Cite as 28 I&N Dec. 304 (A.G. 2021)

Interim Decision #4018

Matter of L-E-A-, Respondent
Decided by Attorney General June 16, 2021
U.S. Department of Justice
Office of the Attorney General
(1) Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”), is vacated in its entirety
so as to return the immigration system to the preexisting state of affairs pending
completion of the ongoing rulemaking process and the issuance of a final rule
addressing the definition of “particular social group.”
(2) Immigration judges and the Board should no longer follow L-E-A- II when
adjudicating pending and future cases.

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer this case to me for review. With the case thus
referred, I hereby vacate the Attorney General’s decision in Matter of L-E-A-,
27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”).
Under the Immigration and Nationality Act (“INA”), the Attorney
General may grant asylum to individuals who meet several statutory
requirements, including that they have suffered or fear (1) “persecution,”
(2) “on account of,” (3) their “race, religion, nationality, membership in a
particular social group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C.
§ 1101(a)(42)(A); see INA § 208(b)(1)(A), (B)(i), 8 U.S.C. § 1158(b)(1)(A),
(B)(i). 1 On July 29, 2019, then-Attorney General Barr issued a decision in
this matter considering whether a family may constitute a “particular social
group” and holding that “in the ordinary case, a nuclear family will not,
without more,” qualify. L-E-A- II, 27 I&N Dec. at 589. Based on that
holding, L-E-A- II overruled the portion of the prior decision of the Board
finding that respondent’s father’s immediate family qualified as a “particular
social group.” Id. at 596–97 (overruling Matter of L-E-A-, 27 I&N Dec. 40,
42–43 (BIA 2017) (“L-E-A- I”)). L-E-A- II also abrogated all other Board
precedents inconsistent with its analysis. Id. at 597.
The President recently issued an executive order directing the Attorney
General and the Secretary of Homeland Security to promulgate joint
regulations “addressing the circumstances in which a person should be
The phrase “membership in a particular social group” also appears in the statutory
provision that governs withholding of removal. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).

1

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Interim Decision #4018

considered a member of a ‘particular social group.’” Exec. Order No. 14010,
§ 4(c)(ii), 86 Fed. Reg. 8267, 8271 (Feb. 2, 2021). In the past, my
predecessors have vacated Attorney General or Board decisions in light of
pending or future rulemakings. See Matter of Compean, 25 I&N Dec. 1, 2–3
(A.G. 2009); Matter of R-A-, 22 I&N Dec. 906, 906 (BIA 1999, A.G. 2001).
I have concluded that the same course of action is appropriate here.
As L-E-A- II acknowledged, its analysis is inconsistent with the decisions
of several courts of appeals that have recognized families as particular social
groups. 27 I&N Dec. at 589–90; see, e.g., Rios v. Lynch, 807 F.3d 1123,
1128 (9th Cir. 2015); Crespin-Valladares v. Holder, 632 F.3d 117, 125 (4th
Cir. 2011); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008);
Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). In a decision vacating
a prior Attorney General opinion that was a similar departure from existing
law, one of my predecessors explained that “[t]he preferable administrative
process” for reconsidering the existing approach to a “complex”
immigration-law question of “great importance” is generally rulemaking
because it “affords all interested parties a full and fair opportunity to
participate and ensures that the relevant facts and analysis are collected and
evaluated.” Compean, 25 I&N Dec. at 2. Here, too, I have determined that
the pending rulemaking specifically addressing the meaning of “particular
social group” is the preferable administrative process for considering these
issues. 2
For these reasons, I conclude that L-E-A- II should be vacated in its
entirety so as to return the immigration system to the preexisting state of
affairs pending completion of the ongoing rulemaking process and the
issuance of a final rule addressing the definition of “particular social group.”
Immigration judges and the Board should no longer follow L-E-A- II when
adjudicating pending and future cases.
As for the disposition of this case, I do not address the Board’s conclusion
that even if respondent’s father’s immediate family qualified as a “particular
social group,” respondent had “failed to establish a nexus” between his
membership in that group and “the persecution that he alleged and feared.”
L-E-A- II, 27 I&N Dec. at 597. I also do not disturb the Board’s
I find further support for vacating L-E-A- II in the fact that its analysis of “particular
social group” was unnecessary to decide this case because the Board had rejected
respondent’s asylum claim on another ground. See L-E-A- II, 27 I&N Dec. at 584, 597;
see also Compean, 25 I&N Dec. at 2–3 (vacating a prior Attorney General decision in part
because a conclusion in the decision was unnecessary to decide the case); cf. Matter of
Leon-Orosco & Rodriguez-Colas, 19 I&N Dec. 136, 152 (BIA 1983, A.G. 1984)
(expressing reluctance “to insist that the Board provide an exegesis on the phrase
‘membership in a particular social group’” when it was unnecessary to decide the case and
noting that “such a discussion would have the earmarks of an advisory opinion”).

2

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Interim Decision #4018

determination that the immigration judge failed to make sufficient factual
findings to assess respondent’s claim under the Convention Against Torture.
L-E-A- I, 27 I&N Dec. at 47. I therefore remand this case to the immigration
judge for further proceedings consistent with this opinion. 3

Consistent with administrative and judicial precedent, I also conclude that jurisdiction
over this matter is proper even though respondent’s charging document lacked certain
information about the first hearing. See, e.g., Matter of Aguilar-Mendez, 28 I&N Dec. 262,
267 (BIA 2021) (collecting cases); see also L-E-A- II, 27 I&N Dec. at 585–86 (noting that
respondent had raised this challenge and rejecting it).

3

306


Interim Decision #2680

MATTER OF MULLER

In Exclusion Proceedings
A-14126816

-

Decided by Board December 4, 1978
factors bearing on a determination whether the applicant is returning from a
temporary visit abroad include the duration of the alien's absence from the United
States, the location of the alien's family ties, property holdings, and job, and the
intention of the alien with respect to both the location of his actual home and the
anticipated length of his excursion.
(2) Abandonment of lawful ,permanent resident status held established where alien's
absence from the United States spanned the period from 1968 to 1974 and was coupled
with the establishment of a home with his Mexican wife 2nd three Mexican children.
(3) Section 212(a)(22) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(22),
providing for the exclusion of aliens who have departed from or remained outside of the
United States to avoid or evade training or service in the armed forces during a period
of war or national emergency, applies to an alien who departed from the United States
after his induction or enlistment whose primary purpose for departing or remaining
outside of the country was to avoid military service.
(4)Alien who deserted from the armed forces of the United States is not within the terms
of President Carter's Proclamation No. 4483 relating to the pardon of persons who had
committed certain violations of the Military Selective Service Act. Matter of Rahman ,
Interim Decision 2665 (BIA 1978) distinguished.
(1) The

EXCLUDABLE:

of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Former immigrant alien who, in addition to having abandoned his
residence in the United States, was not and is not in
possession of any valid entry documentation; and
Act of 1952—Section 212(a)(22) [S U C 1192(a)(22)] —Former immigrant alien who departed from or remained outside the
United States to avoid training or service in the United
States armed forces during a national emergency
ON BEHALF OF APPLICANT: Michael D. Finnegan, Esquire
Simmons & Ungar
517 Washington Street
San Francisco, California 94111
Act

BY: Milhollan, Chairman; Maniatis, Appleinan, Maguire, and Farb, Board Members
In a decision dated September 9, 1977, an immigration judge found

the applicant excludable under sections 212(a)(20) and 212(a)(22) of the
637

Interim Decision #2680
Immigration and Nationality Act, 8 U.S.C. 1182(a)(20) and (22). The
immigration judge has certified his decision to us for review. We affirm.
The applicant is a 31-year-old native and citizen of Mexico who was
adniittecl to the United States for permanent residence on September
14, 1965. On or about September 21, 1965, the applicant enlisted in the
United States Army (Ex. 3), and completed basic training at Fort Polk,
Louisiana (Tr. p. 5). The applicant was then assigned to duty at Fort
Riley, Kansas (Tr. p. 5). On March 23, 1966, the applicant left Fort
Riley without leave or authorization and returned to Mexico (Ex. 3; Tr.
p. 5).
On June 4, 1967, the applicant was paroled into the United States to
proceed to Fort Bliss, Texas for further action by the military. At an
exclusion hearing held on December 18, 1974, the applicant testified
that he reported back to the commander at Fort Bliss, at which time a
"pre-trial" hearing was held (Tr. p. 7). The applicant was then placed in
the stockade (Tr. p. 7). It appears from the record that the company
commander told the applicant of his intention to seek a sentence of one
year for the applicant's absence without leave (Tr. p. 7). The applicant
testified that he was frightened at the thought of receiving such a
sentence, and escaped from the stockade in August, 1967 (Tr. pp. 7, 8).
He returned to Mexico in January, 1968 (Tr. p. 38), and, according to his
testimony, did not seek to reenter the United States until November 5,
1974 (Tr. p. 11), at which time he presented himself for inspection as a
returning resident alien seeking relief under President Ford's clemency
program (Ex. 5).' The Service charged the applicant with excludability
under sections 212(a)(20) and (22) of the Act, and, after an exclusion
Dearing held on December 18, 1974, the immigration judge found both
charges sustained.
Section 212(a)(20) of the Act provides for the exclusion of immigrants
s eeking admission into the United States who are not in possession of at
valid immigrant visa or other valid entry document. The applicant
sought admission as a returning lawful resident alien. Section 101(a)(20)
of the Act, S U.S.C. 1101(a)(20), defines the term "lawfully admitted for
permanent residence" as meaning "the status of having been lawfully
accorded the privilege of residing permanently in the United States as
an immigrant in accordance with the immigration laws, such status not
'laving changed." Section 211(b) of the Act, 8 U.S.C. 1151(b), provides
eligibility for a waiver of the documentary requirements for admission
for one who can qualify as a "returning resident immigrant" as that term
-

