Interim Decision #1554

MATTER Or ARABIAN
••

In Section 212(e) Proceedings
A-13821102
Decided by District Director January

4, 1966

Application for a waiver of the foreign residence requirement of section 212
(el, Immigration and Nationality. Act, as amended, is granted an exchange
visitor from Turkey since compliance therewith would result in exceptional
hardship to her 2 stepchildren and 'United States citizen spouse who has
been 'denied a 2-year leave of absence from his job as a TV technician to
accompany her abroad and has no guarantee of reemployment and will
lose all existing benefits and rights it be terminates We employment; if be
accompanies her abroad he will be unable to secure a job in his field in
Turkey and to support those dependent on him, including his partially-dependent mother and mother-in-law by his first marriage tin take to Turkey
the 6-year-old children adopted by him and his first wife would defeat the
Purpose of adoption and in addition to the adverse effects suffered by them
upon the death of their adoptive mother, they would be subjected to additional and unnecessary emotional strain if left here and separated from the
applicant, the mother they have known for over 2 years.

,

,

•

Discussion: The applicant was born on March 5, 1924 in Istanto the United States as an exchange
visitor nurse on November 8, 1962 destined to Newark Beth Israel
Hospital, Newark, New Jersey for participation in Exchange Visitor
Program. P-102. This training was terminated on October 28,'1963
at the time of her marriage to Jack Arabian, a native-born citizen
of the United States. Satisfactory evidence of this marriage has •
been presented.
Supporting documents submitted with the application reflect that
Mr. Arabian, age 60, has been employed as a television technician
with ABC-TV Studios in Union City, New Jersey for 12 years,
Upon request to his employer for a two-year leave of absence in
order to accompany his wife abroad, 1w was advised that such re-.
questcoldnbgra.Iiton,hewasfrmdt
should he voluntarily terminate his employment, he would lose all
existing benefits and seniority rights and in the event•he sought rebul, Tut' ky. Sha was admitted

496 .

Interim 'Decision #1554
employment at a later date, there would be no guarantee that he
would be hired inasmuch as such period of absence from an industry with rapid technological advances would preclude proper
execution of the job.

Mr. Arabian was previously married to a United States citizen.
However, such marriage was terminated by death on October 5," 1962.
Prior to the former Mrs. Arabian's death, they adopted two infant
children, Gail and Gregory Arabian, born March 24, 1960 and February 9, 1960, respectively. Mr. Arabian has made every endeavor
to provide a comfortable home for these children and has assumed
all other responsibilities of a good parent. He has stated that taking

these children to Turkey would be defeating the purpose for which
he adopted them and to leave them in the United States would be
unfair. In addition, he has stated that the children were adversely
affected by the death of his first wife and if they were now to be sep- '
arated once again from the mother they have known and loved for
over two years, it would be subjecting them to additional and unnecessary emotional strain. .
Mr. Arabian's mother, age 78, and his mother-in-law, age 74,
from his first marriage, are both partially dependent upon him for
support. His mother is in ill health and he feels he is under a mortal,
as well as a legal, obligation to contribute to her support. His motherin-law, by, his previous marriage, is also in ill health and has no
close relatives as his former wife was an only child. He also feels
morally bound to contribute to her support. If he were 'forced to
leave the United States to accompany his ivife, he would be unable
to secure a job in the field of work in which, he has been trained and
could not provide the support to those dependent upon him.
In view of the foregoing, it has been determined that compliance
with the 'foreign- residence requirement of section 212(e) of the
Immigration and Nationality Act, as amended, would impose esceptibnal hardship upon Mrs. Arabian's United States citizen spouse
and step-children. The Department of State has reviewed the application and recommends- that the waiver he granted. It. is further
concluded, that the admission of the applicant to the. United States
would be in the public interest.
ORDER: It is ordered that the application of Mrs. Maryann
Arabian for a waiver of the two-year foreign residence requirement
of section 212(e) of 'the Immigration and Nationality Act, as

amended, be and the same hereby granted.

497


Interim Decision 44849

MA3..trat OF Mama

In Visa Petition Proceedings
A-17657160

Decided hg Regional Commissioner Marok20,1968
Petitioner/beneficiary, a graduate of a foreign school of dentistry who has obtained a full and unrestricted license to practice dentistry in the country of
his education, qualifies as a member of the professions within the meaning of
section 101(a) (32) of the Immigration and Nationality Act, as amended, and
is eligible for preference status under section 203 (a) (3) of the Act, as amended,
as a dentist, notwithstanding he will have to undertake considerable further

professional study in the United States before he may practice dentistry in
this country.

Discussion: This case comes forward following the denial of the
petition by the District Director who then certified the matter to this
office for review and final decision.
The beneficiary in his petition seeks classification as a member of
the professions pursuant to section- 208(a) (3) of the Act based upon
his qualifications as a dentist.
In his well stated and reasoned decision, the District Director has
pointed out that the beneficiary, who is single and a native and citizen
of the United Arab Republic and presently residing in that country,
was graduated in September 1963 from the School of Dentistry,
Cairo University, with a bachelor of science degree in dentistry and
dental surgery; and that in March 1964 was licensed as a dentist by the
Ministry of Public Health, Cairo, United Arab Republic.
The Secretary of Labor, pursuant to section 212(a) (14) of the Act,
as amended, has issued an individual certification for a dentist in this
case.
Prior to entering his decision, the District Director reviewed various
publications of the Council on Dental Educaton, American Dental
Association, located at Chicago, Illinois. He also had the documentary
evidence reflecting:beneficiary's qualifications as a dentist evaluated by
an accredited dental school in the United States.
The District Director cited four precedent decisions, including
Matter of Pizarro, Int. Dec. No. 1817; Matter of Shill, 11 3. & N. Dec.
-

680

Interim Decision #1819
847; and Matter of RoWan, 11 I. & N. Dec. 869. He sets forth that in
Shill., it was found a master's degree was required to find that librarian
is a member of the professions; that in Ho ldan, a master's degree or a
baccalaureate degree plus a one year internship was necessary for a
dietitian to qualify as a member of the professions; and that in
Pizarro, it was held that a graduate degree was required for recognition as a member of the professions in the field. of psychology.
We believe the Pizarro decision supports the finding of the District
Director that to qualify in the United States as a member of the professions (dental), the beneficiary needs more than a bachelor of science
degree in dentistry and dental surgery. The school of dentistry in this
country, which evaluated beneficiary's education according to standards in the United States, estimated beneficiary would require at least
one year of undergraduate study and three years of full-time study in
a dental school in this country to meet the established standards.
The District Director concluded that the standards of dental education in-the United States are much higher than those in many other
countries, and that although a person with a foreign dental degree
might be considered a member of the professions in the country of his
education, it does not necessarily follow that he qualifies as a dentist
in this country.
We agree with the District Director that authoritative sources in the
United States concur that a foreign-educated dentist, except one educated in ,Canada, must anticipate from two to four years full-time
study at a dental college in this country before such a dentist could
qualify for a dental degree.

Then the issue is whether a foreign educated dentist (not including
Canada) licensed to practice in the country of his education, who will
be unable to practice in the United States until he has studied dentistry
in this country for possibly two to four years, may be considered a
member of the professions for immigrant classification under section
203(a) (3) of the Act, as amended.
This record indicates the beneficiary studied dentistry for four years
at the Cairo University Faculty of Dentistry; that he was a dentist
trainee for the Ministry of Public Health of the United Arab Republic
from October 1963 to October 1964; and that he was a practicing
dentist in the Egyptian army (Lieutenant) from October 1964 to September 1967. This information appears on Form ES-575A which
was submitted in support of his requeSt for the required certification
from the Secretary of Labor, which was issued.
The regulations are specific with respect to the circumstances under
which an alien physician may be considered eligible for classification

681

Interim Decision #1819
as a member of the professions. 8 CFR 204.2(f) (2) reads in pertinent
part as follows :
. . . or that he was graduated from a

foreign medical school and has obtained
a full and unrestricted license to practice medicine in the country where he
obtained his medical education.

