Interim Decision #2774

MATTER OF DAMIOLI
In Section 248 Proceedings

. A-22622403
Decided by the Commissioner January 18, 1980

Native born United States citizen who is a dual national of the United States and Italy by
marriage and operation of foreign law is statutorily ineligible to confer treaty trader
status on alien beneficiary employed by her firm where she has chosen to assert her
United States citizenship as the predominant nationality by various actions taken to
benefit the conduct of her business.
ON BEHALF OF PETITIONER:

Stanley Mailman, Esquire
1290 Avenue of the Americas
New York, New York 10019

This matter is before the Commissioner on certification, as provided
by 8 C.F.R. 103.4, for review of the Regional Commissioner's order
sustaining the District Director's decision to deny the application for
change of nonimmigrant status.
The applicant is a 27-year-old native and citizen of Italy who entered
the United States on July 15, 1978, as a visitor for pleasure authorized
to remain until September 30, 1978. On September 25, 1978, the appli,
cant submitted an application for change of nonimmigrant classification to that of treaty investor. This classification was sought to enable
the applicant to assume duties as director and manager of a United
States enterprise in the Virgin Islands which charters vessels used for
fishing, scuba diving, tours and other water sports and activities. This
enterprise, which is incorporated under United States law, is whollyowned by an. individual who is a native-born United States citizen, and
who also claims to be a citizen of Italy through marriage and operation
of Italian law.
The application for change of nonimmigrant classification to treaty
investor was approved by the District Director on September 29, 1978.
Shortly after the approval, however, the District Director determined
that the applicant was not in fact eligible for treaty investor status
because the owner of the enterprise was a United States citizen, and
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Interim Decision #2774
that the approval was therefore in error. On the same day, the applicant was requested to return to the Immigration and Naturalization
Service office at which time the adjudicating officer voided the approval by obliterating his previous endorsements of the applicant's
application, arrival/departure record, and passport. The applicant was
informed that the case would be reviewed further before final
disposition.
On October 3, 1978, a notice of denial was apparently issued by the

District Director and mailed to the applicant through the Attorney of
Record. Though this denial is referred to by both the applicant and the
District Director, it does not appear in the record. There does appear in

the record a denial dated November 2, 1978, in which the District
Director sets forth two reasons for denying the application:
1. That the applicant could not qualify as a treaty investdr under section
101(a)(15)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(E)(ii),
as amended, because he had neither invested nor was in the process of investing any
capital in the subject enterprise; and
2. That the applicant could not qualify for treaty investor status under 22 C.F.R.
41.41 as an employee of an organization which is principally owned by a person having
the nationality of the treaty country, because the owner of the involved enterprise is a
United States citizen.
On November 9, 1978, the District Director moved for reconsideration of his earlier approval in view of his subsequent finding that the

applicant was ineligible for treaty investor status. For basically the
same reasons as identified in his denial of November 2, 1978, the
District Director ordered that the case be reopened, that the approval
of September 29, 1978, be rescinded, and that the denial of October 3,
1978, be held in abeyance pending submission of countervailing
evidence by the applicant as to why such denial should not stand. In
response, the applicant argued that the District Director's motion was
procedurally and substantively defective because, among other things,
the District Director cannot be considered "an affected party" under 8

C.F.R. 103.5, and because the motion set forth no new evidence establishing the applicant's ineligibility for treaty investor status. On
December 11, 1978, the District Director denied the application and
certified the case to the Regional Commissioner for review.
The applicant appealed the District Director's October 3, 1978, denial to the Regional Commissioner on November 13, 1978, arguing that
there is no provision under section 248 of the Immigration and Nationality Act, 8 U.S.C. 1258, to rescind an approved change of nonimmigrant classification, and that he was in any event eligible for treaty
investor status on the ,basis of hio employment by an organization

which is principally owned by a person having the same nationality of
the treaty country. On January 29, 1979, the Regional Commissioner
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Interim Decision #2774
dismissed the applicant's appeal, ruling that 8 C.F.R. 103.5 does give
the District Director the authority to reopen and reconsider his decision, and that the certification of the case to the Regional Commissioner served to remedy any procedural defects which may have occurred
at the district level. The Regional Commissioner further ruled that
because the owner of the subject enterprise failed to satisfactorily
establish that she was an Italian national, the applicant was ineligible
for treaty investor statue as her employee.

This case appears to be one of first impression. The controlling lime
to be resolved is whether a United States citizen at birth who later
acquired Italian nationality through marriage and the operation of
Italian law, and who has invested in a United States enterprise, is

eligible to confer treaty investor status upon an alien employee of such
enterprise under the Immigration and Nationality Act, as amended.
The resolution of this issue must begin with an analysis of the statute
and pertinent regulations.
The requirements for qualifying for treaty investor status are clearly net forth in 22 C.F.R. 41.41. Among other things, the regulation
provides that an alien may establish such status if "... he is employed
by ... an organization which is principally owned by a person ... having the nationality of the treaty country...." While the evidence of
record is not conclusive, I am satisfied that the investor here is an
Italian national by operation of Italian law. This case does not, however, turn on the Italian nationality of the owner of the enterprise. Her
dual Italian nationality does not, standing alone, make the applicant
here eligible for the status of a treaty investor under 22 C.F.R.
41.41(a)(3).
A treaty investor is defined as:
... an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the
foreign state of which he is a national ... solely to develop and direct the operations of
an enterprise in which he has invested... a substantial amount of eaptial;

Section 101(a)(15)(E) Immigration and Nationality Act, 8 U.S.C.
1101 (a)(15)(E), as amended. (Emphasis added.) This statutory requirement of alienage is further articulated in 22 C.F.R. 41.3, which specifically prohibits the issuance of visas to nationals of the United. States,
which includes citizens. The record, hOwever, contains clear and uncontroverted evidence that the employer here is not an alien, but
rather a native born United States citizen. Nor is there any evidence or
assertion in the record that she has voluntarily relinquished or
otherwise lost her United States citizenship. As such, she would not be
entitled to enter the United States as an alien, as required by the
statute, but rather as a United States citizen. As a United States
citizen, she is therefore statutorily ineligible for treaty investor status.
-

305

Ifiterim Decision #2774
Because she cannot qualify as a treaty investor, the applicant here
cannot qualify as a treaty investor as her employee under 22 C.F.R.
41.41(a)(3).
The applicant argues that his prospective employer's dual Italian
nationality qualifies him for treaty investor status, notwithstanding
her United States citizenship. He attempts to expand this country's
recognition of the principle of dual nationality to the point where he
would compel the United States to at once treat the Italian citizenship
of his employer with an equal degree of legal and political force as it
does her United States citizenship. This position, however, is not
Supported by authority or logic. The cases the applicant cites on this
point relate to the loss of United States citizenship and the tax liabilities of dual nationals—neither of which issue is relevant to this case.
On the other hand, there is ample authority which holds the contrary
position. For example, Hyde, in his treatise International Law, at
p. 1131, states that:
Two States may in fact lay claim to the same individual as a national at the same time.
This circumstance does not, however, place the claimants on an equal footing. The
equities of one are of necessity superior to those of the other. They cannot at the same
*oment be on the same plane. (Emphasis supplied.)

The legal and Political predominance of the owner's United States
Citizenship here is clear. In fact, it is by her own affirmative actions to
invoke her United States citizenship to establish and maintain her
Wiliness enterprise in this country that the predominance of such
citizenship is evident. In order to obtain Certificates of Registry from
the United States Coast Guard necessary for her wholly-owned enterprise to ply United States coastal waters, the enterprise was required
to be at least 75% owned by United States citizens. Additionally,
continuing permission from the Coast Guard to ply United States
Waters under the Certificates of Registry will continue only as long as
76% of the enterprise is owned by United States citizens. Thus, the
owner of the enterprise held herself out as a United States citizen
when she sought and was granted Certificates of Registry issued under
the jurisdiction of the United States Coast Guard. Moreover, she is
continuing to hold herself out as a United States citizen in order to
keep her Certificates of Registry in force. Clearly, then, the owner has
elected to have the United States recognize her United States citizenship as predominant. Had she sought such recognition of her Italian
citizenship, her enterprise would not have been issued the necessary
'ertificate of Registry by the United States Coast Guard and would not
have been allowed to ply its trade in United States waters. In other
words, the very existence of the business upon which the applicant
seeks treaty investor status would not be possible unless its owner
were a citizen of the United States.
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Interim Decision #2774
The applicant nonetheless contends that the United States should
give equal recognition to his employer's Italian Citizenship in order
that he may receive treaty investor status as her employee under 22
41.41(3). To do so would allow a situation in which she would be
able to secure benefits from one Government agency by claiming to be
a United States citizen, and simultaneously secure other benefits from
a second Government agency by claiming to be an Italian citizen. The
owner's dual nationalities, however, are not interchangeable at will
depending upon the relative Government benefits she may be granted
or denied by claiming one or the other. As indicated above one of the
two nationalities must predominate. Here the affirmative actions of
the owner herself establish the predominance of her United States
citizenship.
The only remaining issue to be disposed of is what effect, if any, the
District Director's approval and subsequent denial of the application
on September 29, 1978, has on the outcome of the case. The District
Director has the authority tinder 8 C.F.R. 103.5 to reconsider his
completed actions. There is no question that the manner by which the
District Director rescinded the approval of the instant application was
procedurally defective. The only consequence of such defect to the
applicant, however, was that he did not receive a benefit for which he
was statutorily ineligible. In any event, he was granted a subsequent
opportunity by the District Director to submit countervailing
evidence. This overcomes the earlier procedural defect in this case and
renders it harmless error, and no ground for reversal of the District
Director's decision.
ORDERS The District Director's decision of December 11, 1978, be
affirmed, and the application for change of nonimmigrant classification is hereby denied.

