Interim Decision #2428

MATTER OF DINIZ
In Deportation Proceedings
A-30329571

Decided by Board September 5, 1975
In the light of the Supreme Court decision in Reid v. INS,420 'U.S. 619 (1975), the waiver
of deportability provisions of section 241(f) of the Immigration and Nationality Act, as
amended, do not apply to a charge of deportability under section 241(a)(2) of the Act, even
though the underlying basis for deportability is the failure to fulfill a marital agreement
under section 241(c) of the Act (Matter of Montemayor; 15 I. & N. Dec. 353 adhered to;
Matter of Marehisi, 121. & N. Dee. 132, overruled).
CHARGE:
Order Act of 1952—Sections 241(a)(2) and 241(e) U.S.C. 1251(a)(2) and 1251(c)]—
Entry with visa procured by fraud —failed or refused to

fulfill

marital agreement
ON BEHALF OF SERVICE:
Paul O. Vincent

ON BEHALF OF RESPONDENT:
John A. Mutter, Esquire
170 Westminster Street
Providence, Rhode Island 02903

Appellate Trial Attorney

In a decision dated April 30, 1974, the immigration judge ordered the
respondent deported from the United States. The respondent has ap'pealed from that decision_ The appeal will be dismissed
The respondent is a native and citizen of Portugal. The Service
alleged, and the immigration judge found, that the respondent was
deportable under section 241(a)(2) and section 241(c) of the Immigration
and Nationality Act as an alien who has failed or refused to fulfill his
marital agreement which was made for the purpose of procuring his
entry as an immigrant. The respondent contests deportability, claiming
that he married in good faith.

The facts are adequately discussed in the immigration judge's decision. The testimony of the respondent's wife squarely conflicts with the
respondent's version of his marriage, and the documentary evidence of
record supports the testimony of the respondent's wife. The immigration judge also found that the respondent was not a credible witness.
We agree with the decision of the immigration judge. Deportability
has been established by clear, convincing and unequivocal evidence.
447

Interim Deck on #2428
The respondent also argues that his deportation is prevented by
section 241(f) of the Act. The respondent evidently has married another
United States citizen and would therefore have the requisite familial
relationship for section 241(f). The question thus presented is whether
section 241(f) can be applied to waive deportability under section 241(a)(2) and section 241(c), if the underlying factual basis for deportability
involves a failure or refusal to fulfill a marital agreement within the
contemplation of section 241(c).
Earlier Board decisions have treated section 241(c) as a separate
charge upon which deportability can be predicated. Matter of Mietus, 11
I. & N. Dec. 679 (BIA 1966); Matter of M—, 7 I. & N. Dec. 601 (BIA
1957); Matter of T—, 7 I. & N. Dec. 417 (BIA 1957); see also Matter of T—,
8 I. & N. Dec. 493 (BIA 1959). We have also held that section 241(1)
could operate to prevent the deportation of an alien charged under both
section 241(a)(2) and section 241(c). Matter of Manehis, 12 I. & N. Dec.
132 (BIA 1967); cf. Matter of S—, 7 I. & N. Dec. 715 (BIA. 1958).
We no longer believe this approach to section 241(f) to be sound law in
view of the Supreme Court's decision in Reid v. INS, 420 U.S. 619
(1975). We have concluded that section 241(f) cannot waive deportability under section 241(a)(2). Accordingly, it is not necessary for us to
consider the effect of section 241(f) on the section 241(c) charge, assuming that such a charge may stand alone.
We recognize that section 241(c) refers, directly to both the fraud
provision of section 212(a)(19), and to section 241(a)(2). Furthermore, it
does not appear that the Supreme Court considered section 241(c) in
deciding Reid v. INS, supra. Nevertheless, in view of the clear pronouncements contained in Reid, we hold that section 241(f) is not available to an alien charged with deportability under section 241(a)(2), even
as it relates tc section 241(c).
In Reid the Supreme Court held that section 241(f) could not benefit
an alien who has entered the United States under a false claim to United
States citizenship and who was charged with deportability under section
241(a)(2) as an alien who had entered without inspection. The Supreme
Court's opinion in Reid also indicates that section 241(f) only applies to

a section 241(a)(1) charge of deportability based on either section 212"(a)(19), or on section 211(a) as it appeared prior to its amendment in

1965. 1 See Castro-Guerrero V. INS, 515 F.2d 615 (C.A. 5, 1975); Matter
of Montemayor, 15 I. & N. Dec. 353 (BIA'1975). This limitation on the
scope of section 241(f) precludes its extension to section 241(a)(2), even
though the underlying basis for deportability is the failure to fulfill a
marital agreement under section 241(c).
The Supreme Court also indicated that section 241(a)(2) establishes a

448

Interim Decision #2428
ground for deportation which is independent of whether the alien was
excludable vat the time of his entry. Reid. dealt with the "entry without
inspection" portion of section 241(a)(2). However, the portion of section
241(a)(2) which relates to presence in the United States in violation of
the Act, and which is in issue here, similarly is independent of excludability at entry. Accordingly, ". . nothing in the waiver provision of
§241(1), which by its terms grants relief against deportation of aliens 'on
the ground that they were excludable at the time of entry,' has any
bearing on the case." Reid v..INS, 420 U.S. at 623.
Fraud is in fact present in this case. Fraud, however, is not an
essential element of deportahility either under the "entry without inspection" portion of section 241(a)(2) involved in Reid, or under the
portion of section 241(a)(2) involved here.
We have interpreted Reid as very narrowly limiting the scope of
section 241(f). See Matter of Montemayor, supra. We adhere to that
interpretation. Matter of Manehisi, supra, is overruled.
The decision of the immigration judge was correct.
ORDER: The appeal is dismissed.
Irving A. Appleman, Member, Dissenting:

I respectfully dissent.
The literal application of Reid v. INS, 420 U.S. 619 (1975) in this case
is troublesome. The alien has been found deportable under section
241(c), 8 U. S. C. 1251(e), of the Immigration and Nationality Act. As the
majority decision notes this has been held to be a separate and distinct
charge. The reference to section 241(a)(2) in the same paragraph in the
order to dhow cause may be regarded as surplussage.
Section 241(c) is the specific fraud charge used in the case of an alien
who entered the United States by means of a fraudulent marriage. It
reads in pertinent part, "An alien shall be deported as having procured a
visa or other documentation by fraud within the meaning of paragraph
(19) of section 212(a), and to be in the United States in violation of this
Act within the meaning of subsection (a)(2) of this section, if . . . it
appears to the satisfaction of the Attorney General that he or she has
failed or refused to fulfill his or her marital agreement which in the
opinion of the Attorney General was hereafter made for the purpose of
procuring his or her entry as an immigrant."
This is a charge completely founded in fraud, incorporating section
212(a)(19) by reference. By its very language one within the proscription "has procured . . . documentation by fraud within the meaning of
paragraph (19) of section 212(a)." As the Court pointed out in Reid v.
INS supra, at page 622, section 241(f), 8 U.S.C. 1251(f), I. & N. Act,
tracks the provisions of section 212(a)(19) dealing with aliens excludable
for fraud and waives deportation for those excludable at the time of
449

Interim Decision #2428
entry by reason of the fraud specified in section 212(a)(19). In my
opinion the respondent is within this language and not barred from
relief by the holding in Reid. In relying on section 241(e) the Service
has, to all intents and purposes, established inadmissibility under section 212(a)(19) as shown by post-entry conduct. The waiver under section.2.41(f) is mandatory if he is now validly married to a United States
citizen as claimed_ I would therefore remand and reopen for proof of the
marriage.
Louisa Wilson, Member, Dissenting:

I concur in the dissent of Board Member Irving A. Appleman:

450


Interim Decision #1922

MATTER OF M/V GUADALUPE!

