persecution on account of race, religion, or political opinion. . . ."

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Interim Decision #2571
sentation by counsel, and determined that Articles 32 and 33 of the
United Nations' Convention Relating to the Status of Refugees, as
amended by the 1967 Protocol Relating to the Status of Refugees
(hereinafter cited as the "Protocol") 5 do not apply to aliens not lawfully
in this country. Therefore, the applicants were ordered excluded and
deported from the United States.
On appeal, the applicants first maintain that, at their exclusion hearing, the immigration judge was required to consider their request to
withhold deportation pursuant to section 243(h) of the Immigration and
Nationality Act, and to determine whether they qualified as "refugees"

under Articles 1 and 33 of the Protocol. As support for this position,
counsel for the applicants cites the recent case of Sannon v. United
States, Case No. 74-428-CIV (S.D. Fla. February 17, 1977), in which,
under circumstances similar to the present case, the court concluded
that the Immigration and Nationality Act authorizes an immigration
judge, in an exclusion proceeding, to consider evidence concerning an
alien's claim for asylum under the Protocol. Although it is not entirely
clear from the opinion, apparently the court concluded that the aliens
did not have a right to assert, at an exclusion hearing, claims under
section 243(h) of the Act. 5 Thus, it appears under the narrow holding of

the Sannon case that the court determined section 243(h) is not applicable to an exclusion hearing, but only that a Protocol claim must be
heard.
As to the applicability of section 243(h) to exclusion proceedings, the
courts and the Board have long held that such relief is dearly limited to
deportation proceedings. Leng May Ma v. Barber, 257 U.S. 185 (1958);
Matter of Pierre, 14 I. & N. Dec. 467 (BIA 1973). In Leng May Ma v.
Barber, supra, the Supreme Court concluded that an alien seeking
admission to the United States who is ineligible for entry is not "within
the United States" and therefore not entitled to the benefits of section
243(h). 1 The Court went on to point out:
For over half a century this Court has held that the detention of an alien in custody
vending determination of his admissibility does not legally constitute an entry though
the alien is physically within the United States. (Citations omitted.) It seems quite clear
TIAS 6577, 19 U.S. Treaties (Part 5, 1968) 6223.
In Sannon v. United States, at page 4 of the memorandum opinion, the court stated:
`Thus were it not for the Protocol, petitioners would have no grounds for objecting to
tit eir exclusion." Again, at page g of the memorandum opinion, the Court stated that the
Inunigration and Nationality Act gives the immigration judge "authority . . . to hear and
ice nsider evidence relevant to an excludable alien's claim for asylum under the Protocol."
(Emphasis supplied.) No mention is made of section 243(h).
7 The applicants in the present case were found excludable under section 212(a)(20) of
the Act which states, in part, that "any immigrant who at the time of application for
admission is not in possession of a. valid immigrant visa" is to be excluded from admission
incto the United States.
5
6

164

Interim Decision #2571
that an alien so confined would not be "within the United States" for purposes of
§243(h). . . . 357 U.S. at 188.

In Matter of Pierre, supra, the Board held, under circumstances
similar to the present case, that no entry is made when an alien is taken
into custody upon his arrival in this country, that subsequent proceedings are properly in exclusion, and that section 243(h) relief is unavailable. See also United States ex rel. Tom We Shung v. Murff, 176 F.
Supp. 253 (S.D.N.Y. 1959), aff'd 247 F.2d 667 (2 Cir. 1960). The proper
procedure for bringing an application for asylum is contained in 8
C.F.R. 108.1 and 108.2. Under these sections, an alien applying for

admission to the United States is required to submit a request to the
District Director having jurisdiction over the alien's place of residence
in the United States or over the port of entry. Apparently this was done
in the present case and the applications denied by the District Director,
although his opinion does not appear in the record. Such a decision is
without appeal to the Board. 8 C.F.R. 108.2.
That portion of the applicants' claim pertaining to the availability, at
an exclusion proceeding, of a refugee claim made under Articles 1 and 33
of the Protocol, presents a more difficult question, but one which ultimately must also fail.

Article 1 defined a refugee as a person who, as a result of events
occurring before January 1, 1951,
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having a nationality and being
outside the country of his former habitual residence as a result of such events, is unable
or, owing to such fear, is unwilling to return to it.

Article 33 is as follows:
Prohibition of Expulsion or Return ("Refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened
on account of his race, religion, nationality, membership of a particular social, group or
political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to the security of the
c ountry in which he is, or who, having been convicted by a final judgment of a.
particularly serious crime, constitutes a danger to the community of that country.

In Matter of Dunar, 14 I. & N. Dec. 310 (BIA 1973), we found, in
interpreting the effect of Articles 32 and 33 of the Protocol on immigration law, that the United States Senate "in giving its advice and consent
to accession to the Protocol did not contemplate that radical changes in
the existing immigration laws would be effected." 8 14 I. & N. Dec. at
8 Although such a claim was not made, it is clear that Article 32 also would not apply in
the present case. That Article forbids the Contracting State from expelling a refugee

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Interim Decision #2571
314. Quite the contrary, as pointed out in Matter of Dunar,, "the general
tenor of the representations was that the existing immigration laws

already made provision for the refugee reforms sought by the Convention and Protocol." 14 I. & N. Dec. at 319. Thus, it seems clear that an
applicant for refugee status must conform to existing immigration law,
that is, if the alien is applying for admission to the United States, he
must apply to the District Director for asylum in accordance with the
terms of 8 C.F.R. 108.1 and 108.2, and if he has already entered this
country, in accordance with the provisions of section 243(h).
The Board's position with regard to the availability of the Protocol in
an exclusion proceeding was recently supported by the Fifth Circuit
Court of Appeals in the case of Pierre v. United States, 547 F.2d
1281, (5 Cir. 1977). There the court held that the Protocol left intact the
Service's procedure for determining refugee status and that:
It is clear from the terms of the Protocol itself that an applicant for asylum must fit the
definition of bona fide refugee before he can take relief from the terms of the Protocol.
Because the Protocol contained no procedures for this determination, and because
Congress saw fit at the time of accession to leave existing procedures unchanged, we
en/Irbil-le that it was the intent of Congress that existing procedures be followed.

Therefore, the applicants' protestations to the contrary, it is clear
that existing immigration procedure affords those applying for refugee
status adequate opportunity to have their status decided 'before a District Director. Their contentions that section 243(10 and the Protocol
require that their claims be determined at an exclusion proceeding are
clearly without merit.
The applicants next claim that to not allow their refugee claims to be
heard in exclusion proceedings is a violation of due process and their
right to equal protection under the Fifth Amendment of the United
States Constitution, and that their exclusion and subsequent deportation to Haiti would constitute cruel and unusual punishment under the

Eighth Amendment. It is clear, however, that it is not within the
province of this Board to pass upon the constitutionality of the statutes
it administers, but rather is solely within the power and capacity of the
United States courts to declare them unconstitutional. Matter of Pierre,
supra; Matter of L—, 4 I. & N. Dec.. 556 (BIA 1951). 9
l.awfully in the territory- As discussed, supra, an alien applying for admission to this
country is not lawfully within the United States. See Leng May Ma v. Barber, supra;
&latter of Dunar, supra.
9 We note that the Supreme Court has pointed out that Congress clearly has the power
to draw distinctions between classes of aliens which if drawn between classes of citizens
ivould appear to violate equal protection. Leng May Ma v. Barber, supra. Aliens who have
riot made entry into the "United States do not enjoy the protectiona of the United States
Constitution. Kleindienst v. Mandel, 408 U.S. 753, 762 (1972); Pierre v. United States,

supra.

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Interim Decision #2571
The applicants also contend that the alleged failure of the Service to
allow them to obtain counsel prior to their initial interrogation upon
arrival in the United States and the failure of the Service to provide
counsel for the indigent aliens violated their constitutional right to
counsel.
From the applicable case law, it would appear that just as the constitutional rights to due process and equal protection are denied to
aliens applying for admission to the United States", so also is the
constitutional right to counsel_ At any rate, section 292(b) of the Act
grants a right to counsel to aliens in an exclusion proceeding but "at no
expense to the Government." It should be noted, however, that right to
counsel may not apply to preliminary investigations. See Matte?. of S ,
8 I. & N. Dec. 409 (BIA 1959). In the present case, the statements in
question pertained to the applicants' refugee status and were made to
immigration officers at the time of their arrival in the United States.
Such statements were not in any way used against them at their exclusion hearing, at which time counsel had been secured, but rather pertained solely to the issue of their refugee status. As pointed out, supra,
the District Director's decision on that issue is not appealable to this
Board. 8 C.F.R. 108.2.
Lastly, counsel argues that the applicants were denied due process
and that administrative regulations were violated when their cases were
not continued pending investigation of their refugee status by the State
Department and when they were denied the right to transfer their
exclusion hearing to Miami, Florida. As to the refugee claim, we are
again without jurisdiction to consider the issue. 8 C.F.R. 108.2. As to
the allegations concerning the right to have their exclusion hearing
transferred to Miami, the applicants allege only that they have been
deprived of "community support" and "representation by expert counsel." No showing has been made that present counsel is incompetent or
that the applicants have in any way suffered deprivation as a result of
the exclusion hearing having taken place in El Paso. Clearly such
unsubstantiated allegations are not sufficient to mandate transfer of the
proceedings.
The appeal is dismissed.
—

ORDER; The appeal is dismissed.