The applicant's Alien Registration Card (Form 1-151) was apparently left by him in
'the stockade at Fort Bliss with all of his belongings (Tr. p. 28). At the time he attempte d
'to enter the United States, therefore, he was not in possession of an I-151. In any event,
Form 1 161 is not a valid reentry document after an absence of over one year. a C.F. Tr
-

211.1(3)(1).
638

Interim Decision #2680
is defined in section 101(a)(27)(A) of the Act, 8 U.S.C. 1101(a)(27)(A). A
"returning resident immigrant" is defined by section 101(a)(27)(A) as
"an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad,"
The issue in this case is whether the applicant abandoned his status as
a lawful permanent resident when he left the United States in January,
1968, thereby rendering him excludable under section 212(a)(20) of the
Act upon his return. It is necessary, therefore, for us to examine the
factors bearing on a determination whether the applicant is returning
from a temporary visit abroad. In general, these include the duration of
the alien's absence from the United States, the location of the alien's
family ties, property holdings, and job, and the intention of the alien
with respect to both the location of his actual home and the anticipated
length of his excursion. Matter of Quijencio, Interim Decision 2319 (BIA
1974).
The applicant has resided in Mexico since 1968, entering the United
States only twice for short visits of a few hours duration (Tr. pp. 25, 36,
39). The applicant is married to a Mexican citizen, and has three children, all of whom are Mexican citizens (Ex. 5). Although the applicant's
mother is a lawful permanent resident and lives in Los Angeles,
California, his family ties are mostly in Mexico, where he lives with his
wife and three children (Ex. 5). In determining whether an alien has
abandoned his lawful permanent residence in the United States, the
length of the alien's absence is not the only factor. However, where, as
here, the absence spans a considerable period of time and is coupled
with the establishment of a home and other ties abroad, we believe that
abandonment of lawful permanent residence is clearly established. See
generally Gamero v. INS, 367 F.2d 123 (9 Cir. 1966); U.S. ex rel. Lego
v. Day, 21 F.2d 307 (2 Cir. 1927); Matter of Kane, Interim Decision 2371
(BIA 1975). We find, therefore, that the applicant is excludable under
section 212(a)(20) of the Act.
We also find that the applicant is excludable under section 212(a)(22)
of the Act. That section provides, in part, for the exclusion of aliens
from the United States who—
have departed from or who have remained outside the United States to avoid or evade
training or service in the armed forces in time of war or a period declared by the
President to be a national emergency.. .

On appeal, counsel for the applicant contends that section 212(a)(22) is
aimed at excluding aliens whose departure from the United States was
motivated by the desire to avoid service in any form. He argues that the
applicant, who had enlisted in the army, is not properly subject to
exclusion uncle' this section.
In Matter of Nunez Toro, 11 I. & N. Dec. 501 (BIA 1966), we re-

639

Interim Decision #2630
viewed the provisions of section 212(a)(22) and found that section as well
as its predecessor in the Immigration Act of 1917 was not limited to
those who departed from the United States before becoming members

of the armed forces. We concluded that it applies equally to an alien who
departed after his induction or enlistment. See also Matter ofV—B—, 3
T. & N. Dec. 265 (RTA 1948); Matter of B—R—, 2 T. & N. Dec. 482 (BIA
1946). We also held that the departure or the remaining outside of the
United States must have been for the primary purpose of avoiding
military service. Matter of Dunn, 14 I. & N. Dec. 160 (BIA 1972), aff'd
without opinion, Dunn v. INS, No. 72-2186 (9 Cir. 1974), cert. denied,
419 U.S. 919 (1974); Matter of Riva, 13 1. & N. Dee. 268 (BIA 1969);
Matter of Nunez-Toro, supra. Therefore, the applicant in the present
case is inadmissible if his primary purpose for departing or remaining
abroad was to avoid training or service in the armed forces.
We find that the evidence of record establishes that the applicant's
primary purpose in departing from the United States was to evade
service in the United States Army. The applicant testified at his exclusion hearing that he believed he was a deserter (Tr. p. 28). He further
testified that he was assigned duty as a cook at Fort Riley, but he told
his commanding officer that he did not want to be a cook (Tr. p. 30). The
applicant left the army - without leave in 1966, and returned to Mexico
because he had no place to go in the United States (Tr. p. 32). The
applicant was paroled into the United States in June, 1967 (Ex. 3), and

was turned over to the United States military authorities at Fort Bliss,
Texas (Tr. p. 34). The applicant was placed in the stockade at Fort
Bliss, and subsequently escaped from custody and returned to Mexico
(Tr. p. 36). The applicant gave the following testimony regarding his

departure at that time:
IMMIGRATION JUDGE: In other words you broke out of the stockade at that time

because you did not want to chance a year's imprisonment. Is that right?
APPLICANT: Yes, sir.
IMMIGRATION JUDGE: Why did you then return to Mexico again?
APPLICANT: Because I had no place to go in the United States. Of course they catch
me in the states.
IMMIGRATION JUDGE: In other words you went back to Mexico because you were
afraid that the military authorities would pick you up if you remained in the United
States. Is that right? Is that right, sir?

APPLICANT: Yes, sir, it is. (Tr. p. 26).
***
IMMIGRATION JUDGE: Well, did you consider yourself a deserter by the following '
September of 1967?
APPLICANT: Yes. (Tr. p. 38)
***
IMMIGRATION JUDGE: . . . Isn't it true that you thcn remained outside of ti-IP
United States between January of 1968 and November of this year [1974] ... hie-

640

Interim Decision g2680
cause you were afraid that if you returned to the United States for any prolonged
period the military authorities would locate you and bring you to trial?
APPLICANT: Yes, sir.
IMMIGRATION JUDGE: And then the only reason that you came back here on
November 5, 1974 was because you heard of President Ford's amnesty program and
you thought this might apply to you. Is that correct?
APPLICANT: Yes, sir. (Tr. p. a0)

We find that the applicant's own testimony establishes that his primary purpose for leaving the United States in 1968 and remaining in
Mexico thereafter was to avoid service in the army and punishment for
his previous absence without leave. This testimony further establishes
that the applicant deserted from the military in 1968. 2 We find, therefore, that the immigration judge correctly found the applicant excludable under the provisions of section 212(a)(22) of the Act. We believe that
our finding in this regard is supported by the applicant's testimony that
he sought to reenter the United States in 1974 only after the announcement of President Ford's amnesty program (Tr. p. 22) 3 thereby indicating his intention not to return to military custody.
On appeal, the applicant claims that he is a beneficiary of the pardon
,

under President Carter's Proclamation Nu. 4488 relating to persona who

had committed certain violations of the Military Selective Service Act 4
between August 4, 1964 and March 28, 1973, Pres. Proc. No. 4483, 42
Fed. Reg. 4391 (1977), reprinted in 511 U.S. C. A. App. § 462 (1978), and
the Executive Order implementing that pardon. Exec. Order No. L1967,
42 Fed. Reg. 4393 (1977), reprinted in 50 U.S.C.A. App. § 462 (1978).
The Executive Order provides, in pertinent part, that:
Any person who is or may be precluded from reentering the United States under 8
U.S.C. 1182(aX22) or under any other law, by reason of having committed or apparently
committed any violation of the Military Selective Service Act shall be permitted as any
other alien to reenter the Unitcd States. . . .

In Matter of Rahman, Interim Decision 2665 (BIA 1978), we found
that the Attorney General had interpreted the Presidential Pardon as
relieving those aliens within its terms from the application of the 'eyed2 The record contains a letter, dated December 19, 1974, from the commanding officer at
Fort Benjamin Harrison, addressed to the applicant herein, stating the intention of the
army to issue to him an Undesirable Discharge Certificate based on misconduct (desertion) (Ex. 6). No indication appears in the record that such a certificate was, in fact, issued
to the applicant. However, we find that we need not base our decision on any action of the
military authorities, but rather may make our own finding as to whether or not the
applicant deserted how the army.
3 In fact, President Ford's Program for the Return of Vietnam Era Draft Evaders and
Military Deserters, Presidential Proclamation No. 4313, by its terms did not apply to
"ally] individual who is precluded from re-entering the United States under 8 U.S.C.
1152(a)(22) or other law. . . ." Pres. Proc. No. 4313, 39 Fed. Reg. 33293 (September 16,
1974), reprinted in 50 U.S.C.A. App. § 462 (1978).
4 50 U.S.C.A. App. § 451 et. seq.