In Fine Proceedings
SAJ-10/50.179
Decided by Board November 18, 1968
The carrier's contention that due diligence was exercised where the alien
presented a wax-sealed envelope from the American Consulate asserting it
contained the necessary visa, is rejected as a defense to fine liability
under section 273 (a) of the Immigration and Nationality Act for bringing
an alien without a visa, since under existing practice (22 CFR 42.124(a),
(b), (c) and (d)) the forms constituting the visa are not sealed.
BASIS FOR FINE: Act of 1952—Section 273(a) [8 U.S.C. 1323].
IN RE: M/V Guadalupe, which arrived at San Juan, Puerto Rico, from foreign, on March 22, 1968. Alien passenger involved: Rafael Cruzata-Lambert.
ON BEHALF OF APPELLANT: M. A. Gonzalez, Vice-President & Gen. Mgr.
International Shipping Agency, Inc.
P. O. Box 2748
San Juan, Puerto Rico 00903

This appeal is directed to an administrative penalty of $1,000
has ordered imposed on
the International Shipping Agency, Inc., as agents for a vessel,
for bringing to the United States from a place outside thereof,
other than foreign contiguous territory, the above-named alien
passenger who was not in possession of an unexpired visa and
was not exempt from the presentation of same by the statute or
the regulations promulgated pursuant thereto. The request for
cancellation of the fine must be denied and the appeal will be dismissed.
Rafael Cruzata-Lambert is a 24-year-old native and national of
which the District Director at an Juan

Cuba, who arrived in the United States from Spain as a passenger on this vessel, at the time, place and in the manner described

above. He was presented for immigration inspection as an applicant for admission for permanent residence. He was in possession
of a valid passport, but he was not in possession of an unexpired
67

Interim Decision * 1922
visa or other document valid in lieu thereof for admission into
the United States. Accordingly, liability to the fine has been
incurred, and this is uncontested.
Section 273 of the Immigration and Nationality Act makes no
provision for mitigation of a fine arising thereunder? However,
subsection (c) of the statute does provide for remission (forgive.
ness in full) of the penalty if, prior to the passenger's foreign
embarkation, the carrier did not know and could not have ascertained by the exercise of reasonable diligence that he was an
alien and required but lacked a valid visa or lieu document. Since
the record shows that the carrier knew this passenger was an
alien, the only question remaining for our consideration is
whether it knew or could have ascertained by the exercise of due
diligence that he lacked a visa.
The carrier claims that when this passenger came for his ticket
he was accompanied by his parents, also Cuban nationals, and
that all were requested to present their United States visas. It
asserts that they showed the ticket agent a big wax-sealed envelope from the American consulate in Bilbao, Spain, and declared
that it contained visas for each member of the family. It contends
that it could not open the official-envelope because it was sealed
and, therefore, had to take the aliens' word for the fact that the
envelope contained visas for all.
The record, however, contains a memorandum from the examining immigration officer, dated October 21, 1968. It sets forth
that visas for this alien's parents were packaged in the normal
manner, i.e., various documents were enclosed in a brown manila
envelope with appropriate Forms FS-511 for the parents
attached to the outside of the envelope with grommets and
ribbon. According to 22 CFR 42.124(a), (b), (c) and (d), Form
FS-511, with a Form FS-510 (Visa Application) attached
immediately beneath it, constitutes the visa; and the only documents which would be enclosed in a sealed envelope and could
only be examined by an immigration officer would be confidential
relating documents, but not the visa itself. Under these circumstances, we agree with the District Director that only a cursory
inspection was necessary on the carrier's part to ascertain that
this alien passenger was not in possession of the required visa.
Accordingly, we concur in said official's conclusion that due diligence was not exercised in this matter, and that remission of the
1

Matter of Plane "CUT-480," 5 I. & N. Dec. 226.

68

Interim Decision *1922
fine is not warranted. All we can add is that the carrier is
responsible for the acts of its representatives abroad.
ORDER: It is ordered that the request for cancellation of the
fine be denied; that the District Director's decision be affirmed;
and that the appeal be and the same is hereby dismissed.

69


Interim Decision #1337

llama or SOETERBANK

In EXCLUSION Proceedings
A-11682044
Decided by Board May 14,1964
Since appellant's return to the United States from Canada following an overnight visit linked to cheating activities in a gambling game is not within
Rosenberg v. Fleati, 374 U.S. 449, it constitutes an entry upon which to predicate a ground of exclusion.
EXCLUDABLE: Act of 1952—Section 212(a) (20) (8 U.S.C. 1182(a) (20)1—No immigrant visa.
Act of 1952—Sectlan 212(a) (9) [g tun ng2 (a) (9)1—Convicted
of crime involving moral turpitude prior to entry.

The case comes forward on appeal from the order of the special inquiry officer dated February 7, 1964, finding the applicant inadmissible
on the grounds stated above and ordering that he be excluded and
deported from the United States.
The record relates to a native and citizen of Canada, 43 years old,
male, single, who applied on January 23, 1961, at Port Huron, Michigan, for admission as a returning alien lawfully admitted for permanent residence. He had been admitted as an immigrant at the port
of Detroit, Michigan, on January 20, 1960, and has eontinued to reside
in the United. States since that time except for brief absences to
Canada.

Deportation proceedings were previously instituted charging the
appellant to be subject to deportation under section 241(a) (4) of the
Immigrant and Nationality Act by reason of two convictions: on
September 12, 1955, obtaining money by false pretense in Algona,
Ontario, Canada; and on May 10, 1962, petit larceny in the Cleveland,
Ohio Municipal Court. The entry upon which the charges were laid
occurred in 1949 as a nonimmigrant prior to the appellant's basic entry
for permanent admission in 1960. The special inquiry officer ordered
the proceedings terminated since only one conviction followed the basis
entry and, on certification, the Board of Immigration Appeals on
522

Interim Decision #1337
December 31, 1963, ordered that no change be made in the order of the
special inquiry officer. The Service filed a motion with the Board to
reconsider its decision but by letter dated January 24, 1964, the Service
indicated that inasmuch as it ascertained that the alien left the United
States, 'was convicted on December 80, 1968, in London, Ontario, for
violation of Canadian Custom Act and was awaiting an exclusion
hearing, it was abandoning that motion in view of the circumstances.
The prior deportation proceedings are not pertinent to the present
exclusion proceedings in which the principal issue is excludability
under section 212(a) (9) of the Immigration and Nationality Act and
in which the petty offense exemption applied for in that section is not
available because of the commission of more than one said offense.
Counsel contends that the applicant was not seeking to make an
"entry" on January 23, 1964, after he departed to Canada on the previous day, citing Rosenberg v. Fleuti, 374 U.S. 449, since he had not
on the previous day made a departure "meaningfully interruptive of
the alien's permanent residence." It is not believed that the Fleuti
case is applicable for reasons which will be set forth more fully below.
The appellant and two others went to Oakville, Ontario, Canada,
on or about November 20, 1033, where they were arrested for "cheating
at play." 1 They were released on bond and are now awaiting trial
on this charge. The appellant on this occasion was also arrested and
convicted for having in his possession certain goods on which customs
duties had not been paid contrary to section 203(3) of the Canadian
Customs Act. (Exh. 6) These goods, included 686 dice and six decks
of playing cards. The appellant had previously been convicted on
September 12, 1955, in the Magistrate's Court, Algona District, Ontario, for the offense of "Obtaining Credit by False Pretenses" contrary to section 304(1) (b) of the Criminal Code of Canada and on
May 10, 1962, was convicted in Cleveland Municipal Court, Cleveland,
Ohio, for the offense of petty larceny.
The appellant testified that he worked part-time buying and selling
clothing and other merchandise for a surplus store. lie testified
that at the time of his departure on November 20, 1963, he intended
to visit his sister in Hamilton. The appellant was unable to offer any
explanation as to why the police wanted to look in the trunk of his
car which led to the finding of the goods for which he was arrested and
convicted. His testimony was that the quantity of the dice comprised
samples which he was to show or sell. The special inquiry officer has
found that the appellant's explanations lack conviction and, based
I Canadian Criminal Code (Rev. of 1953-4), Sec. 181: "Cheating at Play.
Every one who, with intent to defraud any person, cheats while playing a game,
or In the holding the stakes for a game, or in betting is guilty of an indictable
offense and is liable to imprisonment for two years."