307


Interim Decision #2328

1VIATTER

OF

Loo

In Deportation Proceedings
A-11407844

Decided by Board October 25, 1974
The respondent last entered this country claiming to be a United States citizen; he later
confessed alienage. The Service instituted deportation proceedings in 1968 charging
deportability under section 241(a)(1) of the Immigration and Nationality Act. On a prior
remand the Board drew attention to a stipulation by the parties to reopen the proceedings for the lodging of a new charge and for the introduction of evidence that respondent
had been accorded the opportunity to depart voluntarily prior to the institution of the
deportation proceedings. After the last remand the immigration judge terminated the
proceedings. Respondent appealed evidently seeking suspension of deportation under

section 244(a)(1) of the Act. The Board again remanded for institution of appropriate
proceedings under section 241(a)(2) of the Act.
CHARGE:
Order: Act of 1952—Section 241(a)(1), [8 U.S.C. 1251(a)(1)1—Excludable at time of
entry, no immigrant visa.
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

David L. Milholian
Appellate Trial Attorney

Robert S. Bixby, Esquire

30 Hotaling Place
San Francisco, California 94111

The alien respondent is a native and citizen of China. His case has
been the subject of numerous opinions both at the Board and below.
After our last remand, the immigration judge entered an order, dated
August 31, 1973, terminating the proceedings against the respondent.
The respondent does not appear to be satisfied with the resolution of his
case and he has appealed from that decision. He evidently desires to
become an alien lawfully admitted for permanent residence, and consequently he maintains that he is both deportable and eligibile to receive
relief under section 244(a)(1) of the Immigration and Nationality Act.
We have concluded that the respondent is deportable. Accordingly, we
shall remand the record for additional proceedings.
In 1954 the respondent obtained a court decree declaring him to be a
citizen of the United States. Several years later he was issued a certificate of citizenship. The respondent last entered this country as a citizen
127

Interim Decision #2328

on February 2, 1966, after having worked as a crewman. Shortly after
that entry he confessed alienage; thereafter, the court decree was set
aside and the certificate of citizenship was cancelled.
In 1968, the Service instituted deportation proceedings against the
respondent. The respondent was charged with deportability under section 241(a)(1); the Service alleged that the respondent was excludable at
the time of his last entry, because he was an immigrant alien not in
possession of valid documentation. See section 212(1)(20), Immigration
and Nationality Act. The case came to the Board on appeal from a
finding of deportability. We initially sustained the appeal; however, we
remanded the case upon motion of the Service. Matter of Loo, 13 I. & N.
Dec. 182 (BIA. 1969). .
The record again came to the Board, and we once more remanded it in
a decision dated November 17, 1972. In our opinion of that date we drew
attention to a stipulation entered into by the parties. In this stipulation
the parties consented to the reopening of the proceedings for the lodging
of a new charge of deportability and for the introduction of evidence
indicating that the respondent had been accorded the opportunity to
depart voluntarily prior to the institution of the proceedings.
We remanded the record so that this stipulated material could be
formally introduced at a hearing. On remand, however, the stipulated
charge was not lodged. Instead, a charge of entry without inspection
under section 241(a)(2) was lodged.
The circumstances surrounding the respondent's last entry cause

difficulty in the application of either an "entry without inspection" or an
"excludable at entry" charge of deportability. The respondent, however, is presently in the United States without authority. He is not here
in a legal status, nor is he saved from deportation by any specific
provision of the Act. See e.g. section 241(f), Immigration and Nationality Act. He has been afforded the opportunity to depart voluntarily, but has not done so. As an alien without any colorable claim to lawful
status, he is in the United States in violation of the Act. Cf. U.S. ex.rel.
Se/tin-insister. v. Watkins, 171 F.2d 858 (C.A. 2, 1949), cert. denied, 337
U.S. 942 (1949); U.S. ex rel. Von Heymann v. Watkins, 159 F.2d 650
(C.A. 2, 1947). Accordingly, we perceive nothing which would prevent a
finding of deportability under the appropriate portion of section 241
(a)(2). .
We shall remand the record for further proceeding, and specifically
for the lodging of the charge set forth in the July 11, 1969 stipulation.
ORDER: The record is remanded for further proceedings.

128


Interim Decision, #1342

MATTER OP CORTEZ-VASQUEZ
In EXCLUSION

Proceedings

A-13656346
Decidedby Board May 19,1964
A Mexican national who enters the United States approximately 4 days a week

to purchase firewood felled on American ranches and who returns the same
day to Mexico where he sells the wood, is admissible as a nonimmigrant visitor
for business within the purview of section 101 (a) (15) (B), Immigration and
Nationality Act.
EICOLIMABLE*

Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20) ]—No
valid immigrant visa.

The case comes forward pursuant to certification by the special inquiry officer of his decision dated March 27, 1964 ordering that the
alien be excluded and deported from the United. States on the ground
stated above.
The facts are fully set forth in the decision of the special inquiry
officer. The applicant is a native and citizen of Mexico, 43 years of
age, male, who seeks admission to the United: States with a 33-1 classification. nonimmigrant visa valid for unlimited applications for admission into the United States until July 7, 1964. His purpose in
coming to the United States is to continue to secure firewood from
fermi and ranches in the area in the United States within 10 to 50
miles of Laredo, Texas.
The applicant comes to the United States usually with one or two
partners, in a truck rented by him in Mexico, which is 16' x 8' x 6'.
The applicant pays the ranchers $2 to $4 for the privilege of gathering
trees and brush, which have already been knocked down by the ranchers, andhauling them away. These trees and limbs are widely scattered
over the ground although some of the trees are in. piles. The applicant
gathers useable limbs and trees which he cuts into pieces about three
feet long, splitting the larger pieces in two, and with his partners loads
them into his rented truck. Occasionally, if he can do so without too
much difficulty, he selects wood which has already been placed in piles
but generally picks up those trees and limbs which are scattered about.

544

Interim Decision #1842
Three men working together can get a load of wood in about four to
five hours and it requires about two to two and one-half hours to go
to and from the ranches. He testified that on a usual trip he enters the
United States at Laredo, Texas, at three or four o'clock in the morning
ico Shortly before five o'clock in the
and returns to Nuevo Laredo, Mex
afternoon of this same day. • He sells this wood only in Mexico, selling
some to the owner of the truck who uses it in his brick plant. it is also
sold in the streets from house to house for about one peso for a bundle
of four sticks. He averages about 400 to 500 pesos for a load of wood.
The Service attempted to show that because of the benefit to the •
rancher the wood is practically given to the applicant as payment for
removing trees from the farm and ranch lands thus replacing American labor and creating a competitive advantage for the applicant
over the United States merchant. A government witness has testified
that he has a grocery store in which among other things he handles
firewood which he generally sells to persons for burning in their
fireplaces or for barbecuing. He stated that he has to pay from $9
to $15 per cord, $15 being the price at the present time. This merchant
also testified that he once attempted to procure the wood himself, but
because of the wages he had to pay his help, it was not worthwhile.
The applicant testified that removing the wood is not necessarily a
benefit to the ranchers or farmers and that some are reluctant to sell
their wood or to allow it to , be removed, preferring it to remain as a
mulch or fertilizer.
The special inquiry officer, in his decision states that the applicant is
engaged in the activity described for the past five or six months,
making about four trips a week and expects to continue this work for
an indefinite period. He therefore finds that the business is not
temporary but is continued or permanent in nature, and although each
visit is temporary, the business is not of a temporary character. He
further finds that the applicant is performing labor in the United
States at a wage which is far below the standard of wages for American labor and concludes by finding that the applicant has failed to
establish that he is a bona fide nonimmigrant and must be considered
as an immigrant required to present a valid unexpired immigrant
visa. His finding of fact, upon which he predicates inadmissibility,
is that the applicant has not shown that the business in which he is
engaged is temporary in nature.
Section 101(a) (15) (B) of the Immigration and Nationality Act
defines a visitor for business as an alien having a residence in a foreign
country which he has no intention of abandoning and who is visiting
the United States temporarily for business. The evidence establishes
that the applicant has a. permanent residence in Mexico which he has
no intention of abandoning. The pertinent regulation, 8 CFR
545
7138-456--05---36

Interim Decision #1342
41.25 (a), describing temporary visitors for business or pleasure, sets
forth that an alien shall be classifiable as a nonimmigrant visitor for
business or pleasure if he establishes to the satisfaction of the consular
officer that he qualifies under the provisions of section 101(a) (15) of
the Act and that: (1) he intends to depart from the United States at

the expiration of his temporary stay; (2) he has permission to enter
some foreign country upon the termination of his temporary stay;
and (3) adequate financial provisions have been made to enable,
him to carry out the purpose of his visit and to travel to, sojourn in,
and depart from the United States. The regulation following, 22
CFR 41.25 (b) , states that the term "business," as used in section 101
(a) (15) (B) of the Immigration and Nationality Act, refers to legitiMate activities of a commercial or professional character. It does not
include purely local employment or labor for hire.

