Interim Decision #2736

MATTER OF "BEECHCRAFT B-95, #N21JC"

In Fine Proceedings
LOS-10/2.1019
Decided by Board October 18, 1979
(1) Where official records of the Service revealed that no clearance was granted to the
pilot's aircraft; the telephone number allegedly called by the pilot was the listing for a
Port of Entry not responsible for clearing aircraft at the pilot's landing site; and the
inspection bill received by the pilot was for time expended by an inspection officer
waiting for the aircraft, rather than for any actual inspection, the pilot failed to be
inspected in accordance with section 239 of the Act and liability to administrative fine
was incurred.
(2) Despite liability under section 239 of the Act, proceedings to collect fine cancelled in
light of the Immigration and Naturalization Service's failure to grant the pilot's
request for personal interview, as grant of requested interview is mandatory under 8
C.F.R. 280.12.
BASIS FOR FixE: Section 239 I&N Act (8 U.S.C. 1229)
In re: "BEECHC.RAFT B-95, #N21JC", which arrived at Lindbergh Field, San Diego,
California, from foreign, on July 9, 1975. Person involved: EDWARD IGLESIAS,
Pilot
ON BEHALF OP CARRIER: Pro se

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

In a decision dated September 28, 1976 a District Director denied the
pilot's request for cancellation of the $500 fine imposed upon him on
May 10, 1976 for a violation of section 239 of the Immigration and
Nationality Act, 8 U.S.C. 1229.. The pilot appealed to this Board and on
April 7, 1977, we remanded the record to the District Director for
consideration of the pilot's statement on appeal that he was inspected
in accordance with section 239 of the Act. In a memorandum dated
September 20, 1977, the District Director stated that he made no
change in his original decision. On August 14, 1978 we again remanded
the record to the District Director to enable him to indicate the
reasons for his decision. In a decision dated May 7, 1979 a new District
Director again denied the pilot's request for cancellation of the fine
and certified the case to us for review. We reverse.
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Interim Decision #2736
Section 239 of the Act authorizes the Attorney General to provide,
by regulation, reasonable requirements for aircraft in civil air navigation with respect to giving notice of intention to land in advance of
landing, or notice of landing. Any person who violates any regulation
made under that section is subject to a civil penalty of $500 which may
be remitted or mitigated through proceedings prescribed by the Attorney General.
8 C.F.R. 239.2(b) requires advance notice of arrival for aircraft to be
inspected "to enable the officers designated to inspect the aircraft to
reach the airport of entry ... prior to the arrival of the aircraft." 8
C.F.R. 239.2(c) provides that passengers or crewmen required to be
inspected shall not be permitted to depart without permission from an
immigration officer.
The record indicates that on July 9, 1975, the United States citizen
pilot entered the United States by air from Mexico, arriving at
Lindbergh Field, San Diego, California. The Service alleged that the
pilot, when giving advance notice of his arrival, indicated that he
would arrive at Lindbergh Field at approximately 6:20 p.m. A Service

inspector arrived at the field at approximately 5:40 p.m., and was
informed by the F.A.A. Radio Office that the pilot's aircraft had landed
at 5:20 p.m. and had departed at 5:45 p.m. without remaining for
inspection.
The Report of Investigation included in the record indicates that in a
Service interview conducted in the office of the pilot's attorney on
January 8, 1976, the pilot stated that he had been inspected, but could
not remember the name of the inspector, the time of day the inspection
occurred, or whether he had filled out any forms. However, in his
appeal statement dated October 7, 1976, the pilot claimed that after
landing at Lindbergh Field, he immediately proceeded to the area set
aside for inspection and that despite his advance notice of arrival, no
inspection officer was there to meet him. Therefore, as had been his
practice in the past when arriving after 5 p.m., he called a telephone
number posted on the window of the inspector's office and a person who
identified himself as the Duty Officer then cleared him to leave. The
pilot claimed that before clearing him, the Duty Officer asked him for