We do not find in any precedent decision or any applicable statutes or

regulations a specific requirement that a foreign educated physician
or dentist, who has a full and unrestricted license to practice his profession in the country where he obtained his medical education, must
establish. he will be eligible to practice his profession immediately
upon admission to the United States. However, such a beneficiary must
establish a: bona Me intent to practice his profession in the United
Statse. See Matter of Semeriian,,111. & N. Dec. 751. The record shows
the beneficiary understands that he must attend a dental college in
this country and intends to do so if admitted. He states he has been
employed since January 1908 by the "United States Ministry of Public
Health Dental Division, Badrashean Dental Research Project" in the
United Arab Republic.
In Heater of Naufahat, 11 I. & N. Dec. 904, it was held that the "Petitioner, who studied law, was issued a license to practice law, and practiced law in Tonga from 1952 to 1963, is qualified, as a lawyer, for
classification as a member of the professions within the meaning of
section 101(a) (32) of the Immigration and Nationality Act, as
amended by PL. 89-236, and notwithstanding the prerequisite of U.S.
citizenship may preclude him from immediately engaging in his profession in this country, he is eligible for preference status under section
203(a) (3) of the Act, as amended, since he is continuing his study of
law and allegedly desires and intends to practice his profession as soon
as found legally qualified to do so."
We have carefully considered the entire record. We do not believe it
valid to distinguish the instant case involving a dentist and Naufah,u.
Although the above-cited excerpt from 8 CFR 204.2(f) (2) relates
specifically to one of the criteria for determining whether an alien
physician may be classified as a member of the professions, we conclude that criterion may be applied with equal validity to alien dentists. On this record, we find the beneficiary has graduated from a foreign school of dentistry and has obtained a full and unrestricted
license to practice dentistry in the country where he obtained his education in dentistry. Accordingly, we shall enter the following order.
ORDER: It is ordered that the petition be and the same is hereby
approved.

682


Interim Decision #2542

MATTER OF NWANGWU

In Visa Petition Proceedings
A-20501275 ,

Decided by Board December 14, 1976
(1) It appeared that beneficiary had previously been married in 1960 according to the
native laws and customs of the East-Central State of Nigeria. Petitioner contended that
that marriage had been dissolved automatically in 1966 when beneficiary's first wife
married another while he was in England.
(2) Under the law of the East-Central State of Nigeria, a customary law marriage may be
dissolved judicially and extra-judically. An extra-judicial divorce requires the observance of certain ceremonial formalities in accordance with the current customary
divorce law of the particular ethnic group or tribe. A mere voluntary separation of the
parties or desertion does not effectively dissolve the marriage.
(3) 'Where there was no showing that the minimum requirements for dissolution of
marriage had been met, denial of the visa petition on grounds of lack of proof of
terminatinn of beneficiary's Dior marriage waspmper and the appeal will he dismissed.

ON BEHALF OF PETITIONER:

Ben C. Shapero
1200 1st National Building
Detroit, Michigan 48226

BY: Milhollan, Chairman; 'Wilson, Torrington, Maniatis, and Applernan, Board Members

The lawful permanent resident petitioner applied for preference

status for the beneficiary as her spouse under section 203(a)(2) of the
Immigration and Nationality Act. In a decision dated April 9, 1976, the
District Director denied the petition on the ground that proof of the

termination of the beneficiary's prior marriage was lacking. The petitioner appeals from that decision. The appeal will be dismissed
The petitioner was born on December 7, 1937, in Nigeria and was
admitted as a lawful permanent resident to the United States on October 22, 1969. The beneficiary was born on April 4, 1937, in Nigeria and
entered the United States as a visitor on December 18, 1972. He and the
petitioner were married in Detroit, Michigan on April 16, 1973.
It appears that the beneficiary was previously married in Nigeria in
1960 according to the native laws and custom of that country. It is the
petitioner's contention that this customary marriage has been dissolved
since the beneficiary's Nigerian wife remarried another in 1966, while

61

Interim Decision #2542
the beneficiary was living in England. The assertion is that this "automatically" dissolved the customary marriage and, as evidence, the petitioner submits a sworn affidavit by the beneficiary's brother attesting to
the same. In addition, the beneficiary submitted a letter to the District
Director in March 1974, in which, among other things, he stated that
Nigeria is essentially a polygamous country; that a man could marry
one, two or three women, and that not infrequently a woman might
refuse to live with her husband, and marry another man without going
through the courts to obtain a divorce. In the letter he also stated that
"desertion and remarriage of one party effectively dissolves the marriage."

In a visa petition proceeding the burden of proof is on the petitioner.
Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). Under 8 C.F.R.
204.2(e)(2) the petitioner must submit proof of the legal termination of
the parties' previous marriages. Any pre-existing valid marriage is a
bar to our recognition of the marriage on which the visa petition is
based. The petitioner has failed to prove the legal termination of his
previous customary marriage.
In Matter of Akinsete, Interim Decision 2369 (BIA 1975), we recognized that In the Mid Western State of Nigeria a divorce must be
obtained from a competent customary court in order to dissolve a tribal
marriage. The law of the East-Central State of Nigeria, in which the
beneficiary's prior marriage took place, is different. We have the benefit
of a Library of Congress report dated October 6, 1975, entitled "Divorce
in the East-Central State of Nigeria Between Persons Married Under
Customary Law," which we are attaching hereto as Appendix A. It
appears that, in the East-Central State of Nigeria, a customary law
marriage may be dissolved not only judicially but also extra-judicially.
An extra-judicial divorce requires the observance of certain ceremonial
-

formalities in accordance with the current customary divorce law of the

particular ethnic group or tribe of the parties. A mere voluntary separation of the parties or desertion does not effectively dissolve the existing
marital relationship.

The only evidence submitted in support of the petitioner's claim that
the beneficiary's first marriage was dissolved in 1966 is an affidavit of
the petitioner's brother, which states that the first wife deserted the
beneficiary, and married another man. The contents of that affidavit are
at variance with statements previously submitted by the petitioner, and
do not show the legal termination of the beneficiary's marriage under
the laws of East-Central Nigeria.
In view of the fact that there has been no showing of the minimum
formalities required to dissolve a marital relationship in Nigeria, we
must agree with the District Director's decision that the beneficiary's
first marriage was not legally terminated prior to his present marriage
62

Interim Decision #2542
to the petitioner. We find, accordingly, that the beneficiary's prior
marriage is a valid pre-existing marriage preventing recognition for
immigration purposes of the marriage between the petitioner and the
beneficiary. The appeal will, therefore, be dismissed,
ORDER: The appeal is dismissed.
APPENDIX A
DIVORCE IN THE EAST-CENTRAL STATE OF NIGERIA
BETWEEN PERSONS MARRIED UNDER CUSTOMARY LAW

Some formality is required to bring a Nigerian customary law marriage to an end.' These formalities may take place in or out of court:
Unlike in English law dissolution of marriage under native law and custom could be
either judicial or extra-judicia1. 2

Non judicial divorce, however, is on the decline in Nigeria, even among
people living in traditional societies:
In the areas where non-judicial dissolution of marriage is permitted, divorce may also
be obtained in . . . court. Indeed, it appears that more and more people are using these
courts, rather than the more informal non-judicial means, in order to make their
divorces "official" so as to be protected against any future claim that the marriage was
never dissolved .