This regulation embodies the holding of the Supreme Court in
Karnatli et at v. United States ex rel. Albro, 275 U.S. 231, 241 to the
effect that the term "business" as used in section 3(2) of the Act

of

1924 was limited in application to intercourse of a commercial character. However the exclusion as to purely local employment or labor
for hire in the regulation from the term "business" would not appear
to preclude local employment or labor for hire which was incidental
to legitimate activities of a commercial or professional character of a
temporary nature. Significant considerations to be stressed are : that
there is a clear intent on the part of the alien applicant to continue
the foreign residence and not to abandon the existing domicile; that
the principal place of business, and the actual place of eventual accrual of profits, at least predominantly, remains in the foreign country; while the business activity itself need not be temporary, and
indeed may long continue, the various entries into the United States
made in the course thereof must be individually or separately of a
plainly temporary nature in keeping with the existence of the two preceding considerations. Matter of B— and Fr—, 6 I. & N. Dec. 827, 829.
In Matter of B— and K—, supra, we referred to Matter of G—, 6
I. & N. Dee. 255 and Matter of M—, 6 I. & N. Dec. 533, in which we
cited a number of cases in. which application for admission was sought
as a nonimmigrant. We noted that sometimes the facts of the case
were so intermingled that the question resolved itself into one of
degree. Matter of 1W—, 6 I. & N. Dee. 533 was cited by the special
inquiry officer in his decision. However, as was pointed out in Matter
of B — and K— , 6 I. tk N. Dec. 827, 830, in view of the considerations of
the regularly recurring seasonal nature of the business for an indefinite
number of years, the sale of the trees and the conduct of the business
solely in the United States, and the accrual of profits entirely within

546

Interim Decision #1842
this country, it was concluded that the applicant's status in that case
was not consistent with that of a nonimmigrant for business.
We believe, however, that the distinction set forth in Matter of
B— and K—, supra, may be applied to the instant case. In the instant
case it has been established that the applicant is maintaining a residence in Mexico to which he returns every day. His activity in the
United States, which occurs about four times a week and may be expected to continue indefinitely, is nevertheless temporary in character
because each day he returns to Mexico, where he will continue to reside and where the profits accrue. The principal business, which
consists of purchasing firewood in the United States and hauling it
to Mexico, is intercourse of a commercial character and, as has been
already set forth, the entries into the United States are individually
and separately of a plainly temporary nature in connection with the
principal business. The fact that in connection with the business of
hauling wood the applicant and his partners are sometimes required
to cut the wood into the proper length would appear to constitute

legitimate activities incidental to their principal business which is
intercourse of a commercial character. There is no contention that
the applicant is competing with business in the United States, since

it is conceded he sells his firewood only in Mexico. The fact appears
to be that the business is of such a nature as not to be attractive or
desirable to United States citizens because of the expense involved.
We find that the applicant qualifies as a visitor for business within
the provision of section 101(a) (15) (B) and applicable regulations
since it is clear that he intends to continue his foreign residence, the
principal place of business and the actual place of accrual of profits is
in Mexico and, while the business activity may long continue, the
various entries into the United States made in the course thereof are
individually or separately of a plainly temporary nature since he
returns each evening to his home in Mexico. We find that he is engaged principally in intercourse of a commercial character and that
the work that he does is minor and incidental to that business. The
decision of the special inquiry officer will be reversed.
ORDER: It is ordered that the decision of the special inquiry officer dated March 27, 1964 be reversed and that the applicant be
found admissible as a nonimmigrant visitor for business.

547


Interim Decision #1444

MATTER OF TitONG

In Deportation Proceedings
• A-13128478
'Decided by Board Apra7 p,1965
Respondent, who has never been lawfully admitted to the United States for
permanent _residence, is statutorily ineligible for suspension• of deportation
under section 244(a) (1), Immigration and Nationality Act, as amended,
since he is precluded from establishing continuous physical presence by
reason of a 2-hour absence to Mexico in 1961 during the statutory period.*
tcfrtielman v Insmivrativm and Scauraticatirm Service, 829 Ir.28. 812 (1984),

held inapplicable since respondent was not lawfully admitted for permanent
residence.]
CHARM •

• '
.
Order: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)3—Excludable
• at entry under section 212(a)' (20) [8 U.S.O. 1182
•
(a) (20)3—No immigrant visa.

' The issue is .whether respondent has been physically present in
the ;United States for a continuous period of not less than seven
years from the date of his application for suspension of deportation.
llespondent, a 29-year-old single male 'alien; a native and citizen
of China, illegally entered the - United States on August 24, 1951
upon his false claim to United States citizenship; he has been in the
United States continuously except for a visit of about two hours to
Mexiio in November 1961. He voluntarily appeared before the Service in 1962, and„confessed that he wa:s illegally in the United States;
these deportation proceedings were brought. The special inquiry officer found respondent deportable, granted voluntary departure, denied suspension of deportation, and certified his order to the Board
for final decision. No change will be made in the special inquiry
officer's order.
*Overruled; see 858 2'.2d 151 (C.A. 9, 1968), wherein the Court held that
applicant's brief visit to Mexico did not bar him from consideration for
suspension of deportation as a matter of law •

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Interim Decision #1444
With one exception, an applicant for suspension of deportation
under section 244(a) (1) of the Act is required to establish that he
has been physically present in the United States for a continuous
period of not less than seven years immediately preceding the date
of his application. The exception relates to an alien who has served
honorably for a minimum period "of twenty-four months in an active duty status in the Armed Forces" (section 214(b) of the Act
(8 U.S.C. 1254(b)). The respondent attempted to establish that he
was within the exception. He was inducted into the Armed Forces
on August 8, 1958 and was transferred to the Reserves on July 30,

1960. He served in an active duty status for a total of one year,11
months and 23 days; this service is several days short of the 24
months required to give respondent the exemption he claimed (Matter of reralta, Int. Dec. No. 1290 (1960 ; Matter of Louie, Int. Dec.

No. 1310 (1963)). Respondent must, therefore, establish that he
meets the requirement of section 244(a) (1) concerning continuous
physical presence.

The record establishes by affidavits submitted by the respondent,
army record, and Service investigation, that respondent has been
physically present in the United States for a continuous period of
not less than seven years immediately preceding the date of his application (August 1, 1963) except for his two hour visit to Mexico in
November 1961.
We have held than any absence in the 'required period, no matter
how brief, will break the continuity of physical presence of an alien
except that a "casual visit" as that term is explained in Rosenberg v.
Fleuti, 347 U.S. 449 (1963), will not break the continuity of physical
-presence if the alien had: been lawfully admitted for permanent residence (Matter of Jacobson, Int. Dec. No. 1413 (1964) ; Hatter of.
Wong, Int. Dec. No. 1384 (1964). The effect upon our rule of a.
decision in the judicial circuit in which the respondent resides must
be considered. In jitadmuin v. Immigration and Naturalization
Sorpice, 329 F.2d 812 (9th Cir., March 26, 1964), an alien whose
commission of crime Prior to his application for a visa made him
ineligible for the issuance of a visa, nevertheless received a visa and
entered the United States in 1955 upon suriender of the visa. He
remained in the United States continuously except that in 1958 he
spent five days of a vacation trip in Mexico. He was found deport'
able because his original entry had been illegal and he was refused
suspension of deportation & the ground that his vacation trip broke
the continuity of his physical presence. On judicial review, the court
finding that Fleuti held that the return of a permanent resident
,

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Interim Decision #1444
alien after a departure -which was flat "intended" was not to constitute ari "entry" as that term was defined by section 101(a) (13) of
the Act (8 U.S.C. 1101(a) (13) ) and pointing to the protection
from unsuspected risks afforded "the resident alien" rejected the

contention that there is a distinction between the making of an
"entry" and the concept of continuous physical presence and returned the case to the special inquiry officer to determine whether
Wadman's departure had been a "sig-nifictint one under the guides
laid down in Fleuti" (at sn).
The court did not specifically discuss whether or not its determination applied to en alien whose original entry was illegal. Since the
circuit court's analogy was to a situation which concerned a legally
resident alien, since the court spoke of the resident alien and did not
specifically state that its ruling applied to one who never had the
status of a legal resident alien, since the court specified that the
"guides laid down in Fleuti" were to be applied guides which concern legally resident aliens, since the respondent has never been a
legally resident alien, and since Wadman seeks to create an exception,

we believe it proper to interpret Wadman narrowly and hold that it
applies only to the alien who had been legally admitted for permanent residence and subsequently became deportable (cf. Zimmerman
v. Lehmann, 889 F.2d 948 (1965) ). The respondent having never
had the status of a legally resident alien (section 101(a) (20), 8
U.S.C. 1101(a) (20) ), we will apply the rule in Matter of daeobson,
supra, and hold that respondent has failed to establish that he
possesses the continuous physical presence required by law of an
applicant for suspension of - deportation.
,Apart from finding the respondent ineligible on the ground that he
lacks the required physical presence, we would have no reason to rule

the respondent either ineligible for relief or undeserving of relief.
. ORDER: It is ordered that no change be made in the -order of the
special inquiry officer. .

108


Interim Decision #1989

MATTER OF DEL ROSARIO
In

Exclusion Proceedings
A-17961978

Decided by Board June 27, 1060
An alien admitted as a nonimmigrant visitor who upon return to the United
States following an absence of one day in Mexico seeks to enter for permanent residence without an immigrant visa, is not within the ambit of
Rosenberg v. Fleuti, 574 U.S. 449, and is excludable under section
212 (a) (20) of the Immigration and Nationality Act.
EXCLUDABLE: Act of 1952—Section 212(a) (20) (8 U.S.C_ 1182(a) (20)1—
Immigrant not in possession of a valid immi-

grant visa or other entry document.
ON BEHALF. Or APPELLANT:

ON Emma. OF SEnvzcz:

Joseph S. Hertogs, Esquire
580 Washington Street
San Francisco, California 94111

Irving A. Appleman
Appellate Thal Attorney
Stephen M. Suffix
Trial Attorney
(Brief filed)

(Brief filed)

The case comes forward on motion of counsel requesting reconsideration of our order dated September 20, 1968 dismissing the
appeal from the decision of the special inquiry officer dated July
25, 1968.
The record relates to a native and citizen of the Philippine Republic, 25 years old, female, married, who applied for admission
to the United States at San Ysidro, California on July 13, 1968
after an absence of one day in Mexico. The applicant was a
landed immigrant in Canada and was admitted to the United
States on June 1, 1967 as a visitor for a period of 15 days upon
presentation of her visitor's visa. On June 20, 1967 she applied
for a third preference under the quota of the Philippines which
was approved. The applicant filed her application to change her
status to that of a lawful permanent resident under section 245