his aircraft number and type, his pilot's number, his home address and
whether he had purchased. anything in Mexico or had any passengers
on board.
We agree with the District Director's finding that the pilot's previous statements regarding his, inspection diminish the credibility of his
contentions on appeal. Despite his many correspondences with the
Service in connection with this case, on appeal, the pilot for the first
time explained in detail that he had actually obtained telephonic
clearance. In light of his prior statements, we are unable to accept the
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Interim Decision #2736
pilot's current rendition of what occurred on the day in question. A
review of the official records maintained by the Service revealed that
no clearance was granted to the pilot's aircraft on July 9, 1975. In
addition, a Service investigation revealed that the telephone number
called by the pilot was the listing for the Service Port of Entry at San
Ysidro, California and that San Ysidro was not responsibile for clearing aircraft at Lindbergh Field.
In support of his claimed inspection, the pilot submitted a bill in the

amount of $17.36 for "services performed in connection with the inspection of persons arriving by private U.S. aircraft at San Diego,
California". He further related that the District Director of Customs

closed this case without penalty after conducting a thorough investigation of the matter. Upon inquiry, the District Director of Customs
stated that the case was terminated on the belief that the bill
presented by the pilot was evidence that an inspection actually occurred. However, according to the inspection officer who was sent to
meet the pilot's aircraft, the bill was sent for the time expended by him
waiting for the aircraft, rather than for any actual inspection. We take

administrative notice that under the applicable Service rule on immigration inspection extra compensation, section 10 of Part 2818,
Administrative Manual (p. 2818.09), extra compensation is due where
immigration officers report for inspection duty and through no fault of
the Service, an actual inspection is not performed. Based on the foregoing, we are not convinced that the bill submitted by the pilot establishes that he was actually inspected. We conclude that the pilot failed
to be inspected in accordance with section 239 of the Act and that as an
experienced pilot who has made over 100 crossings over the United
States Mexican border, he should have known that such an inspection
-

was required.
Despite the pilot's failure to be inspected, we find that the Service
failed to comply with 8 C.F_R_ 280.12, which provides, in pertinent part,

that:
"within 30 days following the service of the Notice of Intention of Fine ... any person
upon whom a notice under this part has been served may file with the District Director
a written defense ... stating whether a personal interview is desired ... If a personal
interview is requested, the evidence in opposition to the imposition of the fine and in
support of the request for mitigation or remission may be presented at such interview.
An interview shall be conducted if requested by the party as provided hereinabove ... " (Emphasis supplied).

The record indicates that in a letter dated March 17, 1976 the pilot
requested a personal interview pursuant to the above regulation and
asked that the Service officer investigating the case be present at the

interview. The Service apparently did not receive that letter and
another request was made on May 24, 1976. Despite these requests, no
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Interim Decision #2736
interview was conducted. In view of the mandatory language of the
regulation, the pilot should have been afforded an opportunity to
appear personally to present and develop whatever evidence he may
have had to support his remission claim. Based on the Service's noncompliance with the regulation, we conclude that the fine should be
cancelled.
We emphasize that the fine would have properly been imposed had
the procedure specified in the regulation been followed As we have
pointed out, however, certain requirements of the regulations were not
observed. Were we to approve the imposition of the fine here, the
regulations would be rendered meaningless. While we cannot condone
the pilot's disregard of the law, we believe that under the circumstances, it is in the public interest to terminate the five-year-old
struggle over $500 rather than to prolong it by a remand.
ORDERS The decision of the District Director is reversed.
FURTHER ORDER: Imposition of the fine is disapproved and the
proceeding is cancelled.
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150


Interim Decision #1741

MATTER or ZAPLETALOvA

In Visa Petition Proceedings
A-14847794
Deoided by Board fume 13, 1967
Sines ceder the law of Czechoslovakia in 1920 adoption was effected by a court
decree, the mere bringing into the household in 1920 of a eldid and we rearing
of him does not constitute an adoption for immigration purposes.