The court system of the East-Central State of Nigeria was altered in
1971 to place jurisdiction in cases of divorce "between persons married
under customary law" in the Magistrates' Courts.'
It is not always an easy task for a court having jurisdiction in the
locality in question to determine issues of customary law. In Inyang v_
Ita the court made the following observation:
A good deal of evidence was given by both sides on this question of native law and
custom. This kind of so-called expert evidence must always be treated with very great
caution. The evidence of these experts is invariably coloured each by his own personal
interests. The only way in which such testimony can be safely treated is to refrain from
attempting to estimate individual credibility and to concentrate on drawing conclusions
from the general trend of the evidence.'

In Okpanum v. Okpanum, a case contesting the validity of an alleged
customary divorce, the court based its decision upon evidence of a
formal meeting attended by representatives of both families of the
' S. N. Chinwuba Obi, Modern Family Law in Southern Nigeria (1966) 368.
Okpanum v. Okpanum, 2 ECSLR 561, at p. 564.
3 Alfred B. Kasunmu and Jeswald W. Salacuse, Nigerian Family Law (1966) 175.
4 E.C.S.N. Edict No. 23 of 1971, Section 17 (1)(h).
9 Nigeria Law Reports 84.
2

62

Interim Decision #2542—Appendix
parties to the marriage. 6 There, the husband formally renounced or
terminated the marriage before both families which had been called
together for that purpose.'
S. N. Chinwuba Obi, whose book on Nigerian family law is cited by
the court in the Okpanum case, provides information on the details of
the formalities required to bring an Ibo customary marriage to an end. 8

In rejecting the idea that a woman is free to abandon her husband and
marry another man without divorce formalities, Obi comments as follows:
Contrary to popular opinion in certain quarters, customary marriage is not dissolved
by the mere fact that one spouse has left, or been sent away by the other with the
express intention of never again living together with him or her as husband and wife.

Where this happens, there is no more than desertion or voluntary separation as the case
may be: the parties remain husband and wife in the eyes of the law nonetheless. 9

Commentators have expressed the difficulties surrounding proof of a
non judicial divorce as follows:
It is necessary to determine the acts necessary under the applicable customary law
which will sever the marital bonds and the point at which the marriage is terminated.
Then, too, it may be difficult to decide whether these acts were actually performed and
what the intentions of the parties were at the time."

For a foreign agency or tribunal to decide the issue of the validity of a
divorce in these circumstances it would have to determine (1) the ethnic
group or tribe of the parties, (2) the current customary divorce law of
that group, and (3) proof of the facts alleged. These are the issues which
the local Nigerian courts, on the other hand, are uniquely equipped to
determine. For purposes of its use abroad, a judgment of a Nigerian
court should be certified as a true copy by the court and, in turn, by the
United States embassy or consulate as being the judgment of the court.
Prepared by Neil R. McDonald
Senior Legal Specialist
Near Eastern and African Law Division
Law Library, Library of Congress
October 1975

Okpanum v. Okpanum, supra, at p. 564.
Okapnum v. Okapnum, supra, at p. 565.
g Obi, supra, p. 368.
Obi, supra, at p. 368.
'° Kasunmu and Salacuse, supra, 172.
6
7

64


Interim Decision #1949

MATTER OF KIRBY
In Visa Petition Proceedings
A-14247013
Decided by Board March.19, 1969
Where beneficiary was legally adopted by court decree in the Philippines on
September 25, 1950 when she was less than a year old and until 1964 she
was in the possession and custody of the adoptive, parents, a valid adoption exists in accordance with the requirements of section 101(b) (1) (E) of
the Immigration and Nationality Act, as amended, and the proviso to that
section precludes the approval of a visa petition filed on behalf of the beneficiary by her natural mother to confer immediate relative status.
ON BEHALF OF PETITIONER:

Gerald L. McVey, Esquire
30 Hotaling Place
San Francisco, California 94111
(Brief filed)

The case comes forward on appeal from the order of the District Director, San Francisco District, dated January 13, 1969 denying the visa petition for the reason that the claimed relationship has not been established in view of the fact that the
beneficiary was legally adopted on September 25, 1950 by Antonio
Angeles and his wife, Emilia Soriano.

The petitioner, a native of the Republic of the Philippines, a
naturalized citizen of the United States, 42 years old, female,
seeks immediate relative status on behalf of the beneficiary as her
daughter. The beneficiary is a native and citizen of the Republic
of the Philippines, born January 28, 1950.
The file contains a memorandum dated May 20, 1968 from the
officer-in-charge, Immigration and Naturalization Service, Manila, Philippines to the District Director, San Francisco, California. On April 10, 1968, Antonio Angeles and his wife, Emilia Soriano, were interviewed at the. Manila office. Mrs. Angeles stated
that the beneficiary was born out of wedlock to Isabel Conclara
Kirby and was given to her and her husband when the beneficiary was three months old; that Mrs. Kirby was aware that the
beneficiary was legally adopted by Mr. and Mrs. Angeles on Sep-

173

Interim Decision #1949
tember 25, 1950 by a decree of the Court of First Instance of
Rizal, Seventh Judicial District, Pasay City, Philippines because
she executed a written instrument using the name Susana
Guanco, which is referred to as Exhibit "D" in the decision of
the court. On May 13, 1951 Mr. and Mrs. Angeles had the beneficiary baptized as Cynthia Angeles at the Church of Our Lady of
Sorrows, Pasay City, Philippines, and had their names recorded
as the natural parents, to conceal from the beneficiary when she
became older that she had been born out of wedlock. They also
obtained a delayed birth certificate for the beneficiary as Cynthia,
Angeles on August 13, 1964 at the Registrar's Office, Manila,
Philippines. When Mrs. Angeles, her son, Norman, and the beneficiary went to the United States in 1964 accompanied by the
mother of Mrs. Angeles, their fares were paid for by her spouse,
Antonio R. Angeles.
Service records show that the beneficiary was issued a B 2 visa
on July 15, 1964; that she entered the United States on August
-

27, 1964 as a visitor to accompany her mother, Emilia Angeles.
Her status was later changed to that of a student on January 20,
1965, and extension of temporary stay was granted to January
19, 1968. Immigration files show that she entered under the name
of Cynthia Angeles, and that the change of status to that of a
student was granted because her mother was taking care of her
own mother who was under medical treatment, and her father resided in the Philippines. All of the immigration records relating
to her arrival and change of status are in the name of Cynthia
Angeles.
A sworn statement was taken from the petitioner on March 18,
1968 with her attorney present. The petitioner testified that she
married Raymond Kenneth Kirby on February 21, 1952. She
stated that when she was issued an immigrant visa on May 11,
1953 by the American Embassy in Manila, when she was naturalized, and when she made an application for naturalization in 1958,
she stated that she had no children. In fact, she had a daughter
whom her husband knew about. She stated that the beneficiary in
1953 was living with Emilia Angeles. In explanation of the baptismal certificate she presented, she stated that she did not have a
name for the father and she gave her own father's name as the
father. She stated that she kept the child over three months. In
response to questions asked by her attorney, petitioner stated
that she sent money to the Philippines for her daughter and for
Mrs. Angeles to come to the United States. The petitioner stated
that she first started supporting her child when she arrived here,