641

Interim Decision #2680
ing training or service" provisions of section 212(a)(22) of the Act if the
alien presented himself for readmission to the United States as a returning lawful permanent resident on or before June 1, 1978. See 42 Fed.
Reg. 59562 (1977). However, we have before us the case of an alien who
has deserted from the military, and we find that the pardon and accompanying Executive Order and implementing interpretati on of the Attorney General do not, by their terms, apply in this case..
In his Executive Order, President Carter specifically limited his
pardon to those persons who had committed, or apparently had committed, "any violation of the Military Selective Service Act." however, the
Military Selective Service Act, 50 U.S.C.A. App. 451 et. seq., does not
encompass the applicant's case, which is covered by the Uniform Code
of Military Justice, 10 U.S.C. § 801 et. seq. 5 There was no pardon given
for those classified as deserters from the military; in fact, deserters
were processed under a separate program established by the Department of Defense known as the Special Discharge Review Program. See
New York Times, March 29, 1977, at p. 1, col. 1. The applicant has not,
however, presented any evidence that he took part in that program. We
find, therefore, that we need not consider what effect, if any, such
participation would have on the grounds of excludability we have found
sustained on this record.
We have carefully considered the record as a whole, and find that the
applicant is excludable as charged. We will, therefore, dismiss the

appeal.
ORDER: The appeal is dismissed.

5

10

§ 885 defines the crime of desertion and provides for punishment as directed

by a court-martial.
642


Interim Decision 4t1860

MATTER OF WONG

In Deportation Proceedings
A-12649506

Decided by Board May 13, 1968
(1) Respondent's plea of guilty in 1947 to a charge of unlawful possession of
opium in violation of section 11500 of the Health and Safety Code of California,
followed by a State court suspension of pronouncement of judgment and a

grant of conditional probation for 2$ years, constitutes a "conviction" within
the meaning of section 241(a) (11) of the Immigration and Nationality Act.
(2) A 1901 order of the Superior Court of California substituting a plea of not
guilty for respondent's 1947 plea of guilty to the narcotics charge, and dismissing the proceedings, amounts to an expnngement of record under section
1203.4 of the California Penal Code and, hence, is ineffective to remove deportability under section 241(a) (11) of the Act (Matter of A —I"—, 8 I. Fa N. Dee.
429).
CHARGES :
Order : Act of 1952--Section 241(a) (1) [8 U.S.C. 1251 (a) (1)1—No immigrant
visa.
Act of 1952—Section 241(a) (11) [8 -U.S.C. 1251(a) (11)[—Convicted
of illicit possession of narcotic drugs, to wit, opium.
ON BEHALF OF SERVICE:
ON BEHALF OF RESPONDENT:
drying A. Appleman
Joseph S. Hertogs, Esquire
Appellate Trial Attorney
580 Washington Street
San Francisco, California 94111

The respondent, a native and citizen of China, appeals from an order
entered by the special inquiry officer on January 29, 1968 granting
suspension of deportation pursuant to the provision of section 244(a)
(2) of the Immigration and Nationality Act, as amended (8 U.S.C.
1254(a) (2) ). An application for the creation of a record of lawful
admission pursuant to the provisions of section 249 of the Immigration and Nationality Act was denied. Exceptions have been taken to
the denial of the respondent's application for the creation of a record
of lawful admission.
Discussion as to deportability: The respondent, a married male
alien, 61 years of age, originally entered the United States through
the port of San Francisco, California' on or about November 19, 1918.

721

Interim Decision #1860
He entered as a United States citizen and has resided here continuously
with the exception of the following trips to China : May 13, 1922 to
February 21, 1923, October 15, 1927 to May 29, 1929, and October 6,
1939 to March 13, 1941.
The respondent last entered the United States through the port of
San Francisco, California on March 13, 1911. Although he last entered
as a citizen, he now concedes that he is an alien. He last entered the
United. States to reside permanently but did not possess an immigration visa. He has admitted and it is found that he is deportable under
the provisions of section 241(a) (1) of the Act in that at the time of
entry he was excludable as an immigrant not in possession of a valid
immigration visa, in violation of section 13(a) of the Act of May 26,
1924.
. The respondent denies that he is deportable as a narcotic violator
pursuant to the provisions of section 241(a) (11) of the Immigration
and Nationality Act (8 U.S.C. 1251 (it) (11)) . The facts of the case with
regard to the issue of whether the respondent was convicted of a violation of section 11500—Health and Safety Code of California (possession of narcotics) within the meaning of section 241(a) (11) of the
Immigration and Nationality Act are as follows: An information was
filed against the respondent on January 21, 1947 in the Superior Court
of the State of California, in and for the County of Mendocino, charging that he "did wilfully, unlawfully and feloniously, possess a narcotic, to-wit, opium. . . ." Upon arraignment on February 7, 1947 in
the Superior Court for the County of Mendocino, California, the respondent pled guilty and Judge Lilburn Gibson made the following
statement, "I will not pronounee judgment at this time, but I will suspend the pronouncement of judgment and will grant probation to you,
under the following terms and conditions." The terms of the probation
provided that the respondent reimburse the County of Mendocino in
the amount of $250 cost and that he report to a doctor periodically for
a period of six months for a determination as to whether the respondent
was still using narcotics. The term of the respondent's probation ran
for two years. The court also stated that if the respondent complied
with "the terms of this probation, you can come into court at the end
of two years and show the court that you have lived up to the terms
of probation and ask permission to withdraw your plea of guilty and
enter a plea of not guilty, and the case will be dismissed and wiped
off the record."
Counsel on appeal argues that the foregoing facts will not support
a finding that the respondent "has been convicted of a violation of
. . . any law or regulation relating to the illicit possession of . . .
narcotic drugs .. ." within the meaning of the Supreme Court's deci722

interim

IMULULIII .+F lowj

sion in Pino v. Nicholls (849 U.S. 901). Counsel also argues that there
is a provision of the California Penal Code (section 1385) which provides that a California court may in its discretion terminate a proceeding on its own motion "in furtherance of justice" and that the action
of the California court amounted to a "dismissal" within the meaning
of section 1385 of the California Penal Code.
We find nothing in the order entered by the Superior Court that
can be interpreted as a "dismissal of the action" pursuant to section
1385 of the California Penal Code. 1 The general rule in the State of
California is that a plea of guilty is tantamount to a conviction. (People v. Williams, 27 Cal. 2d 220, 228, 163 Pac. 2d 692; People v. Goldstein. 32 Cal. 432, 433; Stephens v. Toomey, 51 Cal. 2d 864, 869, 338
Pac. 2d 182) The California courts have consistently held that a judgment of conviction and an imposition of sentence are one and the
same (People v. Stephano, 177 C.A. 2d 414 (1960) ; People v. Williams,
186 C.A. 2d 420 (1960) ). The respondent's plea of guilty to the narcotic charges against him gave the Superior Court of California
power and authority to "suspend the pronouncement of judgment (sentence)" and to commit him to a rehabilitation program for narcotic
violators. Cf. People v. Plaehn, 237 C.A. 2d 398 (1965). We conclude
that the order entered by the Superior Court of the State of California
in and for the County of Mendocino on May 12, 1961 substituting a
plea of not guilty for the guilty plea previously entered and dismissing
the proceeding amounts to an enpungement of the record pursuant to
section 1203.4 of the California Penal Code and accordingly is within
the Attorney General's ruling in the case of Arrellano-Flores, 8 L & N.
Dec. 429 (262 F.2d 667 (1058), cert. denied 862 U.S. 921; 810 F.2d
118 (1962) ). The Attorney General in Arrellano-Flores (supra) held

that in a narcotics case "the term 'convicted' may (not) be regarded
as flexible enough to permit an alien to take advantage of a technical
Lexpungement' which is the product of a state procedure wherein the
merits of the conviction and its validity have no place." (8 I. & N.
Dec. 429, 446)
Furthermore, the Court of Appeals for the Ninth Circuit has held
that "under California law . . . the word 'convicted' signifies the
status of a person after entry of a plea of guilty to a criminal charge
or against whom a verdict of guilty of a criminal charge has been
1

Section 1385 of the California Penal Code reads as follows: Dismissal of

Action: The court may, either of its own motion or upon the application of the

prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon
the minutes. No dismissal shall be made for any cause which would be ground
of demurrer to the accusatory pleading.

723

Interim Decision #1860
returned by a jury and that the phrase 'a judgment of conviction'
means the imposition of a sentence upon a person who has been convicted of a criminal charge after a plea of guilty or the rendition of a
guilty verdict." (Gutierrez v. linnagration and Naturalization. Ser»
ice, 323 F.2d 593; Kelly v. Immigration and NoAtralization Service,
349 F.2d 473, cert. denied 382 U.S. 932,15 L.Ed. 2d 344 (CA. 9, 1965) )
We have carefully considered the opinions of the sentencing judge,
the Honorable Lilburn Gibson, and the District Attorney of Mendocino County, the Honorable Frank S. Petersen, to the effect that the
court did not pronounce judgment and that there was never any
"judgment of conviction" in the action against the respondent but
find no authority under California law supporting their opinions.
We conclude that the respondent has been convicted of a narcotic violation within the meaning of the immigration laws and is deportable
pursuant to section 244(a) (11) of the Immigration and Nationality

-

Act.
Discussion as to eligibility for discretionary relief : The re-

spondent has applied for the creation of a record of lawful admission
pursuant to the provisions of section 249 of the Immigration and
Nationality Act, as amended (8 U.S.C. 1259). An alien to be eligible
for the creation of a record of lawful admission must "satisfy the
Attorney General that he is not inadmissible under section 212 (a)
insofar as it relates to criminals, procurers and other immoral persons,
subversives, violators of the narcotic laws or smugglers of aliens . ."
The respondent is inadmissible to the United States under the provisions of section 212(a) (23) of the Act as an alien who has been convicted of violating the narcotic laws. Accordingly, he is not eligible
for relief under section 249 of the Act.
The respondent, in the alternative, has applied for suspension of
deportation under the provisions of section 244(a) (2) of the Act. A
report of a character investigation conducted by the Immigration and
Naturalization Service is favorable to the respondent. All of the persons questioned were in agreement that the respondent has been a
person of good moral character and deserving of any relief available.
The records of the local police and the Government do not disclose
any arrests or convictions other than the narcotic violation. The
record contains an order entered on May 12, 1961 in the Superior
Court of the State of California, in and for the County of Mendocino
withdrawing the plea of guilty entered by the respondent in February of 194/ in the narcotic ease, a plea of not guilty was substituted
and the action was dismissed. The evidence of record affirmatively
establishes that the respondent has been a person of good moral