324

Interim Decision #1989
of the Immigration and Nationality Act. 1 The applicant married a
citizen of the 'United States on September 23, 1967. On July 12,
1968 she and her husband went for a one day trip to Mexico and
it was on her return that she was held for a hearing before a special inquiry officer. The applicant's inspection was deferred and
she was ordered to report for a hearing on July 25, 1968 to determine her admissibility to the United States under the Immigration and Nationality Act. The special inquiry officer, at the hearing, found that the applicant was applying for admission .to the
United States as a permanent resident although not in possession
of an immigrant visa or other entry document, found her excludable under section 212 (a) (20). of the Act as an Immigrant not in
possession of an immigrant visa. The appeal to this Board was dismissed on September 20, 1968.
The applicant argues that when she attempted to return to the

United States after her overnight visit to Mexico, she was not
seeking to make "an entry" and could not be excluded. The cases
of Rosenberg v. Fleuti, 374 U.S. 449 (1963), Wadman v. INS, 329
F.2d 812 (9 Cir., 1964), and Wong v. INS, 358 F.2d 151 (9 Cir.,
1966), arecited in support of the argument.
The Fleuti case was concerned with whether a permanent resident, whose original entry was in all respects lawful, and who,
had he never stepped out of the United States, would not be subject to deportation on the charges in the order to show cause,
rendered himself excludable, and hence deportable, by an absence
of a couple of hours and subsequent return to the United States.
The pertinent portion of section 101 (a) (13) in the Fleuti case by
its very terms relates only to an alien having a lawful permanent
residence in the United States. The Supreme Court held that an
innocent, casual and brief excursion by a resident alien outside
this country's borders may not have been "intended" as a departure disruptive of his resident alien status, and therefore may not
have subjected him to consequences of an "entry" into the country on his return.
In the Wanton case, the Ninth Circuit Court had before it not
the question of an "entry," but whether a five day visit to Mexico
1 On February 20, 1969 the District Director, San Francisco District,
denied the application for adjustment of status under section 245 on the
ground that the application did not merit• the favorable exercise of the
Attorney General's discretionary authority due to the fact that the applicant
had entered the United States on June 1, 1967 as a visitor with a preconceived intention of circumventing the normal procedure of obtaining an

immigrant visa and remaining permanently in the United States.

325

Interim Decision # 1989
broke the continuous period of physical presence in the United
States required to establish eligibility for suspension of deportation. Although the court in Wadman made repeated references to
the Fleuti decision, the legal question to be resolved was not the
same. The question in the Wadman case was whether there was a
sufficient continuity of physical presence in the United States to
satisfy the requirements for suspension of deportation under section 244 (a) (1) of the Act. Likewise, in the Wang case, there was
no question that the alien had entered the United States illegally.
The court, which cited both Fleuti and Wadman, decided there
was no question of sufficiency of physical presence and that the
only question was whether there was a sufficient continuity so as

to render the alien eligible for suspension of deporation.-'
It is concluded that the Fleuti case is inapplicable because the
applicant was never admitted to the United States for permanent
residence, and that the Wadman and Wong cases are likewise inapplicable because they merely dealth with continuity of physical

presence so as to qualify for suspension of deportation. We
pointed out in our prior order of September 20, 1968, that the ap-

plicant, as an immediate relative (wife) of a United States citizen, should have little difficulty in having her immigrant status
adjusted in the event she returns to Canada where she was a
landed immigrant. The motion will be denied.
ORDER: It is ordered that the motion to reconsider be and the
same is hereby denied.

4 See also Matter of Leguopri, 11 1. & N. Dec. 819, regarding an alien who
entered as a nonimmigrant, who was not maintaining his nonimmigrant
status, and who, following a brief visit to Mexico, reentered the United
States without inspection, and was held to have made an entry under section
103.(a) (13) of the Immigration and Nationality Act upon which to predicate
a ground of deportability.

826


MATTER OF C—

In VISA PETITION Proceedings
A-10046291
Decided by Board May 10,190
Marriage Validity—Remarriage by libellee in another State

within

two years

after Massachusetts divorce.

Under Massachusetts law a libellee in a divorce proceeding may not remarry
within two years after the divorce becomes absolute. In this case, the
petitioner i libellee In a Maaaaulluaella di ■ vice pmerediag ) and the beneficiary were married in Rhode Island within the two-year period following
the divorce, while they resided in Massachusetts. That marriage is void.
BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the District Director, Boston District, dated March 15, 1962, revoking the visa petition previously approved on April 6, 1961, for
nonquota status on behalf of the beneficiary as the husband of the
petitioner.
The visa petition, Form 1-130, indicates that the petitioner, a
native-born citizen of the United States, 33 years old, female, seeks
nonquota status on behalf of the beneficiary, a native and citizen of
Greece, 26 years old, male. The parties were married at East Providence, Rhode Island, on October 7, 1960. The beneficiary has never
been previously married. The petitioner has been married three
times previously, her last marriage being terminated by a decree of
divorce obtained by her then husband in the Probate Court, County
of Plymouth, Massachusetts, on February 9, 1960, such decree becoming absolute after the expiration of six months, on August 9,
19fifl

The order of revocation of the District Director dated March 15,
1962, sets forth the reasons for the revocation of the previouslyapproved visa petition. The testimony of the petitioner and of the
beneficiary shows that they were married in Rhode Island on October 7, 1960, and returned the same day to reside in Massachusetts.
The record shows that they have resided in that State continuously
thereafter. The petitioner testified that within .a week following their
marriage her husband requested permission from his probation officer
667

to reside in Rhode Island. The record shows that the Chief Probation Officer of the Superior Court, Brockton, Massachusetts, stated
that permission to live in Rhode Island was never granted because it
was never requested. However, the record also contains a, signed
statement.by the assistant probation officer to the effect that the husband asked for permission to move to the State of Rhorte Island but
that such permission was denied. The decision concludes that since
the evidence fails to establish that an effort was made to reside in
Rhode Island prior to her marriage in that State, and she returned
to Massachusetts, immediately following the marriage, their marriage
must be considered null and void under Chapter 207, section 10, General Laws of Massachusetts.
An examination of the divorce decree which became final on August 9, 1960, in the Probate Court for the County of Plymouth,
51.. -tssachusetts, discloses that the previous husband was the libellant,
the petitioner was the libellee and a decree was handed down in favor
of the libellant. Chapter 208, section 24, Annotated Laws of Massachusetts (1955), provides that after a decree of divorce has become
absolute, either party may marry again as if the other were dead,
except that the party from whom the divorce was granted shall not
marry within two years after the decree has become absolute if the
other party is living. Chapter 207, section 10, Annotated Laws of
-

Massachusetts, provides that "if an:y person residing in end intending

to continue to reside in this commonwealth is disabled or prohibited
from contracting marriage under the laws of this commonwealth and
goes into another jurisdiction and there contracts a marriage prohibited and -declared void by the laws of this commonwealth, such
marriage shall he null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had
been entered into in this commonwealth." The phrase of the statute
"residing and intending to continue to reside in this commonwealth"
means having a domicile and continuing to have a domicile in this
commonwealth, If he had such a domicile that status would continue
until superseded by a domicile acquired elsewhere, through an actual
change of his place of abode plus an intention to remain permanently
at the place of removal.'
The testimony in the present case is to the effect that the petitioner
and the beneficiary made inquiry from the probation officer about
permission to move to Rhode Island but that they had made no such
inquiry prior to the performance of the marriage in Rhode Island.
When the request was made after the marriage, permission to move
to Rhode Island was denied due to the fact that the beneficiary was
on suspended sentence. The record, therefore, establishes that the
parties resided in Massachusetts at the time of their marriage in
'Atwood v. Atwood, 8 N.E.2d 916; 297 Mass. 229.

668

Rhode -island, and that although they attempted to obtain permission to move to Rhode Island about a week after the marriage was
performed, they have, in fact, never done so and have at all times
continued to reside in Massachusetts.
Under the circumshinces, it is concluded that the provisions of
Chanter 20S, section 24, and Chapter 207, section 10, of the Annotated Laws of Massachusetts, are applicable and that the present
marriage. contracted by the parties in Rhode. Island while they were
residing in Massachusetts is void.= Both the respondent and counsel
were notified by letter from the District. Director dated December 29,
1961, of the provisions of the applicable law and no defense has been
raised that the other party to the divorce is not still living. The
curative provisions of Chapter 207, section 0,, Annotated Laws of
Massachusetts, would not yet apply because the impediment, i.e., the
lapse of two years after the divorce, Will not be removed until August 9, 1962. 3 The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
=Eraser v. Frqscr. 147 N.F12d 105 (MASS., 1958) ; Vital v. Titat. C5 N.E.2(1
205: 319 Mass. 185 (1946).
Matter of S—, 9-296.

669


Interim Decision #1285

MATTER

or

GONCALVES

In DEPORTATION Proceedings
A-9948279
Decided by Board June 4, 190
Since respondent's entry in transit in pursuit of his calling as a seaman to reship foreign on another vessel constitutes entry as a crewman, he is statutorily
ineligible for suspension of deportation and for adjustment of status under
sections 244 and 245, respectively, of the Immigration- and Nationality Act, as
amended.
CHARGE:
Act of 1824—Remained. longer—transit.

On February 19, ,1963 the Board denied respondent's motion to reopen proceedings to enable him to apply for relief under sections 241
and 245 of the Act. Reconsideration is requested of the order insofar
as it relates to section 245 of the Act. The motion will be denied.
Respondent, a 43-year-old married male alien, a native of the Cape
Verde Islands and citizen of Portugal, last entered the United States
on December 7, 1947. A seaman employed on an American vessel sold
abroad, he was brought back to the United States in transit so that he
-could ship foreign; he was admitted until January 4, 1948, for that
purpose. Unable to obtain employment as a. seaman after several
months of search, either because of a strike or because of the fact that
he was an alien, he took a job in the United States.