174

Interim Decision #1949
providing all her clothes and doctor's expenses but had not provided for her support prior to- the beneficiary's arrival in the
United States_ She stated that she gave her daughter, Cynthia, to
Antonio and Emilia Angeles to be raised but that she did not talk
to them about adoption. She professed not to know about a baptismal certificate submitted May 13, 1951 in which it is stated
that the beneficiary was baptized as the child of Antonio Angeles
and Emilia Soriano, and that she was born on January 28, 1950.
She explained that difficulties later arose between herself and
Mrs. Angeles, and that she made a deal with Mks. Angles that she
would give her a round-trip-ticket to the Philippines, from San
Francisco to the Philippines and from the Philippines back to
San Francisco, provided that she would leave Cynthia with her

and would leave them alone. The petitioner acknowledged that
from 1953. until 1964 she did not see the beneficiary, and that she
had not acknowledged Cynthia as her daughter at any time prior
to 1964.
Section 101(b) (1) (E) of the Immigration and Nationality Act,
as amended, defines an adopted child as "a child adopted while
under the age of 14 years if the child has thereafter been in the
legal custody of, and has resided with the adoptive parent or parents for at least two years: Provided, that no natural parent of
any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act."
In Matter of Lum, 11 I. & N. Dec. 55, we approved the petition of
an adult naturalized United States citizen, who was adopted in

China during infancy, to accord her natural mother a preference
quota classification under section 203 (a) (2) of the Immigration
and Nationality Act, notwithstanding the proviso to section
101(b) (1) of the Act. However, in that case the petitioner entered this country not as an adopted child but as the nonquota
wife of a United States citizen. Her adoptive father was dead and
her adoptive mother, not having been heard from in many years,
was presumed dead. The petitioner in that case had received no
immigration benefit through her adoptive status and as a matter
either of law or fact was in no position to claim such a benefit
through that status.
In Matter of B—, 9 I. & N. Dec. 46, we held that an adult naturalized United States citizen, who was legally adopted in this
country at age 15, such an adoption being a nullity for immigration purposes, was entitled to confer second preference status
upon her natural parents. However, in Matter of K—, 9 I. & N.
Dec. 116, we held that a child adopted in accordance with the re175

Interim Decision #1949
quirements of section 101(b) (1) (E) of the Immigration and Nationality Act, as amended, was not entitled to benefits from a petition filed by the natural parents to confer preference quota
status.
In the instant case, the beneficiary was legally adopted by a decree of the Court of First Instance of Rizal, Seventh Judicial District, Pasay City Branch, Republic of the Philippines, on September 25, 1950 when she was less than a year old, and until 1964
she was in the possession and custody of the adoptive parents.
The adoptive parents have testified that the petitioner in the instant case knew about the adoption and signed a written instrument under the name of Susana Guaneo which is referred to as
Exhibit "D" in the decision of the court. Inasmuch as there has

been a valid adoption for immigration purposes of the beneficiary
by her adoptive parents, the proviso in section 101(b) (1) (E), as
amended, of the Immigration and Nationality Act comes into play
and precludes any status by virtue of the natural parentage of

such adopted child. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed_

176


Interim Decision #2676

MATTER OF CHHEAV

In Deportation Proceedings
A-22417010
Decided by Board October .18, 1978
(1) An alien seeking adjustment of status as a nonprincipal alien under the provisions of
the Act of October 28, 1977, Public Law 95-145, 91 Stat. 1223, relating to spouses and
children of Indochinese refugees need not have an approved visa petition as a prerequisite for that relief.
(2) Adjustment of status will be granted under the provisions of Public Law 95-145 to one
claiming eligibility as the spouse of an Indochinese refugee eligible for relief under that
Act as' a principal only upon a showing that the marriage is one recognizable for
immigration purposes.

CHARGES:
Order Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}—Nonimmigrant visitor—
remained longer than permitted
Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9)1—Failed to comply with

conditions of nonimmigrant status under which admitted
04 BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Richard M. C.AAl2s
Trial Attorney

Robert A. Shivers, Esquire
833 Bandera Road, Suite 201
San Antonio, Texas 78225

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent moves for the reopening of these proceedings so as to
apply for adjustment of status under the provisions of Title I of Public
Law 95-145, 91 Stat. 1223. The motion will be granted and the record
will be remanded for further proceedings before an immigration judge.

The respondent is a native and citizen of Mexico. She was admitted to
the United States as a nonimmigrant visitor for pleasure on March 10,
1975. On October 26, 1976, she was found deportable as a nonimmigrant
who remained beyond her authorized period of stay and who failed to
comply with the conditions of her status. On January 13, 1977, we
affirmed the immigration judge's decision.
On November 23, 1977, the respondent submitted the present motion
to reopen. She claims eligibility for adjustment of status under the
621

Interim Decision #2676
provisions of the Act of October 28, 1977, on the basis of her marriage on
July 30, 1976, to a person claimed to be a Cambodian refugee.
The trial attorney who responded to the respondent's motion opposed
the motion on the ground that the respondent was ineligible for adjustment of status because a visa petition has not been filed and approved on
her behalf. The trial attorney did nut challenge the bona fides of mar-

riage nor the fact that the respondent's spouse may be an alien who may
adjust his status as a principal under the provisions of the Act of
October 2S, 1977_
Our reading of Public Law 95-145 raised in our minds the possibility
that an approved visa petition may not be necessarily required in cases
such as the present. Therefore, on April 28, 1978, we addressed an

inquiry to the chief trial attorney in this regard. Pending our inquiry,
the Service published on May 2, 1978 , 43 F.R. 18643, final regulations to
implement Title I of the Act of October 28, 1977. The regulations again
were silent on the issue of the need for an approved visa petition on
behalf of nonprincipal aliens.
On September 1, 1978, we received a response to our inquiry of April
28, 1978. The Service informs us that in their opinion the provisions of
the Immigration and Nationality Act which would normally require the
filing of a visa petition in similar cases under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, are not applicable.
The Service informs us that a particular form has been designated for
use to apply for adjustment of status under this special statute. In view

of the fact that at the time the respondent filed her motion that form was
not yet available, the respondent should be allowed an opportunity to
complete the appropriate form on remand.
We find the documentation submitted by the respondent sufficient to
establish prima facie eligibility for the relief she seeks. Although a visa
petition is not required, section 107 of the Act of October 28, 1977, makes
applicable the definition of "spouse" contained in the Immigration and
Nationality Act. Accordingly, it -will be the respondent's burden to
prove her marriage is one otherwise recognizable for immigration purposes before adjustment of status is granted under Public Law 95-145.
ORDER: The record is remanded for further proceedings.

622


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Interim Decision #3830

Matter of LEACHENG INTERNATIONAL, INC.
Decided April 9, 20151
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office
(1) The definition of “doing business” at 8 C.F.R. § 204.5(j)(2) (2014) contains no
requirement that a petitioner for a multinational manager or executive must provide
goods and or services to an unaffiliated third party.
(2) A petitioner may establish that it is “doing business” by demonstrating that it is
providing goods and/or services in a regular, systematic, and continuous manner to
related companies within its multinational organization.
ON BEHALF OF PETITIONER: Alan Lee, Esquire, New York, New York

The petitioner is a United States subsidiary of a Chinese clothing
manufacturing company that filed an Immigrant Petition for Alien Worker
(Form I-140) to classify the beneficiary as a multinational manager or
executive pursuant to section 203(b)(1)(C) of the Immigration and
Nationality Act, 8 U.S.C. §1153(b)(1)(C) (2012). The petitioner seeks to
employ the beneficiary in the position of deputy general manager. The
Texas Service Center Director (“Director”) denied the petition, finding that
the petitioner failed to establish that it had been doing business for at least
1 year as of the date the petition was filed. The petitioner’s appeal to the
Administrative Appeals Office (“AAO”) will be sustained.

