Interim Decision #2233

MATTER OF GILIKEVORKIAN
In Deportation Proceedingb
A-19220757

Decided by Board September 17, 1973
An alien's entry into the United States as a nonimmigrant under a false iden.
tity did not constitute a material misrepresentation within the meaning of
section 212(aX19) of the Immigration and Nationality Act where he had adopted
the false identity fora legitimate reason (to obtain employment) and had used it
for a prolonged period of time prior to his entry into this country.
CHARGE:

Order: Act of 1952— Section 241(a)(2) I8 U.S.O. 1251(o.X3)1 Nonimmigrant
visitor for pleasure—remained longer than permitted.
BEHALF OF RESPONDENT:
Andrew W. Ansara, Rep.
Board of Higher Education
Div. of Immigration and
Americanization
477 Essex Street
Lawrence, Massachusetts 01840

ON BEHALF OF SERVICE:

ON

Ralph J. Smith
Trial Attorney

This case involves cross appeals. The immigration judge found
the respondent deportable and entered an order of deportation, in
which he denied the respondent's application for adjustment of
status pursuant to section 246, and granted the respondent's
application for voluntary departure. The respondent appeals from
the denial of his application for adjustment of status. The Service
appeals from the grant of voluntary departure_ We shall sustain
the respondent's appeal and grant the respondent adjustment of
status. This decision by us moots the Service's appeal.
The record relates to a single male alien, 40 years of age, a
native and citizen of Syria, who entered the United States as a
nonimmigrant visitor for pleasure on October 24, 1970, authorized
to remain until March 15, 1971. He has remained thereafter
without authority. Deportability is conceded.
The respondent is the beneficiary of an approved visa petition

454.

Interim Decision #2233
according him classification as the brother of a citizen of the
United States, pursuant to section 203(aX5) Of the Immigration
and Nationality Act. The immigration judge denied adjustment of
status for the reason that the respondent entered the United
States in the identity of another and therefore is excludable as an
alien who entered by fraud or material misrepresentation, section
212(a)(19), relying on Matter of Sarlcieeian, 10 I. & N. Dec. 109 (BIA
1962). The immigration judge found the misrepresentation material because, if disclosed, it would have revealed the respondent's
excludability as one not in possession of a valid passport and visa,
pursuant to section 212(a)(26). •
The cases have distinguished between a false identity used to
facilitate entry into the United States and one used for other

reasons. In Matter of Sarkissian, supra, on which the immigration
judge relied, there was no indication that the alien used the false
identity for any purpose other than to obtain a visa to enter the
United States. Where a person uses a false identity long before,
and for reasons Unrelated to, obtaining admission to the United
States, and over a long period of time, misrepresentation as to
identity made when applying to enter the United States has been
held not to be material, U.S. ex rel. Leibowitz v. Sehlotfeldt, 94 F.2d
263 (C.A. 7, 1938). This respondent adopted the false identity so
that he could obtain employment after he moved from Syria to
Lebanon during 1959, for Syrians found it difficult to obtain
employment in Lebanon. Evidence in the record shows that he
was using the false identity in 1964; he testified that he used it
since 1959. Thus he used it long before his entry into the United
States.
The Attorney General has established the test that a misrepresentation is material if (1) the alien is excludable on the true facts,
or (2) the misrepresentation tends to shut off a line of inquiry
which might have resulted in a decision to exclude the alien,
Matter of S— and B—C—, 9 I. & N. Dec. 436 (BIA 1961). Inasmuch
as the respondent's use of the false identity was for a legitimate
reason and was for a prolonged period prior to entry, a line of
relevant inquiry was not cut off. Inquiry would have revealed no
information damaging to the respondent so far as this record
indicates. No ground of excludability would have been uncovered.
The immigration judge reasoned that the respondent was excludable on the true facts, pursuant to section 212(a)(26), because
his visa and passport, being in false names, were invalid and that
therefore the misrepresentation of his identity was material. The
visa and passport were not necessarily invalid, Matter of Box, 10 I.
& N. Dec. 87 (BIA 1902). They were issued to the respondent in a

name which had become his by continued use. The applications for
455

Interim Decision #2233
a passport and visa in the false name were all part of his use of the
assumed identity. If both the visa and passport had reflected the
true facts, no ground for inadmissibility would have been revealed
nor would inquiry on the basis of the true facts have resulted in a
proper determination of excludability. If all aliens who misrepresent their identity in entry documents are deemed excludable on
the gound of not possessing a valid passport or visa, all identity

misrepresentation would have to be considered material. Such a
conclusion would be contrary to the Attorney General's ruling that
not all misrepresentations as to identity are material, Matter of
S— and B—C—, supra. The decision of the Attorney General is
controlling.
The respondent is not excludable pursuant to section 212(a)(19).

His misrepresentation of his identity when he entered as a
nonimmigrant visitor was not material. Had the true facts been
known, no ground of excludability would have been revealed.
The respondent is eligible for adjustment of status pursuant to
section 245 of the Act. We shall direct that his application for it be
granted. .
ORI1F.R2 The respondent's appeal is sustained; his application
for adjustment of status under section 245 of the Immigration and
Nationality Act, as amended, is hereby granted, and his status is
adjusted to that of lawful permanent resident, pursuant to section
245 of the Immigration and Nationality Act.
Further order:The Service's appeal is dismissed.

456


Interim Decision #1887

MAiaAit OF SHAUGHNESSY

In Deportation Proceedings
A-10229265

Decided by Board July X9,1968
(1) The term "would result in extreme hardship" as used in section 212(h)
of the Immigration and Nationality Act, as amended, encompasses both
present and future hardship.
(2) "Extreme hardship" to an alien himself cannot be considered in determining eligibility for a section 212(h) waiver of inadmissibility.
CHARGE:

Order: Act of 1952—Section 241(a) (4) [8 U.S.O. 1251(a) (4)7—Convicted of
two crimes involving moral turpitude after entry, to
wit: breaking and entering and larceny (Mass. 1966) ;
larceny (Mass. 1966) ; three counts of receiving
stolen goods (Mass. 1966) ; Possession of burglary
tools (Mass. 1966) ; possession of burglary instruments (Mass. 1966) ; attempted to break open a safe
(Mass. 1966).
Ox BEitaxs or RESPONDENT:
John E. Buckley, Esquire
339 Main Street
Worcester, Mass. 01608

ON Baum? or Simms:
Irving A. Appleman
Appellate Trial Attorney

The respondent, a native of England and a, citizen of Erie, has been
found deportable as a criminal alien under the provisions of section
241(a) (4) of the Immigration and Nationality Act (8 U.S.C. 1251 (a)
(4) ). An order entered by the special inquiry officer on February 27,
1968 waived the criminal grounds of exclusion pursuant to the authority contained in section 212(h) of the Immigration and Nationality
Act and adjusted the respondent's immigration status pursuant to
the authority contained in section 245 of the Immigration and Nationality Act, as amended (8 U.S.C. 1255). The trial attorney excepts to
the grant of a waiver under section 212(h) and the adjustment of
the respondent's immigration status pursuant to the provisions of
section 245 of the Act. He appeals from the order entered by the special inquiry officer on February 27, 1968.

810

Interim Decision #1,887
The respondent, an unmarried male alien, 20 years of age, was admitted for permanent residence at the port of Boston, Massachusetts,
on April 26, 1957. He was 10 years of age at the time he was admitted
with his mother and father.
The respondent was convicted on July 26, 1966 in the Superior
Court, Worcester County, Worcester, Massachusetts of (a) breaking
and entering and larceny committed on October 4, 1965 in Worcester,

Massachusetts; (b) larceny committed. on October 4, 1965 in Worr
cester, Massachusetts; (c) receiving stolen goods committed on November 4, 1965 in Worcester, Massachusetts; (c1) receiving stolen
goods committed on November 13, 1965 in Worcester, Massachusetts;
(e) receiving stolen goods committed on November 23, 1965 in WoP;
cester, Massachusetts; (f) possession of burglarious tools committed

on November 10, 1Uti5 in Auburn, Massachusetts; (g) possession of
burglary implements commibted.on July 22, 1966 in Millbury, Massachusetts; and (h) attempt to break open a safe in violation of section
21, Chapter 965, General Laws of Massachusetts, committed on. July
2, 1966 in Millbury, Massachusetts.

The respondent concedes that all of the factual allegations contained
in the order to show cause are true and his admissions are supported
by the records of his conviction. The record establishes, by clear, unequivocal and convincing evidence that the respondent is deportable
as charged in the order to show cause. The major crimes' committed
by the respondent involve moral turpitude and do not involve a single
scheme of criminal misconduct.
The respondent applied for an adjustment of his status under section 245 of the Immigration and Nationality Act, as amended, in conjunction with a waiver of his criminal record as a ground of
inadmissibility under section 212(h), of the Act. The ,respondent in
the absence of a waiver is excludable under section 212(a) (9) of the
Immigration and Nationality Act, as amended,.in that he is on alien
who has been convicted of crimes involving moral turpitude.
The respondent at the time of the hearing was the unmarried minor
child of two naturalizedlJnited States citizens. He was born on March
2, 1947 and became 21 years of age on March 2, 1968. He is the beneficiary of a visa petition filed in his behalf by his mother which has
been approved by the District Director, thereby granting him the
status of an immediate relative of a United States citizen under the
'We need nut reach a conclusion as to whether the possession of burgliti
implements as defined by Chapter 288, section 49 of the Massachusetts Criminal
Code involves moral turpitude since the respondent has been convicted pf.six
crimes which inherently involve moral turpitude.