On March 26, 1952 a hearing officer found respondent deportable on
the ground that he had remained longer than the time for which he
had been admitted_ The hearing officer denied discretionary relief_
Upon appeal, the Board considering respondent's request for suspension of deportation and voluntary departure decided (April 14,
1953) that suspension was not merited but did grant voluntary
departure.
The respondent did not depart. On July 31, 1954 he married a
woman who believing herself to be a citizen of the United States,
filed a petition to enable him to obtain a nonquota visa. The petition
277

Interim Decision #1285
was granted on June 13, 1962 after a delay which had been caused
by an issue raised by the Service as to the wife's citizenship. Respondent then filed a motion for the reopening of deportation proceedings to enable him to apply for relief under sections 244 and 245
of the Act. On February 19, 1963 the Board denied the application
for reopening of proceedings on the ground that the respondent was
ineligible for either of the reliefs. The Board held that since seamen
are barred from the reliefs, and since respondent's entry in transit
to ship on another vessel constituted an entry as a seaman, he was
barred.
The provision of law on which the Board based its ruling that
respondent was ineligible for relief under section 244 of the Act
(suspension of deportation) follows:
No provision of this section [s/d) shall be applicable to an alien who (1)
entered the United States as a crewman; or (2) was admitted to the United
States pursuant to section 101(a) (15) (J) of this title or has acquired such
status after admission to the United States; or (3) is a native of any country
contiguous to the United States or of any adjacent island named in section
101 (b) (5) of this title : (section 244(f) of the Act).
Counsel contends that respondent was not admitted to the United
States as a crewman but in transit, and is therefore not a crewman
barred from relief. That admission to the United States must be
made in the status of a crewman to bring about an alien's ineligibility
for suspension
of deportation, is deduced by counsel from a compari.
son of sections 244 and 245 of the Act. That comparison indicates
to him that alien crewmen as a class are barred from relief by section
245 but that only alien crewmen who were formally admitted to the
United States under the law relating to the admission of alien crewmen are barred from relief under section 244. Counsel draws this

conclusion from the fact that section 241 of the Act grants relief to one

"other than an alien crewman" whereas section 244 of the Act grants
relief unless the alien "entered the United States as a crewman"
(emphasis supplied). Counsel finds the difference in language of
particular significance since in revising section 244 of the Act (1962)
after the phrase concerning crewmen in section 245 of the Act had
been in use since 1960, Congress did not make use of the language of
section 245 of the Act.
Let us examine the contention that the term "entered" in section
244(f) of the Act was used to indicate that an alien had been formally
authorized by the Service to enter the United States as a crewman.
The word "entry" as applied to respondent who was not a returning
resident means any physical passing from a foreign place to the United
States whether legally or illegally made, except a passing wader the
terms of a parole (Matter of Anastasopazdos, Int. Dec. No. 1154).
278

Interim Decision. #1285
There is nothing in section 244(f) of the Act which requires that the
term be given any but its well recognized meaning; the term thus
cannot mean the formal admission of a crewman as such by a Service
official.
That a formal admission of a crewman by the Service was not contemplated, may be seen from the fact that the very section in question
which makes crewmen who "entered" ineligible provides for the ineligibility of participants in a Department of State program who
were "admitted to the United States pursuant to section 101(a) (15)
(J)" of the Act (emphasis supplied). The use of the term "entered"
for seamen and the use of the word "admitted" for a different class
well disposes of the argument that Congress intended to bar only aliens
who were "admitted" as crewmen.
Another reason for rejecting counsel's contention that only aliens
who were-legally admitted in the status of crewmen are barred from

relief is the fact that such a law would favor the alien who entered
illegally over the one who entered legally. If indeed only an alien
who was "admitted" as a crewman is barred from relief, then the
crewman who entered illegally, i.e. the one ordered detained on board
his vessel who escaped into the United States, would not be barred
from relief. It is hardly likely that Congress intended such a result.
Rather, we believe it was the intent of Congress to bar all occupational
seamen who entered by reasuu of their occupation. This result would
best meet the problem which faced the Congress—the fact that seamen
who have relatively easy access to the United States have used the
seaman route to enter the United States for permanent residence—a
problem which has engaged a good deal of the Service energies and
which would be aggravated if persons having easy access to the United
States were of the belief that they could obtain legal residence by
,deserting and hiding out (Hearings, Subcommittee on Appropriations
H.R. (Dept of Justice) 85th Cong., 2d Sess. pp. 13-14, 199 (1959) ;
86th Cong., 1st Sess. pp. 25, 305 (1960) ; 86th Cong., 2d Sess. pp. 409411 (1961). In light of this problem it matters little that an alien is
admitted as a crewman and deserts his ship, or that he deserted the
ship without being permitted to land as a crewman, or that he, as is
common place, was brought to the United States as a passenger or
workaway to reship as a seaman on another vessel.
We believe that the respondent is barred from relief because he
entered in pursuit of his calling as a seaman. That he entered by
reason of his occupation is clear from his testimony which shows he
entered the United States to ship out as a seaman (pp. 2-3), by the
record of his entry which shows that he entered as a crew member, that
he was a seaman and was coming to the United States to reship
-

279

Interim Decision #1285
foreign (Ex. 4), and by the fact the same record shows that for head
tax purposes, respondent was placed under 8 CFR 105.3 (k) which
dealt with the nonresident occupational seaman who was entering the
United States temporarily in pursuit of his occupation, or as a passenger or workaway and who was admitted solely for the purpose
of reshipping foreign.
ORDER: It is ordered that the motion be and the same is hereby
denied.

280


Interim Decision #1354

MATTER

or

ALVAREZ-MCMCA

In DEPORTATION Proceedings
A-12461600
Decided by Board Ally 10, 1984

Since the waiver of permission to reapply granted respondent, a previouslydeported Mexican alien, at the time of his entries as an agricultural laborer In
1959 and 1959, pursuant to the provisions of 8 CFR 214k1, as amended Nov.
28, 1957, was limited and did not apply to future entries, particularly not one
as an immigrant, he required permission to reapply and, therefore, was excludable under section 212(a) (17), Immigration and Nationality Act, at the time
of his entry for permanent residence on April 29, 1981.

(See Matter of

Villagomav(lasea, bit. Dee. #1276.)

Qua= :
Order: Act of 1952—Section 241(a) (1) [8 U.S.O. 12511—Excludable by law
existing at time of entry (sec. 212(a) (17), I. & N. Act; 8 U.S.O.
1182)—Arrested and deported—No permission to reapply for admission.

This case is before us on appeal from a special inquiry officer's order
of March 25, 1964, directing that the respondent be deported from the
United States to Mexico on the charge contained in the order to show
cause; denying his application for aunt pro tune permission to reapply
for admission into the United States after arrest and deportation; and
finding him ineligible for voluntary departure. The appeal will be
dismissed.
The record relates to a 81-year-old married male alien who is a native

and citizen of Mexico. He originally entered the United States in
about 1953 without inspection and was deported because of that entry
on June 13, 1953. He entered the United States as an agricultural contract laborer in 1958, worked for a period of about two months and returned to Mexico; and again entered the United States in 1959 as an
agricultural laborer under a work contract, remained in the United
States for a period of three months, and again returned to Mexico. He
last entered the United States on April 29, 1961, when he was admitted
for permanent residence upon presentation of a nonquota immigrant
visa.
613

Interim Decision #1354
The main thrust of respondent's argument on appeal is that he did
not require permission to reapply at the time of his application for an
immigrant visa in 1961. He contends that permission to reapply for
admission had been granted him, a previously deported Mexican alien,
at the time he was contracted as an agricultural laborer in 1958, or recontracted as such in 1959. He urges that such permission was unlimited and applied to all his future entries no matter what their nature. He seeks support for this theory in a prior precedent decision
of this Board (Matter of 17—G—, A-13114857, BIA, 4/5/63; Int.
Dec. No. 1276), wherein we made such a ruling as to an agricultural
laborer admitted under contract in 1955.
The basis for our decision in that case was the wording of the then
controlling regulation (8 CFR 214k.7) 7 which read as follows:
Previous removal, deportation, permission to reapply. An alien who establishes that he is in all respects entitled to admission as an agricultural worker
under the provisions of this part, except that he has been previously removed at
Government expense pursuant to section 242(b) of the Act or excluded or arrested and deported solely because of illegal entry or absence of required documents, is hereby granted permission to reapply for admission to the United
States as an agricultural worker. (17 F.R. 11562, Dec. 19, 1952 amended, 211
F.R. 5964, Aug. 17, 1955, redesignated 20 P.R. 6380, Aug. 31, 1955.)

The reason for that decision was that the language of the foregoing
regulation granted outright permission to reapply rather than a waiver.
of said ground of inadmissibility. However, we also pointed out in
that same case (pp. 5 & 6) that on November 28, 1957, the pertinent
regalation was amended to grant to an agricultural laborer only a
waiver of the ground of inadmissibility arising out of leek of permission to reapply following deportation. The regulation then read:
Pursuant to the auPrevious removal, deportation; permission. to reapply.
thority contained in section 212(d) (3) of the Act, the bar to admissibility contained in paragraphs (16) or (17) of section 212(a) of the Act Is hereby waived
for an alien who establishes that he is otherwise admissible as an agriculturar
worker under the provisions of this part, except for his previous removal or
deportation because of entry without inspection or lack of required documents.
(22 F.R. 9518, Nov. 28, 1957, 8 CPR 214k.7).