I. APPLICABLE LAW
Section 203(b) of the Act states in pertinent part:
(1) Priority workers
Visas shall first be made available . . . to qualified immigrants who are aliens
described in any of the following subparagraphs (A) through (C):
....
(C) Certain multinational executives and managers
1

This decision was originally entered on March 27, 2014. The matter has been
reopened on the Administrative Appeals Office’s own motion for the limited purpose of
making revisions for designation of this decision as precedent.

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Interim Decision #3830

An alien is described in this subparagraph if the alien, in the 3 years preceding
the time of the alien’s application for classification and admission into the
United States under this subparagraph, has been employed for at least 1 year by a
firm or corporation or other legal entity or an affiliate or subsidiary thereof and
the alien seeks to enter the United States in order to continue to render services to
the same employer or to a subsidiary or affiliate thereof in a capacity that is
managerial or executive.

Pursuant to 8 C.F.R. § 204.5(j)(3)(i)(D) (2014), the petitioner must
establish that it has been doing business for at least 1 year. In turn,
8 C.F.R. § 204.5(j)(2) provides that “[d]oing business means the regular,
systematic, and continuous provision of goods and/or services by a firm,
corporation, or other entity and does not include the mere presence of an
agent or office.”

II. FACTUAL BACKGROUND
The petitioner is an affiliate of the beneficiary’s former Hong Kong
employer, both of which are owned by the petitioner’s Chinese parent
company. Established in New York in 2008, the petitioner imports and
sells the parent company’s products to United States customers, primarily
major clothing retailers. The petitioner directly performed these sales
activities through 2011. However, beginning on or about January 2012, it
has provided marketing, sales, and shipping services in the United States
pursuant to a service agreement with its Hong Kong affiliate.
The petitioner submitted a service agreement with its affiliate, which
indicates that the petitioner “accepts commissions from [the Hong Kong
affiliate] on the basis of full investigation of the overseas market” and
provides services. The services include performing marketing research to
support the affiliate’s marketing strategies, assisting in the expansion of its
customer base, supporting customer relations, assisting with after-sales
services, facilitating import customs clearance for foreign-manufactured
products, arranging storage and logistics issues in the United States, and
assisting in the collection of payments.
For these services, the Hong Kong affiliate pays a service fee (“payment
quota multiplied by 3.5%”) and compensates the petitioner for labor and
other expenses (rent, mailing fees, and travel). The petitioner submitted
copies of monthly service fee invoices issued to its Hong Kong affiliate in
amounts ranging from approximately $300,000 to $590,000, along with
evidence of payments received. The petitioner also provided extensive
evidence of its correspondence with customers and other evidence
of its performance of the services outlined in the service agreement.
Furthermore, the petitioner submitted copies of commercial sales invoices
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Interim Decision #3830

issued by the Hong Kong affiliate to United States customers and copies of
bills of lading as evidence of the import and sales activities. Finally, the
record establishes that the petitioner maintains service contracts with
several shipping carriers to fulfill its obligations under the service
agreement.
The Director concluded that the petitioner was not doing business as
required by the regulations, reasoning that the petitioner’s evidence “do[es]
not indicate ‘doing business’ with independent corporations or entities” for
a full year preceding the filing of the petition, but rather “only
demonstrate[s] the shipment of goods from the foreign company to the U.S.
company.” Specifically, the Director found that the petitioner, as a clothing
importer, should have provided invoices or evidence of payment of
invoices from the customers who purchased the clothing for the year
preceding the filing of the petition.
On appeal, the petitioner asserts that the Director erred and that existing
case law and regulatory history support a conclusion that the petitioner
is doing business in a regular, systematic, and continuous fashion despite
the fact that it is not a named party to contracts with buyers in the
United States. The petitioner states that the evidence establishes it acts as
an intermediary between its Hong Kong affiliate and the United States
buyers and suppliers by locating customers and finalizing the details of
sales contracts for the benefit of the affiliate. In a letter submitted on
appeal, the petitioner further explains that while its affiliate is named on
customer contracts, the record shows the petitioner “continues to secure
these sales contracts by marketing, designing, corresponding and finalizing
the terms of every U.S. sales contract” and by receiving all shipments of
imported goods at its New York location. The petitioner contends that the
regulatory definition of “doing business” does not require that it be a direct
party to contracts or a direct provider of goods and services to a
United States customer.

III. ANALYSIS
The Director’s finding that the petitioner did not submit evidence of
doing business with “independent corporations or entities” implies a
requirement that a petitioner must transact directly with an unaffiliated third
party. However, the definition of “doing business” at 8 C.F.R. § 204.5(j)(2)
contains no requirement that a petitioner for a multinational manager or
executive must provide goods or services to an unaffiliated third party.
Neither the plain language nor the regulatory history of the “doing
business” provision supports such a requirement.

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Interim Decision #3830

The regulatory definitions of “doing business” applicable to immigrant
multinational manager and executive petitions and to nonimmigrant
intracompany transferee petitions are nearly identical. Compare 8 C.F.R.
§ 204.5(j)(2) (immigrant multinational executives and managers), with
8 C.F.R. § 214.2(l)(1)(ii)(H) (2014) (L-1 nonimmigrant intracompany
transferees). The former Immigration and Naturalization Service (“INS”)
proposed the current definition of “doing business” in the nonimmigrant
L-1 context in a 1986 proposed rule. See Documentary Requirements for
Nonimmigrants; Waivers, Admission of Certain Inadmissible Aliens,
Parole, 51 Fed. Reg. 18,591, 18,596 (May 21, 1986) (Supplementary
Information) (“‘Doing business’ means the regular, systematic and
continuous provision of goods and/or services by a qualifying organization
and shall not include the mere presence of an agent or office of the
qualifying organization in the United States or abroad.”).
Responding to public commenters’ concern that the proposed definition
might disqualify liaison office arrangements from L-1 classification, the
INS explained in the preamble to its final rule that “[t]he Service recognizes
that company representatives and liaison offices provide services in
the United States, even if the services are to a company outside the
United States.
Such services are included in the doing business
definition . . . .” Temporary Alien Workers Seeking Classification Under
the Immigration and Nationality Act, 52 Fed. Reg. 5738, 5741 (Feb. 26,
1987) (Supplementary Information).2 In its 1991 final rule promulgating
the current “doing business” definition in the immigrant context at 8 C.F.R.
§ 204.5(j)(2), the INS indicated, “This requirement is similar to one
pertaining to intra-company transferees under the L-1 nonimmigrant
classification.” Employment-Based Immigrants, 56 Fed. Reg. 60,897,
60,899 (Nov. 29, 1991) (Supplementary Information). As such, we
interpret the two “doing business” provisions similarly and decline to read a
third party or nonaffiliation requirement into these regulations.
Accordingly, a petitioner may establish that it is “doing business” by
demonstrating that it is providing goods and/or services in a regular,
systematic, and continuous manner to related companies within its
multinational organization. To determine whether a petitioner has met its
burden, we consider the totality of the record, including relevant
documentation to substantiate the petitioner’s business activities. The fact
that a petitioner serves as an agent, representative, or liaison between a
2

The language of the proposed rule differed slightly from the final rule. Compare
51 Fed. Reg. at 18,596, with 52 Fed. Reg. at 5752. No explanation was provided for this
difference. This change in language does not impact the outcome of this case.