10

See discussion, supra, accompanying footnote 9.
167


MATTER OF K—

In EXCLUSION Proceedings
A-10970591

Decided by Board October 20, 1960
Recommendation against deportation--Section 241(b)—Effect upon excludability.
(1) Recommendation against deportation complying with requirements of section 241(b) of the Immigration and Nationality Act held effective to relieve
alien of consequences of either deportability or excludability in respect to
conviction for crime committed in United States.
(2) Hungarian parolee found admissible for permanent residence under Act
of July 25, 1958 where sentencing court recommended against deportation
for crime committed while on parole.
EXCLUDABLE:. Act of 1952—Section 212(a) (9) [8 U.S.C. 1182(a) (9) ]—Convicted
of and admits crime--Armed robbery and assault with intent
to commit murder.

BEFORE THE BOARD
DISCUSSION: The special inquiry officer ordered that the applicant be admitted to the United States for permanent residence under
the Act of July 25, 1958 as of January 1, 1957, and the case is before
us on that officer's certification.
The applicant is a 21-year-old unmarried male, a native and last a
citizen oi Hungary, who was paroled into the United States under 8
U.S.C. 1182(d) (5) on January 1, 1957. On July 8, 1958, the applicant was sentenced to imprisonment for one to ten years following
his conviction for armed robbery and assault with intent to commit
murder, committed in the United States on May 2, 1958. On July 22,
1958, Judge Donovan, who had sentenced the applicant, recommended that he be not deported as a result of this conviction. The
applicant was paroled from prison on October 9, 1959. His immigration parole was terminated on June 21, 1960, at which time he
was accorded a hearing before a special inquiry officer. The sole
issue to be determined is whether the special inquiry officer's action
in admitting the applicant for permanent residence was proper. For
the reasons hereinafter stated, we approve his disposition of the
case.
121

Prior to sentencing the applicant, Judge Donovan requested information concerning the effect of a recommendation against deportation in this case and an officer of the Service called upon him on
July 7, 1958, to discuss the matter. Apparently Judge Donovan was
informed that a recommendation against deportation in the applicant's case would have no legal effect. It was stated' during the
hearing and at the oral argument that, although there might be some
question concerning the matter, the Government was not urging that
there had been a failure to comply with the notice requirements of
8 U.S.C. 1251(b). Accordingly, we will not regard the question of
the sufficiency of the notice as an issue in this case.
Under the Act of July 25, 1958, (72 Stat. 419; 8 U.S.C. 1182, Note;
Public Law 85-559), a paroled Hungarian refugee, who had been
in the United States at least two years, could be admitted for permanent residence provided he was found (except for his lack of an
immigrant visa) to have been admissible as an immigrant at the time
of arrival and also at the time of inspection two years later. Except

insofar as the Act of July 25, 1958 shows that the applicant's admissibility is to be determined as of June 21, 1960, when he appeared
before the special inquiry officer, this special legislation has no direct
bearing on the question which is involved in this case, and the problem is one of general application.
Since the applicant had been convicted of a crime involving moral
turpitude prior to June 21, 1960, it is clear that he would have been
inadmissible to the United States under 8 U.S.C. 1182(a) (9) if it
had not been for the court's recommendation. The question which
requires solution in this case is whether the court's recommendation
that this applicant be not deported because of his conviction, which
recommendation would be an absolute bar if this were a proceeding
to expel and deport the applicant, is to be considered a nullity because the present proceeding happens to be one for the purpose of
excluding and deporting him on the basis of the same conviction.
The statutory provision involved is S U.S.C. 1251(b), the pertinent
part of which is as follows:
(b) The provisions of subsection (a) (4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in
the case of any alien whn has slihsequent to such onnvietinn been Etranted a
full and unconditional pardon by the President of the United States or by
the Governor of any of the several States, or (2) if the court sentencing such
alien for such crime shall make • * * a recommendation to the Attorney
General that such alien not be deported * *.

It is true, as the Service asserts, that in 8 U.S.C. 1251(b) Congress
changed a prior similar provision so that legislative pardons are no
longer within its purview. However, we find no support for the
contention of the Service that Congress deliberately changed the
statutory language in order that 8 U.S.C. 1251 (b) would apply only
122

to crimes after entry and not to crimes prior to entry. Neither
8 U.S.U. 1251 (b) nor the prior provision contain any specific reference to crimes after entry or prior to entry, and the language of
both, other than that relating to pardons, is almost identical. The
prior statutory provision, which appeared in section 19(a) of the
Immigration Act of 1917 as amended [8 U.S.C. 155(a), 1946 ed.],
was as follows:
* * * Provided further, That the provision of this section respecting the
deportation of aliens convicted of a crime involving moral turpitude shall not
apply to one who has been pardoned, nor shall such deportation be made or
directed if the court, or judge thereof, sentencing such alien for such crime
shall * * make a recommendation to the Attorney General that such alien
shall not be deported * * *.

The Service contends that although a pardon or the sentencing
court's recommendation has the effect of immunizing the alien from
being deported under 8 U.S.C. 1251(a) (4), the same pardon or
court's recommendation concerning the identical conviction has no
efficacy if the basis for deportation or exclusion is under some provinion other than 8 U.S.C. 1951(a) (4). The argument is predicated

on the language of 8 U.S.C. 1251(b) which reads: "The provisions
of subsection (a) (4) of this section * " shall not apply," and it is
claimed that this limits the provision to 8 U.S.C. 1251(a) (4). The
comparable prior statutory provision in the 1917 Act appeared in
section 19(a) which section related to deportation and it was also
limited to that section as distinguished from section 3 of the 1917
Act [8 U.S.C. 136, 1946 ed.] pertaining to exclusion. Nevertheless,
as will hereinafter appear, the 1917 Act provision was held to be
applicable to any crime committed in the United States whether
prior to or subsequent to entry.

The Service representative stated during the oral argument that
there is some judicial authority that a full and unconditional pardon
wipes out a crime completely and that consequently there would be
some logic in holding a pardon effective in both exclusion and deportatiOn cases, but that a different rule should be applied in the
case of a court's recommendation against deportation. Whether a
pardon does or does not obliterate the crime completely is not the
determinative factor, because it is the statute itself which provides
that an alien is not to be deported for a crime for which he has been
granted a full and unconditional pardon by the President or a Governor of a State. 8 U.S.C. 1251(b) sets forth two matters which
bar deportation: (1) a pardon, or (2) the sentencing court's recommendation again5t deportation. Since the statutory provision treats
both equally, it follows that the same rule must be adopted concerning the pardons and recommendations of the court against deportation.
123

There was cited on behalf of the Service our decision in Matter
of D—, 8 658, in which we said that section 4 of the Act of September 3, 1954 [8 -U.S.C. 1182a] could not be used where the deportation
charge is based on 8 U.S.C. 1251(a) (4). 8 U.S.C. 1182a specifically
refers to an alien who is excludable because of the conviction of a
misdemeanor and, hence, this statutory provision had no applicability
to the alien there who was not excludable but who was subject to
deportation under 8 U.S.C. 1251(a) (4). Accordingly, Matter of
D—, supra, has no relevance to the issue involYed here.
During the oral argument, the Service representative took the
position that the special inquiry officer's decision was in conflict with
Leng May Ma v. Barber, 357 U.S. 185 (1958). In that case, the
alien contended that she was eligible for a stay of deportation under
8 U.S.C. 1253(h). That statutory provision authorizes the Attorney

General to withhold deportation of an alien "within the United
States" under certain circumstances. The decision of the Supreme
Court turned on the fact that since the alien had merely been paroled
she had not made an entry and did not, therefore, meet the requirement of 8 U.S.C. 1253(h) of being "within the United States." That
question is not involved in this applicant's case because it is clear
that he is not "within the United . States" and that he has not made
an entry in contemplation of law. As we have indicated above, the
sole question in the applicant's case is whether a pardon or a court's

recommendation as to a particular conviction is to he disregarded
merely because this is an exclusion case rather than a deportation
case.
8 U.S.C. 1182(a) (9) requires the exclusion of an alien who has
been convicted of a crime involving moral turpitude. This applies
to a conviction which occurred prior to the alien's entry. It may
relate to a crime committed in a foreign country or a crime committed in the United States and it may refer to a crime committed after
an original entry into the United States and prior to a reentry.
8 U.S.C. 1251(a) (4) relates to convictions for a crime or crimes
committed after entry. As we have previously indicated, the comparable provisions of the 1917 Act were sections 3 and 19(a), respectively. In Perkins v. United States ex rel. Malesexie, 99 F.2d
255 (C.C.A. 3, 1938), the Government contended that the pardon
provision of the 1917 Act could not apply to crimes committed prior
to entry but the court held that this provision applies equally to
crimes - committed prior to entry and crimes committed after entry so
long as the conviction and the pardon were for a crime committed
in the United States. Subsequently, a similar conclusion was reached
with respect to the provision of the 1917 Act concerning a court's
recommendation against deportation (Rasmussen v. Robinson, 163
124