321-4354-69-53

811

Interim Decision #1887
provisions of section 201 (b) of the Immigration and Nationality
Act, as amended (8 U.S.C. 1151 (b) ).
Section 212(h) of the Immigration and Nationality Act provides
the Attorney General with discretion to waive the inadmissibility of
criminal aliens and prostitutes who are the spouse or minor children
of United States citizens or aliens admitted for permanent residence
provided the alien establishes to the satisfaction of the Attorney
General that his exclusion "would result in extreme hardship" to the
United States citizen or lawfully resident alien spouse, parent, son
or daughter of such alien and the admission of such alien would not
be contrary to the national welfare, safety or security of the United
States. The Attorney General must consent to the alien's applying
or reapplying for a visa and for admission to the 'United States.
The special inquiry officer concedes that the exclusion of the respondent from the United States would not entail extreme hardship
to his parents. Both parents testified that they are naturalized citizens of the United States; that they are nnThsupporting and that the
respondent has never contributed to their support although he earned
salaries es 'high as $110 to $115 per Week. The respondent's parents
are separated and under the terms of the separation agreement, the
father sUPPOrta the two younger 'children but contributes nothing to
the support of the mother: There is no provision in the separation
agreement for the support of the respondent.
The special' inquiry 'officer reasoned that under ordinary circumstances, he would find the respondent statutorily ineligible for - a
^vaiSer -under'section'212th), butthat since he '(respondent) would
soon reach his majority (March 2, 1068), he would be precluded from
the grant of a waiver as the minor child of a United States citizen.
After 'considering this and other factors, the special inquiry officer
concluded for' the purpose of this- decision only that the respondent's
exclusion would resort in extreme hardship to' his parents because
each Went is afflicted With a physical condition which might potentially interfere with his or her future employment and both the parents and the respondent have testified that he (respondent) will
contribute to their support in accordance with his means and their
*di; if the occasion ever arises. The respondent's mother testified
thatitie is now 'in reasonably good health, but suffers from a thyroid
condition which may affect her future earnings. The respondent's
father testified he is now in good health but has a tendency to be
diabetic- and that other members of his family have case histories
of diabetes. ; „ •
• The' Servicemaintains that since there is no, showing of record
that there is a reasonable or strong probability that either one of
812

Interim Decision #1887
the respondent's parents would have need for the respondent's
support in the foreseeable futUre then the finding of extreme hardship should be based upon the present need of the citizen parents
and not upon prospective, problematical or conjectural hardship.
We note, however, that the former section 5 of the 1957 Act (Public
Law 85-316) and Section 212(h), as amended, uses the language
"would result in extreme hardship." The term "would result"

encompasses both present and future hardship.
The language "would result in extreme hardship" which appears
in section 212(h) is also found in section 244(a) (1) of the Act, as
amended October 24, 1962. This Board has said that "The personal
privation contemplated in a situation characterized by 'extreme
hardship' within the meaning of section 244(a) (1) is not a definable term of fixed and inflexible content or meaning. It necessarily
depends upon the facts and circumstances peculiar to each case."
Matter of Hwang, 10 I. & N. Dec. 448, 451, BLL, 1964. We have also
interpreted the term "extreme hardship" as used in section 5'of the
1957 Act (Public Law 85-316), the predecessor of section 212(h)
of the amended 1952 Act to mean more than the existence of mere
hardship caused by family separation. Matter of W—, 9 I. & N. Dec.
1 (BIA,1960).
. •
• - -7 '
':
Basically, we believe that the facts and circumstances peCuliar to

each case should control when interpreting what amounts to "extreme hardship" within the meaning of section 212(h). Unlike section 244(a) (1) and (2), the statute makes no provision for the
hardship which inures to an alien 'by reason . of his exclusion. Such
hardship is not a factor which may be.considered. The fact that the
respondent will soon reach his majority. and thereby lose• his eligibility for a waiver under section 212(h) as the child of a'-United
States citizen may be a hardship for the respondent. Ilowev er, •the
statute makes no provision for "extreme hardship" to the alien and
for this reason it cannot be considered in reaching a conclusion as to
eligibility for relief under section 212(h). Furthermore, in this
'

-

-

particular case there is no showing of either present hardship or any
hardship that "would result" in the foreseeable future to the respondent's parents by reason of their alleged physical defects in the

event the respondent was excluded. Accordingly, the facts and circumstances of this particular case do not support a finding of eligibility for a waiver under section 212(h) of the Immigration and Nationality Act as an alien whose exclusion "would result in extreme
hardship" to his citizen pa rents.
-

Section 212(h) provides that an applicant for a waiver must establish that his admisolou "would not be contrary to the national

is

Interim Decision *1887
welfare, safety or security of the United States." The special inquiry officer in his opinion refers to the fact that the respondent has
been convicted of several serious crimes committed when he was 18
and 19 years of age; that he is now serving a two-year sentence for
attempting to break open a safe and that the respondent is unable to
show a period of rehabilitation. When an alien has been convicted
of aggravated felonies such as those committed by the respondent,
we believe that there should be a reasonable showing of rehabilitation before there can be a finding that his admission would not be
contrary to the national welfare, safety or security of the United
States. Since the respondent is clearly ineligible for a waiver under
the "extreme hardship" provision of the statute, no purpose would
be served in reaching a conclusion as to whether his admission would
be contrary to the national welfare, safety or security of the United,

•
States.
The respondent is statutorily ineligible for voluntary departure
as he is precluded from establishing his good moral character by the
provisions of section 101(f) (3) and (7). An order of deportation
will be entered.
ORDER: It is directed that the order entered by the special inquiry
officer on February 27, 1968 granting the respondent a waiver of
criminal grounds of exclusion pursuant to section 212(h) of the Immigration and Nationality Act and adjusting his immigration status
under the provisions of •section 245 of the said Act be and the same
is hereby withdrawn. •
It is Anther ordered, That the respondent be deported to the Republic of Eire ant, in the event that country declines to accept him,
then to England on the charge stated in the order to show cause excluding the crimes of possession of burglarious tools and burglar
implements'for which he was convicted in the State of Massachusetts
in 1966.

814


inter'im Decision #166I

brATrEit of GAITGA0

In Deportation Proceedings
A-17041859
Decided ,by Board DOcember 5,1966
Respondent, who was admitted to the United States under section 101(a) (15)
(3) of the Immigration and Nationality Let. as amended. as the alien spouse
of an exchange visitor, is subject to the two-year foreign residence require.
ment of section 212(e) of the Act, and not having complied therewith nor
having been granted a- waiver -thereof be is statutorily ineligible for adjustment of Mains pursuant to the provisions of section 245 of the Act.
CHARGE :
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)3—Nonimmigrant—Spouse of exchange visitor—remained
longer.

This case comes forward on appeal from the decision of the special
inquiry officer, holding that the respondent has not established statutory eligibility for section 245 adjustment and granting him voluntary departure in the exercise of discretion.
1:1Dspnnagnt is a 29-year-old married male alien, a native and citizen of the Philippines, who entered the United States on September
6, 1966 in possession of-a J-2 visa, as the spouse of an exchange visitor. He was authorized to remain in the 'United States until April
' 19, 1966; he concedes that'be has remained beyond that date without
authority and that he is subject to deportation on the charge contained in the order to show cause.'
Respondent is a graduate architect With &degree from the University of Santo Tomas in Manila. About one month prior to the hearing, he filed a visa petition for third preference status on his own
behalf, based upon his prokessional standing, architecture being one of
the fields specifically mentioned in the definition of "profession! evil,
tamed in section 101(a) (32) of the Act. Respondent states that at
the same time, he sled filed an application for a waiver of the twoyear foreign residence period required of all persons who enter in the
893

• Interim Decision #166I
J category (cf. section 212(e), Immigration and Nationality Act).
No decision on either the visa petition or the waiver application had
been made up to the time of the deportation proceedings.
At the hearing, respondent applied for adjustment of status under

section 245. Quota availability was based on the claimed third preference eligibility. With respect 0 the foreign residence requirement,
respondent argued in the alternative: (a) that he had already made
application for a waiver, based upon claimed hardship to his American citizen child, and (b) that in any event he did not need a waiver
because he had entered the United States not as an exchange visitor,
but merely as the spouse of an exchange visitor. It was his overall
contention that no decision or action should be taken in the deportation proceedings, and they should, be held in. abeyance, pending the
outcome of his applications both for third preference quota status
and for the section 212(e) waiver.
The special inquiry officer, referring to section 212(e) of the Act,
and section 245.1(b) of Title 8 OFIt, held that respondent had entered under the J category and, therefore, was subject to the two-year

foreign residence provision; that he had not complied with the resi-deice provision and had not been granted a waiver of it; and that he,
therefore, was not eligible for adjustment of status under section 245.
He granted voluntary departure to the respondent.

On appal, respondent takes the position that as a person who entered as the dependent of an exchange visitor, he need not have the
two years' residence in a, foreign country. It is alleged that Congress
did' ot intend this residence requirement to apply in such cases and
that the statute does not require its application.
We hold respondent's contention to be without merit. The statute
specifically provides:
No person admitted under section 101(a) (15) (J) or acquiring such status
after admission shall be eligible to apply for an immigrant visa, or for permanent residence, * * * until it is established that such person has resided
and been physically present in the country of his nationality or his last
residence, or in another foreign country for an aggregate of at least two years
following departure from the United States * * *. [provisions for waiver
eligibility are then set forth] Section 212(e), Immigration and Nationality
Act.

We believe this to be an unequivocal statement, free of ambiguity,
which does not require interpretation. What is more, counsel is incorrect in his claim that the Congress did not intend the two-year residence requirement to apply to the spouses and children of exchange
visitors, if they are admitted in the "J" status. That category both
for the exchange visitor and his family was created by the Mutual
894 '

Interim Decision 401667
Educational and Cultural Exchange Act of 1961. In a discussion and
report on the proposed legislation and the underlying reasons for it
(Report of the Committee on Foreign Relation., on a1164., S.Rep.
372, June 14, 1961, at the bottom of page 19), the following statement
'appears:

To the extent that the spouse and minor ehildren of the person admitted
under the new category (3) are issued a visa in that category, they, too
would be subject to the two-year residence abroad provision.