On Brisenr OF SNRVICE : B. A. Vielhaber
Appellate Trial Attorney
(Oral argument)

'The case comes forward on oppeal from the order of the District
Director, New York District, dated February 14, 1967 denying the
visa petition because the petitioner is not considered to be a brother
of the beneficiary within the meaning of section 203(a) (5) and section 101(b) (1) (E) for the reason that no evidence has been submitted
to establish that the petitioner was legally adopted by the parents of
the beneficiary.
The petitioner, a native and citizen of Czechoslovakia, born Janvary 28, 1920, became a naturalized citizen of the United States on
March 2, 1958. He seeks preference quota status on behalf of the beneficiary as his sister by virtue of the fact that he was the adopted son
of the parents of the beneficiary. The beneficiary is a native and citizen of Czechoslovakia, born December 14, 1916.
At oral argument the petitioner indicated that he was not aware
that his adoptive mother was not his true mother or that the beneficiary was not his true sister until he was seven years old. He does
not know whether there were any court adoption proceedings.
The petitioner has submitted a document from the Local National
Committee, Department for Internal Affairs, at Nitre, Czechoslovakia
which confirms at the request of the beneficiary that Desider (David)
Weisz, the petitioner, was adopted in 1920 shortly after the death of
his mother, Hermine, who died May 19, 1920, by his aunt, Fany
Weisz, and uncle, Ignac Weisz, the parents of the beneficiary. They
brought him up during his childhood with their own five children,

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Interim Decision #1741
of whom only the beneficiary is living. The document further sets
forth that the mother of the petitioner and the mother of the beneficiary were really sisters and the father of the petitioner and the
father of the beneficiary were really brothers. This document is confirmed by the local Jewish community and confirmed by the chief
of the Jewish community at Nitra. This document was executed under
oath on February 20, 1967.

A second document is an attestation under the seal of the Jewish
religious community at Nitre, that the .petitioner was adopted in. the
year of 1920 by his aunt and uncle, Fany and Unto Weisz, raised
them together with their five children of which only the beneficiary
is living. As a result of the wartime circumstances and deportation of
the whole Weisz family to concentration camps, the confirmation of

adoption was lost. The document also recites that the mother of the
petitioner and of the beneficiary were sisters and their fathers were
brothers. The attestation is given at the request of the beneficiary.
There is also a third document entitled Declaration of Honour
executed by the beneficiary and her husband before the National Committee at Nitra, Department for Internal Affairs dated August 12,
1966 declaring that the petitioner was adopted and brought up by
the beneficiary's parents, that the fathers and mothers of the petitioner and the beneficiary were brothers and sisters, respectively.
The burden of proving the relationship upon which benefits are
sought under the immigration laws rests upon the petitioner. The
petitioner has submitted his own Czechoslovakian birth certificate
which contains no notation of adoption, the beneficiary's birth certificate as well as the beneficiary's marriage certificate. Apparently, these
documents relating to vital statistics are available.
Under the law of Czechoslovakia, which was in force prior to May
16, 1928 anyone who was capable of legal adoption, could adopt any
person, provided the person adopted was 16 years his junior. The consent of the guardian of the child, the consent of the natural parents,
and the consent of the minor, provided he Was older than 14 years, was
required. Decrees of the Htragarion. Minister of Justice, 16, 889 of
1890. The consent of the Guardian Office was regulated by Articles 20
and 113 of Law No. 20 of 1877, Guardianship Laws. Adoption was a
local court proceeding:
The only eVidene,e submitted by the petitioner to establish an adoption discloses that the petitioner was raised by his aunt and uncle, the
beneficiary's parents, after the death of his mother. It is also alleged
that he was adopted but there has been no legal evidence presented of
'This information was supplied by the Library of Congress, European Law

Division, Dr. Ruhmtnn.