523

Interim Decision #1337
upon the demeanor of the appellant, comes to the conclusion that the
purpose of the visit in November 1963 was to fleece by intentional fraud
and cheating other players in a gambling game. The appellant on
January 218, 1961, was returning from an overnight visit to Oakville,
Canada, occasioned by necessity of making a court appearance there in
connection with a criminal pending case in which he is under indictment for violation of section 181, Criminal Code of Canada, "Cheating
at play". Thin last trip and attempted entry is linked directly with the
November 1963 trip which resulted in the arrest for cheating at play
and Customs conviction.
In construing the term "entry" as used in section 101(a) (13) of
the Immigration and Nationality Act, the Supreme Court in Roam
berg v. Fleuti, 374 U.S. 449, concluded that it effectuates Congressional
purpube to construe the "intent" exception in that definition es meaning

an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence. One of the
major factors set forth by the Court relevant to a determination of
whether such intent can be inferred, was the purpose of the visit, for
if the purpose of leaving the country was to accomplish some object
which was itself contrary to some policy reflected in our immigration
laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful. We believe that the
purpose of the visit, as found by the special inquiry officer, in the light
of all the facts appears not to have been the innocent, casual and brief
trip which occurred in the Fleuti case. It is concluded that the second
charge in the caption is sustained by the evidence.
The first ground for exclusion in the caption is laid under section
212(a) (20) of the Immigration and Nationality Act (8 U.S.C. 1182
(a) (20) ) in that the applicant, who seeks admission as an immigrant,
is not in possession of a valid immigrant visa or other valid entry document. The appellant's Form 1-151, alien registration receipt card,
was returned by the police of Oakville, Ontario to the immigration
authorities at Detroit, Michigan, on November 27, 1961, with the information that the card was found in an alley at the rear of the hotel in
that city. (Exh. 8). The appellant submitted an application for the
issuance of a new alien registration receipt card in lieu of the one which
he claimed to have lost on or about January 15, 1962. An effort was
made to return the lost card to the appellant but the letter was not delivered due to a wrong address. The record is somewhat confused but
apparently appellant did receive at least one new alien registration
card which he testified that he lost about three months prior to his last
entry. He knew he had lost the card but intended to make an application to the immigration officer at the time he returned on January 23,
524

Interim Decision #1337
1964, although he did not make any inquiry prior thereto whether he
would be admitted.
The record establishes that the respondent is not in possession of
a valid immigrant visa or other valid entry document in lieu thereof.
There is no evidence that the appellant was granted a waiver under
section 211(b) of the Immigration and Nationality Act in connection
with this return. from Oakville, Ontario, in November 1963. Upon
the present record we do not consider the appellant is worthy of the
exercise of the discretionary relief contained in section 211 (b) of the
Immigration and Nationality Act. The appeal from the excluding
decision of the special inquiry officer will be dismissed.
ORDER : It is ordered that the appeal from the excluding decision
of the special inquiry officer be and the same is hereby dismissed.

525


• latifint Decision 4:4462

MATTER OF COLLEGE OF THE SCRIFFCRES

Petition for Approval of School
CIN 214F.119

Decided by Regional Commissioner April 2R, 1965
Petitioning college, established for the training and education of ministers for
Churches of Christ, is denied approval for attendance by nontuundgraut students since petitioner has failed to submit, in compliance with the requirement of 8 CFA 214.3(b), satisfactory certification by the appropriate official
authorized to do so that the school is licensed; approved, or accredited, and
the U.S. Office of Education. after consultation, recommended denial of the

petition.

Discussion: The petition was denied by the District Director at
Cleveland, Ohio, on February 2, 1965. It is now considered on
appeal.
1945, as
The College of the'Scriptures was incorporated on
organization with stated purposes to establish and,naintain an academy, college and graduate seminary tor the trainihg and
a nonprofit

education of ministers for Churches of Christ and to conduct correspondence courses and classroom study .to educate persons as
ministers for. Churches of Christ. The college has enjoyed a measure of success and now has three buildings. One is a chapel building
which includes classrooms. Another is a combination classroom and
dormitory building. The third building is a house whin}, . is some
distance from the campus and is used as a dormitory.
The petitioner states that a petition was submitted in December
1952 for approval of the college as a. school for foreign students. No
record of approval of the college at that time is found and since the
college was not included in a consolidated list of approved schools of
April 30, 1954, it is concluded that the college has not previously
been approved.

Section 101(a) (15) (F) of the Immigration and Nationality Act,
as amended, provides that in considering the approval of. schools
there be donsultation by this Service with the Office bf Education of
the United States. In this case the file was submitted to that office
154

Interim Decision #1462
and their views expressed in a letter dated December 9, 1964, are as
follows: - _
On the basis of the material submitted with the Petition for Approval of
.•School for Nonimmigrant Students, we do not find the College or the scriptures
to qualify as "an established educational institution or other recognized place
of study" at the level at which it purports to offer programs and degrees.
There is considerable question about its certification. by the Eeptuctr Department of Adult Education, current approval for the training of veterans, and
acceptance of credits by accredited institutions. There is no evidence that its
high school department prepares students for entering accredited institutions of
higher education. There are conflicting reports about the size of faculty and
considerable doubt as to faculty quolifleotinno for the level OX VCOATAIM adver-

tised. The Office of Education recommends that the Attorney General deny the
Petition for Approval of School for Nonimmigrant Students submitted by the
College of the Scriptures.
A' 1964 publication submitted with the petition shows tho College

of the. Scriptures as hiving 13 undergraduates and -2 graduate students Inking 8 or more semester hours; also 10 students are shown
RS taking less than 8 semester hours, making a total of 25 students.
The faculty is shown as four full-time and six part-time members.
The college awards the associate arts degree, bachelor of sacred arts
(ministerial), bachelor of sacred literature," bachelor of theology, a
two-year missionary certificate, and a high school diploma.
The petition was filed to enable the petitioning college to enroll
eight students from Jamaica. Such of these students as have a deficiency in pre-college level stagy would be provided with remedial
high. school subjects. Those taking high school subjects would be 19
years of age or older.
It is stated in 8 OFR 214.3 (b) that, except for public, private, and
paroehial•elementaiy and secondary schools, a "petitioning school
shall submit a certification by the appropriate licensing, approving
or accrediting official who shall certify that he is authorized to do
so to the effect that it is licensed, approved, or accredited. In lieu of
such certification, a school which is recognized by a state• approving
agency as an 'educational institution' for study for veterans under
the provisions of P.L. 550 (82nd COngress) may submit a statement
of recognition signed by the appropriate official of the state approving agency who shall certify that he is authorized to do so. A
charter shall not be considered a licen.se,...approval or accreditation."
The petitioner has been unable to satisfactorily comply with this
requirement. The petitioner concedes that the program offered is
not on a level with recognized liberal arts colleges, junior colleges or
universities, but argues that the credits are transferable to other,
theological institutions which have been approved by this Service
for foreign students.
155

interim Decision #1462
The evidence submitted in support of the petition has been carefully considered. However, on the basis of the unfavorable recommendation by the Office of Education, as well as the fact that the
petitioner has failed to submit the documentation required. by S ORR
.214.3(b), it is concluded that the decision of the District Director

must be affirmed.
'ORDER: The decision of the District Director of Cleveland, Ohio •
is affirmed, and the appeal of the appellant is hereby dismissed.