724

Interim Decision #1860
character for at least the ten years preceding his application for
suspension of deportation.
The respondent was married while on a trip to China in 1922 or
1923. His wife resides in Hong Kong and a son resides on the mainland of China. The respondent's parents are deceased and he has a

sister who resides in China. The respondent has a partnership interest
in two coffee chops, one located in Ukiah and the other at Fort Bragg,

California. He derives an income therefrom of approximately $7,300
per year. His assets total some $21,500. He sends $1,000 annually to
his wife in Hong Song for her support.
The respondent testified that his deportation would result in extreme
hardship to him because he would find it difficult to dispose of his
interests in the coffee shops, he has no relatives who could help him
become established if he were sent to Hong Kong, and he does not
believe that he would be able to earn a living outside of the United
States. The respondent has resided in the United States continuously
since he last entered in 1941. He originally entered the United States
in November of 1918 and with the exception of several visits to China

has made his residence in the United States since that date.
The respondent in his 50 years of residence in the United States
has become accustomed to the American way of life. It is obvious that
his deportation would result in an extreme and unusual hardship to
him. There is no evidence that he has used any narcotic drugs since
his conviction in 1947. It is apparent from this record that he has
become rehabilitated. We find the grant of suspension of deportation
warranted in this ease. An appropriate order will be entered.
ORDER : It is directed that the order entered by the special inquiry
officer on January 29, 1968 be and the same is hereby affirmed, to wit:

It is further ordered that the respondent's application for creation
of a record of lawful admission under section 249 of the Immigration

and Nationality Act be denied.
It is further ordered that the deportation of the respondent be sus• pended under the provisions of section 244(a) (2) of the Immigration
and Nationality Act, as amended.
It is further ordered that if Congress approves the suspension of the
respondent's deportation the proceedings be cancelled, and that appropriate action be taken pursuant to section 244(d) of the Immigration
and Nationality Act, as amended.
It is further ordered that in the event Congress fails to take action
approving suspension of the respondent's deportation, these proceedings shall be reopened upon notice to the respondent.

725


Interim Decision #2361

MATTER OF RODRIGUEZ

In Visa Petition Proceedings
A- 14925872

Decided by Board March; 21, 1975
Petitioner was allegedly divorced from her first husband in an in absentia proceeding in
the Dominican Republic. Neither party was domiciled in the Dominican Republic at the
time of the marriage or divorce nor did either appear personally in the divorce proceedings. Under these circumstances, the petitioner's divorce is not entitled to recognition
in New York, and the petition to accord beneficiary classification under section 203(a)(2)
of the Immigration and Nationality Act was properly denied.
ON BEHALF OF PETITIONER: Pro se.

The lawful permanent resident petitioner applied for preference classification for the beneficiary as her spouse under section 203(a)(2) of the
Immigration and Nationality Act. In a decision dated July 25, 1974, the
district director denied the petition. The petitioner has appealed from
that denial. The appeal will be dismissed.
The record shows that the petitioner, a native and citizen of the
Dominican Republic, was married previously in New York to another
native and citizen of the Dominican Republic. The petitioner allegedly
was divorced from her first husband by mutual consent in the Doniinican
Republic in June 1972. Neither the petitioner nor her first husband
appeared personally in the Dominican action and neither was domiciled
in the Dominican Republic at the time of the divorce. The district
director concluded that the petitioner's Dominican divorce was not
entitled to recognition in New York, the place of celebration of the
petitioner's subsequent marriage to the beneficiary.
The question whether New York will recognize the Dominican divorce is one of comity. New York courts will recognize divorce decrees
rendered in foreign countries when such recognition does not offend any
public policy of New York. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 209
N.E.2d 709, 262 N.Y.S.2d 86 (1965), cert. denied, 384 U.S. 971 (1966);
Rosenbaum v. Rosenbaum, 309 N.Y. 371, 130 N.E .2d 902 (1955); Matter of Moncayo, 14 L & N. Dee. 472 (BI.A. 1973).
In Rosenstiel v. Rosenstiel, supra, the court was faced with a situation involving a Mexican divorce obtained by parties who were not
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Interim Decision #2361
domiciled in Mexico at the time of the divorce. The court held that
where one party was physically present within the jurisdiction of the
Mexican court, and the other party appeared by attorney and submitted
to the jurisdiction of the Mexican court, the Mexican divorce decree was
entitled to recognition in New York. See alsoRamm v. Ramm, 34 App.
Div. 2d 667, 310 N.Y.S.2d 111 (1970), affd, 28 N.Y.2d 892, 271 N.E.2d
558, 322 N.Y.S.2d 726 (1971).
A Dominican Republic divorce decree allegedly dissolving the marriage of two Dominican citizens who were married in the Dominican
consulate in New York was at issue in De Pena v. De Pena, 31 App.
Div. 2d 415, 298 N.Y.S.2d 188 (1969). Neither party appeared in person
in the Dominican action, and process was not personally served on the
wife. The court refused to recognize the divorce. In doing so, it pointed
out that the wife was a domiciliary of New York, and the husband's only
existing contact with the Dominican Republic was his continued
Dominican citizenship. The court distinguished Rosenstiel on the
ground that in De Pena there was no physical presence by either party
and the Dominican court had not acquired jurisdiction over the wife.
In Matter of Moncayo, supra, we had occasion to interpret the policy

statements made by the New York courts in Rosenstiel and De Pena.
We held that New York would not recognize an Ecuadorian divorce
obtained by an Ecuadorian citizen residing in the United Statei, where
neither party appeared in person before the Ecuadorian court and the
beneficiary's first wife was not personally served and did not submit to
the jurisdiction of the Ecuadorian court. See also Matter of Pearson, 13
I. & N. Dec. 152 (BIA 1969j.
The foregoing eases indicate that where jurisdiction of the foreign
court is not baseil on domicile, New York policy generally requires sonic
physical presence on the part of at least one party within the jurisdiction

rendering the divorce, combined with some type of appearance or submission to jurisdletion by the other party. In the past we have concluded
that there are certain circumstances in which New York would recognize a foreign divorce even where neither party was physically present
within the jurisdiction of the foreign court granting the divorce. Such
recognition has been extended where the parties involved where nationals of the foreign country rendering the divorce, were married in
that country, lived in that country as husband and wife, consented to the
jurisdiction of the foreign court, and appeared in the foreign action
through their authorized representatives. Matter of Koehne, 10 L & N.
Dec. 264 (BIA 1963); cf. Matter of Ma, 15 I. & N. Dec. 70 (BIA 1974);,
Matter of Kurtkl, 12 I. & N. Dee. 284 (BIA 1967).
In the present case, the petitioner and her first husband were both
citizens of the Dominican Republic and they both consented to the
jurisdiction of the Dominican court'. Nevertheless, neither party was
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Interim Decision #2361
physically present within the jurisdiction of the Dominican court, and
their marriage had taken place in New York, not the Dominican Republic. Under these circumstances, we believe that New York would not
find sufficient connection between the Dominican Republic and the parties to recognize the in absentia Dominican divorce.
The district director reached the proper result. The appeal will be
dismissed.
ORDER: The appeal is dismissed.
Theodore P. Jakaboski, Alternate Board Member, dissents without
opinion.

229


Interim Decision # 1993

MATTER OF DE VERA

In Visa Petition Proceedings
A-17853514

Decided by District Director July

17, 1969

A dietitian who has a bachelor's degree with a major in foods and nutrition
or who has the equivalent of such education and training is a member of
the professions within the meaning of Se ctione 101 (a) (30) and 203 (a) ( 3)
of the Immigration and Nationality Act, as amended.

The petition was filed to accord the beneficiary third preference
classification as a dietitian based on her qualifications as a dietitian. The beneficiary is a 'female, single, native and citizen of the
Philippines, age 22, and presently residing in Navotas, Philippines.