As to respondent's alternative contention that it was error or denial
to hold the deportation proceedings in abeyance
to await the adjudication of the two applications referred to above,
we consider this likewise to be without merit. Respondent has been
in illegal status in the United States since April 19, 1966. He has
had, therefore, ample time to make application for the waiver and
preference quota status presently sought, but did not see fit to do so
until about one month before the last hearing. It is hi no way incumbent upon the special inquiry officer to hold deportation proceedings
in abeyance to permit respondent to take or complete any priAliroirma7
steps in attempting to create eligibility for discretionary relief which
he wishes to apply for at the deportation hearing, and this is especially so where the outcome is as speculative as that of respondent's
foreign residence waiver application. That application has now been
pending for three' and a half months. If the waiver should be
granted, respondent may move to reopen these proceedings to permit
him to apply for adjustment.
Respondent has been granted the maximum relief for which he is
appeal.
eligible and we will, therefore, dismiss the appeal.
ORDER: It is ordered that the appeal herein , and the same in
hereby dismissed.
of fairness to refuse

895


Interim Decision #2384

MATTER OF BLAICH
In Section 245 Proceedings
A-19568960
, A-20516329

Decided by Regional Commissioner May 15, 1975
The applicants are husband and wife, and seek adjustment of status under section 245 of
the Inunigration and Nationality Act. The male applicant alleges that he is a religious
worker who is eligible for a blanket labor certification under Schedule A of 29 CFR 60.7
as established by the Labor Department, which will satisfy the labor certification
requirement of section 212(a)(14) of the Act. The district director denied the applications but certified the cases to the Regional Commissioner for decision pursuant to 8
CFR 103.4. Where the record showed that the applicant will be employed for 20 hours a
week by a syragague to provide religious instruction and spiritual and moral guidance
to the members, and also will be employed as a religious teacher in a Hebrew High
School for 20 hours a week, the application for permanent residence was approved.
ON BEHALF OF APPLICANTS: William J. Bluestein, Esquire
130 South Robertson Blvd.,
Suite 200
Beverly Mils, California 90211

These cases have been certified to the regional commissioner for a
decision pursuant to Title 8, Code of Federal Regulations (8 CFR)
Section 103.4. The district director denied the applications reasoning
that the applicants are subject to the labor certiAcation requirements of
Section 212(a)(14) of the Immigration and Nationality Act with which
they have not complied.
The applicants are natives of Germany and citizens of Israel. Mr.
Blaich was admitted to the United States via pre-flight inspection at
Montreal, Canada, on August 19, 1970. He was admitted as a visitor for
pleasure for a period of twelve days. Subsequently, he changed his
status to exchange visitor to participate in Program P III 2360 which is
sponsored by the American Association for Jewish Education, New
York City. His wife last entered the United States on July 29, 1971, at
New York City. She was admitted as an exchange visitor also. However, the record is silent concerning her participation in any program.
They have applied for adjustment of status to permanent resident
alleging that the "Blanket Certification" provisions apply to Mr. Blaich
as a religious worker.
304

Interim Decision #2384
Title 29, Code of Federal Regulations, Section 60.2(a) states in part:
"To facilitate the processing of requests for labor certification, Schedules and lists are

provided below which contain determinations made by the Secretary of Labor, pursuant
to the requirements of Section 212(a)(14) of the Immigration and Nationality Act, that:
(1) For the categories of employment described in Schedule A at Section 60.7 except
for any geographic limitations therein set forth, there are not sufficient workers who are
able, willing, qualified, and available for employment and the employment of aliens in
such categories in such areas will not adversely affect the wages and working conditions
of workers in the United States similarly employed."

Schedule A, 29 CFR 60 consists of three categories of employment for
which the Secretary of Labor has, in effect, issued a blanket certification
under Section 212(a)(14) of the Act.
Part 60.7, Group III(c) states:
"Any other person seeking admission to the United States to perform duties related to
the nonpiofit operation of a religious organization(1) if the duties which he will perform
involve special skills, training; and experience which the alien poss6sses and which are'
related to the religious objectives of the organization and (2) if he intends to be engaged
principally (more than 50 percent of this working time) in suckduties. Examples of,
persons coming within this subgroup are cantors, and translators of religious tracts or
texts who have the special capability of conveying through the translation the spiritual
message to which such tracts or texts are directed and Nilo Will be engaged in such
endeavors."
,

An alien whose occupation is within Scbedule:A
n is considered as
having obtained a certification under Section 212(a)(14) of the Act upon
determination by the district director that the alien is qualified for and
will engage in such occupation. Uncontested documents in the file indicate that the male applicant, because of his training and experience and
his moral and religious qualifications was offered employment with
Valley Beth Shalom, Encino, California. His duties with that organization consist of being an instructor and translator of religious tracts, and
to conduct religious classes and other spiritual functions and provide
spiritual and moral guidance to the members of the synagogue. His
employment there is to be for 20 hours per week. "For an additional 20
hours, he is employed as a religious teacher by the Los Angeles Hebrew
High School, a nonprofit school sponsored by the Bureau of Jewish
Education and the United Synagogues of America." He teaches Jewish
Biblical materials, religious texts and other traditional Jewish sources.
The file also shows Mr. Blaieh's pursuit of training and education in

religious subjects which dates back to 1964 with his attendance at Beth
Hakarim Teachers Institute, Jerusalem. Subsequently, he studied at
the Hebrew University of Jerusalem, University of Judaism, Los
Angeles and Georgia State University. Only at the latter was religion
not a part of the curriculum. He has been employed as a religious
instructor or translator almost continuously since 1964 in Israel,
Canada, and the United States.
305

Interim Decision #2384
In his decision the district director states in part:
. .. there is no exemption of the labor certification for teachers, per se. A teacher, even
though he'may teach the views of the religious organization by whom he is employed,
nevertheless, may be basically employed to instruct in the secular and cultural aspects
of the religious body.
Certainly of layrteacher who will devote most of his time to teaching

secular subjects in -a religious school does not qualify for the blanket
certification provided for in Schedule A merely by reason of employment
in such school. To meet the criteria for the, blanket certification, it must
be established that:the duties to be performed involve special skills,
training and experience which are related to the religious objectives of
the organization; that the alien possesses these skills, training and
experience; and that these duties will require more than half of his
working time: Snch is the case before us. We have a man who•is well
prepared with an ok;vio is religious commitment and substantial experience desiring to remain in the United States in furtherance of, and
principally to engage in an occupation related to his religious commitment. On review of the discussion above, we find that the applicant fully
meets the requirenienta for blanket labor certification as provided by 29
CFR, 60.7, Schedule

A,

Group III (c). His application will be approved.

ORDER: It is ordered that the application be approved upon the
issuance of a nonpreferenee visa number by the Department of State.

141

306


Interim Decision #2804

MATTER. OF HOLANI

In Exclusion Proceedings
A-22907478
Decided by Board July 10, 1980
Since the immigration judge is primarily responsible for the physical aspects of the
record on appeal, and in his judgment a transcript of the hearing was necessary in the
case in view of the allegations on appeal, the transcription should have been furnished
by the District Director and the case was remanded for completion of the record.
Matter of Gibson, 16 MN Dec. 58 (3IA 1976) reaffirmed.
EXCLUDABL0

Order: Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant—not in possession of valid immigrant visa
See. 212(a)(14) [9 U.S.C. 1182(a)(14)] Immigrant not in possession of valid labor certification
Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)]—Immigrant—visa obtained by willful misrepresentation of a material fact
—

—

ON BEHALF OF SEEVIC
Robert Godshall
District Director

ON BEHALF OP APPLICANT:
H. Ralph Klemm, Esquire
10 West Broadway, Suite 510
Salt Lake City, Utah 84101

BY: Milhollan, Chairman; Maniatis, A.ppleman, Maguire, and Farb, Board Members

This case presents an appeal from a decision of the immigration

judge ordering that the applicant be excluded and deported from the
United States. His decision was based only upon the first of the three
above-stated charges. The case will be remanded.
The applicant was ordered detained under the provisions of section
235(b) of the Immigration and Nationality Act, 8 U.S.C. 1225(b), as
amended, for an exclusion hearing before the immigration judge on
May 3, 1979. The latter's adverse decision then followed on June 7, 1979.
The applicant appealed on the ground that she should have been the
subject of deportation rather than exclusion proceedings. It is contended that the decision of the immigration judge was not supported
by substantial evidence in the administrative record. It is the position
of the Service that "The instant appeal appears to be frivolous and
426

Interim Decision #2804
merely an attempt to allow the applicant to remain in the United
States for as long as possible."
The record file does not contain a transcript of the oral decision, but
rather the immigration judge's hand written hearing work sheet and
memorandum of decision (Form 1-167). The record before us, there-

fore, suffers a very serious deficiency. We note, however, that the
immigration judge repeatedly attempted to have the District Director

order that the record of proceedings in this case be transcribed, but to
no avail.
We hold the immigration judge primarily responsible for the physical aspects of the record before us in matters under his jurisdiction,
including all material pertaining to the organization and completeness
of the record hearings; orderly inclusion of exhibits and trial briefs; his
signed separate opinion; the appeal notice, with attachments; copies of
relevant procedural communications between the immigration judge,
respondent, and the Immigration and Naturalization Service; and all
appeal briefs with proof of timely service. Since in his judgment a
transcript was necessary in view of the allegations on appeal, the
transcription should have been furnished. See Matter of Cruz,16 I&N
Dec. 463 (BIA 1977); Matter of Charles, 16 I&N Dec. 241 (BIA 1977);
Matter of Gibson, 16 I&N Dec. 58 (BIA 1976).
Since there appears to be a genuine issue of whether the applicant
was duly admitted to the United States, and in light of the above
deficiency, we have determined that the incomplete record should be
remanded. The immigration judge may then correct the deficiency,
enter a formal decision, and return the file to the Board. Accordingly,
the case will be remanded.
ORDER: The case is remanded for further proceedings consistent
with the foregoing opinion.


Interim Decision #1637

MATTER OF

Bortaxxx

In Exclusion Proceedings
A-11698112
Decided by Board September S, 1966
A returning resident communter who has been absent from the United States
due to uncontrollable eir'en/not:anew; (personal illness), who had no Intention to abandon commuter status, and who, less than six months after he
again became employable, bas applied for admission at the border ready
and able to start work immediately, has not abandoned his commuter status,
not orltitstnnding he is destined to new employment, and he Is admissible
to the United States as a returning resident alien commuter.
EXCLIMABLE : Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)1—
Immigrant without a visa.