156


"Interim Decision #1530

« c 7 eos
Marrer or, PeninsuLa Scuoor, In.
Petition for Approval of School
7 : SBR 214.293 ©. ;
" Decided.by Regional Commissions Noveniber 8, 1086
Anpliation by 0 peivate, elementy thot son eit action tone) 9)

(F), Immigration and ‘Nationality Act, as amended, is denied for failure to.
establish that the school facilities satisfy. local fire and safety requirements,

Discussion: This case comes forward-on appeal from the de-
cision of the District Director, San‘ Francisco who denied the appli-
cation on July 15, 1965. 5 a

The petitioning school is 2 private, independent, parent-owued, -
incorporated, elementary school established in 1925 and ‘located in
Menlo Park, San Mateo County, Californie. Tt holds classes five |
daye a wook during » raguiar schnol term and has an average of 190
students’ and 25 instructors. ‘The school-curriculum is the same as
that generally found in public elementary schools but-with more
emphasis on freedom of self expression, learning by doing and ex-
perimenting with new ‘approaches to, and new Wweluigues in, the
Jearning proceds. . epee aes ees A

‘The school is seckitig approval for thé acceptazice of nonimmigrant
-foreign siudants and has filed Form I-17, “Petition for Approval, of
School for Nonimmigrant Students.” Students may transfer from _
the petitioning school to public schools and vice versa. Upon comi- -“
pletion of the elementary curriculum the ‘students are accepted. at ~
Jocal high schools. - TT WI :
i The Executive Secretary of the Accrediting Commission for 7
Secondary Schools, Western Association Schools and Colleges, Bur-
Yngame, California by lotter to the San Brancises offiea on Tuly 7, .
1965 advised os follows:' .. ett : :
‘The Peninsula School, Ltd., Menlo Park, California 18 not accredited by this
Association nor by the University of California, Since the Stite Department
of Bauention of California does not provide acerediting services for secondary
Interim Decision #1530

schools, werrhust, therefore, assume that the Peninsula Behool, Ltd, i not
accredited by any recognized accrediting agency.

8 CFR 214.3(c) states that the United States Office of Education has

recognized as established institutions of learning (eligible for the

enrollment of foreign students) the following types of schocls:

1 A school owned or operated as 2 public educational institution by the
United States or a State or a Political subdivision thereof.

2, A school listed in the current United States Office of Education publica-
tion, “Accredited Higher Institutions" or “Education Directory, Part 3,
Higher Education.”

3. A secondary school operated by or as a part of an isetitution of higher

learning listed in the current United States Office of Edueation publications

named in (2) above and further provides as follows:

Before a decision is made on a petition filed by any other school, the United

States Office of Education shall be consulted by the District Director to

determine whetber the petttioner 1s an established institution of learning or

other recognized place of study, is operating a bona fide school, and has the
necessary facilities, personnel, and finances to instruct in recognized courses.

The United: States Office of Education was consulted by the Dis-
trict Director, San Francisco and upon review of the petition and
supporting documents the United States Office of Education on
January 22, 1965 advised: “On the basis of information contained
in the file, the Office of Education recommends that the Attorney
General delay approval of the petition pending receipt of evidence
that the facilities satisfy safety regulations and that attendance at
such school satisfies compulsory attendance requirements of the
State.”

Tho San Francisco office subsequently contacted the Field Repre-
sentative, Departmenit of Education, Bureau of Readjustment Edu-
eation, Stata of California, Sacramento, California who stated that
attendance at schools such as the subject school, Peninsula School,
Ltd. meets compulsory education requirements of the State of
California. = _

The Fire Marshal, Menlo Park Fire Protection Distri&t, was in-
terviewed by an officer of this Service on May 20, 1965 at which time
he advised that of eight buildings on the school campus only the two
newer buildings are approved as safe. None of the, others are ap-
proved. The Superintendent, Building Inspection Division, County
of San Mateo, Redwood City, California, was also interviewed on
May 20, 1965. He stated that of the eight’ buildings only the two
nower buildings meet the building code requirements, three others
did not while he was uncertain whether the remaining three met. the
“earthquake protection” requirements.

Under the circumstances the petition may not be approved and

_ the appeal must be dismissed. The denial of the peliton will be

. 412
- Fnterim Decision #1580

without projudive, At ouch time oo ovidenes ic procented tn establish
that the school facilities satisfy the fire and safety requirements the
petitioner may request reopening and Feconsideration of his petition.
“‘Phe District Director is hereby authorized to consider such addi-
tional evidence when presented and reconsider the petition.
RDER:: It is ordered that the appeal be and the same is hereby

16 is further ordored that the dismissal of the sppeal be without
prejudice to reopening and reconsideration by the District Director
upon presentation of evidence that the fire and safety regulations
have been met.

413


Interim Decision #1926

MATTER OF REBBLO

In Deportation Proceedings
A-15382877
Decided by Board October 24, 1968
Notwithstanding respondent at the time of his last entry in April 1965 was
serving as a crewman on board the vessel on which he arrived, was listed

on the vessel's arrival manifest as a crew member, and for 25 years immediately preceding had been a crewman by occupation, he is not precluded
from establishing statutory eligibility for adjustment of status under section 245, Immigration and Nationality Act, as amended, since he was inspected and admitted at that time as a temporhry visitor for pleasure
upon presentation of a valid noninunigrant visa.

CHARGE:
12513—Nonimmigrant
Order: Act of 1952—Section 241 (a) (2) [8
(temporary visitor for pleasure)—remained
longer.
ON BEHALF or RESPONDENT:
Bertrand D. Gerber, Esquire
119 West 57th Street
New York, New York 10019

ON BEHALF OF SERVICE:

Robert A. Vielhaber
Appellate Trial Attorney

The special inquiry officer, in a decision dated April 29, 1968,
denied the respondent's application for adjustment of his status
to that of a permanent resident; granted his alternative request
for voluntary departure; and provided for his deportation from
the 'United States to Brazil, alternatively to Portugal, on the
charge contained in the order to show cause, in the event of his
failure to so depart. We will remand the case to the special inquiry officer, for the reasons hereinafter set forth.
The record relates to a 59-year-old male alien, a native and national of Portugal, who last entered the United States on or about
April 12, 1965. He was then admitted as a noninunigrant temporary visitor for pleasure, on the basis of his presentation of a
B-2 visa obtained from an American Consul in Japan. He was
thereafter authorized to remain in the United States as a tempo-

84

Interim Decision #1926
my nonimmigrant visitor for pleasure until September 11, 1966.
He has, however, remained here since that date without authority.
The foregoing establishes the respondent's deportability on the
charge contained in the order to show cause, and this is uncontested. The special inquiry officer has granted the respondent's alternative request for voluntary departure, and the record before
us supports said official's action in this respect. The only remaining issue is whether, as the special inquiry officer has found, the
respondent is ineligible for adjustment of his status to that of a
permanent resident, because for the 25 years immediately preceding his last entry, respondent had been a crewman by occupation;
at the time thereof he was serving as an engineer aboard the vessel on which he arrived; and he was listed as a member of the
crew on the vessel's arrival manifest. Our answer, based on the
following pertinent provisions of the statute and the related regulations, is in the negative.
Section 245 (a) of the Immigration and Nationality Act (8
U.S.C. 1,255) provides that :
The status of an alien, other than an alien crewman, who was inspected
and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence * *.
(Emphasis supplied.)

In our opinion the clear meaning of this language is that an
alien who happens to be serving as a crewman at the time of his
entry is barred from adjustment of his status to that of a permanent resident only if, insofar as is here pertinent, he has been inspected and admitted or paroled into the United States as such.
But this respondent was inspected and admitted as a properly
documented nonimmigrant temporary visitor for pleasure, and
not as a crewman. Therefore, it is our judgment that he is not ineligible for the relief in question on the ground used by the special inquiry officer.
Support for ruling is found in the fact that, while section
101 (a) (10) of the Immigration and Nationality Act (8 U.S.C.
1101) does define a "crewman" as "a person serving in any capacity on board a vessel or aircraft," section 101 (a) (15) (D)
thereof further characterizes a "crewman" as one "* * * who intends to land in pursuit of his calling as a crewman * * *." The
reading of these two provisions together, as is necessary so that
the law will produce a harmonious whole, 1 reveals that two ele1

In re Public National Bank of New York, 278 U.S. 656.

85

Interim Decision #1926
ments are required to constitute an alien a "crewman," for present purposes at least, to wit:
(1) he must be serving aboard a vessel in a capacity required for its normal

operation; and
(2) he must be seeking (and gain) admission to this country because of his
occupation in that role.