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Interim Decision *1741

the adoption. It has not been shown that official records relating to
the alleged adoption are unavailable inasmuch as other documents relating to vital statistics were readily obtainable. Insofar as official
records show, there does not appear to have been any legal adoption
under the laws of Czechoslovakia. The visa petition will be denied
without prejudice to reopening .in the event that official evidence establishes that adoption records were destroyed or unobtainable. If such
evidence is produced, a motion to reopen together with additional evidence of adoption will be entertained.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

260


Interim Decision *1446

MILITER OF LILO

In Deportation Proceedings
A-11828875

Decided by Board March 96,1965
(1) Respondent, a 39-year-old unmarried native of China, with advanced
training as a pilot, with skill as a contact lens technician, with the education, including a college degree, acquired during residence In the United
States since his entry in 1954, and with no relatives here who would be
adversely affected by his departure, has not established that his deportation
to Formosa would, within the meaning of section 244(a) (1), Immigration
and Nationality Act, as amended, result in "extreme hardship" because he
refused to return to that country after completing the program of- military
training for which he entered the United States and expressed political
views which are not looked upon with favor by the Nationalist Government
of China on Formosa.
(2) In adjudicating an application for withholding of deportation pursuant
to section 243(h) of the Act, a special inquiry officer may consider factors
other than those directly related to the alien's claim of physical persecution
and may deny such application as a matter of administrative discretion
without 'first making a formal finding of the alien's statutory eligibility
therefor.
(3) The possibility that respondent, if deported to Formosa, may be prosecuted by a military court martial for offenses committed while a member
of the military forces of that country does not constitute "physical proseLion" within the contemplation of section 243(h) of the Act. • [Wang v.
Mier; 285 F.2d 517 (C.A. 7, 1960)]
Omura:
U.S.C. 1261(a) (9)]—NotOmmiOrder: Act of 1952—Section 241(0(9)
grant, failed to maintain nonimmigrant stable, or
to comply with the conditions thereof.

The respondent, a native of the Mainland of China, a citizen of the
Aepublio of China on Formosa -appeals from an order entered by the

special inquiry officer on October 30, 1964 directing his deportation to
the Republic of China on Formosa on the charge that after entry as
a nonimmigrant alien he has failed to maintain his nonimmigrant
status or to comply with the conditions thereof. Applications for
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Interim Decision #1446
relief under sections 244(a) (1) and 243(h) of the Immigration and
Nationality Act were denied. Exceptions have been taken to the
denial of discretionary relief which would permit the respondent's
continued residence in the United States.
The respondent, 39 years of age, =married, last entered the
United States through the port of Agana, Guam, on October 11,
1954. He was admitted as a non-immigrant government employee
of a foreign goverment, to wit, a captain in the Chinese Nationalist
Air Force coming to the United States for advanced military training (section 101(a) (15), Immigration and Nationality Act; 8
U.S.C. 1101(6)(15)). The respondent testified that he resigned his
commission in the Chinese Air Force on February 14, 1955, shortly
before the scheduled return of his military unit to Formosa. He
has remained in the United States without authority. The respondent concedes deportability. He alleges that he is politicilly opposed
to the organization and methods of the Nationalist government in
China. He also alleges that lie would be physically persecuted if
returned to Formosa.
The- respondent's application for withholding deportation under
section 243(h) of the Immigration and Nationality Act was denied
in an order entered by the Acting Regional Commissioner for the
Southwest Region on August 4, 1959. The respondent sought review
of the Acting Regional Commissioner's denial in the United States
District Court for the District of Columbia. The District Court
granted the government's motion for summary judgment and the
respondent appealed to the Court of Appeals for the District of
Columbia. The Court of Appeals on September 10, 1962, following the amendment of S CFlt 242 and 248, remanded the case to
the District Court with instructions to vacate its judgment. and remand the proceedings to the Immigration Service fora reopening to
afford the respondent an opportunity to seek relief under section
243(h) according to the procedure established by the amended regulations. This Board on motion of the District Director at San
Francisco ordered the hearing reopened to afford the respondent an
opportunity to seek relief under section 243(h) pursuant to the
procedure established by the amended regulations and for consideration of such other applications for discretionary relief that
-