The special inquiry officer ordered applicant's admission as a
commuter, after an absence of more than six months following the
onset of a serious illness, to take up a. new employment, and certified
the case to the Board.
Applicant is a 38-year-old married male, born in France and a
citizen of Italy, who was lawfully admitted to the United States
for permanent residence nu May 12, 1905. Ho became a commuter
on the basis of a position he obtained with the Chrysler Corporation in Detroit, Michigan. He worked steadily at this job until
October 11, 1965, when he suffered a heart attack. He was hospitalized for 25 days and thereafter restricted in his activities , on
doctor's orders, for several months. He was supported during that
time by sick benefits received from the Chrysler Corporation. Applicant reported back to Chrysler on January 18, 1966,-ready for
work, but it was found there was no work available that he could
perform.
On July 15, 1966, applicant presented himself at the border for
admission as -a commuter, with a letter establishing the immediate
availability of a job for him at Marico Incorporated, in Southfield,
Michigan. He was considered by the immigrant inspector not to
be clearly admissible as a commuter, by virtue •Aif -haviug been with791

Interim Decision #1637
out employment in the United States for a period in excess of six
months.
The facts of the case and the applicable law are clearly set forth
in the special inquiry officer's decision. Certification[ is requested
for the clarification of a single point:
Has a • commuter lost or abandoned his status where, after an interruption
in employment of more than six months; brthight about by uncontrollable
circumstances (in this case, his own serious illness), be seeks to return to
work for a new employer?

We believe the special inquiry officer is correct in holding, on the
facts in this case, that commuter status has not been lost. The
applicant discontinued employment on October 11, 1965, solely by
reason of illness;' that he had no intention of abandoning his status
or employment is evidenced by the fact that as soon as he again
became employable, which was on January 18, 1966, he immediately
reported back to his original employer, ready to go to work; •but
was unable to do so solely because of conditions there. Less than
six months elapsed between that time and the time that he presented
himself at the border, ready to resume work, and with evidence that
a new job was immediately available to him.
The background and incidents of "commuter" status have been
set forth thoroughly in Matter of Bailey, at. Dec. No. 1546, and
Matter of Burciaga-Bakedo, Int. Dec. No. 1601. The cases hold,
without exception, that commuter status is not lost by being out of
employment for six months or more, provided -such discontinuance
of employment is brought about by uncontrollable circumstances
such as accident, illness or pregnancy (this has been extended, in
the Buroicuja-Baleedo case, supra, to include the mother who is not
working because of the illness of her child). The cases go even
further and hold that the duration of the disability is ILIA be to
included in the six-month period, which is tolled until the applicant
becomes employable again, and starts running only from that time.
To .what employment must the commuter return? The prevalent
opinion seems to be that he must go back, within six months after
he becomes employable again, to the job on which he was working
at the onset of the disability, thereby demonstrating that he has not
lost his position. (Cf. Matter of B—, A-4089813, C.O., June 26,
1946, cited in Editor's note to 3 I. & N. Dec. 519, at 527; Matter of
L—, 4 L & N. Dec. 454 (C.O. 1951).)
We do not believe that thic is a valid or necessary requirement.
In Matter of Bureiaga-Salceclo, supra, we held the applicant admissible when the record showed that she was coming to take up
new employment within the time limit; hi Matter of F—, A-6778561,
792

Interim Decision #1637
Deb. 21, 1949, cited in Editor's note to 3 I. & N. Dec. 519, at
526, the applicant. came into the United States to take up temporary
employment with his brother and was held to have retained his
commuter status.

When it became necessary for: the commuter to be admitted. for
lawful permanent residence, employer was administratively equated
with domicile: The following guidelines were set out:
An alien granted the border crossing privilege may lose such right in much
the same manner as en alien• who has been admitted for the purpose of
residence may • lose the right- to reenter. For instance, an alien residing in
foreign contiguous territory and enjoying the border crossing privilege abandons such right when be discontinues his employment in the United States
and does not renew, or seek to renew, same within a period of six months.
Intention shall govern in such -cases to the same extent that it governs in the
cases of aliens who depart from the United States for other countries after
once having been admitted.' (Emphasis supplied.)

Thereafter, a definite standard was set up, to the effect that when
a commuter had been out of employment in'the United States for
six months, he was to be deemed to have abandoned his status of
residence in the United States. 2
In the earliest case we have seen in which an equitable solution
was sought -for the probleni of the commuter whose absence -of more
than six months from employment was due to illness, the Central
Office, in reliance upon the above, stated:
From a perusal of the foregoing, it is evident that the salient points which
determine abandonment of commuter's status are (1) intention and (2) ions

of employment in the United States. Matter of B—, supra.

It then went on to hold that even when it was established that
was no intent to abandon, it must also be shown that the
previous employment was not lost.
Aside from the question of whether "discontinues his employment" and "has been out of employment" are exact equivalents of
"loss of employment," we believe- that the reading by the Central
Office of the two guidelines, in the above case, was erroneous. The
thrust of those documents was that discontinuance of employment
without seeking to renew same within six months was to be deemed
abandonment of commuter status, but that actual intention was
to govern as to whether there had been such an abandonment, in
the same way that it did for resident aliens who were absent from
the United States for longer than the --permitted periods. The
there

Central Office letter November 16, 1927, 55470/537–A. cited in Editor's Note
to 3 I. & N. Dec. M.
"O.I. 110.6, cited in Editor's note to 3 I. & N. Dec. 510.
793

Interim Decision #1637
discontinuance "of employment was regarded as prime evidewe of
the intention to abandon, and soon became a conclusive presumption
of abandonment, except for the aliens whose nonemployrnent was
due to the uncontrollable circumstances set forth above. It was
not a separate and further factor that had to be disproved along
with intent.
There are many reasons why the interpretation in Matter of B—,
supra, should not govern. First, it negates the concept of the tolling
of the six-month period during actual disability, and its commencement only after the alien has once again become employable. If
the alien who had been disabled and away from his work for more
than six months could return only to his original position, what
need would there be for a six-month period thereafter! He would
have a job waiting and available for him, and would need only a
tolling of the period of actual disability which exceeded six months.
Second, it frustrates the purpose for which the tolling was
evolved, namely, the assistance of the alien. who has been seriously
ill or disabled for a substantial period of time. Very few employers,
.outside of government or the major industrial organizations, are
able or willing to keep a position open for a person who has been
out ill for more than six months. Thus, the alien whose resources,
physical, moral and financial, have been drained by a lengthy period
of illness, with smaller income and larger expenses, who comes back
to his employer in the hope of resuming his prior position, and is
dealt the blow of learning there is no longer a job for him, is,
if this interpretation is to be followed, immediately dealt the equally
serious blow of losing commuter status, and if there is an exclusion,
he may be unable to apply for admission to the United States for
a full year thereafter. •
Third, it places the commuter who has been ill, and whose absence
of more than six months has in effect-been "forgiven" by the tolling
of the period until he is again employable, under a disability not
borne by his fellow commuter who has not been seriously ill. The
latter is not restricted to any one job or to any one employer. If he
is displeased with a particular position, or is laid off because of
lack of work, or even fired for cause, he can seek new employment
wherever he can find it, and so long as he is not out of work for
six months, there is no question of abandonment of his commuter
interpretation is to govern, the
status. But; if the Matter of B
commuter who has been ill, and had his absence during illness forgiven, ostensibly to place him on an equality with his fellow commuters, is restricted to applying for Work with his former employer, and if nothing is available there, possibly he might be
-

—

794

Interim Decision #103T
considered to have maintained his status if a position were to open
up for him with his former employer before the expiration of the
six-month period.. He does not have the normal freedom to explore
the labor market that his healthy colleague has, and to take work,
which he urgently needs, wherever he can find it.
We do not believe that such results were ever intended or desired.
Where, as here, there was no intention to abandon commuter status,
the pertinent absence was caused wholly by uncontrollable circumstances, and the applicant appeared at the border ready and able
to start work immediately, less than six months after he became
employable again, there has been no abandonment of commuter
status despite a change in employment.
ORDER: It is ordered. that no change be made in the order of
the special inquiry officer.

795


Interim

1Jegastuu 46

Mama or CEITALLOS
In Deportation Proceedings
A-12844327
A-12811195
A-11866690
Decided by Beard May 97, 1988
(1) The conviction of an offense for which there is no pardoning authority
within the purview of section 241(b) (1) of the Immigration and Nationality
Act is not a conviction of a "crime" within the meaning of section 241 (a) (4) of
the Act.
(2) Hence, respondent's deportation under section 241 (a) (4) of the Act, on the
basis of his convictions on two occasions in 1966 in the Municipal Court, North
Miami Beach, Florida, for shoplifting (petit larceny). is precluded since under
Florida law the mayors of municipalities have no authority to grant a pardon
for a conviction of a municipal offense nor does the Pardon Board of the State
of Florida have jurisdiction to pardon such offense as under Florida law
municipal offenses are not crimes.
CHARGE:

Order: Act ote 1052--Section 241 (a) (4) (8 U 8.0.1251(x) (4) 3--Convicted after

entry of two crimes invoiving moral turpitude, to wit ;
petit larceny and petit larceny.