Obviously, since the record before us reflects that the respondint
was admitted as a nonimmigrant temporary visitor for pleasure
and was properly documented as such, the second essential factor
is not present in this case. In this connection, we find it significant that the deportation proceedings against the respondent
were based solely on the charge that he was a temporary visitor
for pleasure who had remained here in that status for a longer

period of time than authorized. 2
Also, our interpretation, ante, follows the well recognized rules
of construction that the statute, being a remedial one, must be
liberally interpreted to suppress the evil and advance the remedy;
and the exception carved out of it must be explained principally
in view of the legislative intents On. this point, the history of section 245 shows that the Congress intended to bar from relief only
such aliens as had gained relatively easy access to the United
States by reason of their occupation as crewmen. 4 Obviously,
again, this respondent was not admitted because of his employment as a crewman and in pursuit of his calling, but as a properly documented temporary visitor for pleasure who convinced a
United States Consul abroad and an examining immigration
officer here that he was entitled to entry as a visitor rather than
as a crewman.
Clearly, as in the case of any other alien, a crewman entering
this country before (without) inspection, or after having been inspected and refused admission, would be ineligible for adjustment
of his status to that of a permanent resident This result would
flow naturally and inescapably from the statutory requirements
of inspection and admission or parole.
Our decision herein does not have the effect of holding that the
relief in question may not, consistently with prior precedent deci2 See Matter of T—, 5 I. & N. Dec. 459, holding that ineligibility for discretionary relief (voluntary departure) must be based on a sustained charge

of deportability.
Sutherland, Statutory Construction, 3rd ed., Vol. 2, secs. 3302 and 4936.
4 Matter of Goncalues, 10 I. & N. Dec. 277 at 279, involving an alien who

was occupationally a crewman and, while admitted in transit, was so admitted to ship foreign as a crewman.

86

Interim Decision #1926
sions of this Board,' be withheld upon a showing that the respondent, in following the procedure he did to gain admission
into the United States, had a preconceived intent to circumvent
the normal immigrant visa issuing process. This, however, is entirely different from finding him ineligible for relief on the basis
of a strained construction of the language used in the statute,
however convenient the latter course of action might be from the

standpoint of enforcement of the law . 8 The language of 8 CFR
245.1 (a) does not justify resort to the alternative procedure thus
outlined, because it cannot exceed the scope of the statute on
which it depends.'
Actually,,our ruling herein is, we find, consistent with those we
have heretofore rendered in somewhat similar situations. Thus,
on June 11, 1965, we dismissed a Service appeal from a special
inquiry officer's order granting section 245 relief to a Greek alien,
a seaman by occupation, who had deserted his ship in Canada 25
days before entering the United States at Messena, New York;
and we denied the Service motion for reconsideration of that decision, on September 8, 1965. 8 So, also, we authorized adjustment
of status to that of a permanent resident in the case of an alien
who, while arriving in the United States aboard a freighter
which ordinarily carries no passengers, did in fact serve meals to
the crew and wash dishes after meals, but was in possession of a
nonimmigrant visa and was admitted by an immigration officer
as a temporary visitor for pleasure upon presentation • of an appropriate visa' While the decision in the latter case cited above
was based on the holding that, on the facts, the alien involved was
not employed as a crewman at the time of his arrival, we think
our reasoning in that case points to the logical extension of the
ruling therein to the present situation.
Accordingly, and in view of the foregoing, we will withdraw
the special inquiry officer's order of April 29, 1968. However, we
will remand the matter to said official for reopening of the proceedings for consideration of the respondent's eligibility otherwise and/or whether relief is warranted herein, as a matter of
discretion. In the latter connection, we note that counsel for respondent, in the course of oral argument (p. 2), indicated that,
'Matter of Tonga, A 14674907, BIA, 6/3/67, 12 I. & N. Dec. 212; and
Matter of Muslemi, A-17256526, BIA, 5/81/67,12 I. & N. Dec. 249.
United States v. J. H. Winchester & Co., Inc., 40 F.2d 472
7 United States v. Smull, 236 U.S. 405
-

'Pappas, A-14012055,
2

unreported.

Matter of Quintero-Correa, 11 I. & N. Dec. 343.

87

Interim Decision # 1926
although the respondent is married to a citizen of the United
States, there is some question as to whether or not his wife will
file and prosecute a petition for an immigrant visa for the respondent.
ORDER: It is ordered that the special inquiry officer's decision
of April 29, 1968, be withdrawn and that the case be remanded to
said official for appropriate action not inconsistent with the foregoing opinion.

88


Interim Decision #2815

MATTER OF RODRIGUEZ-PALMA.

In Exclusion Proceedings
A.-22792193
Decided by Board August 26, 1980
(1) Relief ender section 243(h) of the Immigration and Nationality Act, as amended by
the Refugee Act of 1980, 8 U.S.C. 1253(h), is not available to an alien who is considered
to have committed a "serious nonpolitical crime" prior to his arrival in the United
States.
(2) Relief under section 242(h) of the Immigration and Nationality Act, S S C 1258(h),

as amended, is available in both exclusion and deportation proceedings. See 8 C.F.R.
208.10 (June 1, 1980).
(3) In determining whether a crime is a "serious nonpolitical crime" for purposes of eligibility for section 243(h) relief, the Office of the United Nations High Commissioner
for Refugees Handbook on Procedures and Criteriafor Determining Refugee Status
(September 1979) suggests a balancing test, weighing the nature of the offense and the
degree of persecution established.
(4) The applicant's 1968 Cuban conviction for the crime of robbery was a crime involving
moral turpitude which has traditionally been characterized as a grave, serious,
aggravated, infamous, and heinous crime and which will normally be considered a
"serious nonpolitical crime" for purposes of section 243(h).
(5) The applicant's conviction for robbery would be considered the commission of a
"serious nonpolitical crime" for purposes of section 243(h) even under a balancing test,
where the applicant did not establish that his life or freedom would be threatened if
returned to Cuba on account of race, religion, nationality, membership in a particular
social group, or political opinion.
(6) An applicant who is within one of the undesirable groups enu merated in section
243(h)(2) of the Act because of the commission of a "serious nonpolitical crime"
(robbery) prior to arrival, is ineligible for relief under sections 208 and 242(h)(1) of the

Act. See 8 CF.R. 208 (June 1, 1980).
EXCLUDABLE:

Order: Act of 1952—Sec. 212(a)(20) [8 U.S.0 1182(a)(20))—Immigrant—not in possession of valid unexpired immigrant visa or other valid
entry document
Sec. 212(a)(9) [8 U.S.C. 1182(a)(9)1—Admission of conviction of
crime involving moral turpitude
ON BEHALF OW APPLICANT:
BY:

Pro se

Milholla.a. Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
465

Interim Decision #2815
In a decision dated June 17, 1980, an immigration judge found the
applicant excludable tinder sections 212(a)(9) and (20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9) and (20), denied his
requests for asylum and relief under section 243(h) of the Act, 8 U.S.C.
1253(h), and ordered his exclusion and deportation from the United
States. The applicant has appealed. The appeal will be dismissed.
The applicant is a 39-year-old native and citizen of Cuba. He was
part of the recent exodus from Cuba, arriving in the United. States at
Key West, Florida, in May 1980. The applicant was detained for an
exclusion hearing and was charged with being excludable under sections 212(a)(9) and (20) of the Act, as having been convicted of a crime
involving moral turpitude and as an immigrant not in possession of a
valid unexpired immigrant visa or other valid entry document.
At an exclusion hearing begun on June 4, 1980, and completed on
June 12, 1980, the applicant was advised of the nature of the proceedings, his right to be represented by counsel, and the availability of free
legal services. The applicant elected to proceed without counsel and to
speak for himself. We find that his decision to proceed without the
assistance of counsel was competently, understandingly, and voluntarily made, and that the applicant effectively waived his right to counsel.
Ramirez v. INS, 550 P.24 560 (9 Cir. 1977).`
Prior tO the hearing, the applicant executed an affidavit and a
Request for Asylum (Form 1-589) with attached statement. In these
documents the applicant admitted that he had been arrested and
convicted in Cuba on three occasions: drug trafficking in 1962, robbery

in 1968, And robbery in 1978. He stated that he served 7 months
imprisonment for his 1962 conviction, 2 years for his 1968 conviction,
and 6 months for his 1978 conviction. During the hearing the applicant
denied that he Was convicted of drug trafficking in 1962 and robbery in
1978 but reaffirmed his arrest, conviction, and 2 years imprisonment
for the crime of robbery in 1968. The applicant's conviction in 1968 was
for a crime involving moral turpitude. Brett v. INS, 386 F.2d 439 (2 Cir.