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Interim Decision #3830

related foreign entity and its United States customers does not preclude a
finding that it is doing business as defined in the regulations.
Here, the petitioner established that it provides services to its foreign
affiliate by marketing the foreign entity’s products, locating buyers,
maintaining relationships with customers, and facilitating the completion of
sales contracts and shipping arrangements in the United States. It provided
a copy of its service agreement with the foreign affiliate and substantial
evidence that it is, in fact, performing the services specified in the contract
on a regular, systematic, and continuous basis. In this regard, the evidence
presented shows that the petitioner billed the foreign entity for over
$4.1 million in service fees in 2012 and paid $2.5 million in wages to its
employees in the United States.
The petitioner has established that it is doing business based on its
regular, systematic, and continuous provision of services in the
United States, and it has demonstrated that its operation does not
constitute the “mere presence” of an agent or office. 8 C.F.R. § 204.5(j)(2).
Accordingly, the Director’s decision will be withdrawn.

IV. CONCLUSION
In visa petition proceedings, it is the petitioner’s burden to establish
eligibility for the immigration benefit sought. See section 291 of the Act,
8 U.S.C. § 1361 (2012); Matter of Skirball Cultural Center, 25 I&N Dec.
799, 806 (AAO 2012). Here, the petitioner has sustained that burden.
Accordingly, the Director’s decision is withdrawn.
ORDER: The appeal is sustained and the petition is approved.

536


Interim Decision 4t1941

MATTER

or WONG AND CHAN

In Deportation Proceedings
A-15759508-9
Decided by Board February 6, 1969
(1) Where, due to their suspicious actions, a Service investigator sought to
interrogate respondents who tried to flee from him, but he was unable to
do so due•to a language barrier, whereupon he instructed a hospital security officer, without the knowledge of respondents, to stand guard over
them while he went nearby to get the help of another investigator travelling with him and to seek the services of an interpreter, arrest of respondents did not occur with the stationing of the security officer, which was
done merely to make it possible to interrogate respondents, but occurred
when they were subsequently taken into custody by the Service investigators following interrogation revealing their illegal presence in the United
States.
(2) Arrest of respondents without a warrant was proper since the Service
investigators; being aware that respondents were illegally in the United
States and that they had fled to avoid interrogation, could reasonably conclude that it was likely they would escape before warrants could be obtained.•
CHARGE:

Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Crewmen
—remained longer (each respondent).

ON BEHALF or SERvzos:

ON BEHALF OF RESPONDENTS:

R. A. Vielhaber

David Carliner, Esquire
Warner Building
Washington, D.C. 20004

Appellate Trial Attorney

Respondents appeal from the special inquiry officer's order finding them deportable as charged. The appeals will be dismissed:
• Affirmed, see 445 P.2d 217

(C.A. D.C.4971).

Separate hearings. started on November 13, 1967, were consolidated by
agreement and joint hearings were held thereafter. No one record contains
the complete testimony, References to pages preceded by "R" will be found
in either record. Page references not attributed to the Chan record are from
the Wong record. Exhibit references are to exhibits in record under discussion.

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Interim Decision #1944
change Act of 1961 and authorizes a deviation from the stated
guidelines on the part of Service officers when ruling on an exchange visitor's request for an extension of stay after admission
or for additional time beyond the stated guideline upon an initial
application for admission. The special inquiry - officer has no authority to make such a determination.
We will next consider counsel's contention that the grant of voluntary departure with a provision for the automatic entry of a
order of deportation upon failure to depart within the time limit
set by the special inquiry officer violates due process because the
respondent is denied an opportunity to show why she failed to depart or that her failure to depart is justified. We find no merit to
counsel's contention. The regulations provide that if an alien
wishes to extend the time within which to depart as specifed initially by the special inquiry officer, he may apply to the District
Director having jurisdiction over his place of residence (8 CFR
244.2). The alien in support of such an application may submit

evidence justifying the need for more time within which to depart. The regulation requires that written notice of the District
Director's decision shall be served upon the alien and no appeal
may be taken therefrom.
We find nothing in the "unusual circumstances" provision of 22
CFR 63.5 (b) (supra l) which supports counsel's claim that the
respondent should. be given another hearing to show that her failure to depart within the time limit set by the special inquiry
officer was justified by unusual circumstances. As stated above, S
CFR 244.2 provides her with an opportunity to apply to the District Director for an extension of time within which to depart.
The regulation promulgated by the Secretary of State (22 CFR
63.5 (b) ) in any event does not apply to the exercise of discretion

in the grant of voluntary departure under section 244 (e) of the
Immigration and Nationality Act.
Due process does not require a ruling by the special inquiry officer on applications for an extension of stay, nor does it require
that the deportation hearing be reopened for the reception of additional evidence on this issue. The position taken by counsel that
the deportation hearing be reopened to afford an alien an opportunity to request additional time within which to depart voluntarily or to show why he failed to depart within the time limit set by •
the special inquiry officer would open the door to interminable
delay and would effectively impede the deportation process. The
automatic order of deportation is authorized by 8 CFR 242.18 (c)
and has been sanctioned by the courts. Cf. Foti v. INS, 875 U.S.

159

Interim Decision #1941
On advice of counsel, respondents remained mute at the deportation hearing, The special inquiry officer found that the Service
evidence established that each respondent is an alien illegally in
the United States since he remained without authority after he
was admitted as an alien crewman from foreign for a period not
to exceed 29 days. The special inquiry officer found one respondent to be Wong Tit Tit, who had been admitted about April 9,
1967, and the other to be Chan Nei Ngan who had been admitted
about July 24, 1966. Counsel contends that respondents were arrested illegally and that deportability is not properly established
because the evidence used was obtained as a result of the illegal
arrest.
The testimony of Service investigator Taylor (corroborated by
Service investigator Reissig in essential details as to those matters in which both took part) is to this effect: he and Reissig
went to a hospital clinic to investigate the immigration status of
a Chinese person who had applied for medical treatment as a
charity case. Reissig remained in the Service car in front of the
hospital. Taylor went to the clinic where the applicant for medical assistance, Wong Wook Wong, brother of respondent, Wong,
and two companions (one, Yee Kong Ling, the other unidentified)
were standing before the clinic interviewer. As he identified himself, preparatory to questioning Wong Wook Wong, his suspicion
was aroused by the sudden departure of two Chinese men who
had been sitting in the rear of the room (pp. 7, 11, 27-28, R
8-10). However, he continued the questioning of Wong Wook
Wong until satisfied that no immigration problem was involved.
This took about 15 minutes (p. R 29). Then he looked for the two
men who had so suddenly departed. Unable to find them after
glancing through the rooms and corridors on the ground floor, he
notified his partner to watch the front exit and went, by way of
the rear door, to the parking lot at the side of the building (pp. R
30-31). About 10 to 15 minutes had elapsed since he started
searching. In the parking lot, he saw the two men. They looked
back. Upon seeing him they quickened their pace and disappeared
from view (pp. 8, R 31-35). He followed and discovered them in
a car. One man attempted to lock the door of the car, apparently
to prevent him from talking to them, the other attempted to start
the car but apparently, because of his unfamiliarity with the operation, was unable to do so (pp. 8, R 10-11, 33). He attempted
to question them, but could not communicate with them : he could
speak no Chinese and they no English (pp. 9, R 12). He decided
to get Reissig's help, and to talk to the three Chinese men in the
142