F.2d 732 (C.U.A. 3, 1947)). Relying on the latter decision, on
July 8, 1948, the Central Office of the Service held that the recommendation against deportation of the sentencing court (as to crimes
committed in the United States) had the effect of immunizing an
alien from excLuelon on the basis of the conviction (Matter of Hand 1—, 3-236, 240-243). At page 241 of that decision it was
stated that this Board had reached the same conclusion in an unreported decision dated April 28, 1948. During the 12 years which
have elapsed since that time, the Board has consistently followed this
rule and it does not appear to have been questioned by the Service
except in Matter of H—, 6-90 (1954).
Matter of H—, supra, involved a pardon for a crime committed in the United States prior to entry. The Service, in its
motion in that case (6 - 91), stated that it was well established

that if the case had been one to be decided under' the 1917 Act the
alien would not have been deportable with respect to crimes committed prior to her reentries. However, it was contended that a
different result was required under the Immigration and Nationality
Act because 8 U.S.C. 1251(b) commences with the words, "The provisions of subsection (a) (4) of this section." As we have indicated
above, the provisions of the 1917 Act and the present law are similar
in this respect, and the argument advanced in the applicant's case is
exactly the same as the one which had been urged in Matter of H—.
We have again considered the matter but we adhere to the conclusions reached in Matter of H—, supra, for the reasons which were
fully set forth in that decision. It is our considered opinion that a
pardon or a court's recommendation against deportation which meets
the requirements of 8 U.S.C. 1251(b) has the effect of immunizing
the alien insofar as that conviction is concerned regardless of
whether the proceeding against him is to exclude and deport or
expel and deport and regardless of whether the statutory provision
involved is 8 U.S.C. 1182(a) (9), 1251(a) (1) or 1251(a)(4). This,

of course, applies only to a crime committed within the United States
since it is well settled that a foreign pardon is'not effective to prevent deportation and this would also be true of any recommendation against deportation made by a foreign court.
The Service asserts that in the cases previously decided there had
been a conviction for a crime during a previous lawful or unlawful

residence in the United States and that the question concerning
admissibility arose when the alien attempted to return to the United
States after an absence. If we adopted the view urged by the

Service, an alien who had lived in the United States for many
years and who had been convicted of a crime involving moral turpitude would have to be excluded when now applying for readmission after a short absence even though he had been pardoned or had
125

received the favorable recommendation of the sentencing court. It
was also contended by the Service that the applicant's case does
not involve equitable factors such as long residence in the United
States, family ties, etc., but that, on the contrary, the applicant has
only a short period of residence here and has abused this country's
hospitality by the commission of a serious crime. Counsel for the
applicant states that there were extenuating circumstances; that the
applicant was a "freedom fighter" in Hungary; and that his deportation to that country would result in imprisonment or execution.
All of these matters are irrelevant since only a legal issue is involved
in this case and we have concluded that the sentencing court's favorable recommendation requires the ruling that neither deportation
nor exclusion proceedings against the applicant can be predicated

on the conviction mentioned above.
ORDER: It is ordered that the special inquiry officer's order, admitting the applicant for permanent residence, be approved.


Interim Decision #2159

MATTER OF TANG
In Visa Petition Proceedings

A-14083327
Decided by Board July 10, 1972
Petitioner's alleged adoption by beneficiary in China in 1945 when she was
approximately 14 years of age has not been established for immigration
purposes since the provisions of Article 1079 of the Chinese Civil Code
required that the adoption be in writing, the authenticity of the written
instrument of adoption presented is at issue, and no credible evidence has
been presented to support its authenticity. Even if a valid adoption agreement
had been presented, there is no showing that petitioner, who,following the
death of her father, continued residing, with her mother, in the same house in
which she resided prior thereto, ever came under the parental control of the
beneficiary; lux thee, doubt as to the bona fides of the adoption, raised by the
fact beneficiary is the blood uncle of petitioner, has not been explained away.
ON BEHALF OF PETITIONER: Edward E. Merges, Esquire
4321 Seattle-First National Bank Bldg.
Seattle, Washington 98104

The United States citizen petitioner applied for immediate
relative status for the beneficiary as her adoptive father under
section 201(b) of the Immigration and Nationality Act. The application was initially approved on November 28, 1966 but the approval
was subsequently revoked on August 12, 1970. The petitioner
appealed from that revocation. This Board, in an order dated April
20, 1971, remanded the case to the District Director in order to
secure expert testimony as to the authenticity of a Chinese adoption agreement submitted in support of the application. The District
Director was unable to find an expert and returned 'the file to this

Board. The appeal will be dismissed.
The petitioner was born in China on October 10, 1931. According
to her affidavit dated June 9, 1969, she lived in China in a large
house with her parents, grandmother, brother and sister, her
father's brother (the beneficiary.) and her uncle's wife. Her father
died on September 7, 1945. Upon his deathbed he apparently asked
his brother to take the children and raise them as his own.
The petitioner and her younger sister were purportedly adopted
180

Interim Decision #2159
in mainland China by the beneficiary on September 10, 1945. The
petitioner was almost 14 years of age at the time. Article 1079 of
the Civil Code of the Nationalist Republic of China required that
an adoption be in writing, unless an "infancy adoption" had taken
place. The term "infancy adoption" relates to an adoption occurring before the child involved had attained the age of seven years.
Therefore, in the present ease an infancy adoption was not
possible, and the petitioner must prove her adoption by means of a
written agreement of adoption.
The petitioner claims that there was a written agreement of
adoption in her ease. At first no document was presented. The

beneficiary, in a statement dated September 26, 1966, stated: "I do
not have the adoption agreement. It was left in the village." In her
affidavit the petitioner noted that she was informed by the Service
that a written adoption agreement would be necessary in her case.
She stated that she wrote to her adoptive parents, who purportedly sent to the home village in China and secured the writing
finally submitted.
The petitioner continued to reside in the same' house after the
purported adoption. In September of 1948 she went to Hong Kong
with her mother, sister and brother. Her uncle, the beneficiary,

accompanied them, but returned to China after one month. The
petitioner was married in Hong Kong in October of 1948 and came
to the United States in 1950. The beneficiary remained in China
until 1952, at which time he moved to Hong Kong. Hence, the
petitioner resided in the same house as the beneficiary subsequent
to the claimed adoption only slightly more than three years.
The District Director adopted the conclusion of the trial attorney, who found the written adoption agreement to be an after-thefact document, prepared and presented as a result of the Service's
request for written proof. Efforts to establish the age of the paper

upon which the adoption agreement was written have proven
unsuccessful. The file contains no corroborating evidence that an
agreement of adoption had been prepared in September of 1945
except for the affidavit of a cousin, Tang Yat Chow. Tang Yat
Chow in his affidavit claimed not only that a writing had been
executed in 1945 but also in 1954, when the petitioner's brother
was also purportedly adopted. That is incorrect, however, inasmuch as the beneficiary stated categorically that there was no
writing prepared in 1954 in the case of the petitioner's brother.
Consequently, after taking into account all the circumstances
present in this case, we must agree with the District Director who
concluded that no credible evidence had been presented to support
the authenticity of the written instrument of adoption.
Even if a valid adoption agreement had been presented, we

181

Interim Decision #2159
would still have to dismiss the prdsent appeal because the petitioner has not shown the existence of a valid subsisting adoption.
For instance, there is no showing in the present case that the
petitioner ever came under the parental control of the beneficiary.
All she did was continue residing in the same house, with her
mother, that she had been residing in before her father's death.
See Matter of Chapralis, A-14922517, unreported (BIA, October 24,
1967), which is referred to 'hi Matter of Yuen, Interim Decision No.
2130 (BIA, 1972).
In the Yuen case, we held that the fact that the putative
adoptive father was an uncle raised doubts as to the bona fides of

the adoption. We found in that case that the petitioner had failed
to explain away the doubt. The same reasoning should apply to
the present case, and we find that the petitioner has likewise
failed to explain away the doubt present on this score. Also,
the fact that the petitioner went to Hong Kong with her mother
three years after the claimed adoption, while the beneficiary
returned to mainland China after briefly accompanying them to
Hong Kong, raises the possibility that the adoption, if any, may
have been mutually terminated in accordance with Article 1080 of
the Nationalist Civil Code. We find that the petitioner has also

failed to offer sufficient evidence to explain away the doubt raised
as to the continuing effect of the adoption. See Matter of Lee,
Interim Decision No. 2098 (BIA, 1972).
Based upon the foregoing, we conclude, then, that the District
Director was correct in holding the petitioner had not borne the
burden of establishing that the beneficiary is her parent as that
term is defined in section 101(b)(2) of the Act. Since the beneficiary
does not qualify as a parent for immigration purposes, he is not
eligible for preferred status as an immediate relative under section 201(b). The District Director accordingly was correct in revoking the initial approval of the application. The appeal will be
dismissed and the following order will be entered.
ORDER: The appeal is dismissed.

182


Interim Decision #1341

MATTER or BARREIROS
In RESCISSION Proceedings
A-10953140

Decided by Board Hay 21, 1964
In rescission proceedings under section 240(a), Immigration and Nationality
Act, the burden of proof rests With the Governmeni, to establish by a preponderance of reasonable, substantial, and probative evidence that respondent
was ineligible for adjustment of status under section 245 of the Act.

Respondent appeals from the order of the special inquiry officer rewinding the adjustment to lawful permanent residence respondent
received under section 245 of the Act (8 U.S.C. 1255 (1958)) on
February 11, 1959 ; the trial attorney appeals from that portion of the
special inquiry officer's order defining the Service's burden of proof.
Respondent's appeal will be dismissed; the trial attorney's sustained.
We shall deal first with the issue as to the nature of the burden of
proof inn rescission proceeding.
Section 246 of the Act (8 U.S.C. 1256 (1958)) under which the
rescission proceeding was brought, roads in pertinent part as follows:
* * * If, at any time within five years after the status of a person has been
otherwise adjusted under the provisions of section 245 or 249 of this Act or any
other provision of law to that of an alien lawfully admitted for permanent

residence, it shall appear to the satisfaction of the Attorney General twat the
person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such
person and cancelling deportation in the case of such person if that occurred
and the person shall thereupon be subject to all provisions of this Act to the
same extent as if the adjustment of status had not been made.