The beneficiary received a Bachelor of Science Degree in Foods
and Nutrition in April, 1967, from Centro Escolar University,
Manila, Philippines. She has been employed as a dietitian at the
University of the East Hospital, Quezon City, Philippines, since
July 16, 1968. The beneficiary intends to engage in her profession
in the United States as a professional dietitian.
Dietetics are listed in Schedule A, Group II of 29 CFR for
blanket labor certification.
Dietitians are listed among the professional occupations under
code 077. in the Dictionary of Occupational Titles, Volume II,
third edition, prepared by the United States Department of
Labor. Under specific classifications, within code 077, listed as
professional and kindred, are: Research Nutritionist ; Dietitian,
Chief; Dietary Consultant; Dietitian, Teaching; Dietitian, Therapeutic; Nutritionist ; Dietitic Intern; Dietitian ; and Dietitian, Administrative. Dietitians plan and supervise the preparation and
serving of appetizing and nutritious meals to help people maintain or recover good health. Their work includes planning general
menus and modified diets to meet nutritional requirements for
medical treatment, supervising the personnel who prepare and serve
the meals, managing purchases and accounts, and providing guid-

340

Interim Decision TP1993
ance on good eating habits. They may also serve as instructors
in the field of nutrition or take part in research projects concerned with the nutritional needs of the aging, persons with
chronic diseases or space travelers.
The Occupational Outlook Handbook, 1968-1969 edition of the
United States Department of Labor, states the minimum educational requirements for dietitians is a bachelor's degree with a
major in foods and nutrition or institution management. While
the American Dietitic Association recommends the completion of a
one-year dietic internship program approved by the association or
three years experience to qualify for professional recognition,
such a requirement appears to be solely for recognition by their
association. The views of the United States Department of Labor
in setting the minimum educational requirements for dietitians
and in classifying Die -tic Interns (077.168) as professional and

kindred, must be given considerable weight.
It is concluded that a person who has a bachelor's degree with
a major in foods and nutrition or a person who has the equivalent of such education and training is a member of the professions within the meaning of sections 101 (a) (32) and 203 (a) (3)
of the Act, as amended. The applicant is entitled to classification
as a member of the professions by virtue of her educational attainments.
ORDER: It is ordered that the petition be approved.

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Interim Decision #3898

Matter of N-A-I-, Respondent
Decided August 3, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien who adjusts status under section 209(b) of the Immigration and Nationality
Act, 8 U.S.C. § 1159(b) (2012), changes his or her status from that of an alien granted
asylum to that of an alien lawfully admitted for permanent residence, thereby
terminating the alien’s asylee status. Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014),
clarified.
(2) The restrictions on removal in section 208(c)(1)(A) of the Act, 8 U.S.C. § 1158(c)(1)(A)
(2012), do not apply to an alien granted asylum whose status is adjusted to that of an
alien lawfully admitted for permanent residence pursuant to section 209(b) of the Act.
FOR RESPONDENT: Brian Vincent Schaeffer, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: James E. Manning, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, LIEBOWITZ, Board Members.
MALPHRUS, Board Member:

In a decision dated December 5, 2014, we dismissed the respondent’s
appeal from the Immigration Judge’s denial of his applications for asylum,
withholding of removal, and protection under the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N.
GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into
force June 26, 1987; for the United States Apr. 18, 1988) (“Convention
Against Torture”). The United States Court of Appeals for the Fifth Circuit
has remanded the record for us to further consider whether the respondent’s
asylee status was terminated when he adjusted his status to that of an alien
lawfully admitted for permanent residence pursuant to section 209(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1159(b) (1994). Ali v. Lynch,
814 F.3d 306 (5th Cir. 2016). For the following reasons, the respondent’s
appeal will again be dismissed.

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Interim Decision #3898

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Pakistan who entered the United
States in 1991 and was granted asylum on December 3, 1992, in exclusion
proceedings. He subsequently adjusted his status to that of an alien lawfully
admitted for permanent residence pursuant to section 209(b) of the Act. On
May 17, 2013, he was convicted in Texas of possession of a controlled
substance.
The Department of Homeland Security (“DHS”) initiated removal
proceedings against the respondent, charging him with removability under
section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), as an
alien convicted of a crime relating to a controlled substance. In removal
proceedings, the respondent filed new applications for asylum, withholding
of removal, and protection under the Convention Against Torture, which the
Immigration Judge denied in a decision dated September 10, 2013.
The respondent appealed from that decision, arguing, inter alia, that he
cannot be removed because his asylee status was never terminated. On
February 11, 2014, we remanded the record for further proceedings.
Subsequently, we issued Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014), in
which we held that an alien whose status has been adjusted from that of
asylee to lawful permanent resident pursuant to section 209(b) of the Act no
longer qualifies as an asylee and therefore cannot later readjust status under
that section. In light of our holding in Matter of C-J-H-, the Immigration
Judge concluded that the respondent was no longer an asylee and certified
the record to us in a decision dated June 3, 2014. We affirmed the
Immigration Judge’s determination that the respondent is no longer an asylee
and his denial of the respondent’s new applications for relief, and we
dismissed the appeal. 1
On petition for review, the respondent argued that the plain language of
section 208(c) of the Act, 8 U.S.C. § 1158(c) (2012), prohibits his removal
without termination of his asylee status and that his adjustment to lawful
permanent resident status did not terminate his asylee status. The court
analyzed this argument under the framework in Chevron, U.S.A., Inc.,
v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984), finding that
while section 208(c)(2) of the Act could be reasonably read as providing an
exhaustive list of grounds for terminating asylee status, a reasonable
interpretation of section 209(b) is that adjustment from the status of an asylee
to that of an alien lawfully admitted for permanent residence entails a change
in status, thereby terminating the alien’s asylee status. Thus, the court
1

Because the respondent did not challenge the Immigration Judge’s denial of his
application for protection under the Convention Against Torture, we deemed that issue
waived. See Matter of M-B-C-, 27 I&N Dec. 31, 31 n.1 (BIA 2017).

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Interim Decision #3898

concluded that Congress left open whether adjustment of status under section
209(b) of the Act terminates asylee status.
Although the Fifth Circuit recognized that our determination that the
respondent is no longer an asylee was based on our previous holding in
Matter of C-J-H-, it declined to accord our decision Chevron deference on
the grounds that we did not fully consider the language and legislative history
of the statute and other matters identified by the court. The court vacated our
decision and remanded the record for us to issue a new decision. Upon
further review, we continue to conclude that an alien’s adjustment from the
status of an alien granted asylum to that of an alien lawfully admitted for
permanent residence pursuant to section 209(b) of the Act terminates the
alien’s asylee status.

II. STATUTORY AND REGULATORY AUTHORITY
A. Termination Under Section 208(c) of the Act
Section 208(c)(1)(A) of the Act prohibits the Attorney General from
removing or returning “an alien granted asylum” under section 208(b) of the
Act “to the alien’s country of nationality or, in the case of a person having
no nationality, the country of the alien’s last habitual residence.” See also
8 C.F.R. §§ 208.22, 1208.22 (2017) (providing that an “alien who has been
granted asylum may not be deported or removed unless his or her asylum
status is terminated pursuant to” 8 C.F.R. § 208.24 or § 1208.24 (2017)).
However, the same section also makes clear that a grant of asylum does not
convey a right to remain permanently in the United States and may be
terminated if the Attorney General determines that
(A) the alien no longer meets the conditions described in subsection (b)(1) owing
to a fundamental change in circumstances;
(B) the alien meets a condition described in subsection (b)(2);
(C) the alien may be removed, pursuant to a bilateral or multilateral agreement, to
a country (other than the country of the alien’s nationality or, in the case of an alien
having no nationality, the country of the alien’s last habitual residence) in which the
alien’s life or freedom would not be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion, and where
the alien is eligible to receive asylum or equivalent temporary protection;
(D) the alien has voluntarily availed himself or herself of the protection of the
alien’s country of nationality or, in the case of an alien having no nationality, the
alien’s country of last habitual residence, by returning to such country with
permanent resident status or the reasonable possibility of obtaining such status with
the same rights and obligations pertaining to other permanent residents of that
country; or

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Interim Decision #3898

(E) the alien has acquired a new nationality and enjoys the protection of the
country of his or her new nationality.

Section 208(c)(2) of the Act. An alien described in section 208(c)(2) of the
Act “is subject to any applicable grounds of inadmissibility or deportability,”
and his or her “removal or return shall be directed by the Attorney General
in accordance with sections 240 and 241” of the Act, 8 U.S.C. §§ 1229a and
1231 (2012). Section 208(c)(3) of the Act.
B. Adjustment of Status Under Section 209(b) of the Act
Under section 209(b) of the Act, the Secretary of Homeland Security or
the Attorney General may, in the exercise of discretion, “adjust to the status
of an alien lawfully admitted for permanent residence the status of any alien
granted asylum” who applies for adjustment and satisfies certain eligibility
requirements. Upon approval of an application, a record of the alien’s
admission for lawful permanent residence will be established “as of the date
one year before the date of the approval of the application.” Id.