Because of this significant change in the language, we concur in the
special inquiry officer's conclusion that the waiver of permission to
reapply for admission granted the respondent at the time of his entriesas an agricultural laborer in 1958 and 1959 was limited and did not apply to future entries, particularly not one as an immigrant. 'Therefore, we agree with said official that the respondent is deportable on•
the above-stated charge, counsel's contentions to the contrary notwithstanding.
We also agree with the special inquiry officer that a grant of permission to reapply for admission, wRoto pro bale, would be an idle gesture

614

Interim Decision #1354
since the respondent could be charged with obtaining a visa by fraud
or misrepresentation under section 212(a) (19) of the Immigration
and Nationality Act (8 U.S.C. 1182). The reason is that he failed
to disclose in the application for the visa with which he last gained

entry into the United States in 1961 that he had been previously deported from the United States. His testimony in this respect was:
"I wanted very much to enter the United States and I was afraid that
if I told the Consul I was previously deported that he would not let
me enter."
We further agree with the special inquiry officer that the respondent
should not be granted the relief in question because he, a man married
to a native, citizen and resident of Mexico, with five children enjoying
the same status, has admitted that he was arrested in August, 1963,

when he visited a married woman at her home. He stated that he had
known her for approximately two or three weeks and that he had
previously had sexual relations with her_ He also stated that her

husband, who was present -when he arrived, called the police and had
him arrested (pp. 9 & 10) . This activity, coupled with the visa fraud
(ante) , militates against favorable exercise of discretionary relief.
Also, the respondent's admissions concerning his meretricious relationship with a married woman, establishing adultery, preclude him
from establishing the good moral character requisite to a grant of voluntary departure (section 101(f) (2), I. & N. Act; 8 U.S.C. 1101).
And even if such conduct did not render the respondent statutorily
ineligible for the relief of voluntary departure it would, when coupled
with his concealment of his prior deportation when applying for his

visa and the fact that he has a wife and five children in Mexico, weigh
against the grant of such relief as a matter of administrative discretion.
Accordingly, the special inquiry officer's decision is affirmed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

615


Interim Decision #2916

MATTER OF ORD

In Visa Petition Proceedings
DEN-N-5568
Decided by Regional Commissioner May 4,
(1) A person who is qualified as a member of the professioni also qualifies as a person
ordiatinguished merit and ability." Matter of General Atomic Company, 17 I&N Dec. 532
(Comm. 1980), followed.
(2) An alien employed by a firm marketing the temporary services of professionals (i.e., a
"job shop") may qualify as a temporary worker under 101(a)(15)(H)(i) even though the
firm has a permanent need for professionals haying the alien's qualifications, if tint'
petitioning twin can demonstrate its intention to employ the alien for only a temporaryl

period.
ON BEHALF OF APPLICANT:

Pro se

This matter is before the Regional Commissioner who reopened it for โข
the purpose of entering a revised decision for clarification only. The
previous decision to sustain the appeal remains unchanged. The District
Director had denied the petition on March 25, 1981, and the appeal was
sustained by the Regional Commissioner on September 29, 1981.
The petitioner is a large employment agency with an office in Seattle,
Washington, which provides engineering technical support and personnel to aerospace and other industries. It employs 1,200 people, has a
gross annual income of 35 million dollars, and is a subsidiary of the even
Urger Los Angeles based personnel provider firm, Transworld Service,
Inc. The beneficiary is a 25 -year-old native and citizen of the United
Kingdom. He was awarded a Bachelor of Arts degree in Engineering at

Trinity Hall of the University of Cambridge. This degree was determined by a recognized foreign credentials evaluation service in New
York to be equivalent to a Bachelor of Science degree awarded by an
American college or university.
The petitioner seeks the services of the beneficiary as an aeronautical
engineer in order to satisfy its contractual commitments with Martin
Marietta Aerospace of Colorado and other aerospace companies to provide qualified engineering personnel on a temporary, bait continuing
basis. The petitioner is a temporary engineering services company known

as a "job shop" under contract with a client, such as Martin Marietta, to
285

Interim Decision #2916
fill engineering vacancies. The beneficiary, a "job shopper", will be
under contract with the petitioner and will be paid a salary of $720 per
week ($18 per hour transportation expenses, and per diem by the petitioner rather than by Martin Marietta where he will be employed). The
beneficiary's contract with the petitioner is for a one-year perioli. The
petitioner indicates that it may place the beneficiary with another of its
"clients" after the project at Martin Marietta is completed. It is clear by

the terms and conditions of the beneficiary's employment contract that
he is actually an employee of the petitioning firm notwithstanding that
his services are to be rendered for a firm which contracts with the
petitioner for them. (Matter of Smith, 12 I&N Dec. 7'72 (D.D. 1968)).
The petitioner in this instance is not an employment agency which only
acts as broker in arranging employment between an employer and a job
seeker. An employment placement agency acting as a broker does not
qualify as the employer of the job seeker.
The nonimmigrant classification sought by the petitioner to enable
the beneficiary to work in the United States is that found at ยง 101(a)(15)
(H)(i) of the Act, 8 U.S.C. 1101(a)(1b)(H)(1). This R 1 classification
-

requires that the beneficiary have a residence in a foreign country which
he has no intention of abandoning; be a person of distinguished merit
and ability in the engineering field; and be coming to perform services of
an exceptional nature requiring such merit and ability for a temporary
time. In Matter of General Atomic Company, 17 I&N Dec. 532 (Comm.
1980), it was held that a person who is qualified as a member of the
professions also qualifies as a person of "distinguished merit and ability."
There it was found that ciiikengMeering was a professional occupation.
In the case before me, becaule the beneficiary has earned at least a
Bachelor of Science degree in the field, he is qualified as a "professional
engineer" and is to lot considered a worker of distinguished merit, and
ability, following General Atomic. See also, Matter of Asuncion, 11
I&N Dec. 660 (R.C. 1966).
If the services to be performed by the beneficiary require his professional abilities, then they are the requisite "exceptional services" Matter

of Essex Cryogenics Industries, Inc., 14 I&N Dec. 196 (D.A.C. 1972).
The record has been examined and it is concluded that the duties for
which the petitioner needs the beneficiary to satisfy its contract with
Martin Marietta require the beneficiary's abilities as an aeronautical
engineer.
There is concern here that the position offered by the petitioner may
not be a suitable one by which to classify the beneficiary as a nonimmigrant worker of distinguished merit and ability because the petitioner's
intention with respect to the beneficiary is for indefinite, not temporary
employment. There is concern because it is the petitioner's business to

supply qualified engineers to a large number of aerospace companies for
286

Interim Decision #2916
projects on a continuing basis. Thus, the petitioner appears to need a
permanent pool of qualified engineers from which to draw. Although
each project may be of limited duration thus providing only temporary
employment to a given beneficiary, the petitioner may have recruited
this beneficiary not for one project, but to join its pool of engineers for
an indefinite period. The petitioner, whose business is exclusively as a
supplier of temporary engineering personnel, has a permanent need for
persons such as the beneficiary in order to fulfill its contracts. This was
also tie concern of the District Director. He concluded that the petitioner had failed to establish that it seeks the services of the beneficiary
on only a temporary basis. This is a relevant inquiry following Operations Instructions of this Service at 0.I. 214.1(h)(1), and Matter of University of Oklahoma, 14 I&N Dec. 213 (R.C. 1972). The petitioner's
".need" for a permanent employee is not relevant to the H-1 classification but nonetheless the employer is required to demonstrate that it is
his intention to employ the specific beneficiary being petitioned for, for
only a temporary period. By this requirement, the District Director is
not re imposing the requirement deleted by Pub. L. 91 225 (Apr. 7,
1970) 84 Stet. 116, that services be of a temporary nature, or that the
beneficiary's intention with regard to permanent or temporary employment is material to the visa petition proceedings. The intention of the
beneficiary is germane to visa issuance or proceedings under ยง 248 of the
Act, 8 U.S.C. 1258, for change of nonimmigrant classification.
In August 1981, the Vice President and General Manager of the petitioning firm's main offices in Los Angeles was heard in oral argument.
He said that LPL Technical Services has several offices throughout the
United States (Los Angeles-, Lakewood, Colorado; Seattle; Santa Ana,
California; Houston; St. Louis; and Great Neck, New York) and the
world (London, Tel Aviv) and that only office staff at these locations are
considered to be "permanent employees." He stated that since January
1979, his firm has placed nearly 3,100 engineering eniployees for an
average/period of employment of less than seven months, and that less
than ten per cent of these employees are nonimmigrant aliens. The firm
has over 30,000 engineers and engineering technicians "on the rolls" in
computerized resume files and that less than 500 (just one or two per
cent) are nonimmigrant aliens. The firm requires a constant Pool of
engineers available for temporary assignments but indicated that United
States resident engineers make up this pool, not alien engineers.
The Vice President of the petitioning firm also stated that he is fully
aware of the restrictions and requirements for employment of an alien
classified as a nonimmigrant temporary worker. The firm conducts interviews abroad with -only temporary employment in mind and fully discusses this limitation with each alien applicant. The alien engineers are
hired to fill a specific existing contract with a client and the beneficiaries
-

-

287

Interim Decision #2916
-enter the United States with a full understanding that their employment is to be for a temporary Period, not to exceed a few years at the
most. The firm has a similar understanding and does not consider the
foreign engineers in the same light as its pool of domestic job-shopper
engineers.
The Vice President of the petitioning fitm has affirmed that it is the
intention of his firm to comply with every aspect of Service regulations
relating to nonimmigrant temporary workers. He has also pointed out
that the Department of Labor had determined that in almost every part
of the United States there was a shortage of qualified engineers for the
aerospace industry. He advised that the system of having a provider
"job shop" firm recruit and hire engineers for specified projects was the
prevailing method of filling personnel requirements in the aerospace
industry.
In view of these,representations made on appeal, it is concluded that
the petitioner has established that his intention with regard to this
beneficiary is for temporary employment and that the other requirements for 11 1 classification have been met. The visa petition should be
approved. .
ORDER: The appeal is sustained and the petition is - approved.
-