The special inquiry officer held that the Service which has the burden of proving that respondent had not been eligible for the adjustment can successfully meet its burden only by proof which convinces
"almost, if not actually beyond a reasonable doubt" (p. 9, special inquiry officer's opinion) ; the trial attorney contends that the Service
should carry no more than the usual burden of proof in civil proceedings; that is, the Service should be able to establish its case by a preponderance of the evidence. We believe the trial attorney has stated
the rule properly.
536

Interim Decision #1341
The special inquiry officer based his conclusion on judicial and dictionary definitions of "satisfy". He has failed to take into account
that other definitions exist; among these is one that in our opinion
is even more appropriate to the situation before us than the definition
he has relied upon. Definitions hi judicial matters, for the most part,
require the word "satisfy" when applied to burden of proof, to mean
that something more than a preponderance of the evidence is involved

(147 ALR 880-439 ("to the satisfaction of the jury") ) ; however, in
administrative matters, the weight of authority appears to be that
the word is used to designate the individual who is to make the determination and to require him to make his determination in the manner
that a reasonable man acting in good faith would. Illustrative of such
use are the following cases :
Qmintana v. Holland, 255 F.2d 161 (3d Cir., 1958) (a recision of suspension of
deportation proceedings under the very section in issue here). The court interpreting the phrase "it shall appear to the satisfaction of the Attorney General"
eliminating the possibility that it authorised the Attorney General to follow a

subjective standard stated, "We think it means a reasonable determination made
in good faith after such investigation and hearing as is required."
National Association of Securities Dealer, Ina v. SEC, 143 F.20 62, 66 (3d Cir.,
1944). The court held that the phrase "establish to the satisfaction of the
Commission" required an applicant to present substantial evidence to the
Commission.
O'Neal v. United States, 140 F.20 902, 912 (6th Gin, 1944). The court held
that since a; statute giving the President power to institute rationing when he is
"satisfied" that a shortage exists, also gave him the power to investigate and
administer the statute, the word "satisfied" was meant to be the equivalent of
"iands" 2

Since substantial authority exists in administrative matters for interpreting the "satisfied" phrase as the designation of a person who is
to make a finding on a certain objective standard—the standard of a
reasonable man meting without bias, and since reasonable men (juries

for example) daily make findings on important issues by a preponderance of the evidence, and since the preponderance rule is the usual
one in civil matters, the special inquiry officer's departure from the
usual standard can be accepted only if some strong reason justifying
a departure is set forth.

No reason in the history of the legislation is given. We find none.
The Senate committee describing the section stated that it called for
rescission in those eases where "it shall appear to the Attorney General"
that the person was ineligible (S. Rep. No. 1137, 82nd Cong., 2d Sess.
Illustrative of still another use: Montgomery v. Ffrenclt, 299 F. 2d 730, 735
(8th Cir., 1962). The court held that a law requiring a petitioner to "establish
to the satisfaction of the Attorney General" that he would give proper care to an
orphan he desired to bring to the United States, gave the Attorney General a
discretion to act which would not be reviewed hr the court.
'

537

Interim Decision #1841
26 (1952) ). The House committee stated that the section provides
for rescission "when subsequently found [by the Attorney General]
that the alien was not, in fact, eligible for adjustment." (H.R. Rep.
No. 1356 (82nd Cong., 2d Seas. 63 (1952)). The commentary on the
Immigration and Nationality Act found at 8 U.S.C.A. p. '71 states
that the section permits rescission "when it is found that the person
was in fact not eligible". There is thus no indication in the history
of the legislation that a departure from the usual burden of proof in
deportation proceedings was intended.
The dictionary definition relied upon by the special inquiry officer
does not support his position that something just short of proof
beyond a reasonable doubt is required; his own standard falls short
of that demanded by the definition. This dictionary definition defines
"satisfy" as "to free from doubt, suspicion, or uncertainty; to give
full assurance; to set at rest the mind of; to convince"; even proof
beyond a reasonable doubt leaves room for some doubt or suspicion
or uncertainty, and the special inquiry officer calls for less than proof
beyond a reasonable doubt.
One other aspect should be considered: Does the nature of an
administrative rescission proceeding call for a higher standard of proof
than the usual one in administrative matters? We think not. The
issue in the rescission proceeding is ncit too different from that in the
deportation proceeding where the question often is whether an alien
legally in the United States is entitled to remain; and, the issue in
the rescission proceeding is in the abstract not as important as is the
issue in the administrative expatriation proceeding where the issue
is whether United States citizenship has been lost. Yet, in both the
deportation and the expatriation proceeding, the burden upon the
Service is to establish its case by no more than a preponderance of evidence. (In fact, Congress enacted legislation to clarify its intent that
no greater burden was to be borne in the expatriation matter (section
349(c) of the Act, 8 13.S.C. 1181 (c) (Supp. IV) .)
Thus, considering the history of the legislation, the judicial decisions, the dictionary definition and the nature of the proceeding,
we find no reason for placing a greater burden upon the Attorney
General in rescission proceedings than has been placed upon him in
deportation matters. We conclude the Service must establish its contention in this rescission proceeding by a preponderance of evidence
which is reasonable, substantial and probative.
We may now deal with the factual situation. Respondent, a 28year-old married male, alien, a native and citizen of Portugal, was
admitted as a. visitor on April 8, 1957 for a period of six months. On
May 5, 1958, his status was changed to that of a student and he was
authorized to remain in the United States until April 12, 1959. On
538

Interim Decision #1341
September 5, 1958, he married Margaret Preston, a citizen. On December 23, 1958 she filed a visa petition on respondent's behalf; the
petition was approved on February 10, 1959. On the same date,
respondent filed. an application to acquire the status of a. lawful permanent resident under section 245 of the Act. The application was
granted by order of the District Director on February 11, 1959.
Prior to January 12, 1962, the respondent was acquitted on a federal
indictment charging him with committing a fraud against the United
States in that his marriage was not a bona fide one. On January 12,
1962 respondent divorced his wife. On January 17, 1963 the Service
served the respondent with a notice that it intended to rescind the
adjustment of status which he had received on February 11, 1959.
The basis for the rescission was the allegation that his marriage had
been entered into solely for the purpose of obtaining the adjustment
of status, and that it had not resulted in &bona fide husband and wife
p. On December 17, 1963 after a hearing begun on July 10,
relationshi
1903, the special inquiry officer entered the order from which the

respondent and the Service appeal.
The Service contends that George Silva, respondent's friend, married
Priscilla Ann Muller for the sole purpose of obtaining an adjustment

of his status based upon his wife's citizenship, that he introduced
respondent to Priscilla's girl friend, Margaret Preston, that Margaret
agreed to marry the respondent for $300 with the understanding that
she would not live with the respondent, that she would not be a. wife
to him, and that she would be given a divorce after respondent had
become a lawful permanent resident of the United States. Margaret
appeared as a Service witness and George Silva as a witness for respondent. The Service presented John Warick and Emil Neto, resi-

dents of the apartment house in which respondent allegedly lived with
Margaret.
The respondent denies that his marriage was other than a bona fide
one. He testified that he married Margaret in good faith, that he
lived with her for a three-year period from the time he married her,
and that he supported her. Respondent presented Mrs. Silvina Noguera who testified she visited the respondent and Margaret at their
apartment on nine or ten occasions, two photographs of Margaret
offered to show that she was an attractive woman with whom a man
would well be desirous of entering into a bona Me relationship, a
post card written by Margaret to the respondent's mother, two letters
purportedly from Margaret asking the respondent for money, and a
bank book to establish that he could not have made a payment to
Margaret for marrying him.
The special inquiry officer considering the demeanor, interest, and
bias of the respondent and his witnesses concluded that they were not
539

Interim Decision #1341
credible witnesses. He stated that Margaret was a person. who had
engaged in immoral and illegal activities, that she had testified falsely
in regard to other matters, and that she had lived in a homosexual
relationship with Priscilla, but he concluded she had testified truthfully at the deportation hearing.

Respondent testified that after the marriage, he and his wife had
lived at 51 Madison Street, Newark, New Jersey, for three years, and
that in this period she had been absent from the apartment visiting
friends about 50 days, a. total which includes 30 days in 1960 during
which respondent himself was outside the United States visiting in
Portugal. Respondent's wife denied that she had ever lived with
him at the apartment. She admitted that she had been there on two
occasions in connection with some business she had with the
respondent.
Let us examine the testimony on this issue in detail. Respondent
testified that sometime before the marriage he found an apartment
that was about to be vacated (p. 21), and that the day before the marriage, he attempted to obtain possession of the apartment but could
not because it was not to be vacated for another week or two (p. 22).
After the marriage, respondent and his wife went to a show in New
York and then to a hotel (p. 22), they stayed there for a day or two
(p. 32), then came to Newark where they spent the night in his cousin's
house (pp. 35-36). From his cousin's house, they went either to a
hotel or to 51 Madison Street (p. 36) where the apartment was located.
At a later hearing (September 23, 1063), respondent was again
questioned concerning his actions immediately after the marriage. He
testified that he and Margaret had stayed in the New York hotel a few
days (pp. 291-292), that they went to a Newark hotel for two nights,
and that they had then gone to the apartment (pp. 292-4) .
Silvina Noguera, respondent's cousin, testified that the respondent
had brought his wife Margaret to her house, that they had come about
two or three days after the wedding (p. 183), that they did not stay
long on that occasion, that she took them shopping to buy clothes for
Margaret, and that she then drove them to their apartment at Madison
Street (pp. 183-181). Mrs. Noguera was not questioned as to whether
the respondent and his wife stayed overnight, and the respondent was
not questioned concerning the conflict between his testimony that he
stayed overnight at Mrs. Noguera's and her testimony that they had
only spent a few hours there when he visited after the wedding.
On July 10, 1963, respondent testified" thathis wife had lived with
him for three years, being absent from him for short visits and on the
occasion when he visited to Portugal; he stated that he left for work
11:00 o'clock at night and that she would sometimes leave the house
around 10 or 10:30 to visit friends while he was working, and that ex540