III. ANALYSIS
Based on the statutory language, as well as the relevant regulatory
provisions, case law, and legislative history, we conclude that the best
reading of sections 208(c) and 209(b) of the Act is that an “alien granted
asylum” under section 208(b) who has his or her status adjusted to that of
“an alien lawfully admitted for permanent residence” pursuant to section
209(b) does not retain the status of an alien granted asylum and therefore the
restrictions on removal set forth in section 208(c)(1)(A) no longer apply.
While the phrase “adjustment of status” is not expressly defined by the
Act, to “adjust” means “to bring to a more satisfactory state,” or “to change
the position of.” Adams v. Holder, 692 F.3d 91, 97 (2d Cir. 2012) (quoting
Webster’s Third New International Dictionary 27 (1986)). An adjustment of
status under the Act involves a change from one status to another status, not
the acquisition of an additional status. In other words, an alien whose status
is changed does not retain his or her previous status. In the context of section
209(b) of the Act, the adjustment entails a change from “the status of an[]
alien granted asylum” to “the status of an alien lawfully admitted for
permanent residence,” which extinguishes the alien’s asylee status.
The respondent claims that the conditions listed in section 208(c)(2) of
the Act are the sole grounds for the termination of a grant of asylum.
However, the text of section 208(c)(2) does not state that it is an exhaustive
list of possible reasons for termination. Moreover, the regulations governing
the termination of a grant of asylum do not support the respondent’s
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Interim Decision #3898

interpretation because they provide that a grant of asylum may also be
terminated where there is a showing of fraud in the alien’s application such
that he or she was not eligible for asylum at the time it was granted. 8 C.F.R.
§§ 208.24(a)(1), 1208.24(a)(1). 2
The view that the list in section 208(c)(2) of the Act does not provide
continuing protection for aliens who adjust to lawful permanent resident
status is supported by the language of the provision. Section 208(c)(2)
expressly states that “[a]sylum granted under subsection (b) does not convey
a right to remain permanently in the United States.” In addition, section
208(c)(3) confirms that an alien whose asylee status is terminated pursuant
to section 208(c)(2) is subject to any applicable grounds of inadmissibility or
deportability. In other words, being granted asylum is not the same as having
lawful permanent resident status, and removal proceedings may ensue if an
alien’s asylee status is terminated. It does not follow that an alien who
voluntarily surrenders asylee status through adjustment of status under
section 209(b) of the Act can only be removed after first undergoing the
termination process set forth in section 208(c)(2) and its implementing
regulations. Because an alien whose status is adjusted to that of a lawful
permanent resident under section 209(b) no longer has the status of “an alien
granted asylum,” he or she is no longer protected by the bars to removal set
forth in section 208(c)(1)(A) of the Act and 8 C.F.R. §§ 208.22 and 1208.22.
The Fourth Circuit recently reached the same conclusion in Mahmood
v. Sessions, 849 F.3d 187 (4th Cir. 2017). In that case, an alien granted
asylum had his status adjusted to that of an alien lawfully admitted for
permanent residence under section 209(b) of the Act. The Fourth Circuit
upheld our determination that his asylee status ended when it was adjusted
to that of a lawful permanent resident.
As the Fourth Circuit stated, the language of section 209(b) identifies two
immigration statuses and describes a process for an alien to “adjust to” the
status of an alien lawfully admitted for permanent residence from the status
of an alien granted asylum. Id. at 191. We agree that this language indicates
“a change to and not an accretion of the second status.” Id. (citing Adams,
692 F.3d at 97 (“Plainly, then adjustment of status . . . references some
change in that status corresponding to a change in the alien’s relationship to
2

The regulations provide that the termination provisions described in section 208(c)(2) of
the Act are only applicable if the underlying application was filed on or after April 1, 1997.
8 C.F.R. §§ 208.24(a)(2), 1208.24(a)(2). An application filed prior to that date may be
terminated where “the alien no longer has a well-founded fear of persecution upon return
due to a change of country conditions in the alien’s country of nationality or habitual
residence or the alien has committed any act that would have been grounds for denial of
asylum” under 8 C.F.R. § 208.13(c)(2) or § 1208.13(c)(2) (2017). 8 C.F.R. §§ 208.24(a)(3),
1208.24(a)(3).

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Interim Decision #3898

this country.”)). The court found the voluntary surrender of asylee status
through adjustment of status under section 209(b) of the Act to be
distinguishable from the involuntary loss of asylee status under section
208(c) and its implementing regulations. It determined that both provisions
could be read harmoniously, with section 208(c) “governing asylees while
they retain that status” and section 209(b) “serving as a bridge to an entirely
different status with different rights and responsibilities.” Id. at 192.
Consequently, the Fourth Circuit concluded that the most reasonable
reading of section 209(b) of the Act is that once an asylee has adjusted his or
her status to that of an alien lawfully admitted for permanent residence, the
alien is “fully considered a lawful permanent resident and not an asylee” and
can therefore “be removed without a requirement that the Attorney General
conduct an asylum termination proceeding under [section 208(c)(2)].” Id. at
193. As the court explained, “Congress, with the enactment of [section 209
of the Act], can be seen as deciding sensibly that, where an alien voluntarily
seeks adjustment under [section 209(b)] and gains the advantages of lawful
permanent residency, he gives up the absolute right to have the protections
of his asylum status adjudicated before removal.” Id. at 192. The court
further held that, even assuming the statute is ambiguous, our holding in
Matter of C-J-H- was reasonable and entitled to Chevron deference. Id. at
193−95.
It is significant that an alien’s asylee status can only be terminated under
section 209(b) of the Act if he or she voluntarily chooses to seek adjustment
of status under that section. There are many reasons why an alien might
choose to give up the protections of asylee status for lawful permanent
resident status, but he or she is not required to do so and may remain
indefinitely as an asylee. As the Fourth Circuit noted, an asylee who adjusts
status under section 209(b) obtains significant benefits, including “a direct
path to naturalized citizenship,” a better chance for his or her family to obtain
lawful permanent residence, and “the right to travel outside of the United
States without the advance permission of a refugee travel document.” Id. at
192. An asylee who adjusts to lawful permanent resident status also cannot
have that status terminated on the grounds that he no longer has a
well-founded fear of persecution. Id. However, an alien who prefers to retain
the benefits and protections of asylee status, including the restrictions against
removal under section 208(c) of the Act, is not obligated to file an application
for adjustment of status.
It is also significant that an alien who is placed in removal proceedings
after adjusting status under section 209(b) of Act is not without a mechanism
for seeking asylum or other protection from harm in his or her country of
nationality. Under these circumstances, the alien can file a new asylum
application with the Immigration Judge. Although an asylum applicant
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Interim Decision #3898

generally must file within 1 year after the date of arrival in the United States,
the application will not be denied as untimely if the applicant demonstrates
the existence of extraordinary circumstances relating to the delay in filing,
which include maintaining lawful immigrant or nonimmigrant status until a
reasonable period before the filing of the application. Sections 208(a)(2)(B),
(D) of the Act; 8 C.F.R. §§ 208.4(a)(5)(iv), 1208.4(a)(5)(iv) (2017). Also,
the 1-year bar is not applicable to applications for withholding of removal or
protection under the Convention Against Torture, so these applications may
be available even if asylum is not. See, e.g., Arif v. Mukasey, 509 F.3d 677,
680 (5th Cir. 2007).
We held in Matter of C-J-H-, 26 I&N Dec. at 285, that an alien whose
status is adjusted from that of asylee to that of lawful permanent resident no
longer qualifies as an asylee. That case presented the related but separate
question whether an alien granted asylum who has his or her status adjusted
to that of an alien lawfully admitted for permanent residence under section
209(b) of the Act can later readjust under that section. We now clarify that
adjustment of status under section 209(b), by its nature, changes the status of
an alien granted asylum to that of an alien lawfully admitted for permanent
residence, thereby terminating the alien’s asylee status. We note that we do
not reach this conclusion based on the similarities between asylees and
refugees, but rather based on the language of sections 208(c) and 209(b) of
the Act, the language and structure of the Act as a whole, and the nature and
consequences of the process of adjustment of status.
We see no conflict between our conclusion that an alien granted asylum
who has his or her status adjusted to that of an alien lawfully admitted for
permanent residence under section 209(b) of the Act does not retain the status
of an alien granted asylum and our statement in Matter of V-X-, 26 I&N Dec.
147, 149 (BIA 2013), that the statutory grounds for termination of asylum
are narrower than the grounds for removability. In that case, an alien granted
asylum was subsequently placed in removal proceedings and ordered
removed from the United States by an Immigration Judge as a result of
multiple criminal convictions. At the time he was ordered removed, the
alien’s status had not been adjusted pursuant to section 209(b) of the Act or
terminated under section 208(c) and its implementing regulations. Because
the Immigration Judge’s decision included no analysis of the termination
issue and did not order the alien’s asylee status terminated, we remanded the
record for the Immigration Judge to enter a new decision with respect to the
termination of the alien’s asylee status.
Our statement that the statutory grounds for termination are narrower than
the grounds for removability was intended to clarify that a finding of
removability does not trigger the automatic termination of asylee status and
that the issue of termination needed to be addressed by the Immigration
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Interim Decision #3898

Judge. Unlike the alien in Matter of V-X-, whose removal was precluded
while he retained asylee status, an asylee who chooses to adjust his status to
that of an alien lawfully admitted for permanent residence pursuant to section
209(b) of the Act is subject to all applicable grounds of removability.
We also see no conflict between our holding and 8 C.F.R. §§ 208.14(g)
and 1208.14(g) (2017), which provide that if an asylum applicant is granted
lawful permanent resident status, the asylum application is presumed
abandoned and dismissed without prejudice unless the applicant submits a
written request that it be adjudicated. These regulations apply solely to an
alien applying for asylum, not an alien who has been granted asylum and
subsequently has his asylee status adjusted to that of a lawful permanent
resident. The presumption of abandonment supports the view that an alien’s
adjustment of status to that of a lawful permanent resident under section
209(b) extinguishes a claim to asylee status.
We are unaware of anything in the legislative history of the Act that
indicates Congress intended for an alien who voluntarily adjusted his status
under section 209(b) of the Act to retain the protections provided to asylees
under section 208(c)(1)(A). The provisions governing termination of asylee
status and adjustment of status for aliens granted asylum were added to the
statute by the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102
(“Refugee Act”). Initially, a grant of asylum could be terminated where the
Attorney General determined that the alien was “no longer a refugee within
the meaning of section 101(a)(42)(A) [of the Act] owing to a change in
circumstances in the alien’s country of nationality or, in the case of an alien
having no nationality, in the country in which the alien last habitually
resided.” Refugee Act § 201(b), 94 Stat. at 105 (codified at section 208(b)
of the Act, 8 U.S.C. § 1158(b) (1982)). Congress later replaced that provision
with the expanded list of termination grounds currently set forth in
section 208(c)(2) of the Act. See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, § 604(a),
110 Stat. 3009-546, 3009-692 to -693.
It has long been recognized that one of Congress’ primary purposes in
passing the Refugee Act was to implement the principles agreed to in the
United Nations Protocol Relating to the Status of Refugees, opened for
signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into
force Oct. 4, 1967; for the United States Nov. 1, 1968) (“Protocol”), and the
United Nations Convention Relating to the Status of Refugees, adopted July
28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (entered into force Apr. 22,
1954) (“Convention”). See, e.g., Matter of J.M. Alvarado, 27 I&N Dec. 27,
30 n.3 (BIA 2017). Article 1(C) of the Convention lists six grounds for the
cessation of refugee status, which together with the three exclusion