way- be Bled. Our order of December 19, 1982 also provided that

:the outstanding order of deportation be withdrawn if discretionary
relief other than under section 213(h) be granted.
The respondent was granted hearing de novo on February 20,
1963, January 22, 1964, and May 18, 1964. During the course of the
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Interim Decision #1446
hearings the respondent applied for suspension of deportation, under
section 244(a) (1) of the Immigration and Nationality Act as amend- .
ed by the Act of October 24,,1962, and in the event that his deportation"be not suspended, he applied for a temporary withhold/4
of deportation under section 243(h) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (1) and 1253 (h)).
The respondent seeks a suspension of his deportation on the
ground that his expulsion from the United States will cause him
extreme hardship. He testified that if he is forced to leave the
'United States he would be unable to adjust to a new environment
and would be unable to obtain employment as a contact lens technician, a position for which he has been trained. The respondent
also testified that his criticism of the Chiang Kai Shek regime on
Formosa has been reported by his superior officer to the foreign
office and that there is no question but that he would be sentenced
to death if returned to Formosa. His fear of physical persecution
because of his criticism of the Chiang Kai Shek regime and his resignation from the Chinese Air Force is the basis for his application
for withholding deportation under section 243 (h) of the Immigration and Nationality Act.
The special inquiry officer in the exercise of his discretion denied
the respondent's applications for suspension of deportation and for
withholding deportation. The special inquiry officer reasoned that
it would. not only be incongruous but would be an abuse of the discretion delegated to him by the Attorney General to permit the
respondent's continued residence in the United States in view of the
demand by the Nationalist Chinese Government that he be returned
to Formosa. The special inquiry officer

is

of the opinion that since

the respondent entered the United States as a - member of the Armed
Forces of one of our allies, pursuait to a mutual defense effort,
solely to receive training for the purpose' of strengthening that ally
and the defenses of the United States he should not be granted relief which would defeat that purpose.
Counsel for the respondent .maintains that the special inquiry
officer committed error in predicating his denial of relief on the
conclusion that the respondent does not merit' discretionary relief
because he deserted the Chinese Air Force. He argues that regardless of whether the respondent "resigned" or "deserted" the important
factor bearing upon the proper exercise of discretion, is that the
respondent's actions were justified in the light of his criticism of the
present regime governing Nationalist China. Counsel maintains
that the respondent is faced with the probability of death. if. re115

Interim Decision #1446
turned to Formosa. Counsel argues that the proper exercise of discretion vested in the special inquhy.offieer under section 244 of the
Immigration and Nationality Act 'calls for •an assessment of the
alien's worth rather than a matter of foreign relations between the
United States and Nationalist China.
There was no finding by the special inquiry officer as to whether
the respondent is statutorily eligible for relief under section 244
(&) (1) of the Immigration and Nationality Act (8 U.S.C. 1251'
(a) (1)). The respondent is deportable under a provision of section 241(a) other than one mentioned in paragraph 2 of subsection
244(a). He has been physically present in the United States for a
continuous period since October of 1954. 'We do not believe that his
refusal to return to Formosa under the circumstances which prevail
here can be said to reflect upon his moral character.