Interim Decision #1341
cept for the times she left him to visit, she resided with him in the same
house day after day as man and wife (pp. 27-9, 32-3, 36-8, 44-5) . On
September 23, 1963 respondent testified that except for Margaret's
brief visits, she was always at the apartment with him, although she

apparently spent nights away because he worked in the nighttime
(pp. 294-5) and that she was with him "sometimes in the daytime"
(p. 295). He repeated that his wife had been with him more times

than she had been out (p. 300), that she had left her clothing at the
apartment even when she was absent for a few days (p. 305), that the
total absences amounted to about 40 or 50 days (p. 307), that when she
did go out, she sometimes went Tuesday or Friday, that sometimes she
left Friday and stayed away until Monday, but that most Saturdays
she spent in the apartment (p. 308) .
Respondent's former wife, Margaret, testified she had not stayed
overnight at the home of respondent's cousin, and that she had never

lived with him at 51 Madison Street but that she had been there about
a. month after the marriage to sign some papers (p. 126). This witness, besides being a call girl, displayed such a disregard for truth in

executing documents under oath in connection with adjusting the respondent's status to that of a permanent resident that no credence can
be given her uncorroborated testimony. The testimony of Priscilla
cannot be considered as corroboratory because Priscilla herself is not
credible without some corroboration. of her testimony.
There is some corroboration for Margaret's testimony that she did
not stay with respondent overnight, at the home of respondent's cousin
since respondent's cousin stated that their visit had been a short one,
that she had taken them shopping, and that she had taken them home
to the Madison Street address.
There is some corroboration of Margaret's testimony that she did not
reside with respondent at 51 Madison Street; this is in the form of
two letters coming from Margaret. The first letter (undated but
written before August 1, 1959) informs respondent that Margaret is
in Long Island without money and that his remittance of $2.00 was no
help to her in buying food, paying for the rent, purchasing gas or taking care of her two dogs, and that she needed $100 (Ex. 11, pp. 131,
133-4). The second letter, dated August 1, 1959, recalls the destitute
circumstances in Long Island; it states that Margaret had lost both her
dogs and practically everything she owned, that she had to hike back
to New York, that she was "on 69th again and had to start from
scratch", and that she wanted a divorce (Ex. 21, pp. 150-1). (A
third letter (Ex. 23) is undated and it cannot be determined whether
it was written while the parties were supposed to be living together.)
We find in these letters corroboration of Margaret's testimony that
she had not lived with respondent. If as the respondent testified,
541

Interim Decision #usci
Margaret dwelt with him daily except for short visits to friends it is
difficult to understand why she had to write to him for money and why
he was expected to send her money instead of just giving it to her.
Moreover, the letter showing that 3Sargerst was living in Long Island,

with her TV set and other possessions and that she had to "pay rent"
(Ex. 11), and the letter stating that Margaret had lost practically
everything she owned, that she was 69th again, and that she had to
start from scratch (Ex. 21) are hardly the letters of one who was
merely away from Madison Street on a. short visit to friends.
Some corroboration of the claim that Margaret did not live with
respondent is seen also in the following: Margaret's presence in
Newark was made necessary by the Service request that she appear for
an interview in connection with her visa petition on February 10,1959;
she signed a, joint income tax return for 1958 on the same date (Ex. 17) •
This coincidence raises a question as to whether Margaret was available to the respondent us he claimed daily, or whether he took advantage of her presence in Newark for immigration purposes to have her
sign the return.
We do not find any substantial conflict between Margaret's testimony on this issue and the testimony of the two witnesses who were
respondent's cotenants. The respondent stated that his neighbor in
the apartment across from him must have seen Margaret on many occasions because of the number of times Margaret was there and that
the witness had probably seen Margaret when he came into respondent's apartment. This neighbor testified that he had seen Margaret
on only two occasions and both occasions had been shortly after the
respondent had moved into the apartment. The tenant on the ground
floor testified he had seen respondent but had never seen a -woman enter
respondent's apartment. He had heard footsteps indicating the presence of more than one person in respondent's apartment but could not
identify the footsteps.
Counsel's attack upon the credibility of Mamgaret is well taken but
we have credited only testimony which is corroborated. Respondent's
acquittal on criminal charges based on facts which in turn are the
basis for the charge here does not require dismissal of the deportation
charge since.the burden of proof in each case is different. Margaret's
admission that she had relations with respondent on one occasion (for
pay) does not make a bona fide marriage relationship exist where
none was intended (pp. 132-3, 135) ; whether or not the possibility of
blackmailing respondent was a factor in persuading Margaret to enter
into the marriage need not be discussed in view of the proof here that
respondent did not intend to enter a, bona fide marriarre relationship.
We believe that the Service has borne its burden of establishing by
a preponderance of evidence that is reasonable, substantial and pro542

Interim Decision #1341
bative, that respondent entered into a marriage with Margaret Estelle
Preston on September 5, 1958 at Elkton, Maryland solely to enable
him to adjust his status to that of a permanent resident: no bona fide
husband-wife relationship was intended and none resulted. Respondent was not eligible for the adjustment of status which be was
granted by the District Director, Newark, New Jersey on February
n, 1959. The appeal of the respondent will be dismissed.
ORDER: It is ordered that the appeal of the respondent be and
the same is hereby dismissed.

543


Interim Decision #1520
•

MATrre OF Nomu
In. Visa Petition Proceedings
A 12525308.
-

Decided by Boai'd November 6, 1986
A. divorce granted in the presence of the Consul of the United Arab Republic.
at Chichgo, Illinois, to a nonimmigrant student in attendance at the Iowa
State University, dissolving a previous marriage contracted in Egypt, is
not valid for immigration purposes even though the United Arab Republic
may consider such divorce valid under its laws.

This case is before us on appeal from a decision of a District
Director denying the visa petition.
The petitioner was born in the United States and married the
beneficiary at Harlan, Iowa on November 27,1964:' The beneficiary
had previously been married in Egypt on 'Tidy 4, 1968 and declared
his divorce from his first wife on June 8, 1964 in the presence of the
Consul of the United Arab Republic at Chicago, Illinois. The district Director held that the divorce did not meet the legal requirements of Minas nor of the State of Iowa in which the beneficiary
has his domicile. For that reason, that officer concluded that the

petitioner had failed to establish that her marriage to the beneficiary
was valid. .
We have carefully considered the statements in counsel's letter of
August 20, 1965. He contends that, since the beneficiary was merely
attending the Iowa State University as a student when he obtained
the divorce in June 1964 and intended to return to Egypt, he was
not a resident of Iowa and could not have secured a valid divorce
under its laws. By his marriage in November 1964 and his present
desire to become a permanent resident of the United States, it would
seem that he has now abandoned his Egyptian domicile and

has

taken up domicile in the United States. We rejected a similar contention in Matter of M—, 7 I. &. N. Dec. 556 (1957), in which the
alien attempted to divorce his first -wife in Connecticut through a
written declaration in the Islamic tradition and then married a
. 369

Interim Decision #1520
United States citizen in Connecticut. Actually, the issue here is not
whether the beneficiary could have obtained a divorce under the laws
of Iowa but whether the alleged divorce before the Consul at Chicago was valid. For the reasons more fully set forth in Matter of
If—, supra, and in Matter of H—, 6 L & N. Dec. 470 (1954), and in
accordance with the decision in Shiba v. Must 257 F.2d 806 (2d
Cir., 1958), we hold that, although the :United Arab Republic may
consider the instant beneficiary's divorce valid under its laws, it cannot
regarded as valid for immigration purposes.
Counsel's second contention is that alternatively we should hold
that the' beneficiary's first marriage was not valid because he was

not present in Egypt at that time and a friend signed the marriage
pipers on his behalf. The record before the District Director does
-not contain any evidence that the first marriage was a proxy marriage, and.the certificate concerning the divorce contains the state- •
ment that he as married to the first wife under Marriage License
No. 450667 given by legal authorities. The divorce record also shows
that .she had lived at 145 Campus, Ames, Iowa so that it would
appear that the marriage was consummated. On this record, we
must find that the beneficiary's first marriage was valid.
In view of the foregoing, we conclude that it has not been established that the marriage of the petitioner and beneficiary is valid, •
and the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is herby
dismissed.