ON BEHALF OF lbssrenDENT
OURTRITO W. Larson, Esquire

ON BEHALF OF SERVICE :
R. A. Violhgbor

Appellate Trial Attorney

5965 S.W. Eighth Street
Miami, Florida 83144

The above-captioned cases are before us on certification by two special inquiry officers for review of their decisions to terminate the proceedings in the three cases. The legal issues involved in all three cases
are identical and they will be considered together. The Service moves
for an order by this Board vacating the orders terminating the
proceedings.
The male alien, married, 437 years of age, is a native and citizen of
Norway who was admitted for permanent residence at the port of New
York on October 2, 1959. He has been convicted on two occasions in
1966 in the Municipal Court, North Miami Beach, Florida for shop750

.1.11W1.1.11.1

AJC.,...71, 11.i

wit iv vv

lifting (petit larceny). The female aliens, mother and daughter, both
married, are natives and citizens of Ecuador. They were admitted for
permanent residence at the port of Miami, Florida on November 28 and
November 24, 1962, respectively. They were convicted in the Municipal
Court of the City of Miami, Florida on October 8, 1965 for having committed two acts of shoplifting in separate stores (petit larceny) for
which offenses they received suspended sentences.
The cases of the two female aliens were before us in April of 1066. We
entered an order on April 25, 1966 affirming an order entered by the
special inquiry officer on December 7, 1965 terminating the proceeding.
We held that the lack of a pardoning authority by the Executive
Branch of the State Government of Florida to pardon municipal
offenses precluded the use of the convictions as the basis for an order
of deportation. We were of the opinion that the reasoning of the courts

in Gubbels v. Hoy, 361 F.2d 952, and Costello v. Immigration and
Naturalization. Service, 376 U.S. 120, was applicable to the case of the
female.respondents.
The three cases were last before us in May of 1967. We then considered a motion filed by the General Counsel of the Immigration and
Naturalization Service to remand the proceedings on the basis that
there was additional evidence with regard to the availability of a
pardon'. for anyone convicted of a municipal offense. The cases are
again before us on certification pursuant to our order of remand entered on May 11, 1967.
There are two issues presented by the three cases. The primary issue
is whether the absence of a pardon authority precludes deportability
under section 241(a) (4), Immigration and Nationality Act. The other
is whether a conviction for violation of a mimicipal ordinance which
is prosecuted as such and not as a violation of a state or federal statute
is the conviction of a. "crime" within the purview of section 241(a) (4)
of the Act.
The special inquiry officer concludes with regard to the primary
issue that one convicted of a violation of a municipal ordinance in the
State of Florida does not have the positive right or privilege to apply
for and have an application. for pardon considered, and therefore, is
denied a right provided by section 241(b) (1) of the Immigration and
Nationality Act. The Service takes the position that the courts in
Gubbels v. Hoy and Costello (supra) were concerned with an absence
of authority to make judicial recommendations against deportation as
provided by section 241(b) (2) of the Act, whereas the instant cases
involve the absence of a pardoning authority by the Executive Branch
of the State Government of Florida pursuant to the provisions of
I To be granted by the Rxeentive Branch of the State Government of Florida.

751

section 241 (b) (1). A fortiori, there is no 'basis for reading section
241(b) (1) together with section 241 ( a) (4) because subsections ( b) (1)
and (b) (2) refer to separate and distinct jurisdictional authorities,
namely, the judiciary as opposed to the executive. Furthermore, the
Service argues that since there is evidence that a pardon has in fact
been issued by the supreme pardoning authority for the State of Florida in another case involving a conviction in a municipal court for
the same offense involved in the three cases before us, a pardon is not
precluded under the laws of Florida.
Section 241(a) (4) makes deportable an alien who has been convicted
of two crimes involving moral turpitude, not arising out of a single
scheme of criminal misconduct, regardless of whether the convictions
were in a single trial. Section 241(b) of the Act makes the provisions
of subsection (a) (4) with respect to deportation of an alien convicted

of crimes not applicable (1) in the case of any alien who has subsequent to such a conviction been granted 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
crimes shall make, at the time of first imposing judgment or passing
sentence, or within 30 days thereafter, a recommendation that such
alien not be deported.
Section 12, Article 4, of the Florida Constitution establishes a
Pardon Board to issue pardons to persons convicted of crimes. The
Board consists of the governor and other members of the cabinet. A
pardon issued by such Board is deemed to be within the scope of the
language of section 241(b) (1) of the Immigration and Nationality
Act_2 A pardon by the mayor of a city for violation of a city ordinance
is an effective pardon when that person constitutes the only pardoning
authority.a
The Attorney General of the State of Florida in his communication
of January 25, 1968 takes the position that the Pardon Board of the
State of Florida has no jurisdiction to issue a pardon in the instant
cases because under Florida law ♦ the municipal offenses committed
by the respondents are not crimes. He further stated that the pardon
issued in a. prior case was "an act of executive courtesy" but that such a
pardon "is legally meaningless." There is no authority under Florida
law for the mayors of the municipalities involved to issue executive
pardons.
2

Matter of 13—. T L & N. Dee. 476.

'matter of 0-1?--, 8 I. & N. Dee. 59.
Wright v. Mard. 83 Fla. 201, 91 S. 87, City of Miami v. Gilbert
102 8.2d 818.

752

(F1a. App.),

11110E101

irec..L
. tv.u.u.

TF10110

It is true that for the purpose of determining whether there has in
fact been a conviction of a "crime" within the meaning of section
241(a) (4) of the Act it has been held that the interpretation of the
misconduct by the particular state or jurisdiction involved with regard

to whether it is considered a crime under their laws does not control in
immigration proceedings!' Here, however, the jurisdictional interpretation affects a right granted an alien by Congress, namely, to avoid
deportation on a criminal charge by the grant of a pardon by "the
Governor of any of the several States." The Supreme Court has said
that "the qualifying provisions of subsection (b) (of section 241) are
an important part of the legislative scheme expressed in (section 241)
(a) (4)." The Supreme Court made no distinction in. the qualifying
provisions of subsection (b) of section 241 in the above quotation as
does the Service in their argument that there is no .reason for reading
section 241(b) (1) together with 211(a) (4) because subsections (b) (1)

and (b) (2) do not refer to the same jurisdictional authority.
Adopting a construction of the term "crime" as used in section 241
(a) (4) which would "completely nullify a procedure so intrinsic a
part of the legislative scheme" 6 as is provided by section 241(b) (1)
would trench on a right granted by Congress and is not required by
the narrowest of several possible interpretations of the statutes here
under consideration. Ambiguities in deportation statutes should be
resolved in favor of the alien? We affirm the decisions of the special
inquiry officers and their orders terminating the proceedings.
ORDER:. It is directed that the orders terminating the proceedings
herein entered by the special inquiry officers on January 10, 1967 and
February RS, 1967 be and the same are hereby affirmed.
FtoresRodriguez, 237 F.2d 405, 409 (43.A. 2, 1956) ; Babourie v. Deperdy, 269
F.2d 621 (QA. 2, 1959) ; Wyngaard v. Kennedy, 295 F.24 184 (0.A.D.O., 1961).
° Costello v. immigration and Naturaulation Service, 370 u.s. 120, 127, Li. L.
Ed.2d 559, 563 (1954).
Rid, 376 17.S. 124 11 L. Ed.2d 564.

-753


Cite as 27 I&N Dec. 503 (BIA 2019)

Interim Decision #3949

Matter of A. VASQUEZ, Respondent
Decided April 12, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Under the plain language of section 101(a)(43)(H) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(43)(H) (2012), kidnapping in violation of 18 U.S.C. § 1201(a)
(2012) is not an aggravated felony.
FOR RESPONDENT: Michael J. Spychalski, Esquire, Dallas, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Levi Thomas, Assistant Chief
Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and LIEBOWITZ, Board Members
MALPHRUS, Board Member:

In a decision dated May 29, 2018, an Immigration Judge terminated these
proceedings, finding that the respondent is not removable under section
237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony
under section 101(a)(43)(H) of the Act, 8 U.S.C. § 1101(a)(43)(H) (2012)
(an offense relating to the demand for or receipt of ransom). The Department
of Homeland Security (“DHS”) has appealed from that decision. The appeal
will be dismissed.
The respondent is a native and citizen of Mexico who was admitted to the
United States as a conditional permanent resident on April 16, 1998, and
adjusted his status to that of a lawful permanent resident on March 10, 2001.
On July 29, 2009, the respondent was convicted in the Northern District of
Illinois of kidnapping in violation of 18 U.S.C. § 1201(a)(1) and (2) (2006),
for which he was sentenced to a term of imprisonment of 139 months. 1 The
1

An individual is guilty of kidnapping under 18 U.S.C. § 1201(a) if he or she
unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and
holds for ransom or reward or otherwise any person, except in the case of a minor by
the parent thereof, when—
(1) the person is willfully transported in interstate or foreign commerce,
regardless of whether the person was alive when transported across a State

503

Cite as 27 I&N Dec. 503 (BIA 2019)

Interim Decision #3949

DHS issued a notice to appear charging that the respondent’s conviction was
for an aggravated felony under section 101(a)(43)(H) of the Act. 2 The
Immigration Judge disagreed and terminated the proceedings.
Section 101(a)(43)(H) of the Act defines an aggravated felony as “an
offense described in section 875, 876, 877, or 1202 of title 18, United States
Code (relating to the demand for or receipt of ransom).” Although 18 U.S.C.
§ 1201 is not included in this list, the DHS contends that we should interpret
kidnapping in violation of that statute to be an aggravated felony because it
is “described in” the other statutes listed in section 101(a)(43)(H).
Under well-settled principles of statutory construction, the “first step in
interpreting a statute is to determine whether the language at issue has a plain
and unambiguous meaning with regard to the particular dispute in the case.”
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Whether a statute is
ambiguous is “determined by reference to the language itself, the specific
context in which that language is used, and the broader context of the statute
as a whole.” Id. at 341. “If the statute is clear and unambiguous ‘that is the
end of the matter, for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.’” K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988) (citations omitted); see also, e.g., Matter of
Valenzuela, 25 I&N Dec. 867, 869 (BIA 2012).
The DHS asserts that the phrase “described in” in section 101(a)(43)(H)
of the Act indicates congressional intent to give the statute a broad reach.
We recognize that the term “described in” is less specific than the phrase
“defined in,” which is employed elsewhere in section 101(a)(43). See
sections 101(a)(43)(B), (C), (F) of the Act; Nieto-Hernandez v. Holder, 592
F.3d 681, 686 (5th Cir. 2009). However, we cannot agree that Congress’ use
of the phrase “described in” allows us to interpret section 101(a)(43)(H) as
including an offense under a Federal statute that is not enumerated there. 3
boundary, or the offender travels in interstate or foreign commerce or uses the mail
or any means, facility, or instrumentality of interstate or foreign commerce in
committing or in furtherance of the commission of the offense[, or]
(2) any such act against the person is done within the special maritime and
territorial jurisdiction of the United States . . . .
2

The DHS also charged the respondent under section 101(a)(43)(F) of the Act as an alien
convicted of a crime of violence. The Immigration Judge concluded that kidnapping in
violation of 18 U.S.C. § 1201 is not a crime of violence because it does not have “as an
element the use, threatened use, or attempted use of physical force,” as required by
18 U.S.C. § 16(a) (2012). The DHS has not challenged that determination on appeal.
3
We need not decide whether an offense under a State or foreign statute that has the same
elements as a crime under one of the Federal statutes enumerated in section 101(a)(43)(H)
of the Act can be considered to be “described in” one of those statutes and therefore be an
aggravated felony.