Interim Decision #1941
clinic who he thought might have some connection with the two
men (p. 9). He took the car keys (pp. 10, R 11, 13). Identifying
himself to a uniformed hospital security guard who was walking

nearby, he asked him to watch the two men (who remained in the
car) and to prevent them from leaving, if it became necessary (p.
9, R 39 41). The respondents could not have heard him (pp. R
12-18). The security officer was about 8 to 10 feet away from the
car on an elevated sidewalk (pp. R 11-12). He found Reissig and
drove with him to the .parking lot. There they blocked the car in
which the two men were still sitting. Reissig also was unsucessful
in communicating with them (pp. R 13, 40). He (Taylor) noticing a young Chinese man (one he had not seen before) walking
on the sidewalk, asked him to try to act as interpreter. The young
man agreed (pp. 9-12, R 13, 36-37). Leaving the questioning to
Reissig, he (Taylor) returned to the hospital to seek the three
.Chinese men (pp. R 13,37 38). Yee Rang Ling, when shown the
keys, said the car was his. Taylor gave him the keys and asked
the three to come to where the others were (pp. 10, R 14). When
they arrived (Reissig said it was about ten minutes after Taylor
had left (pp. R 48, 54)) he learned that Reissig, with the help of
the volunteer, had discovered the identity of the two men and the
fact that they were illegally in the United States (pp. 10-12,
23-24, R 14-15). The investigators then determined to arrest the
respondents. They escorted them to the Service office (pp. 11-12,
R 15) where they questioned them and took affidavits. .
-

-

The security officer testified (pp. R 61 78) that while Taylor
-

had not specifically asked him to prevent the men from leaving, if
they had made the attempt, he would have tried to stop them (p.
II 66). He had them under observation for 6 to 7 minutes (p. R
66). He believed that they were unaware that he was watching
them (R 66). He verified the use of the volunteer interpreter (pp.
R 63-64, 67-68, 72-73).
The special inquiry officer found that alienage was established
in each case by a seaman's discharge book (Ex. 4) and seaman's
identity book (Ex. 5). In Chan's case he also considered a seaman
identification card (Ex. 6). These documents came from the Service files (p. R 22). The special inquiry officer found the illegality
of the respondents' stay established by their crewman's landing
permit (Form I-95A) (Exs. 3) showing the date, place and manner of admission. Whether Chan had his permit with him when
apprehended or whether as was Wong's it was delivered to the
Service by Yee at the Service request, after the Service had ques-

143

Interim Decision #1941
tioned the respondents in the Service office, is not clear (pp.
16-19, R 15-23).2
Counsel contends that the respondents' arrests were made
without probable cause and therefore without authority. This
contention is based on the belief that the arrests occurred when
Taylor had the security officer stand watch over respondents to

prevent them from leaving the automobile. Counsel points out
that this occurred before there had been any conversation with
respondents that would have enabled Taylor to believe he had
cause to make an arrest. He also contends that the evidence fails
to establish that there was any meaningful conversation with respondents before they were taken to the Service office. He contends the record fails to establish that a volunteer acted as interpreter : he points out the Service did not produce the volunteer,

that Yee's affidavit, which is in the record, makes no reference to
the presence of the volunteer, that the respondents told Yee that

there had been no conversation between them and the Service officers, and that there had been no volunteer who had spoken to
them while they were in the automobile. Counsel contends that
the evidence used at the deportation hearing was obtained as a
result of the illegal arrest and therefore could not be used to deport respondents.
The special inquiry officer ruled that the arrests occurred when
the investigators decided to take respondents to the Service office.
He held the arrests were legal and that the evidence later secured, except for the affidavits, could be considered in determining deportability. The special inquiry officer ruled out use of the

affidavits because they had been taken without respondents being
advised of their right to counsel, although the regulation (8 CFR

287.3) required persons arrested without a warrant to be advised
of this right. The special inquiry officer found that the following
facts clearly established that the Service investigators had
learned before respondents' arrest that they were illegally in the
United States: the testimony of the Service investigators as corroborated by the security officer, the weak nature of the respondents' rebuttal through Yee's affidavit, and the possibility that Yee
was absent during the time the volunteer had been used. The special inquiry officer did not deal with whether an arrest might have
occurred before the Service officers learned through the volunteer
2

Form I-95A is inadvertedly referred to as Form 1-94 at the reopened

hearing of May 1, 1068 and in the special inquiry officer's order of July 8,

1968.

144

Interim Decision #1941
that the respondents were illegally in the United States. The
point was raised at the hearing (p. 13).
Immigration provisions which authorize the questioning and
arrest of aliens and are pertinent to the Issue here follow:
. . The Attorney General and any immigration officer, including special
inquiry officers, shall have power to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or
person he believes or suspects to be an alien to enter, reenter, pass through,
or reside in the United States or concerning any matter which is material
and relevant to the enforcement of this chapter and the administration of
the Service, . . . . (sec. 235 (a) of the Act, 8 U.S.C. 1225 (a) ). 3 Any officer or
employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
(1) to interrogate any alien or person believed to be an alien as to his
right to be or to remain in the United States;
(2) . . . to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any
such law or regulation and is likely to escape before a warrant can be obtained for his arrest ...
(3) within a reasonable distance from any external boundary of the
United States, to board and search for aliens any vessel within the territorial waters of the United States and say railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such
external boundary to have access to private lands, but not dwellings, for the
purpose of patrolling the border to prevent the illegal entry of aliens into
the United States;.... (sec. 287 (a) of the Act, 8 U.S.C. 1357(a) ).
Definitions—(a) (1) External boundary. The term "external boundary," as
used in section 287(a) (3) of the Act, means the land boundaries and the
coast line of the United States, including the ports, harbors, bays and other
enclosed arms of the sea along the coast, and a marginal belt of the sea extending three geographic miles from the outer limits of the land that encloses an arm of the sea.
(2) Reasonable distance. The term "reasonable distance," as used in section 287(a) (3) of the Act, means within 100 air miles from any external
boundary of the United States or any shorter distance which may be fixed
by the district director .... (8 C.F.R. 287).

Counsel seeks to place the issue in terms of the power of a
Service investigator to indiscriminately detain and arrest a person. We need not pass on this contention for it is not the situation presented here. There are several important differences. Taylor did not indiscriminately approach respondents: their actions
gave him reason to believe they should be questioned. Then, Taylor did not seek the aliens to arrest them: he sought to question
2 See Nason v. INS, 370 F.2d 865, 868 (2 Cir. 1967), (same case, different
issue, 394 F.2d 223, cert. denied 21 L.Ed. 2d 101) ; Sherman v. Hamilton, 295
F.2d 516 (1 Cir. 1961) cert. denied 369 U.S. 820. But see Lee Tin Mew v.
Jones, 268 F.2d 376 (9 Cir. 1959).