370


Interim Decision # 1061

MATTER .0E

Coin

•

In Visa Petition Proceedings
A-12076712
Decided by Regional Oonvorkeioner October 7, 1966
Beneficiary, who has obtained a baccalaureate degree in business administration from an aeoroditod college, is a member of the profeadona within the
meaning of section 101(a) (32) of the Immigration and Nationality Act,
as amended by P.L. 89-236, and notwithstanding his current employment
in a nonprofessional capacity as an office equipment salesman, be is eligible
for preference classification under section 203(a) (3) of the Act, as amended,
since he is just starting, and expects and intends to continue, in his business
careen

Discussion: This case comes forward on appeal from the decision of the District Director, Los Angeles, who denied the petition
on June 2, 1966, in that the beneficiary, who is employed as an office
equipment salesman, is not engaged in a profession and, therefore,
not eligible for classification under section 203(a) (3).
Petition was filed February 9, 1966, by the beneficiary in his own
behalf. On appeal beneficiary requested oral argument, which was
granted with date for appearance set for October 6, 1066. Beneficiary failed to appear as scheduled and not having requested Post-

ponement or otherwise corresponding with the Service, the decision
will be made on the record at hand.
The beneficiary is a. 26-year-old single male, a native and citizen
of China,.last a resident of Hong Kong. He was first admitted to
the United.States at Honolulu, Hawaii, on September 10, 1960, as a
student destined to California State Polytechnic College, Pomona,
California; which he attended for two years, enrolled in the field of
business administration. He then transferred to Loias College, Dubuque, Iowa, which he attended until his graduation with a bachelor
of arts degree in business administration in May 1965. After the
completion of the'academic school year ending in the spring of 1964,
he had returned to Hong Kong to visit his parents and wag subsequntly readmitted as a student at Honolulu on September 9, 1984,
to complete his college work of Loras College.
881

Inteikim 'Decision #1664
Upon completion of cellege beneficiary came to Los Angeles,
California, where he was first employed by the American National
Insurance Company as an insurance agent from August 1965 to
December 1965. He then began his present employment with Bur=
roughs Corporation of El Monte, California, in the office equipment
sales division as an office equipment salesman.
Section 212(a) (14) of the Immigration. and Nationality Act provides for the exclusion of certain aliens unless the Secretary of Labor
has certified that there are not sufficient workers in the United States
who are able, willing, qualified' and available and that the employment of such aliens will not adversely affect the wages and working
conditions of workers in the United States in similar employment.
That provision applies to preference immigrant aliens described in
section 203(a) (3) of that Act.
In support of his petition the beneficiary presented Form ES-575,
"Statement of Qualifications," which had been reviewed by the Department of Labor and who on April 21, 1965, issued the appropriate .
certification. That department also advised that the beneficiary
appeared qualified for classification as a member of the professions
by reason of his educational background.
Section 203(a) (8) of the Act as amended provides that visas shall
be made available "to qualified immigrants who are members of the
professions, or who because of their exceptional ability in the sciences or the arts will substantially benefit prospectively the national
economy, cultural interests or welfare of the United States."
Section 101(a) (32) defines "profession" as follows: "The term
`profession' shall include but not be limited to architects, engineers,
lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."
As indicated, the professions listed in section 101(a) (32) of the Act
are not all inclusive and we may consider other occupations as falling
within the meaning of the term "profession." Matter of Shin, Interim Decision No. 1606, indicates that professions are vocations
which "require specialized training that is normally attained through
high education of a type for which a bachelor's degree can be obtained .. ." That decision also states that the knowledge acquired
through such education (or equivalent training) must be of a "nature
that is a realistic prerequisite to entry into the particular field of
endeavor."
Volume II of the Dictionary of Occupational Titles places those
occupations related to. the field of business administration into the
two digit code group 16; "Occupations in administrative specialize882

Interim Decision #1664
Lions" which are classed as professional.. The Department .of Labor
in a. letter to this Service dated August 15, 1966, stated in part in
regard to the present case: .;
"Mr. Olin's degree in Business Administration was given by an accredited
United States college. Graduates of business administration courses may
qualify for several occupations coded as profeisional in the second edition of.
the Dictionary of Occupational Titles, e.g., Accountant, Auditor, PropertyRehabilitation Clerk (in insurance), Dealer-Contact Man, Employment Manager, Personnel Manager, Salary and Wage Administrator, Field Representative,
to name some. Business Administration graduates may qualify for a greater
numbei of professional occupations defined in the third edition of the DOT."

We agree with the Department of Labor that occupations in business administration for which a person qualifies by reason of high
education are professional occupations.
If the beneficiary were unemployed and was seeking employment
in an occupation in business administration, he would no doubt be
found qualified for third preference classification.
The District Director found that the beneficiary was employed as
an office equipment salesman, which is found in Volume II in the
Dictionary of Occupational Titles to be in the two dig' it, 2-, group
code as a sales and service occupation and which is not classified as a
profession.
However, the beneficiary's - qualifying vocation is in business administration, which is a profession. The fact that he may not now be
employed in a qualifying profession does not preclude him from
being classified as a member of the professions, eligible for third
preference. Matter of Stamatiades, Interim Decision No. 1591, states
"the question before us therefore, is whether the alien's present employment in a, nonprofessional occupation as a laboratory technician
precludes approval of a petition to accord him third preference classification as a member of the professions," and concludes is follows:
"It is concluded therefore that an alien's current employment in the
United States in a nonprofessional occupation does not preclude approval of a petition to accord him third preference classification if he
is determined to be a qualified member of the professions." This
interim decision further states, "The Immigration and Nationality
Act, as amended, does not specify that a member of the professions
must be coming to this country to engage immediately in the practice
of his profession in order to qualify for third. preference status . . :"
"In many instances and frequently because of factors over which the
alien has no control such as licensing and other local restrictions, he
may be forced to accept any available employment for, a period of
time after arrival before entering into professional practice." On
883

Tntim Deiision #1664
March 18, 1965 the Secretary of LabOr testified' efore a subcommittee of the House Committee on the Judiciary regarding certain
aspects of H.R. 2580 which, as amended, was enacted as PL. 89-286.
In advocating that specific job offers not be required for highly educated and specialized immigrants, such as those now encompassed in
the third preference, the Secretary Mated that the addition to this
country of those immigrants would be a definite boon to the Ameri-,
can culture and 'workforce. He agreed that this would be so even.if
the alien would not occupy one of the specific skills for which he merited consideration as a preference alien, and stated that the alien
should be "free to climb."
The Branch Manager of the Burrough's Corporation, by whom the
beneficiary is employed, in a letter dated February 11, 1966, in refer
ence to the beneficiary stated; tIlis background of a college degree
and Aeeounting fulfills the unique requirement we need to fill our
safes iiiisitions. Their duty is to analyze systems in various offices
and show how mechanized accounting assists customer to get more
caTenilifoiniation and a much more efficient operation. He must
also install and tiain on these systems."
''"Peter 06%4' his the college and accounting background we need.
He is (Mini an excellent job at the present time, and I would appreciate any help you can give him to stay with us."
The beneficiary hi bid appe al stated: "My job with Burroughs is
job;biit a combination of sales and business connot
r*ires. extensive studies and college accounting backs-41;w
•
grOund:" " •
The benificiary
recent :College graduate and as yet does not
Mire a Pernienent lawfdi status in the'United States. It is not a raisetiOn on hia ability that hi is,starting a business career on a lower
rung on the leader of mimess. ' He expecie and intends to continue in
his busibesi career and by re4i:S of 'his academic training for. a professional, career earn climb: to higher i:unke,giiid he should be "free to
-•
clinb."
. . , •
•COiisiderini all factois as described 'above it ninst be found.that the
petitionerMembe?Of :the. PrOfeseieni;
intends and desires to
and that he meets the
practice' his profession in the United'`
preference clessificatioif inlir -section 208(a) (3) of
requirements
U.'elietiaiked
tite'Xbi'..
It14-dideted Chit the: SPpcial li•kiistained aa&tlie.petitioii &Inked: r • '

884


Interim Decision #2526

MATTER OF. LWIN

In Visa Petition Proceedings
A-20205803

Decided by Board September 1, 1976
(1) The United States - citizen petitioner applied for immediate relative status for the
beneficiary as her spouse under section 201(b) of the Immigration and Nationality Act.
The district director denied the petition on the ground that the beneficiary, who had
lived with an Indian Christian woman in Burma from 1963 to 1965, had a prior undissolved marriage in Burma, and the petitioner appealed.
(2)In Burma, a marriage contracted between a Christian and a non-Christian, or between
two Christians, must be solemnized in accordance with the requirements of the Christian Marriage Act of 1872. That act requires that for such marriage to be valid it must be
solemnized before one of the persons named in the act and be recorded with the
Registrar-General of Births, Deaths and Marriages.
(5) Where the beneficiary denied he had married in Burma, and there was no civil
documentation of beneficiary's alleged prior marriage, and the affidavit of beneficiary's
father indicates he did not witness or participate in a marriage ceremony in Burma
involving the beneficiary, it is concluded that there was no prior marriage in Burma and
the marriage on which the instant petition is based is valid for immigration purposes and
the petition will be granted.
ON BEHALF OF PtaTLIONER:

Pro se

The United States citizen petitioner applied for immediate relative
status for the beneficiary as her spouse under section 201(b) of the
Immigration and Nationality Act
In a decision dated November 18,
1975, the District Director denied the petition on the ground that the
beneficiary had a prior undissolved marriage in Burma. The petitioner
appealed. The appeal will be sustained.
The beneficiary is a male Buddhist, native of Burma. He married the
petitioner on May 10, 1974, in Orlando, Florida, after obtaininga divorce
from a Florida resident.
The evidence in the record establishes that from 1963 to 1965 the
beneficiary lived with'an Indian Christian in Burma. From that cohabitation a child was born in 1965. The beneficiary states that he did not
marry the mother of his child.