288


Interim Decision #2583

MATTER OF SOUTHERN PACIFIC RAILROAD BRIDGE
In Fine Proceedings
ELP 10/2.52

Decided by Board May 18, 1977
(1) This case involves fine proceedings instituted against the Southern Pacific Railroad
under section 271(a) of the Immigration and Nationality Act for permitting the entry
without inspection of five aliens into the United States via their railroad bridge near El
Paso, Texas.
(2)On April 12, 1973, the Service and Southern Pacific Railroad entered into an agreement
under which the Southern Pacific would permit the Service, at its own expense, to
install, maintain and operate a gate on the bridge for the purpose of enforcing the
immigration laws. Both the Service and the railroad recognized that aliens were using
the bridge to enter the United States illegally. Subsequently, the Service requested the
railroad to install certain planking on the bridge to provide safer access to the gate by
Service officers. The railroad refused repeated Service requests to install this planking
for cost considerations and because they claimed it would be a fire hazard. After
repeated requests, the Service advised that if the planking were not installed, fine
proceedings would be instituted against the railroad under section 271(a) of the Act.
(3) Southern Pacific is liable for the fines under section 271(a) of the Act because its
railroad bridge is an international bridge which provided a means for, and which was
used by, Mexican aliens to enter the United States without inspection by Immigration
authorities. Lack of knowledge by Southern Pacific that the aliens had entered the
United States does not shield the railroad from liability. Liability under section 271(a) of
the Act is absolute.
(4) Prior to these proceedings, no fine proceedings had been instituted against the
Southern Pacific at El Paso. Since institution of these proceedings, the railroad has
begun to guard the gate with its own personnel and improved the gate. Southern Pacific
in El Paso has had a lone history of cooperation with the Service, is active in the
apprehension of alien trespassers, and continues to cooperate with the Service. In view
of Southern Pacific's past record of cooperation with the Service, and current efforts to
carry out its responsibilities under section 271(a) of the Act, the fines imposed will be
remitted.
In re: SOUTHERN PACIFIC RAILROAD BRIDGE, a railroad bridge crossing the
Rio Grande River between El Paso, Texas and Juarez, Chihuahua, Mexico.
Aliens involved: Mario Romero-Leon, Manuel Godines, Rogelio AmayaQuintana, Jesus Duenez-Baiez and Ernesto Villegas-Quintana
Basis for Fines: Act of 1952—Section 271(a) [8 U.S.C. 1321(a)]
209

Interim Decision #2583
ON BEHALF OF CARRIER:
Wyndham K. White, Esquire
Kemp, Smith, White, Duncan and
Hammond
P.O. Drawer 2800
El Paso, Texas 79999

ON BEHALF OF SERVICE:
Mary Jo Grotenrath
Appellate Trial Attorney
E. M. Trominski
Trial Attorney

BY: Milhollan, Chairman; Wilson and Maniatis, Board Members.

In a decision' dated April 27, 1976, the District Director determined
that the Southern Pacific Transportation Company (herein identified as
Southern Pacific) had incurred liability to administrative penalties totaling $5,000, $1,000 as to each of the aliens named above, for failure to
prevent their unauthorized landing in the United States as provided in
section 271(a) of the Immigration and Nationality Act. The District
Director found factors present which merited mitigation of the fines in
the amount of $200 for each violation or a total of $1,000. Thus, fines
totaling $4,000 were imposed against Southern Pacific. The respondent
has appealed. The appeal will be dismissed in part. and sustained in part
and the fines remitted.
The record contains a memorandum report (dated December 17, 1975)
issued by the Acting Chief Border Patrol Agent of the Immigration and
Naturalization Service, El Paso, Texas to the District Director of the
Service located in El Paso. In that document it is reported that on
December 16, 1975, five aliens entered the United States without inspection via the Southern Pacific railroad bridge in El Paso. The location
of the bridge was described as east of and near the Paso Del Norte Port
of Entry in El Paso, Texas. It was also reported that the aliens were
apprehended by agents of the border patrol; and that they made sworn
statements following their arrest. The report indicates that in the sworn
statements, the aliens admitted that they entered the United States
without inspection; that they were not in possession of immigration
documents when they entered; and that they were neither United
States citizens nor lawful permanent resident aliens at the time of their
entry. The aliens stated that no railroad guards or other employees
were on or near the Southern Pacific railroad bridge when they crossed
it. The Border Patrol report indicated that Southern Pacific or its
employees did not inform the Service of the entry by the five aliens
across its bridge and that the company did not assist the Border Patrol
n Southern Pacific and the Atchison, Topeka and Santa Fe Railway Company (partial
owner of another railroad bridge in El Paso, Texas) were separately fined under section
2711(a) of the Act in a consolidated decision of the District Director dated April 27. 1976. In
vie--w of factual differences in each case and in the interest of orderly procedure, we shall
treat these eases independently and issue separate orders.
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Interim Decision #2583
in the apprehension of the aliens. The record also includes the sworn
statements of the five aliens who were apprehended by the Border
Patrol.
A Notice of Intention to Fine under the Immigration and Nationality
Act was issued by the District Director to Southern Pacific on January
2, 1976. In that notice, a summary of the aforementioned facts was
alleged and the company was notified that the imposition of fines pursuant to section 271(a) of the Act was indicated. Southern Pacific was
given 30 days to file a written defense to the allegations contained in the

notice.
Southern Pacific responded to the notice in a letter to the District
Director dated January 27, 1976. In that letter, it denied knowledge of
or responsibility for the landing of the five aliens via the Southern
Pacific railroad bridge on December 16, 1975.. Southern Pacific contended that section 271(a) of the Act is not applicable to it; and that the
company's police force is employed only to protect railroad property and
has no authority to apprehend aliens entering the United States unlawfully. Southern Pacific submitted that the responsibility for enforcing
the immigration laws lies with the Service. The company alluded to an
agreement between it and the Service, in which the Service agreed to
construct, maintain and operate a gate on the bridge at no cost to
Southern Pacific; and that the Service has the only key to the gate lock
and that, therefore, it has exclusive control over opening and closing the
gate. Southern Pacific farther stated that the imposition of fines against
it was an act of coercion because Southern Pacific refused to comply with
a Service request that it plank the bridge at the railroad company's
expense. Southern Pacific requested termination of these proceedings;
or, alternatively, requested mitigation or remission of the fines.
A hearing was conducted before the District Director on March 2,
1976, in order to afford Southern Pacific an opportunity to present
evidence. Ray Upham, an engineer who had been employed by Southern Pacific for a period of 36 years, testified that the Southern Pacific
railroad bridge was constructed by the United States Government and
that the ownership of one half of the bridge was subsequently assigned
to Southern Pacific (that portion of the bridge which extends from the
middle of the Rio Grande to the bank of the river on the United States
side is owned by Southern Pacific). Mr. Upham testified that as one of
the representatives of Southern Pacific he participated in negotiations
with officials of the Service for the construction of a gate in the middle of
the Southern Pacific railroad bridge. According to his testimony,
negotiations began in 1970 and extended over a period of about two and
A half years before a final agreement was reached. Mr. Upham also
stated that the United States Government incurred the expenses of
construction, maintenance and operation of the gate; that the Govern211

Interim Decision #2583
ment opened and closed the gate; and that the Government possessed
the only key for locking the gate.
Various copies of correspondence attesting to the negotiations of the
parties are of record. One letter dated October 28, 1970, reflects the
initial request by the Service for authority from Southern Pacific to
construct the gate. The Service pointed out in its letter that by constructing the gate ". . . it will not be necessary to maintain a constant
vigil on this one avenue of entry." The purpose of the gate was to
prevent aliens from entering the United States without inspection via
the bridge. A copy of the aforementioned agreement (Ex. 1) was made a
part of the record of the hearing. That agreement which was executed
On April 12, 1973, provided, in substance, that the Service and Southern
Pacific agreed to the installation of a gate on the bridge; that each
recognized the fact that aliens had been using the bridge for the purpose
of illegal entry into the United States; that Southern Pacific would
permit the Service to enter upon its bridge to construct, maintain and
operate a gate for the purpose of enforcing the immigration laws; that
the cost of these activities would be borne by the Service; and that the
Service would operate the gate Nvithout del ayingtl,P movement of trains
across its bridge. The agreement was signed by the Vice-President of
Southern Pacific and the Assistant Regional Commissioner (Administrative Services) of the Service assigned to San Pedro (Terminal Island), California. There is no indication in the record that the agreement
is not currently in effect.
The record reveals that each day a single freight train, owned and
operated by the Mexican Railway Company, originates in Juarez, crosses the Southern Pacific bridge, enters the Southern Pacific yards, deposits its freight and then returns over the bridge to Juarez. This
apparently represents normal international train movement on the
Southern Pacific bridge. After the above-described agreement became
effective and the gate was constructed on the bridge, the agents of the
Border Patrol opened the gate in order to permit trains to cross the
bridge and then closed the gate. Prior to the imposition of the fines in
this case, the Service instituted a procedure of locking the gates in the
open position between sunrise and sunset.
The transcript discloses. that Southern Pacific employs a private

police force which guards railroad property on a 24-hour basis against
vandalism and theft; that the Southern Pacific and its police force have
cooperated in the past with the Service; and that on many occasions
have apprehended alien trespassers on its property and released them
to the custody of the local police or the Border Patrol.
Correspondence is of record which shows that the Service has made
kepeated requests to Southern Pacific that it install planking on its
bridge for the safety of its Border Patrol agents who walk onto the
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Interim Decision #2583
bridge in order to open and close the gate. The railroad has refused to
erect planking because it does not want to incur the expense of such
construction. At the hearing, counsel pointed out that planking would
create a fire hazard on the bridge. Counsel also suggested that the fines
in question were imposed because Southern PaCific was reluctant to
install planking on its bridge. In a letter dated November 28, 1975 (Ex.