The question presented insofar as statutory eligibility for suspension of deportation is concerned is whether the respondent can
support a claim of "extreme hardship" by relying upon factori
which are concerned with his conduct as an officer in the Chinese
Air Force and the fact that he expressed political views which are
not looked upon with favor by the Nationalist Government of China.
We are of the opinion that the political aspect of this case has no relation to a determination of "extreme hardship" •under section
244 (a) (1).
The respondent has a degree from the City College of San Fran
cisco. He now attends the 'evening division of the University of

San Francisco. He is gainfully employed as a contact lens technician_ He testified that if he were deported to an area other than
Formosa he would have language difficulties which would in all
probability limit his opportunity for gainful employment. He also
testified that he would be forced to abandon attending school in
the evening. He has no relatives in the United States. A brother •
resides on Formosa. The respondent concedes that there would be a
need in almost every country for one in his profession of preparing
contact lenses (pp. 11-14).
The personal privation contemplated in a situation characterized
by "extreme hardship" within the meaning of the statute is not a
definable term of fined and inflexible content or meaning. It neces-

sarily depends upon the facts and circumstances peculiar to each
case. We are concerned with. an alien who was permitted to enter
the United States in 1954 for military training as a member of the
Armed Forces of a Nation allied with the United States. His ad-

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Interim Decision 4P 1446 .
mission for this purpose contemplated hill departure from the
*United States upon the completion of the training program.
It is our opinion that the evidence concerned with respondent's
economic 'well being does not support a. claim that his return toFormosa would result in extreme hardship to him within the meaning of the statute. The- respondent with his advanced training as
a pilot; with his skill as a contact lens technician and with this)
education he has acquired during his 10 years residence, is in a
better competitive position for employment than when . he entered
the 'United States in 1954. The respondent has no relatives in the
'United States who would be adversely affected by his departure.
There are no substantial equities in the respondent's case other
than those arising from- the fact that he refused to return to the
country of his nationality after completing the program of military
training for which he entered the United States. This factor alone
is insufficient to support a finding of "extreme hardship", within
the meaning of section 244(a) (1). We find the respondent statutorily ineligible for suspension of deportation_
The respondent, in the alternative, applied for a temporary withholding of his deportation pursuant to the provisions of section
243(h) of the Immigration and Nationality Act. He maintains that
he will be subjected to physical persecution if deported to Formosa -.
The evidence on this issue consists of the respondent's testimony,
magazine articles concerning political conditions in Formosa and
the testimony of Doctor Ku Cheung Wu, a former private secretary
to Generalissimo Chiang Kai Shek and last a Governor of Formosa
from 1949 to 1953. The consensus of the magazine articles and the
testimony of Mr. Wu is that the Nationalist Government on Formosa is a dictatorial police state; that secret police arrest people" on
trumped-up charges and that justice both civil and military is a
farce. It is alleged that the respondent would be treated as a political opponent of Chiang Kai Shek and that he would be persecuted
for his criticism of the Nationalist Government.
The special inquiry officer is of the opinion that the record of this
case and the records created in the cases of Matters of Chong Fu
Meng and Lin Fu Mei,' contained considerable evidence which supports respondent's claim that he would be subjected to physical persecution -if returned to Formosa (Ex. 6). The special inquiry officer
also stated that the government "offered nothing substantial in re'

lit was stipulated that all evidence on the issue of physical persecution in
the three cases covered by illes A-10491882, A-11828875 and A-8922827-would
be considered by the special inquiry ()Meer in staving at his decision.

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Interim Decision #1446
futation" of the evidence submitted by the respondent (p. 7, special
inquiry officer's opinion). The special inquiry officer denied withholding of deportation as a matter of administrative discretion without a formal finding on. the issue of whether the respondent would
be subjected to "physical persecution."
Counsel for the respondent takes the position that an application
for relief under section 243(h) cannot be denied as a matter of administrative discretion without a formal finding of statutory eligibility. He maintains that the applicant (respondent) has satisfied
the burden of establishing that he would. be subjected to physical
persecution if returned to the country to which he has been ordered