In the record we have an affidavit from the father of the beneficiary
stating that the beneficiary did marry the Indian Christian female.
1

Interim Decision, #2526
However, the affiant states that he did not attend any marriage ceremony. The United States Embassy in Rangoon, Burma informs us that
there is no civil documentation of the marriage in Burma.
Given the conflicting evidence in the record regarding the applicable
law of marriage in Burma, assistance has been requested from the
Library of Congress. Wehave received a memorandum of law dated
July 1976 on the applicable law in Burma.
We are informed that in Burma when one or both of the parties are
Christians, marriage can be validly contracted only in accordance with

the Christian Marriage Act of 1872. This Act requires for a validity of
the marriage that it be solemnized before one of the persons named in
the Act. The Act further requires that all marriages solemnized in
accordance with it be registered with the Registrar-General of Births,
Deaths and Marriages.
The evidence in the record indicates that the beneficiary could only
have married his purported Burmese wife under the requirements of
the Christian Marriage Act of 1872. The beneficiary was steadfast in his
denial that he had married in Burma. The Embassy informs us that
in beneficiary
there is no civil documentation of a marriage by the

Burma. The affidavit of the beneficiary's father states that he did not
witness or participate in a marriage ceremony of the beneficiary.
We conclude that there was no prior marriage in Burma, and that the
beneficiary is the spouse of the United States citizen petitioner. Accordingly, the appeal will be sustained and the visa petition granted.
ORDER: The appeal is sustained and the visa petition granted.

ADDENDUM
THE CHRISTIAN MARRIAGE ACT

(Registration Provisions)
4. Every marriage between persons, one or both of whom is or are a
Christian or Christians, shall be solemnized in accordance with the
provisions of the next following section; and any such marriage solemnizedotherwise than in accordance with such provisions shall be void.

5. Marriages may be solemnized in the Union of Burma—
(1) by any person who has received episcopal ordination, provided
that the marriage be solemnized according to the rules, rites,
ceremonies, and customs of the Church of which he is a Minister;
(2) by any Clergyman of the Church of Scotland, provided that such
marriage be solemnized according to the rules, rites, ceremonies,
and customs of the Church of Scotland;
2

Interim Decision #2526
(3) by any Minister of religion licensed under this Act to solemnize
marriages;
(4) by, or in the presence of, a Marriage Registrar appointed under
this Act;
(5) by any person licensed under this Act to grant certificates of
marriage between native Christians,
9. The President of the Union may grant a licence to any Christian,
either by name or as holding any office
for being, authorizing
the time

him to grant certificates of
marriage between native Christians.

Any such licence may be revoked by the President of the Union and
every such grant or revocation shall be notified in the Gazette.
[If any person licensed under this section solemnizes or affects to
solemnize any marriage under Part
VI or grants any certificate as
therein mentioned, knowing that one of the parties to such marriage or
affected marriage was at the date of such solemnization not a Christian,
he shall be liable to have his licence cancelled, and in addition thereto he
shall be deemed to be guilty of an offence under section 73, and shall be
punishable according.]

be27. All marriages hereafter solemnized in the Union of Burma
tween persons one or both of whom professesprofess
or
the Christian

religion, except marriages solemnized under Part V or Part VI of this
Act, shall be registered in manner hereinafter prescribed.
29. Every clergyman, of the Church of England shall send four times
in every year returns in duplicate, authenticated by his signature, of the
entries in the register of marriages solemnized at any place where
he
has any spiritual charge, to the Registrar
of the
Archdeaconry
to which
he is subject, or within the limits of which such place is situate.
Such quarterly returns shall contain all, the entries of marriages
contained in the said register from the first day of January to the
thirty-first day of March, from the first day of April to the thirtieth day
of June, from the first day of July to the thirtieth day of September, and
from the first day of October to the thirty-first day of December, of each
year respectively, and shall be sent by such clergyman within two

weeks from the expiration of each of the quarters above specified.
The said Registrar upon receiving the said returns shall send one copy
thereof to the Registrar-General of Births, Deaths and Marriages.
30. Every marriage solemnized by a clergyman of the Church of Rome
shall be registered by the person and according to the form directed in
that behalf by the Roman Catholic Bishop of the Diocese or Vicariate in
which such marriage is solemnized, and such person shall forward quarterly to the Registrar-General of Births, Deaths and Marriages returns
3

Interim Decision #2526
of the entries of all marriages registered. by him during the three
months next preceding.
31. Every clergyman of the Church of Scotland shall keep a register of
marriages, and shall register therein, according to the tabular form set
forth in the Third Schedule hereto annexed, every marriage which he
solemnizes under this Act, and shall forward quarterly to the

Registrar-General of Births, Deaths and Marriages, through the Senior
Chaplain of the Church of Scotland, returns, similar to those prescribed
in section 29, of all such marriages.
32. Every marriage solemnized by any person who has received
episcopal ordination, but who is not a clergyman of the Church of
England, or of the Church of
Rome, or by any Minister of religion
licensed under this Act to solemnize marriages, shall, immediately after
the solemnization thereof, be registered in duplicate by the person
solemnizing the same; (that is to say) in a marriage register-book to be
kept by him for that purpose, according to the form contained in the
Fourth Schedule hereto annexed, and also in a certificate attached to the
marriage register-book as a counterfoil.
34. The person solemnizing the marriage shall forthwith separate the
certificate from the marriage register-book and send it, within one
month from the time of the solemnization, to the Marriage Registrar of
the district in which the marriage was solemnized, or, if there be more

Marriage Registrars than one, to the Senior Marriage Registrar, who
shall cause such certificate to be copied into a book to be kept by him for
that purpose, and shall send all the certificates which he has received
during the month, with such number and signature or initials added
thereto as are hereinafter required, to the Registrar-General of Births,
Deaths and Marriages.
36. The Marriage Registrar shall also add such last-mentioned
n- urnber of the entry of the copy in the book to the certificate, with his
signature orinitials, and shall,the
at end of every month, send the same
tothe Registrar-General of Births, Deaths and Marriages.
37. When any marriage between native Christians is solemnized by
any such person, clergyman or Minister of religion as is referred to in
clause (1), clause (2) or clause (3) of section 5, the person solemnizing the
same shall, instead of proceeding in the manner provided by sections 28
to 36, both inclusive, register the marriage in a separate register-book,
and shall keep it safely until it is filled, or, if he leave the district in
which he solemnized the marriage before the said book is filled, shall
make over the same to the person succeeding to his duties in the said
district.

Whoever has the control of the book at the time when it is filled shall
4

Interim Decision #2526
send it to the Marriage Registrar of the district, or, if there be more
Marriage Registrars than one, to the Senior Marriage Registrar, who
shall send it to the Registrar-General of Births, Deaths and Marriages,
to be kept by him with the records of his office.
PART V.

Marriages solemnized by, or in the
presence of, a Marriage Registrar.

38. When a marriage is intended to be solemnized by, or in the
presence of, a Marriage Registrar, one of the parties to such marriage
shall give notice in writing, in the form contained in the First Schedule
hereto annexed, or to the like effect, to any Marriage Registrar of the
district within which the parties have dwelt, or, if the parties dwell in
different districts, shall give the like notice to a Marriage Registrar of
each district, and shall state therein the name and surname, and the
profession or condition, of each of the parties intending marriage, the
dwelling-place of each of them, the time during which each has dwelt
to beissolemnized:
therein, and the place aL which the marriage
Provided that, if either party has dwelt in the place stated in the
notice for more than one month, it may be stated therein that he or she
has dwelt there one month and upwards.
.

55. The Marriage Registrar shall forthwith separate the certificate
from the marriage register-book and send it, at the end of every month,
to the Registrar-General of Births, Deaths and Marriages.
The Marriage Registrar shall keep safely the said register-book until
it is filled, and shall then send it to the Registrar-General of Births,
Deaths and Marriages, to be kept by him with the records of his office.
PART VI.

Marriage of native Christians.
...
62. Every person licensed under section 9 shall keep in English, or in
the vernacular language in ordinary use in the district or which
State in
the marriage was solemnized, and in such form as the President of the
Union may from time to time prescribe, a register-book of all marriages
solemnized under this Part in his presence, and shall deposit in the office
of the Registrar-General of Births, Deaths and Marriages, in such form
and at such intervals as the President of the Union may prescribe, true
and duly authenticated extracts from his register-book of all entries
made therein since the last of those intervals.

5


MArrna or L—LIn EXCLUSION Proceedings
A-11666111
Decided by Board June 7, 1961
Excludability—Section 212(a)(19), 1952 act—Purchase of entry document not
procurement by fraud within first clause.
An alien who on a prior occasion obtained entry into the United States with
a Form 1-151 which he purchased from a private person is not excludable

under the first clause of section 212(a) (19) of the Act as having procured
documentation by fraud. That charge cannot be sustained unless the fraud
was practiced upon an authorized United States Government official by inducing him to issue a document through material misrepresentations made
by the alien involved.
EXCLUDABLE • Act of 1952—Section 212(a) (19) [8 U.S.C. 1182(a) (19)3—Procured visa or flocarni, nLa tion by fraud.