9), the Service informed Southern Pacific that:
... Our officers advise that there is a three foot space between the end of the beam and
the bridge side rails which is a safety hazard to our officers when walking on the bridge
to and from the gate. Therefore, it is our intention to proceed with consideration of fine

proceedings under section 271(a) of the Immigration and Nationality Act (8 U.S.C.
1221).

This letter was signed by the Regional Commissioner of the Service at
San Pedro, California. A second letter from the Service to Southern
Pacific dated January 7, 1976, repeats the Service request that Southern
Pacific install planking or other suitable devices on its bridge in order to
permit the safe use of the gate. In that letter, the Service reiterates its
intention to institute fine proceedings, ". . . if assistance and cooperation of the transporation company is not received
" We note that
prior to the imposition of the fines that are now before us for review, the
Service had not instituted fine proceedings against Southern Pacific in
El Paso, Texas.
Subsequent to the appeal and prior to the oral argument before this
Board, counsel for the respondent, submitted an affidavit from Ray
Upham dated September 3, 1976. We note that Mr. Upham previously

testified before the District Director on behalf of the respondent. In his
affidavit, he states that since these proceedings have begun, Southern
Pacific has enlarged the height and width of the gate on its bridge at its
own expense. Mr. Upham also stated that the Border Patrol has withdrawn its agents from operating the gate, and that employees of Southern Pacific have undertaken the task of operating the gate. He further
indicated that Service personnel and Southern Pacific employees are
assisting each other in regard to the alien situation in El Paso.
Photographs and diagrams depicting the gate alterations accompanied the affidavit. Also submitted by counsel, is an affidavit from
Tony J. Hurley, a lieutenant in charge of the Southern Pacific Police

Department, in which he describes the efforts of his men to operate the
gate and to cooperate with the Border Patrol. A second document
originated by Lieutenant Hurley to counsel for the respondent indicates
that 1,864 aliens were arrested by the Southern Pacific Police Department in 1975 and that over 150 aliens were apprehended each month in
197C. Copies of memoranda from the Chief Border Patrol Agent in El
Paso to the District Director In El Paso and the Regional Commissioner
in El Paso dated August 20, 1976, attest to the cooperation between the
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Interim Decision #2583
Border Patrol and the employees of Southern Pacific. Various photographs of the Southern Pacific bridge facilities and its police activities
were also submitted by counsel.
Section 271(a) of the Act 2 provides, in pertinent part, that the owners
of an international bridge who provide a means for an alien to enter the
United States have a duty to prevent the unauthorized landing of such
alien in the United States. Under the provisions of this section, any
person who fails to comply with the requirements shall be liable to an
administrative penalty_ The Attorney General may, in his discretion,

remit or mitigate a penalty that has been imposed. Counsel argues that
section 271(a) does not apply to the Southern Pacific bridge because it is
used by its owners for the purpose of operating freight trains from

Mexico to the United States and that it is not engaged by its owners for
passenger transportation. We find, however, that the Southern Pacific
bridge has been used by Mexican aliens as a means of entering the
United States without undergoing inspection by Service officials.
In determining the applicability of section 271(a) to the present ease,
we recognize that this section is a substantial reenactment of section 10
of the Immigration Act of February 5, 1917, as amended by section 27 of
the Immigration Act of 1924. Our review of the legislative history 3 of
section 10 of the Act of 1917 fails to show that Congress intended to
distinguish the bridge described in this case from other types of international bridges. In fact, it is clear that Congress specifically added the
phrase ". . . or providing a means for an alien to come to the United
States . . ." in section 10 of the Immigration Act of 1917 in order to
iriclude international bridges and toll roads within the purview of the
statute. The Habana, 63 F.2d 812 (2 Cir. 1933). See also 33 Op. Att'y
Gen. 362, 363 (1922). In Osaka Shosen Kaisha Line v. U.S. , 300 U.S. 98
(1936), the Supreme Court held that the words in section 10 of the Act of
2 Section 271(a) of the Immigration and Nationality Act provides that:
It shall be the duty of every person, including the owners, masters, officers, and agents
of vessels, aircraft, transportation lines, or international bridges or toll roads, other
than transportation lines which may enter into a contract as provided in section 238,
bringing an alien to, or providing a means for an alien to come to, the United States
(including an alien crewman whose ease is not covered by section 254(a)) to prevent the
landing of such alien in the United States at a port of entry other than as designated by
the Attorney General or at any time or place other than as designated by the immigration officers. Any such person, owner, master, officer, or agent who fails to comply with
the foregoing requirements shall be liable to a penalty to be imposed by the Attorney
General of $1,000 for each such violation, which may, in the discretion of the Attorney
General, be remitted or mitigated by him in accordance with such proceedings as he
shall by regulation prescribe. such penalty shall be a lien upon the vessel or aircraft
whose owner, master, officer, or agent violates the provisions of this section, and such
vessel or aircraft may be libeled therefore in the appropriate United States court.
See S. Rep. No. 352, 64th Cong., 1st Sess. pp. 10, 11 (1916); S. Doe. 451, tad Uong.,

Znd Sess. p. 7 (1915).
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Interim Decision #2583
1917 were plain and that therefore the words required no construction.
The Court pointed out that where the language is clear, it is conclusive.
We conclude that section 271(a) is applicable to international bridges;
that the Southern Pacific bridge is an international bridge; and that,
therefore, the statute is applicable to it.
Counsel submits that Southern Pacific had no knowledge of the unauthorized landing of the five aliens described in this case, and that,
therefore, it should not be held liable under section 271(a) of the Act. In
enacting section 10 of the Act of 1917, Congress intended to impose a.
strict liability on those persons who violated its provisions by failing to
prevent an unauthorized landing by an alien." In Osaka Shosen Kaisha
Line v. U.S., supra, liability under section 10 of the Immigration Act of
1917 was incurred when a transiting passenger departed the vessel in
the United States, although there was no intent on the part of the vessel
owner to leave the alien there. In Matter of S.S. "Sammie," 1 I. & N.
Dee. 250 (1942), we held that liability under section 10 of the Immigration Act of 1917 is incurred if an alien has landed -without permission and
that whether or not due diligence is exercised is immaterial. Matter of
Plane N--8224-11 , 0 I. & N. Dee. 594 (1955); Matter of Taca International Airlines Plane "Flight 110," 13 I. & N. Dec. 390 (1969). It is clear

that Congress did not intend that the exercise of due diligence by or the
intention of the person subject to the statute should be material elements in determining whether liability has been incurred. Likewise,
Congress did not intend that actual knowledge of the unauthorized
landing of an alien should be an essential ingredient for the imposition of
a fine under the statute. If that were the case, a carrier or owner of an
international bridge or toll road could always disclaim liability by simply
stating that he did not have "actual knowledge". This construction, if
adopted, would be unreasonable and would contradict the express terms
of the statute. Cf. The Manuel Arnus, 75 F.2d 943 (2 Cir. 1935), cert.
denied 295 U.S. 756 (1935).
We find that five aliens landed in the United States without authority
via the Southern Pacific bridge on December 16, 1975, and that Southern
Pacific or its employees did not prevent their unauthorized landing.
Therefore, we conclude that the respondent is liable under section
271(a) of the Act for failing to prevent the unauthorized lauding of
aliens.
This case is complicated by the fact that the Service sought and
obtained a written agreement with Southern Pacific which affected the
manner in which aliens were prevented from entering the United States
via the Southern Pacific bridge. By virtue of this agreement, Service
personnel were permitted by Southern Pacific to enter onto its property
See HR 10384, 64th Cong., 1st Sess., Cong. Rec. 5029-5030 (1916).
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Interim Decision #2582
in order to construct, maintain and operate a gate (at government
expense) which was used to deter aliens from crossing the bridge. After
the gate was constructed and was manned by Border Patrol agents, it
became evident that the Service had undertaken the responsibility for
preventing the unauthorized landing via the Southern Pacific bridge.
The operation of the gate by the Service apparently continued for
several years until the Service became concerned about the hazards to
its personnel who walked onto the bridge to operate the gate. The
Service then sent numerous letters to Southern Pacific requesting that
Southern Pacific install planking on its bridge at its expense in order to
neutralize the hazards. For reasons of cost and perhaps fire safety,
Southern Pacific refused to comply with the repeated requests. In a
number of communications with Southern Pacific, the Service made it
clear that unless the company installed planking or some other devices
to prevent hazards on the bridge, the Service would institute fine
proceedings against it.
We find that the conduct of the Service in its dealings with Southern
Pacific has been inconsistent and irregular. It is obvious that the Service
actually sought to erect a gate on railroad property in order to minimize

its own surveillance of aliens attempting surreptitious entries across the
border. Unfortunately, the operation of the gate by Service personnel
over a period of years caused Southern Pacific to rely on the government
to fulfill its own statutory responsibility.
Prior to these proceedings, Southern Pacific in El Paso had not
incurred liability under section 271(a) of the Act. That company has a
long history of cooperation with the Border Patrol and other branches of
the Service. In fact, we find that Southern Pacific has now improved the
effectiveness of the gate on its bridge at its own expense and has
undertaken to man the gate without the assistance of the Border Patrol_
Wealso find that it is active in the apprehension of alien trespassers and
continues to cooperate with the Service.
We conclude that, in view of Southern Pacific's past record of cooperation with the Service and its current efforts to assume its responsibility
under section 271(a) of the Act, remission of the fines imposed by the
Service is appropriate. Accordingly, that part of the appeal requesting
termination of these proceedings will be dismissed; and that part of the

appeal requesting remission of the fines will be sustained pursuant to 8
C.F.R. 3.1(b)(4) and Part 280.
ORDER: That part of the appeal requesting termination of the fines
proceedings is dismissed.
FURTHER ORDER: That part of the appeal.requesting remission of
the fines is sustained. The fines are hereby remitted.
Board Member Irving A. Appleman abstained from consideration of
this case.
216