deported. It is argued that neither the statute nor the pertinent
regulations suggest that any factor other than those concerned with
physical persecution may be considered in arriving at a decision on
an application under section 243(h).
We find nothing in the statute or the regulations that limits the
special inquiry officer in the exercise of his discretion. Section 23
of the Internal Security Act of 1950,2 the predecessor of section
243(h) required a finding by the Attorney General that the alien
would or would not be subjected to "physical persecution" if such a
claim is made. U.S. ere rel. Ching Ping Zee et o2 v Shaughnessy,
107 F. Supp. 607 (U.S.D.C., S.D.N.Y., 1952). According to a de
cision by the United States District Court for the Northern District
of California, the withholding of deportation under section 23
(supra) was mandatory after a finding that the alien "would be
subjected to physical persecution" Sang Byv.p Park v. Barber, 107 F.
Supp. 605 (August 19, 1952).

• Congress, in enacting section 243(h) of the Immigration and
Nationality Act, drastically changed the language of section 28 of
the Internal Security Act of 1950. Section 243(h) reads: •
The Attorney General is authorized to withhold deportation of any alien
within the United States to any country in which in Ma opinion the alien
would be subject to physical persecution and for such period of time as he
deems to be necessary for such reason. (Emphasis supplied.)

The permissive word "authorized" has a far different meaning
than the mandatory word "shall" used in section 28 (supra, footnote

2). The Attorney General under section 243(h) "is authorized to
"Section 23, Internal Security Act of 1950, reads as follows:
"No alien shall be deported under any provisions of this Act to any
country in which the Attorney General shall End that such alien would
be subjected to physical persecution."

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Interim Decision #1446
withhold deportation of any alien within the United States (when)

in his opinion the alien would be subjected to physical persecution"
(Emphasis supplied.). This permissive language means that the
Attorney 'General or his delegate may consider factors other than
those directly related to an alien's claim of physical persecution In
forming his opinion as to whether discretion would be. exercised
either in favor of, or contrary to, the-alien's request for relief. The
Attorney General is not required, as was the case under section 23 . of
the Internal Security Act (supra), to make a formal finding with
regard to whether the alien will or will not be phyically persecuted.
We find no error on the part of the special inquiry officer in reach/TIE,

a conclusion in this , case that a withholai a of the - respondent's
deportation is not warranted without first making a formal findi
as to the respondent's statutory eligibility for such relief (Cf. Silvia

v. Carter, 326 F.2d 315 (C.A. 9, 1963), cert. den. 377 U.S. 917).
We do not believe, after a careful review of this record, that the
respondent will be subjected to "physical persecution" within the
meaning of section. 243 (h) if he returns to Formosa,. There is a possibility that he may be prosecuted by a military court martial. It
is alleged'that if convicted he will be subject to punishment under
article 93 of the Armed Forces Criminal Code for a maximum sentence of not more than three years. It is also alleged that in a similar case a Chinese Army Captain who refused to return with his
military unit after completing his training in the United States was
deported to Formosa, found guilty by a court martial and sentenced
to imprisonment for a term of only six months (see Ex. 17 and 18).
A procecution before a:military tribunal convened pursuant to the
laws of a foreign state to try offenses committed by a member of the
military forces of that country, cannot be construed to be physical
persecution within the meaning of section 243 (h) of the Immigration
and Nationality Act. Chao-Ling Wang v. Pilliod, 285 F.2d 517,
520 (C.A. 7, 1960).
Under section 243 (h) it is not a question of whether substantial
evidence supports the exercise of the discretion granted the Attorney
General or his delegate. The Attorney General of his delegate has
wide latitude and the primary consideration is whether the alien
has had a fair opportunity to present his case; whether the Attorney
General or his delegate has exercised his discretion and -Whether
there has been an error of law in the proceeding. We find no error
as a matter of law that the special inquiry officer's decision rests to
some degree on a political consideration, nameI., „the foreign policy
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Interim Decision #1446
of the United. States. The special inquiry officer exercised his discretion after affording the respondent a fair opportunity to present
his case. Cf, U.S. ex rel. Dolens v. Shaughnessy, 206 F.2d 392, 394,

395 (CA. 2, 1953.) The appeal will be dismissed.
ORDER: It is .directed that the appeal be and the same is hereby
dismissed.