1967); United States v. Shaughnessy, 219 F.2d 249 (2 Cir. 1955); United
States v. Day, 54 F2r1 336 (2 Cir. 1031); Matter of Quadra, 11 I&N Dec.
457 (BIA 1966); Matter of Z—, 5 I&N Dec. 383 (BIA 1953). We find that
the applicant's excludability under section 212(a)(9) of the Act has
been established. During the proceedings the applicant also admitted
alienage and that he was not in possession nor had he received any
documentation issued by the United States, permitting him to enter
this country. In view of cur determination that the applicant is excludWe note in this regard, that the applicant was 39 years old, had completed 8 years of
formal education, and that the proceedings were conducted through the use of an
interpreter in his native language, Spanish.

466

Interim Decision #2815
able under section 212(a)(9), we do not reach the issue of his excludability under section 212(a)(20).
The only remaining issue on appeal is the correctness of the denial of
the applicant's requests for asylum and for relief under section 243(h).
The immigration judge determined that the applicant was not
statutorily eligible for relief, finding that he had committed a "serious
nonpolitical crime" prior to his arrival in the United States and that he
had failed to establish that his life or freedom would be threatened on
account of race, religion, nationality, membership in a particular
social group, or politcal opinion if returned to Cuba. On appeal the
applicant argues that he is entitled to the requested relief. He states

that if returned to Cuba he will suffer imprisonment or possibly loss of
his life.
Section 243(h) was recently amended by the Refugee Act of 1980 2 and
now provides:
(h)(1) The Attorney General shall not deport or return any alien (other than an alien
described in section 241(a)(19)) to a country if the Attorney General determines that
such alien's life or freedom would be threatened in such country on account of race,
religion, nationality, membership in a particular social group, or political opinion.
(2) Paragraph (1) shall not apply to any alien if the Attorney General determines
that—
(A) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a
particular social group, or political opinion;
(B) the alien, having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of the United States;
(C) there are serious reasons for considering that the alien has committed a
serious non-political crime outside the United States prior to the arrival of the alien
in the United States; or
(D) there are reasonable grounds for regarding the alien as a danger to the
security of the United States."

Congress in section 243(h) adopted, almost verbatim, the language of
the United Nations 1951 Convention and 1967 Protocol Relating to the
Status of Refugees (Protocol), United Nations Treaty Series, Vol. 189,
p. 37 and Vol. 606, p. 267. See Article 1, paragraphs A(2) and F and
Article 33 of the Convention.
' Pub. L. No. 96-212, 94 Stat. 102 (March 17, 1980). Relief under 243(h) is now available
in both exclusion and deportation proceedings. See 8 C.F.R. 208.10 (June 1,1980); 45 P.R.
37395 (June 2, 1980). Compare section 243(h), prior to amendment, wherein relief was
limited to aliens "within the United States .. . ." Under the Refugee Act of 1980 both

asylum under section 208(a) and relief under section 293(h) may be available to aliens
physically present in the United States or at a land border or port of entry, irrespective
of such alien's status. We note that Victor H. Palmieri, U.S. Coordinator for Refugee
Affairs, Department of State, in a statement released June 20, 1980, indicated that recent
Cuban-Haitian entrants may not be covered by the Refugee Act of 1980 and that special
legislation regularizing their status will be sought by the President.

467

Interim Decision #2815
The issue before us is whether the applicant's 1968 Cuban conviction
was for a "serious nonpolitical crime" within the meaning of section
243(h)(2)(C). The term "serious nonpolitical crime" is new to the
Immigration Act and is not further defined therein.' The Conference
Report which accompanied the final version of the Refugee Act of 1980

indicates that it was Congress' intent that the provisions of section
243(h) be construed consistently with the Protocol.
Accordingly, we have looked to the Protocol for guidance as to the

meaning of "serious nonpolitical crimes?' While the term is used in the
Protocol, it is not further defined there. However, the Office of the
United Nations High Commissioner for Refugees, which has the responsibility of supervising the application of the provisions of the

Protocol,5 has published a Handbook on. Procedures and Criteria for
Determining Refugee Status (September 1979). The Handbook provides
an interpretation of the meaning and application of the terms used in
the Protocol. In particular, paragraphs 151-161, pp. 36-38, of the
Handbook are concerned with the term "serious nonpolitical crimes"
,

for put-poses of excluding an alien from relief under the Protocol.

Paragraph 155 provides in relevant part
In the present context, however, a serious crime must be a capital crime or a very
grave punishable act Minor offences punishable by moderate sentences are not

grounds for exclusion under Article 1 F(b) even if technically referred to as crimes in
the penal law of the country concerned.

Paragraph 156 provides:
In applying this exclusion clause, it is also necessary to strike a balance between the
nature of the offence presumed to have been committed by the applicant and the
degree of persecution feared. If a person has well-founded fear of very severe persecution, e.g. persecution endangering his life or freedom, a crime must be very grave in
order to exclude him. If the persecution feared is less serious, it will be necessary to
have regard to the nature of the crime or crimes presumed to have been committed in
order to establish whether the applicant is not in reality a fugitive from justice or
whether his criminal character does not outweigh his character as a bona fide refugee.

Thus it can be seen that the Handbook suggests a balancing test,
weighing the nature of the offense and the degree of persecution
established, to determine whether a particular "nonpolitical crime" is
"serious." Under this balancing test, what constitutes a "serious
' The Act specifies various crimes and criminal conduct which render a person subject

to exclusion, deportation, or criminal sanctions. See, for example: sections 212(a)(9), (10),
(23), 241(a)(4), (5), (11), (14), (17), 274-277. Congress specifically did not tie section 243(h)
ineligibility for commission of a "serious" crime to the existing categories of crime
contained in the Act.
' House of Representatives, 96 Congress, 2d Session, Report 96-781, February 22, 1980,

p. 20.

Article 35, paragraph 1, of the 1951 Convention Relating to the Status of Refugees.
468

Interim Decision #2815
nonpolitical crime" for purposes of ineligibility for relief under section
243(h) would require a case-by-case analysis.6 Under the facts of this
case, however, we are satisfied that the applicant has committed a
"serious nonpolitical crime," rendering him ineligible for section
243(h)(1) relief, whether we apply a balancing test or make our deter-

mination based solely on the nature of the offense involved.
The applicant was convicted in Cuba in 1968 for the crime of robbery.
This was a crime involving moral turpitude. Brett, supra; Matter of
Quadra, supra; Matter of Z—, supra. Moreover, robbery is "a felony
both at common law and under the statutes, ... constitutes an offense
against both person and property, [and ...] has been characterized as a
grave, serious, aggravated, infamous, and heinous crime! The applicant was in fact sentenced and served two years in prison for this
conviction.° Under the traditional view, based solely on the nature of
the offense, the applicant has committed a "serious nonpolitical
crime."
As regards the persecution claim, the applicant stated that he was
not a communist, held anti-communist views, and feared persecution
for these political beliefs if returned to Cuba. The only evidence submitted by the applicant to support the requested relief under section
245(h) were his statements in the Request for Asylum (Form 1-589)