BEFORE THE BOARD

DISCUSSION: The Acting District Director at El Paso, Texas,
appeals from an order entered by the special inquiry officer, February 2, 1961, directing the applicant's admission to the United States
as a nonquota immigrant. A brief in support of the appeal has
been submitted. Counsel for the applicant has submitted a brief in

support of the special inquiry officer's decision.
The applicant, a native and citizen of Mexico, male, unmarried,
24 years of age, applied for admission at the port of El Paso, Texas,
on February 1, 1961. He presented a nonquota immigration visa
(classification 0-1) issued by the American Consul at Juarez, Mexico,.
on January 30, 1961, valid to May 29, 1961. He also was in possession of, and presented, a Mexican passport issued to him on October 4, 1960, and valid to October 3, 1962. He was detained for a
hearing by a special inquiry officer on the charge that he has procured documentation by fraud (8 U.S.C. 1182(a) (19)).
The issue before us is whether the applicant "procured" a "Form
I-151" (alien registration receipt card) by fraud and then used
said "Form . I-151" to effect his entry into the United States on
March 26, 1959. Concerning this issue, the applicant testified that
on or about March 15, 1959, he was "talking with several men in
the small plaza . . . in front of La Reforma theater in Cd. Juarez
324

(Mexico), . . . we were discussing various things including my
efforts to get a visa. A man was standing outside my circle of
acquaintances listening to our conversation. When I went into the
theater . . . this man came and took the seat right behind me. He
told me that he had heard the conversation and asked me if I really
wanted to live in the United States. I told him I did and he said
that he could get me a passport. I asked him what I need to do and
he told me that all 1w needed was my photograph. I agreed to his
plan . . . gave him the picture and he told me to meet him at the
same place the next day at ... about 7 PM."
The applicant further testified that he met the "stranger" as
agreed and purchased the "mica" for $20 and it was agreed that
"some time after I got a job, I could send him or hand him another
$20. I never sent him the money because he never told me his name
or where he lived."
The applicant's exclusion is sought under section 212(a) (19) of
the Immigration and Nationality Act (8 U.S.C. 1182(a) (19)). This
provision of the Immigration and Nationality Act is composed of

two parts which may be divided as follows:

(1) Any alien who seeks to procure, or has sought to procure,
or has procured a visa or other documentation, by fraud,
or by willfully misrepresenting a material fact;
(2) Any alien who seeks to enter the United States by fraud,
or by willfully misrepresenting a material fact.
We have held that the first clause concerning procuring a visa
or other documentation by fraud or by willfully misrepresenting a
material fact is retrospective as well as prospective in its application. The second clause which refers to' "any alien who seeks to
enter the United States" has been held to be prospective in application only and, therefore, prior fraud or misrepresentation falling
within that clause does not result in a finding of inadmissibility.
Matter of M

—

, 6

-

149 (Atty. tjen., Sept. 13, 1954) ; Matter of M

—

,

6-752 (B.I.A., Oct. 18, 1955). The Immigration Service concedes
that the applicant is not excludable under the second clause of section
212(a) (19), supra.
The burden here is upon the applicant to establish that he is admissible under the immigration laws. The Immigration Service
maintains that the applicant is subject to exclusion under the first
clause of section 212(a) (19), supra, because a preponderance of the
evidence establishes that he obtained the document presented by him
on the occasion of his entry on March 26, 1959, by fraudulently
participating in its procurement. Two arguments are advanced in
support of their position.
The first argument is based on the premise that the applicant did
actively participate in whatever fraud
practiced because (1) he
825

furnished a photograph of himself in a deliberate preconceived plan
to procure an entry document, (2) he paid a sum of money for a
document executed in a name other than his own, (3) he received
the document with his photograph attached thereto, and (1) he knew
the document did not relate to him.
The Servieo argument, in our opinion, is directed to the issuance

of the alien registration receipt card (Form 1-151) rather than its
procurement. Sectipn 221(b) of the Immigration and Nationality
Act (8 U.S.C. 1201(h)) requires an alien to "furnish copies of his
photograph" in connection with his registration when applying for
an immigration visa. Section 261 of the same Act (8 U.S.C. 1301)
precludes the issuance of an immigration visa "until such alien has
keen registered and fingerprinted in accordance with section 221(b),
supra, with certain exemptions not pertinent here.
The second argument is based on the premise that the applicant
fraudulently procured the entry document. (Form T - 151) during the
inspection procedure accorded him at the time he entered the United
States on March 26, 1959. The Service reasons, in substance, that
an alien immigrant surrenders the Form 1-151 in his possession when
subjected to primary inspection at the port of entry. Subsequent
examination and determination of admissibility which results in the
return of the Form 1-151 is in fact a reissuance of the entry document presented upon arrival. A fortiori, the acceptance of an irregular Form 1-151 by an alien applicant, when it is returned by
the inspection officer ; amounts to fraud in the procurement on the
part of the alien applicant.
The difficulty with the second argument is that it seeks to inject
the procurement of any entry document into a procedure concerned
solely with an alien's application to enter. The hypothesis adopted
by the Immigration Service relates to the ground of exclusion contemplated by the second clause of section 212(a) (19), supra, which
reads "any alien who seeks to enter the United States by fraud,
or by willfully misrepresenting a material fact." We have held
that the second clause of section 212(a) (19) is prospective in its
application and has no relation to past entries. Matter of M—,.
6-752 (B.I.A., Oct. 18, 1955) -.
The Immigration Service makes no claim that the applicant now
seeks to enter the United States by fraud or misrepresentation. The
evidence affirmatively establishes that the applicant informed the
consul of his entry in 1959 when he applied for the visa issued to

him on January 30, 1961. The Service does claim, however, that the
applicant is now excludable by reason of his fraudulent procurement
of an entry document that antedates the granting of a lawfully
issued visa. The case of Duran. Garciav. Neelly, 246 F.2d 287 (C.A.
5, 1957), is cited in support of this claim.
326

We have no difficulty in reconciling the court's ruling in DuranGarcia v. Neelly, supra, with the conclusion we reach in the instant
case. Duran-Garcia applied for and obtained local crossing cards
on two occasions, stating in the applications that she desired this
privilege for the purpose of shopping in the United States. Soon
after obtaining the crossing privileges, she secured employment in
the United States as a domestic. Thereafter, she obtained an immigration visa and she was admitted for permanent residence. Deportation proceedings were instituted under an order to show cause
charging fraud in the procurement of the 1953 border-crossing card
(8 U.S.C. 1251 (a) (1) and 1182(a) (19)). She defended, inter alia,
on the ground that her deportation could not be based on fraudulent
activity which antedated the granting of the visa with which she
last entered the United States for permanent residence. The court
ruled that the first clause of section 212(a) (19) "permitted" the deportation of an alien who at any time in the past had obtained an
entry document by means of material fraudulent statements notwithstanding the fact that the alien thereafter secured a visa un
tainted by fraud.
A significant factor which distinguishes the cited case from the
case before us is that during the deportation hearing Duran-Garcia
admitted that she had misrepresented to the immigration officer in
the 1953 border-crossing application the true purpose for which she
sought to enter the United States. Unlike Duran-Garcia, the applicant in the instant case made no material misrepresentation to an
official of the United States Government when procuring the I-151
which he presented on the occasion of his entry in March 1959. He
obtained his entry documents from a stranger who, insofar as the
record shows, had no official connection with the United States
Government.
The applicant obtained his entry document by purchase rather
than by falsely stating a material fact to an immigration officer. The
statute (8 U.S.C. 1182(a) (19)), as we read it, contemplates an alien
"who seeks to procure, or has sought to procure, or has procured a
visa or other documentation ... by fraud or by willfully misrepresenting a material fact" to an officer of the United States Government duly authorized to issue said documentation, and not to an
individual who has no official connection with the Government and,
therefore, not authorized to issue visas or other entry documents.
The Service concedes that there are no published decisions squarely
in point with the applicant's case. They do cite two casco,i however, wherein we sustained charges laid under the first clause of
-

Matter of P—F—, 6-164 (B.I.A., May 28, 1954) , Matter of 0—, 7-486

(B.I.A., May 29,1957).

327

section 212(a) (19), supra. The aliens in both cases procured documentation by means of fraud practiced upon officials of the United
States Government duly authorized to issue the entry documents
presented by them at the time of their unlawful entry.
This Board in Matter of G—M—, 2 on the other hand, did not
sustain a section 212(a) (19) "procurement charge" on 'the basis of
evidence which established that the Service officer did not comply
with existing regulations when he issued the border-crossing card
used by the alien to effect an entry in 1941. We said that an unlawful
issuance of the border-crossing card would not support a "procurement of documentation" charge because, as a matter of law, "the
alien's acceptance thereof did not constitute a valid 'procurement of
documentation' within the meaning of section 212(a) (19)." Matter
of G—M—, supra, at page 73? Our decisions in the section 212(a)
(19) cases cited by the Service are consistent in that before a "pro.curement of documentation" charge has been sustained there was
an issuance of documentation by an authorized official of the United
States Government. The fraud was upon a Government officer in
inducing him to issue a document on the basis of material misrepresentations by the alien involved. This factor is not present in the
case before us.
The instant case does not present a factual situation unique in
the administration of the excluding provisions of the immigration
laws. Although we find no published decisions directly concerned
with a purchased entry document and its relation to the first clause
of section 212(a) (19), supra, there are two elementary principles of
law which we have always applied to such cases: (1) the purchase of
a document does not amount to procurement by fraud or 'willfully
misrepresenting a material fact because the alien who acquires possession by purchase does so by the tender of something of value and
not by the practice of fraud or willfully misrepresenting a material
fact; (2) as a condition precedent to the procurement of documentation by fraud or willfully misrepresenting a material fact within
the meaning of section 212(a) (19) of the Immigration and Nationality Act (8 U.S.C. 1182 (a) (19)), there must be an issuance to the
alien of the said documentation by ah authorized official of the
United States Government.

We will affirm the order entered by the special inquiry officer
admitting the alien as a nonquota immigrant. An appropriate order
will be entered dismissing the Acting District Director's appeal.
ORDER: It is directed that the appeal be and the same is hereby
dismissed. The alien's admission as a nonquota immigrant under the
provisions of section 101(a) (27) (C) of the Immigration and Nationality Act (8 U.S.C. 1101(a) (27) (C)) is hereby affirmed.
'Matter of 0

—

U

—

, 7

-

40, approved by Atty. Gen., Apr. 2, 1956.

328