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Interim Decision #3898

categories described in Article 1(F), generally correspond to the grounds for
termination set forth in section 208(c)(2) of the Act.
Guidance regarding the “cessation clauses” is provided in Chapter III of
the Office of the United Nations High Commissioner for Refugees,
Handbook and Guidelines on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol Relating
to the Status of Refugees 23−27 (reissued 2016) (“Handbook”). 3 Paragraph
116 of the Handbook indicates that the six cessation grounds in Article 1(C)
of the Convention are “exhaustively enumerated” and that “no other reasons
may be adduced . . . to justify the withdrawal of refugee status.” Id. at 24.
However, paragraph 117 of the Handbook clarifies that Article 1(C) does not
deal with the cancellation of refugee status, which is distinguishable from
cessation and normally occurs where it comes to light that an individual
should never have been recognized as a refugee in the first place, such as
where he or she falls within one of the exclusion categories described in
Article 1(F). Id.; see also id. at 29−32 (discussing the exclusion clauses in
Article 1(F) of the Convention). Thus, even if Article 1(C) provides an
exhaustive list of the grounds for the cessation of refugee status, cessation is
not the sole means by which refugee status may be ended.
Moreover, paragraph 116 of the Handbook separately acknowledges that
“if a refugee, for whatever reasons, no longer wishes to be considered a
refugee, there will be no call for continuing to grant him refugee status and
international protection.” Id. at 24. In other words, the Convention provides
both for the involuntary loss of refugee status, through either cessation or
cancellation, as well as the voluntary surrender of that status. Thus, we see
no conflict between Congress’ intent to implement the principles agreed to
in the 1967 Protocol and the 1951 Convention and our conclusion that section
209(b) of the Act allows an alien who voluntarily surrenders his or her asylee
status to become a lawful permanent resident. 4
3

Construction of the provisions of the Protocol, and by extension those of the Convention,
falls within the authority of each State that is a party to the Protocol. See Matter of Acosta,
19 I&N Dec. 211, 220 (BIA 1985), modified on other grounds, Matter of Mogharrabi,
19 I&N Dec. 439 (BIA 1987). While the Handbook is a useful tool in construing our
obligations under the Protocol, it is neither binding on the United States nor controlling as
to our construction of the Act. Id.
4
We recognize that the Office of the United Nations High Commissioner for Refugees
(“UNHCR”) has issued an opinion letter taking the position that an individual’s refugee
status does not cease if he or she becomes a lawful permanent resident and that acquisition
of lawful permanent residence is not a basis for cancellation of refugee status. See Letter
from R. Andrew Painter, Senior Protection Officer, to Robert Pauw, Esq. (Feb. 28, 2003),
reprinted in 80 Interpreter Releases, No. 11, Mar. 17, 2003, at 413 & app. III at 423−29.
The UNHCR’s opinion is not binding on us or controlling as to our construction of the Act.

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Interim Decision #3898

IV. CONCLUSION
For the foregoing reasons, we conclude that an alien who was granted
asylum but subsequently adjusted his or her status to that of an alien lawfully
admitted for permanent residence under section 209(b) of the Act does not
retain asylee status and is therefore no longer protected by the restrictions on
removal set forth in section 208(c)(1)(A) of the Act or its implementing
regulations.
The respondent’s asylee status was terminated when he adjusted his status
to that of an alien lawfully admitted for permanent residence pursuant to
section 209(b) of the Act. Consequently, his removal is not precluded by the
Act or the regulations. We therefore affirm the Immigration Judge’s
determination that he is removable from the United States. For the reasons
set forth in our December 5, 2014, decision, we also affirm the Immigration
Judge’s denial of the respondent’s current applications for asylum and
withholding of removal. Accordingly, the respondent’s appeal will be
dismissed.
ORDER: The appeal is dismissed.

See Matter of Q-T-M-T-, 21 I&N Dec. 639, 651 (BIA 1996) (considering but declining to
adopt the position set forth in a UNHCR opinion letter). Moreover, an opinion letter carries
less weight than other, more formal sources of guidance, particularly the Handbook. While
the letter takes the view that the “acquisition” of lawful permanent resident status does not
trigger the involuntary loss of refugee status through cessation or cancellation, it does not
address the exact issue here, which concerns what happens when an individual voluntarily
surrenders his or her asylee status through the process of adjustment of status. In any event,
to the extent that the UNHCR’s opinion letter supports the respondent’s position, it does
not persuade us to adopt his interpretation of the adjustment of status provisions in the Act.

81


Interim Decision #2406

MATTER OF ABDELHADI
In Visa Petition Proceedings
A- 19289426
Decided by Board July 2, 1975
Petitioner, who was admitted to the United States for a permanent residence on April 8,
1974 as the unmarried daughter of a lawful permanent resident, seeks to accord
preference classification under section 201(a)(2) of the Inunigration and Nationality Act,
as amended, to beneficiary as her husband. The petitioner's lawful permanent resident
status is challenged on the basis of a letter contained in the record of proceedings which
was written by the U. S. Consul in Beirut, Lebanon and which indicates that the
petitioner may not have been entitled to lawful permanent resident status, the consul's
letter does not indicate under what circumstances the petitioner was interviewed or if
the alleged statements of petitioner were made under oath, and there is nothing in the
record to indicate that the petitioner was aware of the consul's letter (8 CFR 103.2(b)(2)), the matter is remanded so that petitioner may have an opportunity to rebut
the statements contained in the consul's letter, as well as to permit both the petitioner
and the Service to submit any further available evidence regarding the circumstances of
petitioner's marriage.
ON BEHALF OF PETITIONER: Petitioner pro se

The lawful permanent resident petitioner applied for preference
status for the beneficiary as her husband under section 203(a)(2) of the
Immigration and Nationality Act. In a decision dated October 4, 1974,
the officer in charge, •denied the petition on the grounds that the petitioner was not entitled to status as a lawful permanent resident. The
petitioner has appealed. The record will be remanded.
The petitioner was admitted to the United States on April 8, 1974, as
a lawful permanent resident. She had been granted second preference
status as the unmarried daughter of a lawful permanent resident.
In his decision, the officer in charge found that the petitioner was
married to the beneficiary, at the time of her admission and thus not
entitled to a second preference visa as the unmarried daughter of a
lawful permanent resident. He bases this conclusion on a statement
made in a letter written by the United States consul in Beirut. The
consul states that the petitioner
"informed us that her marriage had been registered on May 15 [19741 She acknowledged that she and (the beneficiary] had been married at her uncle's holm., around
October 1973 There appears to have been no written record at that time.

383

Interim Decision #2406
As I understand Muslim law as applied in Lebanon, a marriage would be considered
valid even if not registered."

There is no other evidence in the record which indicates that the petitioner may not have been entitled to lawful permanent resident status.
On appeal, the petitioner indicates that she married the beneficiary
when she returned to Lebanon at the end of April 1974. She states that

she was pregnant at that time and that the beneficiary is the father of
the child. A certificate in the record shows that the child was born May
16, 1974. Another certificate shows that the petitioner married the
beneficiary :Way 3, 1974. According to the statement of the petitioner
made on appeal, under Muslim law her marriage was a "predetermined
marriage." 7.t is not entirely clear what the petitioner means by this

statement, but apparently she is claiming that under Muslim law, she
was required to marry the beneficiary once she became pregnant by
him.
We note that the petitioner is presently in Lebanon and that the
Service is challenging the validity of her admission as a lawful permanent resident. We are confronted here with a visa petition in which the
petitioner has the burden of proving her qualifications to file the petition
and that the beneficiary is entitled to the status requested by the
petitioner, Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966).
Normally the Immigration and Naturalization Service records would
satisfy the requirement of establishing the petitioner's status, 8 CFR
204.2(b). Here however, a substantial doubt as to petitioner's status has
been created by the consular report. In the present state of the record
before us we cannot approve this visa petition.
Our ruling here is solely in connection with the application before us.
It is not an adjudication that the petitioner is either excludable or
deportable in a proceeding in which the Service bears the burden of
proof, and will not act as an estoppel in any such proceeding. Cf. Matter
of Ideis, 14 a. & N. Dec. 701 (BIA 1974).
There is nothing in the record to indicate that the officer in charge
showed the petitioner the consul's letter. See 8 CFR 103.2(b)(2). The

consul's letter does not indicate under what circumstances the petitioner
was interviewed or if the alleged statements were made under oath.
Accordingly, we shall remand the record so that the petitioner may
have an opportunity to rebut the statements contained in the letter from
the consul, as well as to permit both the petitioner and the Service to
submit any further evidence available explaining the circumstances of
the petitioner's marriage.
ORDER: The record is remanded.