with attached Addendum and during the exclusion hearing.
The Form 1-589 indicated that the applicant believed he would be
persecuted because of his political opinions. The forms reflected, however: that he had never belonged to any organizations hostile to the
interests of Cuba; that he had never expressed any political opinions or
acted in a manner which was regarded by the Cuban authorities as
By the Refugee Act of 1980, Congress also added section 207(c)(3) to the Act, 8 U.S.C.
1157(c)(3), which, in part, permits the Attorney General to waive the criminal exclusionary provisions of section 212(a), including narcotics convictions. Only that part of section
212(a)(23) relating to a nonconviction charge of trafficking in narcotics was excepted
from this waiver provision. Congress recognized that such waiver may be required in the
discretion of the Attorney General for humanitarian reasons consistent with the purposes of the Refugee Act. Senate, 96 Congress, 2d Session, Report 96-2561, July 23, 1979,
p. 15. These waiver provisions suggest a balancing of the criminal conduct and the degree
of persecution involved.
77 C.J.S. Robbery section 2 (1952) (footnotes omitted).
° 18 U.S.C. section 1 provides:
Notwithstanding any Act of Congress to the contrary:
(1) Any offense punishable by death or imprisonment for a term exceeding one year
is a felony.
(2) Any other offense is a misdemeanor_
(3) Any misdemeanor, the penalty for which does not exceed imprisonment for a
period of six months or a fine of not more than $500, or both, is a petty offense.
Robbery is punishable by a maximum penalty of 15 years imprisonment under both
federal law (18 U.S.C. 2111) and the District of Columbia Code (22-2901).

469

Interim Decision #2815
opposed to their interests; that he had not taken any actions which he
believed would result in persecution in Cuba; that neither he nor any
member of his family had ever been detained, interrogated, arrested,
convicted and sentenced, or imprisoned because of his political beliefs;
that the conditions in Cuba did not affect his freedom more than the
rest of the Cuban population; and that his family had never suffered or
been intimidated because of his absence or actions. The applicant
states that he will be imprisoned or possibly lose his life if returned to
Cuba. He has produced no evidence to support these claims.
Thus, assuming arguendo, that the balancing test was to be adopted
and applied in the instant case, considering, the nature of the crime and

the evidence of persecution presented here, we would find that this case
does involve the commission of a "serious nonpolitical crime."
We conclude that for purposes of section 243(h)(2)(C), under the
facts of this case, the applicant committed prior to arrival a "serious
nonpolitical crime," and was therefore ineligible for relief under sections 243(h)(1) and 208 of the Act.° The decision of the immigration
judge, finding the applicant excludable under section 212(a)(9) and

denying his application for asylum and requested relief under section
243(h) was correct. Accordingly, the appeal will be dismissed.
ORDERS The appeal is dismissed.

An alien within one of the undesirable groups defined in section 243(h)(2) of the Act is
not eligible for asylum under section 208(a) of the Act. See 8 C.F.R. 208 (effective June 1,
1980).
470


Interim Decision #2416

MATTER OF MORALES
In Deportation Proceedings
A--30794500
Decided fry Board July 28, 1975
(1) Respondent was admitted for permanent residence in possession of an immigrant visa
issued to him as the spouse of a United States citizen upon the basis of a visa petition
approved by the Service subsequent to the commencement, and prior to the conclusion,
of deportation proceedings instituted against his wife which resulted in a determination,
ultimately sustained by the U. S. Court of Appeals, that she was not in fact a citizen of
the United States. Notwithstanding the visa petition approval may have been an
erroneous act, there was no "affirmative misconduct" and the Service is not estopped in
subsequent deportation proceedings agiiinst respondent from showing that his wife was
not a citizen. The fact a formal decision was made on the visa petition does not, by itself,
give substantial weight to respondent's equitable estoppel argument; the approval of
the petition was by no means a final determination of the citizenship claim of respondent's wife.
(2) Respondent, who is deportable under section 241(a)(1) of the Immigration and Nationality Act based on excludability at entry under section 212(a)(20), is ineligible for
the benefits of section 241(f) of the Act (Matter of Montetnayor, 15 I. & N. Dec.
353).

CHARGE:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of
entry under section 212(a)(20) [8 U.S.C. 1182(a)(20)]–
immigrant not in possession of valid immigrant visa
BEHALF or SERVICE:
William E. Weinert.
Thal Attorney

OE BEHALF OF RESPONOENT:

ON

Alex R. Gonzalez, Esquire
122 North Main Street
P. 0. Box 1726
Fort Stockton, Texas 79735

In a decision dated April 13, 1973, we dismissed the respondent's
appeal from an order of an immigration judge in these deportation
proceedings. The respondent has submitted a motion seeking a reopening of his case. The motion will be denied.
The respondent is a native and citizen of Mexico who was admitted to
the United States as an immigrant in July of 1970. His eligibility for
admission as a lawful permanent resident was in part based on his
marriage to an alleged United States citizen. In proceedings commenced
prior to the respondent's admission, and concluded after his arrival, it
411

Interim Dechion #2416

was determined that the respondent's wife was not in fact a citizen of
the United States.
The respondent does not presently contend that his wife is a citizen of
the United States. However, he moves to reopen the proceedings,
arguing both that the Service should be estopped from showing that his
wife has never been a citizen, and that, in any event, his deportation is
precluded by virtue of section 241(f) of the Immigration and Nationality
Act.
The record :.ndicates that the respondent's wife filed a visa petition in
his behalf in 1969. Thereafter, in January of 1970, the Service instituted

deportation proceedings against the respondent's wife. Those proceedings were ordered terminated by an immigration judge after he found
that the Service had not shown that the respondent's wife was an alien.
The Service took an appeal to this Board from the immigration judge's
order. Our decision on the Service's appeal, of which we take administrative notice, shows that the immigration judge's order terminating
proceedings in favor of the respondent's wife was entered on March 26,
1970. The Service, which until then had not acted on the wife's visa
petition, approved that petition on March 30, 1970, only four days after
the immigration judge had ruled in favor of the respondent's wife_

The record does not disclose the date on which the Service took its
appeal from the immigration judge's order terminating the wife's deportation proceedings. The appeal, however, was sustained, and we remanded the record for further proceedings. Nevertheless, during the
pendency of that appeal the respondent was admitted to the United
States on the basis of his claim to being the spouse of a citizen.
The finding of deportability against the respondent's wife was ultimately sustained by the United States Court of Appeals for the Fifth
Circuit. The respondent, however, contends that the Service should be
estopped from showing that his wife was not a citizen. This would
effectively preclude the Serviee from demonstrating that the respondent's immigrant visa was invalid.
There have been several court eases indicating that, under certain
circumstances, the doctrine of equitable estoppel is applicable to the
Federal government, even when acting in a "sovereign" capacity. See
e.g. United States v. Lazy PC Ranch, 481 F.2d 985 (C.A. 9, 1973);
Gestuvo v. district director, 337 F. Rupp. 1093 (C.D. Cal. 1971). However, we know of no Supreme.Court decision specifically endorsing this

view. Moser v. United States, 341 U.S. 41 (1951), relied upon by
counsel, does not purport to be an estoppel case. Furthermore, in INS
v. Hibi, 414 U.S. 5 (1973), the Supreme Court indicated that, if applicable at all, estoppel in the area of citizenship could only arise after
"affirmative misconduct" on the part of the government.
in this case, the Service approved the visa petition almost im-

412

Interim Decision #2416
mediately after an immigration judge had adjudicated the claim to
citizenship in favor of the respondent's wife, and well before our reversal of the immigration judge on appeal. While there may have been an
erroneous action taken, there was no "affirmative misconduct" as we
interpret that phrase. The law as enacted by Congress cannot be
changed by the mere erroneous act of a government official. See Federal
Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947); United States v. City &
County of San Francisco, 310 U.S. 16 (1940), Utah Power & Light Co.
v. United States, 243 U.S. 389 (1917); Matter of Polanco, 14 I. & N.
Dec. 488 (BIA 1973); Matter of Khan, 14 I. & N. Dec. 397 (BIA 1973).