504

Cite as 27 I&N Dec. 503 (BIA 2019)

Interim Decision #3949

The DHS primarily relies on the Supreme Court’s statement in Torres
v. Lynch, 136 S. Ct. 1619, 1625–26 (2016), that the word “‘describe’ takes
on different meanings in different contexts,” at times conveying “exactness,”
while at others implying something less precise. According to the DHS, the
Court applied a broad reading of the phrase “described in” to find that the
crime of arson under New York law is an aggravated felony. It therefore
contends that we should similarly interpret section 101(a)(43)(H) to include
kidnapping under § 1201.
In Torres, the Court addressed the aggravated felony definition in section
101(a)(43)(E)(i) of the Act, which includes offenses that are “described in”
any of four enumerated Federal statutes. The Court determined that the State
arson law “matches the federal statute element-for-element with one
exception: The New York law does not require a connection to interstate
commerce.” Id. at 1624. As the Court pointed out, we had ruled that this
“single difference did not matter because the federal statute’s commerce
element is ‘jurisdictional.’” Id.; see also Matter of Bautista, 25 I&N Dec.
616 (BIA 2011), vacated, Bautista v. Att’y Gen. of U.S., 744 F.3d 54, 68 (3d
Cir 2014); Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002). Several
circuit courts agreed that Congress used the broader term “described in” so
as to include State statutes in the aggravated felony definition, even if they
did not contain an interstate commerce element. See Torres v. Holder, 764
F.3d 152, 157 (2d Cir. 2014) (collecting cases), aff’d, Torres, 136 S. Ct. at
1634.
Finding that the question before it could not be determined by the
language of the particular aggravated felony provision alone, the Supreme
Court concluded that it must be decided “with reference to the statutory
context.” Torres, 136 S. Ct. at 1626. Accordingly, considering both the
language and the context of the statute, the Court concurred with the Board
and the circuit courts that the alien was convicted of an aggravated felony
under section 101(a)(43)(E)(i) of the Act. Id. at 1634.
The contextual considerations in this case are very different. Unlike the
Court in Torres, our concern is with the question whether the Federal crime
of kidnapping under 18 U.S.C. § 1201, which is not a statute listed in section
101(a)(43)(H) of the Act, can be interpreted to be an aggravated felony
because it is similarly “described in” the statutes that Congress did enumerate
there. Aside from the phrase “described in,” the DHS does not contend that
the statutory language in section 101(a)(43)(H) of the Act is ambiguous. Nor
does it cite to any legislative history explaining congressional intent as to
this particular aggravated felony provision. Instead, the DHS argues that
because the “central theme” of the statutes listed in section 101(a)(43)(H)
is “threatening to kidnap,” the Federal offense of “kidnapping” should be
considered to be “described in” those statutes.
505

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We have previously rejected a similar argument regarding section
101(a)(43)(N) of the Act, which includes in the aggravated felony definition
“an offense described in paragraph (1)(A) or (2) of section 274(a) (relating
to alien smuggling).” Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA
1999). We held there that the respondent, who had been convicted of aiding
and abetting illegal entry in violation of section 275(a) of the Act, 8 U.S.C.
§ 1325(a) (1988), was not convicted of an aggravated felony, reasoning that
“the plain language of section 101(a)(43)(N) reveals that Congress intended
to specifically reference the offenses listed in sections 274(a)(1)(A) and (2).”
Id. at 720. The United States Court of Appeals for the Fifth Circuit, in whose
jurisdiction this case arises, agreed, stating that a conviction for “violating
[section 275(a) of the Act] is outside the ambit of [section 101(a)(43)(N)],
which is explicitly confined to convictions under [section 274(a)].”
Rivera-Sanchez v. Reno, 198 F.3d 545, 547 (5th Cir. 1999) (per curiam)
(emphasis added)). For similar reasons, we conclude that the language of
section 101(a)(43)(H) of the Act is plain and that the respondent’s
kidnapping offense is not an aggravated felony.
Moreover, in addition to the phrase “described in,” section 101(a)(43)(H)
of the Act contains a “relating to” parenthetical. We have held that such
parentheticals offer a “shorthand description of the referenced criminal
offenses” that gives the reader “guidance as to the nature and extent of the
offenses.” Matter of Ruiz-Romero, 22 I&N Dec. 486, 489 (BIA 1999). To
determine whether a “relating to” parenthetical is “descriptive or limiting,”
we must read it “in context and with a view to its place in the overall structure
of the statute.” Matter of Oppedisano, 26 I&N Dec. 202, 204, 206 (BIA
2013); see also Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015) (recognizing
that although the phrase “relating to” is “broad” and “indeterminate,” the
context of the statute called for a narrower reading (citation omitted)).
Congress used the phrase “relating to the demand for or receipt of
ransom” as the descriptor of the offenses defined in the four Federal statutes
enumerated in section 101(a)(43)(H), not the phrase “relating to kidnapping.”
A conviction for kidnapping under § 1201 does not require a demand for or
receipt of ransom to support a conviction, because the statute requires proof
that a person has been “held for ransom, reward, or otherwise.” United States
v. Osborne, 68 F.3d 94, 100 (5th Cir. 1995) (emphasis added); see also
United States v. Healy, 376 U.S. 75, 82 (1964) (recognizing that § 1201 is
not limited to kidnappings “for pecuniary gain” or even for an “illegal
purpose”). This differs from, for example, 18 U.S.C. § 1202 (2012), one of
the enumerated statutes, which does require that ransom money be delivered
or received in connection with a kidnapping. See, e.g., United States
v. Ortega, 517 F.2d 1006, 1009 (3d Cir. 1975). While some provisions in
the other three statutes listed in section 101(a)(43)(H) also relate to a demand
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Interim Decision #3949

for ransom in connection with a kidnapping, other parts do not prohibit
conduct associated with kidnapping at all. See 18 U.S.C. §§ 875(d), 876(d),
877 (2012).
If Congress had intended to make kidnapping in violation of § 1201 an
aggravated felony under the Act, it could have included that statute in section
101(a)(43)(H) along with the others that were listed there. See Thompson
v. Goetzmann, 337 F.3d 489, 499 (5th Cir. 2003) (per curiam) (recognizing
“the well-known interpretative canon, expressio unius est exclusio alterius—
‘the expression of one thing implies the exclusion of another’” (citation
omitted)). This is especially true because the crime of kidnapping under
§ 1201 existed at the time Congress enacted section 101(a)(43)(H) in 1994.
See United States v. McInnis, 601 F.2d 1319, 1324 (5th Cir. 1979) (stating
that the Federal kidnapping statute was originally enacted in 1932); see
also Immigration and Nationality Technical Corrections Act of 1994, Pub.
L. No. 103-416, § 222(a), 108 Stat. 4305, 4320–21. Congress could also
have added § 1201 to the offenses listed in section 101(a)(43)(H) of the Act
at a later date, but despite its many amendments to the aggravated felony
provisions since 1994, it has not done so. See Matter of Alvarado-Alvino,
22 I&N Dec. at 720–21.
In interpreting a statute, we may only deviate from its plain language in
“rare and exceptional circumstances” where following the text would lead to
an absurd or bizarre result that is “demonstrably at odds with the intentions
of its drafters.” Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (quoting
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)); see also
Helvering v. Hammel, 311 U.S. 504, 510–11 (1941) (stating that the
interpretation of a statute may depart from the “literal or usual meaning of its
words where acceptance of that meaning would lead to absurd results or
would thwart the obvious purpose of the statute” (citations omitted)).
Contrary to the DHS’s argument, a “literal reading” of the statute simply does
not give rise to absurd results in this case. Mahosco Corp. v. Silver, 447 U.S.
807, 818 (1980).
In this regard, the DHS emphasizes that some offenses under the statutes
enumerated in section 101(a)(43)(H) of the Act essentially involve a threat
to kidnap, while a conviction under § 1201 requires more serious conduct—
the completed act of kidnapping. Although the DHS may be correct that
someone who is guilty of kidnapping in violation of § 1201 is “clearly more
culpable” than a person convicted of some of the enumerated offenses in
section 101(a)(43)(H), we cannot agree that it “defies logic” to hold that
Congress did not intend to include kidnapping under § 1201 as an aggravated
felony. In any event, the statute is not ambiguous, and we may disregard its
plain language only if applying the text as written would produce a result that

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is absurd or bizarre, not where the result may be somewhat illogical. See
Demarest, 498 U.S. at 190–91.
This is not to minimize the abhorrent nature of the crime of kidnapping.
We agree with the DHS that kidnapping is unquestionably a serious offense,
and the respondent’s plea agreement bears out the reprehensible nature of his
conduct. However, many serious offenses are not aggravated felonies under
the immigration laws. The seriousness of the crime here does not give us the
legal authority to extend the scope of the statute beyond the limits provided
by Congress. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 161 (2000).
There are clearly policy considerations that would warrant making
kidnapping under § 1201 an aggravated felony. But it is for Congress to
decide if it should be included. We cannot rewrite the words of the statute
to achieve a favored outcome. See Comm’r v. Lundy, 516 U.S. 235, 252
(1996) (“We are bound by the language of the statute as it is written, and
even if the rule Lundy advocates might ‘accor[d] with good policy,’ we are
not at liberty ‘to rewrite [the] statute because [we] might deem its effects
susceptible of improvement.’” (alterations in original) (citation omitted)).
The language of section 101(a)(43)(H) of the Act and the contextual
considerations in this case do not support the statutory interpretation the DHS
advocates. See Nielsen v. Preap, 139 S. Ct. 954, 964 (2019) (“[N]either the
statute’s text nor its structure supports this argument.”). We cannot read
ambiguity into a statute that is not there. See Dodd v. United States, 545 U.S.
353, 357 (2005) (“We ‘must presume that [the] legislature says in a statute
what it means and means in a statute what it says there.’” (citation omitted)).
We are therefore constrained to conclude that the crime of kidnapping under
§ 1201 is not an aggravated felony. Accordingly, the DHS’s appeal will be
dismissed.
ORDER: The appeal of the Department of Homeland Security is
dismissed.