145

Interim Decision #1941
them. Finally, the elements of an arrest did not exist until Taylor
took the aliens into custody. In addition, consideration must be
given to the fact that Taylor was acting in an area where immigration officials have broad power. We shall discuss these points
in detail.
The record shows that Taylor originally sought to question the
respondents because of an on -the - scene occurrence, which to this
alert investigator, seemed a suspicious circumstance. Taylor, an
investigator with over 18 years of experience, could well have
considered the sudden departure of the respondents as connected
with the fact that he had just identified himself as an Immigration official and he could reasonably have concluded that they
wished to avoid the possibility of an interrogation as to their
identity and right to be in the -United States. These inferences
seemed all the more the probable explanation of thier sudden departure when he observed that they looked back as if to learn
whether they were being followed, that they quickened their pace

when they saw him, and that the sought to lock him out of the
car and to drive away. Finding that the respondents spoke no
English, and still merely desiring to talk to them, not to arrest
them, it was reasonable for him to pursue his investigation by
getting the help of his partner, seeking the services of interpreters he believed were nearby, and taking steps to assure the presence of the respondents for questioning—a questioning he obviously believed would take place within a relatively short time.
Taylor acted reasonably in seeking to question respondents (see
e.g., MeLester v. United States, 306 F.2d 880 (10 Cir. 1962), cert
denied, 379 U.S. 1001 (1965).
It is important to note that Taylor sought to question the respondents, not to arrest them. There is an important distinction
between the two actions. It is well settled that a law enforcement
official may, in the performance of his duty, temporarily detain
and question an individual without placing him under arrest.
Rios v. United States, 364 U.S. 253 (1960) ; Shorey v. Warden,
401 F.2d 474 (4 Cir. 1968) ; Allen v. United States, 390 F.2d
476 (D.C. Cir. 1968); Arnold v. United States, 382 F.2d 4 (9
Cir. 1967); Gilbert v. United States, 366 F.2d 923 (9 Cir. 1966)
cert. denied 388 U.S. 922 (1967) ; Wilson v. Porter, 361 F.2d 412
(9 Cir. 1966) ; United States v. Vita, 294 F.2d 524, 529-530 (2
Cir. 1961); United States v. Montez -Hernandez, 291 F. Supp. 712
(E.D. Calif. 1968) ; Matter of Chen, 12 I. & N. Dec. 603. In seek-

ing to question the respondents, there is no evidence that the
Service officials threatened, harassed, abused them, or that the officials intended to arrest them up to the time they took them into

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Interim Decision *1941
custody. The stationing of the security officer did not constitute
an arrest because it was done, not with the intent of arresting
the respondents, but merely to make it possible to interrogate

them. We conclude, that in seeking to question respondents, the
Service officers did not arrest them.
In order for an arrest to exist, it must appear that the arresting officer made known to the arrested person that he is under arrest. Jenkins v. United States, 161 F.2d 99 (10 Cir. 1947). In this
context, the posting of the security officer did not constitute an
arrest, because there is no evidence in this record that the respondents were aware that the security officer was standing
guard over them, or that he had been instructed to stand guard
over them, or that they considered themselves under arrest as a
result of this incident. On this record, it is concluded that the arrest occurred after the Service officers learned that the respondents were illegally in the United States and took them into

custody.
The decision to arrest the respondents without a warrant was
proper since the Service investigators, being aware that the respondents were illegally in the United States and that they had
fled to avoid interrogation, could reasonably conclude that it was
likely they would escape before warrants could be obtained. Since
the arrest of the respondents was legal, any evidence secured as a
result of the arrest was properly considered and deportability
was properly found by the special inquiry officer. Ah Chiu Pang
v. INS, 36S F.2d 637 (3 Cir. 1966) cert. denied 386 U.S. 1037;
Siring Hang Tsui v. INS, 389 F.2d 994 (7 Cir. 1968) . Further-

more, deportability could be sustained on the evidence from the
Service file establishing alienage, coupled with the presumption in
section 291 of the Act (8 U.S.C. 1361).
Finally, although this is not a deciding factor, we must point
out that Immigration officials have broad power within a reasonable distance from any external boundary of the United States and
that Taylor was acting in such an area. See also United States v.
Glaziou, 402 F.2d 8 (2 Cir. 1968). But see United States v. Montez-Hernandez, supra, at 715 n. 6.
We believe the special inquiry officer properly disposed of counsel's contention that the record does not establish that the services of a voluntary interpreter were used. The record clearly
establishes that there is no merit in this contention.
ORDER: It is ordered that the appeals be and the same are
hereby dismissed.
147


Interim Decision #2803

MATTER OF TINAJERO

In Deportation Proceedings
A-34262790
Decided by Board July 8, 1980
(1) Under Section 1203.4 of the California Penal Code an individual is eligible for
expungement of his conviction in those cases where the sentence was suspended,
probation was granted, and the conditions of probation have been fulfilled.
(2) In the case of an alien convicted in California of a crime involving moral turpitude,
who has received a suspended sentence with probation and is'eligible for expungement
under Section 1203.4 of the California Penal. Code, it is the policy of the Immigration
and Naturalization Service to defer the institution of deportation proceedings until
the respondent has had a reasonable opportunity to apply for an expungement. Board
remanded record to District Director so thatproceedings may be held in abeyance for
that purpose.
CHARGE
Order: Act of 1952—Sec. 241(a)(4), I&N Act [8 U.S.C. 1251(a)(4)j—Convicted and
sentenced to confinement for a year or more
ON BEHALF OF RESPONDENT: Jose Angel Rodriguez, Esquire
304 South Broadway, Suite 532
Los Angeles, California 90013

Br. Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This is an appeal from an immigration judge's decision dated May 4,
1978, in which the respondent was found deportable under section
241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(4)
and was denied voluntary departure. The respondent has appealed.
The record will be remanded to the Service.
The respondent is a 25-year-old single male alien, a native and
citizen of Mexico. On February 15, 1977, he was convicted in the
Superior Court of California for the offense of burglary in violation of
Section 259 of the California Penal Code and sentenced on March 10,
1977, to one year in the county jail. Execution of the sentence was
suspended and the respondent was granted probation for a period of
five years.
Based on the above, the immigration judge found the respondent
424

Interim Decision #2803
deportable under section 241(a)(4) of the Act. He further found that
the crime of burglary is a crime involving moral turpitude and therefore the respondent is statutorily ineligible for the privilege of voluntary departure.
We agree with the finding of the immigration judge that the respondent is deportable under section 241(a)(4) for having pled guilty to
the crime of burglary. We further agree that the crime of burglary is
one involving moral turpitude. However, in a memorandum dated
February 14, 1980, the Deputy General Counsel of the Immigration and
Naturalization Service advised this Board that the Service "has a
policy of deferring the institution of deportation proceedings of an
alien convicted of a crime involving moral turpitude in those cases
where the sentence was suspended and probation was granted which
made the alien eligible for expungement under section 1203.4 of the
California Penal Code."' It is the policy to defer proceedings until the
individual has had "a reasonable opportunity to obtain an expungement of his conviction." It was noted in the memorandum that the
Service Operations Instructions were being amended to reflect that
policy. The Deputy General Counsel asked that the record be remanded
"to the Service so that it [could] be held in abeyance pending the
outcome of the respondent's application for an expungement."

The respondent in this case did have his sentence suspended and
probation was granted. Therefore, in view of the policy statement by
the Service which applies to the circumstances of this case we will
remand the record to the District Director so that the proceedings may
be held in abeyance until the respondent has had a reasonable opportunity to apply for expungement of his conviction under section 1203.4 of
the California Penal Code.
ORDER The record is remanded to the District Director for
further proceedings consistent with the foregoing order.

' The Service policy apparently resulted from a January 17, 1961, memorandum from
the Attorney General to the Commissioner of Immigration and Naturalization. The
memorandum provided in part that "..., in the cases of alien probationers who may avail
themselves of the benefits of section 1203.4 after fulfilling the conditions of probation or
after an earlier discharge from probation, the Service should not institute proceedings
under section 241(a)(4) during the period that their probation is in effect or during the
pendency of proceedings under section 1203.4." Cf. Matter of G. , 9 I&N Dec.159 (BIA
A.G. 1961).
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AOM