384


MATTER OF F— .

In VISA PETITION Proceedings
A-12027843

Decided by Board May 6, 1961
Marriage—Effect of annulment—Validity of marriage contracted in Belgium
prior to annulment of preexisting marriage--Adopted child—Adoption proceedings by wife in maiden name without participation of husband.
(1) Where beneficiary did not obtain annulment of preexisting marriage until three years after ceremonial marriage to petitioner in Belgium in 1955,
general rules relating to effect of nullity aecrees will be applied, absent
evidence that the law of Belgium is otherwise, to uphold validity of beneficiary's marriage to petitioner.
(2) Notwithstanding that adoption proceedings under Belgian law were solely
by wife in her maiden name. minor beneficiary qualifies as "adopted child"
of petitioner/husband upon showing made that bona fide family relationship
has existed since adoption and that requirements as to custody and residence
have been satisfied.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the District Director, Newark District, dated December 9, 1960,
denying the visa petition filed in behalf of the adult beneficiary
as the wife of the petitioner for the reason that the validity of
the petitioner's marriage on September 22, 1958 (sic) at Liege, Belgium, has not been satisfactorily established, although not established
as invalid by the Belgian authorities, inasmuch as the wife's prior
marriage on June 3, 1946, to M—S— was not terminated until
the annulment granted June 6, 1958, at Aachen, Germany ; and as
to the minor beneficiary, for the reason that the legal relationship
of A—R—Z— to petitioner of either adopted child or stepchild has
also nut been satisfactorily established as hor. adoption February 3,
1956, at Liege, Belgium, was solely by the wife under her maiden
name, although shown to be the petitioner's wife, and the petitioner
was not a party to the adoption proceedings inasmuch as he was
under the age required by Belgian law. This confusing statement
of the grounds for denial is not clarified by any supporting memorandum, although it is obvious that complex legal questions are
involved.
275

The petitioner, a native of the L'ition of Soviet Socialist Republics,
39 years old, male, is a lawful permanent resident alien, having been
admitted for permanent residence. in the United States on March 23,
1960. He seeks preference status under section 203(a) (3) of the
Immigration and Nationality Act on behalf of his wife, a native
and lust a citizen of the U.S.S.R., 44 years of age. He also seeks
third preference status on behalf of the minor beneficiary, who is a
native and citizen of Belgium, six years of age, as his adopted
daughter.
We shall deal first with the case of the wife. The petitioner has
established a ceremonial marriage to the beneficiary on September 22,
1955, at Liege, Belgium. The petitioner was married but one time
and his wife was married twice prior to her marriage to the petitioner. The beneficiary was first married in Germany on June 3,
1946, and this marriage was annulled by the decree of the District

Court at Aachen, Germany, on June 0, 1958. The eireiuustatices
surrounding this marriage are set forth in the brief filed in behalf
of the petitioner. It is alleged that the beneficiary's family was
persecuted by the Soviets and that she was taken as an "Ostarbeiter" to Germany. In 1946, when forced repatriation was still
the general practice in Germany, she was under the threat of being
forcibly returned to the U.S.S.R. She was given to understand by
an UNRRA worker that her only salvation would be to marry a
non-Russian person and for this reason she married an old man
named S of Latvian nationality. The beneficiary never lived with
her first husband and has never heard of him since their wedding,
but -by so marrying this person she escaped repatriation. It is alleged
that the beneficiary considered her marriage fictitious and that it
,would never be considered a legal, binding marriage. Subsequently,
she went to Belgium where she married on June 1 5, 1948, this marriage being terminated on October 15, 1954, by a divorce granted
pursuant to Article 230 of the Civil Code of Belgium in the Court
of Justice at Liege, Belgium. Her marriage to the petitioner took
place in Belgium on September 22, 1955, after the termination of her
second marriage but prior to the annulment of the beneficiary's 1946
marriage.
No consideration appears to have been given below to the circumstances surrounding the first marriage or to the legal consequence
of a dissolution by an annulment (rather than a divorce) of the
first marriage despite the fact that a letter has been submitted
under the seal and signature of the Royal Public Prosecutor at
Liege, Belgium, dated October 21, 1959, to the effect that the marriage contracted by the parties on September 22, 19bb, was regarded
as valid and that no proceedings were ever instituted or contemplated against the beneficiary. It is to be noted that the petitioner
276

did not come to the United States until March 23, 1960, and presumably relied upon this letter to establish the validity of his marriage
to the beneficiary for it would have been no problem for the petitioner to have remarried after the decree of annulment had they
been so advised since both parties were then residing in Belgium.
The record contains no indication that the petitioner was questioned
about the marriage.
There is an important difference between divorce and annulment.

A decree of divorce dissolves the marriage and relieves the parties
of their obligations as husband and wife; but it recognizes that
the relation had a lawful existence, of which the consequences continue, even though the relationship has terminated. This a nullity
decree does not do. It is granted for causes antedating the marriage and its legal effect is to say that the marriage never existed.'
A statute may make an annulment operative from the time of the
decree, so that the action becomes practically the same in effect as
that for divorce. However, since no specific foreign statute in this
regard has been cited, it will he assumed that the general rule set

forth above prevailing in this country applies. The second letter
from the Royal Public Prosecutor at Liege, dated September 30,
1960, confirms this assumption, because he comments that the annulment of the first marriage by the tribunal at Aix-la-Chapelle
(Aachen) makes inopportune any further comment on the invalidity of the marriage of September 22, 1955.
In view of the circumstances surrounding the beneficiary's first

marriage, i.e., that it was a fictitious marriage entered into for
the purpose of escaping repatriation, the allegation that the beneficiary has never lived with the person she married and has never
heard of him since the time of the so-called wedding, together with
the presumption of validity attached to the present ceremonial
marriage and the effect of the decree of nullity entered as to the
first marriage, it is concluded that the petitioner has satisfactorily
established the validity of his present marriage to the beneficiary.
Accordingly, the visa petition will be approved for third preference
quota on behalf of the adult beneficiary as the wife of the petitioner.
The petition for third preference status on behalf of the second
beneficiary has been denied by the District Director on the ground
that the legal relationship of the minor beneficiary to the petitioner as either his adopted child or stepchild has also not been
satisfactorily established as her adoption on February 3, 1956, at
Liege, Belgium, was solely by his wife under her maiden name

(although she was shown to be his wife) and he was not a party to
'Goodrich, Conflict of Laws

mestic

(1949),

p. 417; Madden, On Persons and Do-

Relations (1931 ) , v. 203.

277

the adoption proceeding inasmuch as he was under the age required
by Belgian law. Petitioner's brief points out that the letter of
Joseph Selma, an attorney at Liege, Belgium, dated September 1,
1960, and certified under the seal of the Lower Court, recites the
judgment confirming the actual adoption rendered by the 4th
Chamber of the Lower Court at Liege on December 24, 1955, upon
petition of the wife; the child to bear the surname of the wife's
maiden name; and that only the wife could adopt the child because
at the time of adoption her husband had not yet reached the a of
35 years according to Article 344 of the Belgian Civil Code (law
of March 22, 1940) and could not adopt the child; and that in accordance with Article 347 of the Code, only the name of the young woman
adopting the child could be conferred on the adopted child. According to the letter of the Royal Public Prosecutor at Liege dated

October 21, 1959, the actual adoption of the child by the wife of
the petitioner is regarded as valid by the Royal Public Prosecutor.
The child has resided with her adoptive mother and the latter's
husband, the petitioner, since the date of adoption on December 24,
1955, when the child was a little over one year of age. The adoption appears to comply with the requirements of section 101(b)
(1) (E) of the Tmmigration and Nationality Act, in that, the adoption occurred when the child was under 14 years of age and she has
been in the legal custody of, and has resided with, the adoptive

parent or ,parents for more than two years. The petitioner described the beneficiary as his adopted daughter and the brief describes him as a loving and devoted father. There is no evidence
challenging the bona fides of the family relationship involved.
It is believed that the case falls within the scope of the Attorney
General's decision in Matter of Y—K—W—, 9-176 (Feb. 28, 1961),
which specifically overrules Matter of U—F—L—, 8- 151, upon
which the District Director's denial appears to be based. The
child beneficiary in this ease was adopted by the wife during the

marriage; the husband who was prevented from participating in the
adoption by a technicality has consented to the adoption and supported the child who has resided with both the adoptive mother
and her husband, the petitioner, and has been in the legal custody
of both for more than two years past.
The following pertinent extracts from the Attorney General's decision in Matter of Y—K—W—, eupra, reveal the present administrative view in a bona *le adoptive family situation such as exists
in this case:
Once the remedial purpose of preserving, rather than interrupting, bona fide
family relationships ... is recognized, the reasoning in Ng Fun Yin v. Esperdy
[187 F. Supp. 51] appears to be compelling....
... In this case there has been no challenge to the bona fides of the family
relationships Involved. The validity of the marriage of the parents and the

27B

adoption of llie child are unquestioned. Nor is any question raised as to
whether the child was in the legal custody of and resided with the wife for
the required period. There is, therefore, no evidence of fraud. ..

This latest Attorney General decision stresses the remedial and
humanitarian purposes of section 101(b) (1) (E). Under the circumstances present in the instant case, the beneficiary qualifies as
an adopted child.
ORDER: It is ordered that the appeal be sustained and that both
beneficiaries be found eligbile for third preference quota status.

29.