The fact that there was a formal decision made with respect to the
visa petition does not, by itself, give substantial weight to the respondent's equitable estoppel argument. The approval of the petition was by
no means a final determination of the citizenship claim of the respondent's wife. Cf. Pearson v. Williams, 202 U.S. 281 (1906). In addition,
the respondent should have been well aware that the Service was not
conceding the citizenship of his wife, because at the time of the respondent's admission to the United States Hs wife's case was still on appeal.
The immigration judge properly refused to estop the Service from
presenting its case with respect to the citizenship of the respondent's
wife.
The respondent also argues that he cannot be deported on the charge
specified in the order to show cause by virtue of section 241(f) of the Act.
However, in Matter of Montemayor, 151. & N. Dec. 353 (BIA 1975), we
held that the construction of section 241(f) adopted by the Supreme
Court in Reid v. INS, 420 'U.S. 619, 95 S. Ct. 1164 (1975), precluded the
application of section 241(f) to a section 241(a)(1) charge of deportability
based on section 212(a)(20). See Guel-Perales v. INS, 519 F.2d 1372,
(C.A. 9, 1975). This is the precise charge against the respondent.
We can perceive no useful purpose that would be served by reopening
these proceedings. The motion will be denied.
ORDER: The motion is denied.
Theodore P. Jakaboski, Alternate Member, Dissenting:

I respectfully dissent.
The issue in this acae is not whether the Immigration and Naturalization Service should be estopped from showing that the respondent's wife
has never been a citizen. As the Trial Attorney correctly noted in his
brief, the issue actually is quite different i.e., whether the Service is
estopped from denying the validity of the respondent's immigrant visa
as an immediate relative of a United States citizen.
In this case the respondent, a native and citizen of Mexico, entered
the United States as an alien admitted for lawful permanent resident on
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July 17, 1970. At that time he was admitted on the strength of an
immigrant visa issued to him on the basis of his purported status as the
immediate relative (spouse) of a United States citizen. He received this
status on March 30, 1970, when the district director approved the
petition to classify his status filed by his wife on April 15, 1969.
The reason an order to show cause has been filed in the respondent's
case is that the Immigration and Naturalization Service subsequently
established that the respondent's wife was not a citizen of the United
States. That determination was upheld Chacon-Ramierez v. INS, 468
F.2d 950 (C.A. 5, 1972). Now the Service takes the position that the

respondent is deportable because his visa was improperly issued to him
because he was not in fact the husband of a United States citizen.
The district director had approved the petition to classify status just
four days after an immigration judge of the Immigration and Naturalization Service had rendered a decision terminating deportation proceedings bnught against this respondent's wife on the ground that the
Service had failed to carry its burden of establishing the wife's alienage.
The Service's action in approving the petition to classify status occurred
before the Service appealed the immigration judge's opinion on April 6,
1970. That -appeal was sustained by the Board. In reopened proceedings

the immigration judge found the respondent's wife not to be a citizen
and ordered her deportation. That decision was sustained upon judicial
review.
An order to show cause was not issued in connection with the respondent until July 19, 1972, a few days more than two years after he was
admitted as the immediate relative of a United States citizen.
On this set of facts the majority declines to make a finding that the
Service should be estopped. I do not agree with their finding that there
has been no "affirmative misconduct" in the present case. Granted, no
illegal act has been committed against the respondent.. I do not believe

one is required. The respondent, however, did rely, obviously much to
his detriment, on the district director's approval of his status as the
spouse of a Jnited States citizen. After all, the respondent's spouse had
applied for immediate relative status for him back in April 15, 1969,
more than three years before the issuance of an order to show cause.
During this time the respondent could have pursued a visa in his own
right witho at relying upon the fact of marriage to a United States

citizen. As a native of Mexico he is a "special immigrant" as that term is
defined in section 101(a)(27)(A) of the Act. At the time the waiting list
for special immigrants was slightly under two years.
The Immigration Service had two opportunities of preventing the
respondent's predicament. First, the Service should have known on
March 30, 1970 whether or not it intended to appeal the immigration
judge's decision of March 26, 1970 which found the respondent's wife not
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Interim Decision #2416
to be an alien..Next, the Service had a quarter of a year between April
6, 1970, when it filed its appeal, and July 19, 1970, when the respondent
was admitted, to revoke the approval granted on Maxch 80, 1970. It did
nothing.
The respondent entered on July 19, 1970, almost as if he had fallen
into a trap set by the Service. It seems too much to suggest that the
respondent should have known better. How could he have known? All
the while he had in his hands an unrevoked document attesting to the
fact that the Immigration and Naturalization Service had approved the
status he needed for obtaining an immigration visa. If knowledge is to
be imputed to anyone, it should be imputed to the Service. Consequently, it would be unconscionable to permit the Service at this late
date to turn around and charge the respondent with deportability on the
ground that his visa was defective. Would it be fair play to deport the
respondent, who, after all, would not have been admitted to this country
except for the Service's error which was of several month's duration? I
think not. In my opinion the Service should be estopped from bringing
proceedings against this respondent. I therefore, would grant the motion to reopen to raise the bar of equitable estoppel.

415


Interim Decision *2047

MATTER OF COSTARELLI

In Deportation Proceedings
A-15645606
Decided by Board April 14, 1970
A

native and citizen of Italy who entered the United Slates as a crewman is
eligible to apply for the benefits of section 1 of the Act of November 2,
1966 as the spouse of a native and citizen of Cuba within the provisions
of section 1 of that Act.

CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2) 1—Nonimmigrant crewman—remained longer.
ON BEHALF OF RESPONDENT: Irving I. Freedman, Esquire
134 North LaSalle Street
Chicago, Ilinois 60602

The case is before us upon motion by the respondent to reopen
the proceedings to afford him an opportunity to apply for adjustment of status to that of a permanent resident pursuant to section 1 of the Act of November 2, 1966, Public Law 89-732, 80
Stat. 1161 (commonly referred to as the Cuban Refugee Act). A
similar motion previously filed on April 16, 1968 was denied by
us when it appeared that the respondent was not statutorily eligible for having his status adjusted under this provision of law because he had not resided in the United States for a period of two
years as required by the statute.
The respondent is a 29-year-old married male alien, a native
and citizen of Italy, who last entered the United States as a crewman on March 14, 1967, at which time he was granted permission
to remain for a period of 29 days. When he did not leave within
that period of time, he was given the privilege of voluntarily departing prior to June 24, 1967. He has, however, remained in the
United States.
The respondent's wife is a native and citizen of Cuba who entered the United States on June 14, 1966, at which time she was
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Interim Decision #2047
inspected and paroled. On June 14, 1968, her status was adjusted
to that of a permanent resident under the Act of November 2,
1 966. Section 1 of said Act provides:
Notwithstanding the provisions of section 245(c) of the Immigration and
Nationality Act, the status of any alien who is a native or citizen of Cuba
and who has been inspected and admitted or paroled into the United States
subsequent to January 1, 1959 and has been physically present in the United
States for at least two years, may be adjusted by the Attorney General, in
his discretion and under such regulations as he may prescribe, to that of an
alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant
visa and is admissible to the United States for permanent residence. Upon
approval of such an application for adjustment of status, the Attorney General shall create a record of the alien's admission for permanent residence
as of a date 30 months prior to the filing of such an application or the date
of his last arrival into the United States, whichever date is later. The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardl000 of their citizenship and place of birth,
who are residing with such alien in the United States. (Emphasis supplied.)

The respondent, although not a native or citizen of Cuba, is entitled to have his application for permanent residence considered
under said Act. The Act does not preclude a crewman from
applying for such adjustment as does section 245 of the Immigra,ion and Nationality Act . 1
The respondent's motion indicates he may now be eligible to
ipply for discretionary relief from deportation. Upon due conideration, we will grant the motion.
ORDER: It is ordered that the hearing be reopened for considration of such application for discretionary relief as may be
led.
It is further ordered that if discretionary relief is granted by
le special inquiry officer, the outstanding order of deportation be
ithdrawn.

Matter of Sanabria, 12 L & N. Dec. 396.

576