508


Interim Decision #1297.

MATTER

or Woo

In DEPORTATION Proceedings
A-11822728

Decided by Board August 13,1963
While an applicant for suspension of deportation who is exempt from the requirement of any specified period of continuous physical presence as provided by
section 244(b), Immigration and Nationality Act, as amended, is also exempt
from the necessity of establishing good moral character for the period coextensive with the physical-presence period, he must establish good moral.
character between the date he filed his suspension application and the date
it is finally adjudicated. Conduct prior to the filing date can be considered
in determining whether good moral character has been established during the period in question.
CHARGE :

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Excludable
at entry under section 212(a) (20)—No immigrant visa.

The special inquiry officer on June 18, 1963 entered an order granting the respondent's request that his deportation be suspended under
the provisions of section 244 (a) (1) of the Immigration and Nationality Act and directed that the case be certified to this Board for final
d.eoision in accordance with the applicable regulations. The respondent, a 28-year-old married male, native and citizen of China, was

first admitted to the United States at San Francisco, California on
March 24, 1948 under the name of Louie Chung Ring as the United
States citizen son of Louie Sheuck Yu, a native-born citizen of the
United States. The respondent last entered the United States at
Travis Air Force Base on or about May 16, 1960 as a member of the
United States Armed Forces. Deportation proceedings were instituted.
against the respondent on February 14, 1962.
Hearings in deportation proceedings were held at Seattle, Washington on March 6 and March 20, 1902, at which time the respondent
and counsel admitted the truth of the factual allegations set forth in
the order to show cause and conceded deportability on the chargestated
therein. The respondent was not a citizen of the United -States on the

347

Interim Decision #1297
occasion of his initial admission at San Francisco, California in March
1948 or when he last entered the United. States as a member of the
armed forces in May 1960. The decision of the special inquiry officer
directing that the respondent be deported from the United States to
Hong Kong or in the alternative to Formosa became final when no
appeal was taken therefrom. The evidence of record clearly establishes that the respondent is subject to deportation under the provisions
of section 241( a) (1) of the Immigration and Nationality Act, in
that, at the time of entry he was within one or more of the classes of
aliens excludable by the law existing at the time of such entry, to wit,
aliens who are immigrants not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry
document and not exempted from the possession thereof by said Act
or regulations made thereunder, under section 212 ( a) (20) of the Bruntgration and Nationality Act.
The respondent's motion requesting that the proceedings be reopened
for the purpose of affording him an opportunity to prosecute an application for suspension of deportation under the provisions of section

244 of the Immigration and Nationality Act as amended by the Act of
October 24, 1962 was granted by the special inquiry officer on January
25, 1963. For the reasons hereinafter set forth, the special inquiry
officer's decision of June 18, 1963 granting the respondent's application
for suspension of deportation under section 244 of the Immigration
and Nationality Act, as amended, will be approved. The evidence
adduced at the reopened hearing held at Seattle, Washington on February 1, 1963 establishes that the respondent was born in Hong Kong,
British Crown Colony, on June 6, 1935; that ho attended primary
school in Hong Kong until he was 12 years of age, at which time
arrangements were made by his father, then a. resident of the United
States, to have the respondent enter the United States as the son of
one Louie Sheuck Yu, a native-born citizen of the United States. The
respondent's testimony indicates that after his admission. to the United
States he retained his assumed identity of Louie Chung Hing; that
he completed high school in the United States and joined the Washington State National Guard in 1956.
The respondent enlisted in the Regular Army of the United States
on September 7, 1957. He served continuously therein until his honorable discharge therefrom on May 16, 1960, a period of two years and
eight months, at which time he was transferred to the United States
Reserve Corps. While a member of the armed forces of the United
States stationed in Guam, the respondent secured leave and went to
Hong Kong, British Crown Colony, where he was married on Jannary 30, 1959 to one Tso Lai Jen, a native and citizen of China. (Ex.
7) A son, now two years of age, was born of this union in Hong
348

Interim Decision #1297
Kong, British Crown Colony. The respondent's petition for the issuance of a nonquota immigrant visa, to his wife subscribed and sworn
to before a United States Consular Officer at Hong Kong, British
Crown Colony, on February 6, 1959 failed to receive favorable consideration because the respondent was unable to submit any evidence in
support of his claim that he was a United States citizen and he refused
to submit to blood grouping tests. The respondent when questioned

under oath by an officer of the Service at the office of the American
Consulate in Hong Kong, British Crown Colony, on June 29, 1959
reiterated his false claim of being a citizen of the United States and
deposed that his father was Louie Sheuck Yu, a native-born citizen
of this country.
The respondent's application requesting that his deportation be suspended under sections 244(a) (1) and 211(b) of the Immigration and
Nationality Act was subscribed, sworn to and submitted for considera-

tion at the Seattle, Washington office of the Service on February 1,
1963. Section 241(b) of the Immigration and Nationality Act as

amended by the Act of October 24, 1962 provides that the requirements
of continuous physical presence in the United States specified in paragraphs (1) and (2) of subsection (a) shall not be applicable -to an alien
who has served for a minimum period of 24 months in an active duty
status in the armed forces of the United States and, if separated from
such service, was separated under honorable conditions. As previously noted, the respondent served honorably in the United States
Armed Forces on an active duty status for a continuous period of two
years and eight months. This Board held in Matter of P—,
A-11402870, decided June 10, 1063, that an applicant who is exempt
from the requirements of any specified period of continuous physical
presence as provided in section 244 (b) of the Immigration and Nationality Act is also exempt from the necessity of establishing good moral
character for the period coextensive with the physical presence period;
that the alien in such case must establish good moral character between
the date of the filing of his application for suspension of deportation
and the date that it is finally adjudicated and the alien's conduct prior
to the date of filing can be considered in determining whether good
moral character has been established during the period in question.
The only manner in which the respondent's immigrant status can
be adjusted is by suspension of deportation. He is ineligible for adjustment of status under section 245 of the Immigration and Nationality Act because the quota for Chinese persons is pre-empted in all
categories for an indefinite period and he cannot qualify for the
creation of a lawful record of admission under section 249 of the Act.
The record reflects the respondent has never been affiliated with any
subversive or proscribed organizations. Except for traffic arrests, the
349

interim Decision #1297
:respondent has no criminal record in the United States or elsewhere.
independent character investigations conducted by the Service are
.entirely favorable to the respondent's application for the discretionary
.relief of suspension of deportation. He has maintained an excellent
-employment record and his present employer describes him as a conscientious person of good character and reputation, without objectionable traits or bad habits. The respondent's fraudulent admission
to the United. States in March 1948 as a citizen thereof and his retention
of the assumed identity under which he was admitted to the United
States in 1948 as well as his continuing to claim to be a citizen of the
United States until sometime after his discharge from the United
States Armed Forces in May 1960 are acts which should not be charged
against the respondent inasmuch as he was only a child 12 years of
age when his natural father , then a resident of the United States,

arranged to have him admitted to the United States as the citizen son
of Louie Sheuck Yu, a United States citizen.
The respondent has been a resident of the United States sines he was

12 years old, a period of more than 15 years. His military record in
the United States Army is excellent. Moreover, he speaks good English and enjoys a good reputation among associates and employers.
Persons who have known the respondent for many years attest that
he is a person of good moral character and loyal to the United States.
Clearly, his deportation from the United States would result in extreme hardship to himself. On the basis of all the evidence in this
record, we find that the respondent has established good moral character and is statutorily eligible for the discretionary relief of suspension of deportation under section 244(a) (1). For the reasons herein-

before set forth, no change will be made in the order of the special
inquiry officer granting suspension of deportation.
ORDER: It is ordered that the deportation of the alien be suspended under the provisions of section 244(a) (1) of the Immigration
and Nationality Act..
It is fv.rther ordered that if the Congress takes no action adverse
to the order granting suspension of deportation, the proceedings be
cancelled, and the alien, if a quota immigrant at the time of entry not
then charged to the appropriate quota, be so charged as provided by
law.
It is further ordered that in the event Congress takes action adverse
to the order granting suspension of deportation, these proceedings
shall be reopened upon notice to the alien.

350


Interim Decision #1821

MATFOR OF CiDFL

In Deportation Proceedings
A-14547666
Decided by Board January 9, 1968
Since the provisions of section 241(f) of the Immigration and Nationality Act,
as amended, do not apply to trawl relating to a nonimmigrant entry, the benefits of that section are not available to respondent to waive her deportability

based on entry with a nonimmigrant visa obtained by fraud.
CHARGES :

Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under section 212(a) (19), procured documentation by fraud.
Lodged: Act of 1052 —Section 241(a) (5) [8 U.S.C. 1251(a) (5)3 —Convicted
under Title 18, U.S.C., section 1546.
ON BEHALF OF SERVICE:
ON BEHALF OF RESPONDENT :
Irving A. Appieman
Nicholas Wai Yuen Char, Esquire
Appellate Trial Attorney
942 Maunakea Street
Honolulu, Hawaii 96817
Donald B. Anderson •
(Oral argument waived)
Acting Trial Attorney
(Brief filed)

This case is before the Board on certification from the special inquiry officer, who found respondent not &portal& on either charge
and terminated proceedings.
Respondent is a 21-year-old married female alien, native and citizen
of the Philippines. She last entered the United States on October 7,
1964 at Honolulu, Hawaii, as a nonimmigrant visitor, presenting a.
passport and visa in the name of Romualda N. Vidad. This was admittedly not her true name, and to obtain her nonimmigrant visa she
admittedly gave false information to the American Consul about,
among other things, family ties in the Philippines, family members
in the United States, and whether she had ever applied for a nonimmigrant visa before. The record before us does not show the period
for which she was originally admitted as a visitor.
In May 1965, an order to show cause was issued, alleging that respondent entered the United States with a passport and visa she had
560

Interim Decision #1821
knowingly procured in a false name, and charging that she •was, there-

fore, deportable under section 241(a) (1) as one who at the time of
entry was excludable for having procured. a visa or other documentation by fraud or willful misrepresentation under section 212(a) (19)
of the Act.
Deportability on the charge in the order to show cause was conceded
at the first hearing, held on June 18, 1965. Counsel informed the special
inquiry officer that on May 14, 1965 respondent had married a naturalized citizen of the United States and that a petition for nonquota
status for her would be filed shortly, together with an application for
adjustment under section 245 of the Act, coupled with an application
under section 212(i) for a. fraud waiver. The hearing was adjourned
to permit submission of these documents, which were received on
July 20, 1965.
The Service presented respondent's case to the United States Attorney for prosecution under section 1546 of Title 18 U.S.C., and an
indictment was filed on January 27, 1966, charging respdndent with
having "unlawfully obtained, accepted and received" a visa, "knowing
the same to have been procured by means of false claims and statements
and by fraud." When the indictment was Lied, respondent was in the
seventh month of pregnancy, and the criminal proceedings were held
in abeyance until after the birth of the child. In May 1966, after trial,
respondent was found guilty as charged. She was ordered•o pay a fine
of $800, imposition of sentence was suspended, and she was -placed on
probation for a period of five years. . •
A second hearing was held on May 11, 1967, and the Service lodged
an additional charge of deportability, under section 241(a) (5), based
upon the conviction. Respondent conceded deportability on the lodged
charge. The hearing was closed without decision, the special inquiry
officer stating that it was not yet certain to•what extent the decision
would be affected by the Supreme Court ruling in the case of Imozigrrt.
Lion and Naturalisation Bernice v. Errieo, 385 U.S. 214. He announced
his intention of certifying his decision to this -Board if no 'precedent
decision in point should be rendered prior to his, and also advised

respondent of her appeal rights if he should deny her application:
In his decision rendered on August 4, 1967, the special inquiry
officer pointed out that the language of the order to show cause charge,
relating to the securing of the nonimmigrant visa, was the very same
language that appeared in section 241(f). He held it to be clear that
Congress had Intended section 241(f) to apply to both immigrant and
nonimmigrant visas, and to any alien in the United States charged
with having obtained, a visa or entry by fraud. Since respondent had
561

Interim Decision #1821
the requisite family ties and had been otherwise admissible, he ruled
that the charge in the order to show cause could not be sustained.
On the lodged charge, he stated:
• • * The basis of the lodged charge was clearly the misrepresentation or
fraud which is waived under section 241 (f) of the Act. The Immigration Service
has consistently held that this section also waives any deportation charge
resulting directly from such representation, regardless of the statute under
which the charge is brought. Immigration and Naturalization Service v. Errtco,
supra, Matter of 5—, 7 I. & N. Dee. 715, Matter of Y—, 8 L & N. Dec. 148. The
lodged charge is therefore found not to be sustained.

In a' further- statement on his disposition of the case, the special
inquiry officer pointed out that while section 241 (f) waived deportability based on excludability for fraud or misrepresentation, it did not
act to adjust respondent's status to that of an immigrant lawfully in
the United States, and left her amenable to all applicable charges of
deportability other than those resulting from the fraud or misrepresentation: Ire stilted
• * • It appears that the Service can either proceed against the respondent

on a charge based on her remaining in the United States for a longer period than
that far
she was admitted, or the District Director can adjust her status
tinder section 245 of the Immigration and Nationality Act. Of course this issue
not before us in these proceedings which will be terminated but certified to
the Board of Immigration Appeals for Anal determination.

- The Service urges reversal of the special inquiry officer's decision,
contending that section :241(f) is not applicable to fraud in obtaining
a nonimmigrant visa, and that Congress did not intend to cover, by
section 241(f), the separate ground of deportability under section
241(a) (5). •
We do not believe it was ever contemplated or intended that section
241(f.) should apply to fraud relating to a nonimmigrant entry. The
history' of this section and its predecessor (section t of the Act of
September 11, 1957) shows that its purpose was to excuse deportability
for fraud or misrepresentation so that an alien need not be separated
from his American citizen or resident alien parents, spouse or children.
(Cf. H. Rep. 1088, 87th 03ng., 1st Sess.; H. Rep. 1199, 85th Cong., 1st
Sess., 19a.) The misrepresentations constantly referred to were "place
of birth, nationality, immigrant status, and the like * * *," (H. Rep.
1199, supra), all material to entry or attempted entry for permanent
residence, and not basic to a determination as to whether a visitor's
visa should issue. Entry as a nonimmigrant visitor, by statutory definition, was not for the purpose of family reunification, for before
such a visa, may issue, the alien must establish to the satisfaction of the
consular officer that he has a residence in a foreign country which he
has no intention of abandoning, and that he is visiting the United
562

Interim Decision #1824
States temporarily for business or pleasure (section 101 (a) (15) (B),
Immigration and Nationality Act). Further, there was no need for
such a, waiver for a nonimmigrant visitor; the Act already contained
a provision permitting the granting of a discretionary waiver of the
excludability provisions of section 212(a) (19) to one seeking to enter
as a nonimmigrant visitor (section 212(d) (8) ). The section was addressed to the need of the person who had already entered for permanent residence on a visa obtained by fraud or misrepresentation,
who had dose family in the United States and who, if he were found
deportable on that ground and required to leave the United States,
would forever thereafter be debarred from returning other thau•as a
temporary visitor. . .
We hold, therefore, that respondent's deportability, based upon ob:
taining a nonimmigrant visa by fraud, is not excused by the provisions
of section 241(f), and the special inquiry officer's decision terminating
these proceedings cannot stand.
•
Respondent is the spouse and parent of American citizens. 4 .,06tition for immediate relative status has already been approved on her
behalf, and she has submitted an application for adjustment to permanent resident status under the provisions of seettOn 245, togithir
with an application for a fraud waiver under section 212(i). No consideration was given to these applications by the special inquiryofficer
because of his conclusion that respondent was not deportable as
charged. Having found that respondent is deportable, we remand these
proceedings for adjudication by the special inquiry okcii of respondent's applications for discretionary relief from deportation.
ORDER: It is ordered that the decision of the. special inquiry
officer terminating proceedings be and the same is hereby set aside.
It is further ordered that these proceedings be remanded to the special inquiry officer for the purposes set forth above.

563


Interim Decision *1803

MATTER or NORTON
In Visa Petition Proceedings

A-170I39591

Decided by Board October 16, 1987
Sines the Meriesn mail-order divorce dissolving beneficiary's prior marriage con-

tracted in the Philippine Islands (both parties thereto nationals of the Philippines) is not recognized as valid in Michigan, the State in which she married
petitioner. a United States citizen. in October 1966 and in which they both
reside, the subsequent marriage is not valid and, therefore, does not serve to
confer immediate relative status on her.
ON BEHALF OF Pzinzonsn: James L. Elsman, Esquire
2034 Guardian Building
Detroit, Michigan 48105

The petitioner, a naturalized citizen of the United States, appeals
from an order entered by the District Director at Detroit, Michigan on
May 16, 1967 denying his petition for immediate relative classification
of Victoria J. Norton as his wife. Exceptions have been taken to the
finding that the petitioner has failed to establish that a bona fide marriage relationship exists between the petitioner and the beneficiary.
The petitioner is a citizen of the United States, naturalized at
Detroit, Michigan on December 20, 19RO. He married the beneficiary, a
citizen of the Republic of the Philippines, at Plymouth, Wayne
County, Michigan on October 28, 1966. The District Director deems the
purported marriage to be invalid for immigration purposes for the
reason that the divorce granted by the Court of the Judicial District of
Hidalgo, State of Tlaxacala, Republic of Mexico is not considered valid
in Michigan since the court in Mexico did not have jurisdiction over the
parties.
The beneficiary in an affidavit executed on March 9, 1967 concedes
that she obtained the divorce through an attorney to whom she had
given a power of attorney; that she was not present at the divorce
hearing and that to the best of her knowledge her former husband
was not present at the proceeding. The record contains a letter from
an Assistant Attorney General of the State of Michigan dated July
490

Interim Decision #1803
14, 1967 which states in substance that a Mexican mail-order divorce
is not recognized in the State of Michigan when the parties thereto
are not within the jurisdiction of the Mexican court.
Counsel for the petitioner maintains that the divorce was valid
under Philippine law; that the parties thereto are nationals of the
Republic of the Philippines; that the parties consented to said divorce;
that the consent conferred jurisdiction on the Mexican court; and
that such a divorce has not been adjudicated by any Michigan court
as invalid. Counsel cites no authority for his argument.
The generally accepted rule that the validity of a marriage is governed by the law of the place of celebration is applicable in this case. 1
TheptionradbfcywemaridnthSof
Michigan. There is evidence of record that the marriage is not recognized in that state. Furthermore, Article 97 of the Civil Code of the

Republic of the Philippines abolished divorce proceedings in 1949
for nationals of that country. 2
Both the petitioner and the beneficiary reside in the State of Michigan. A state or country cannot exercise through its courts jurisdiction
to dissolve a marriage when neither spouse is within the states There
is evidence before us that the marriage of the petitioner and the
beneficiary is not recognized by the State of Michigan. Aclordingly,
the appeal from the decision of the District Director denying the visa
petition will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby

dismissed.
1

2

Matter of P—, 4 I. & N. Dec. 619 (Actg. A.G., 1952).
Cf., Matter of Dagamac, Int. Dec. No. 1445 (B.I.A., March 29, 1965).
Restatement of the Law of Conflict of Laws, 8.111.

491
321-854-69-33