120


Cite as 26 I&N Dec. 658 (BIA 2015)

Interim Decision #3848

Matter of R-K-K-, Respondent
Decided September 8, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Significant similarities between statements submitted by applicants in different
proceedings can be considered by an Immigration Judge in making an adverse
credibility determination if certain procedural steps are undertaken to preserve the
fairness of the proceedings.
(2) When relying on inter-proceeding similarities, the Immigration Judge should give the
applicant meaningful notice of the similarities and a reasonable opportunity to explain
them prior to making a credibility determination that is based on the totality of the
circumstances.
FOR RESPONDENT: Inna Lipkin, Esquire, Redwood City, California
BEFORE: Board Panel: PAULEY and WENDTLAND, Board Members; O’HERRON,
Temporary Board Member.
PAULEY, Board Member:

In a decision dated February 11, 2013, an Immigration Judge denied the
respondent’s applications for asylum and withholding of removal and his
request for protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and
opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR
Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force
June 26, 1987; for the United States Apr. 18, 1988). The respondent has
appealed from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of India. On May 11, 2011,
within 1 year of entering the United States, he filed an application for
asylum with the Department of Homeland Security (“DHS”). On July 1,
2011, the DHS initiated removal proceedings against the respondent,
charging him with removability as an alien who is present in the United
States without being admitted or paroled. The respondent has conceded
that he is removable as charged.
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The Immigration Judge denied the respondent’s applications for relief
based on an adverse credibility determination. In this regard, the
Immigration Judge noted that the form, substance, and tone of the
respondent’s asylum application and an associated declaration were
substantially similar, and in some regards identical, to an asylum
application previously filed by the respondent’s brother in a different
proceeding. After giving the respondent an opportunity to respond, the
Immigration Judge found that his explanations for the similarities were
insufficient to show that he had not copied significant parts of his brother’s
claim. The Immigration Judge further held that the respondent’s additional
corroborating evidence was inadequate to establish his claim.1

II. ISSUE
The primary issue in this case is whether, in making an adverse
credibility determination, an Immigration Judge can consider significant
similarities between statements submitted by applicants in different
proceedings. We conclude that such consideration is permissible and
outline the procedural framework under which an Immigration Judge
should address such inter-proceeding similarities.

III. ANALYSIS
The respondent’s applications are governed by the amendments brought
about by the passage of the REAL ID Act of 2005, Division B of Pub. L.
No. 109-13, 119 Stat. 302. Pursuant to these provisions, he bears the
burden to prove that he is eligible for any relief sought and, where
applicable, that it should be granted in the exercise of discretion. Section
240(c)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4)
(2012); 8 C.F.R. § 1240.8(d) (2015).
In adjudicating such applications, a trier of fact should take a
commonsense approach to determining credibility, considering the totality
of the circumstances, including the applicant’s demeanor and any
inconsistencies in testimony or instances of implausibility. See section
208(b)(1)(B)(iii) of the Act, 8 U.S.C. § 1158(b)(1)(B)(iii) (2012); see also
Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005) (recognizing that an
Immigration Judge “must be allowed to exercise common sense in rejecting
a petitioner’s testimony”); Matter of J-Y-C-, 24 I&N Dec. 260, 262 (BIA
We review the Immigration Judge’s findings of fact, including those relating to
credibility, to determine if they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i) (2015).
We review de novo all questions of law, discretion, and judgment. 8 C.F.R.
§ 1003.1(d)(3)(ii).
1

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2007). Section 208(b)(1)(B)(ii) of the Act provides that although the
“testimony of the applicant may be sufficient to sustain the applicant’s
burden [of proof] without corroboration,” the applicant must demonstrate
that his testimony “is credible, is persuasive, and refers to specific facts
sufficient to demonstrate that the applicant is a refugee.”
A. Framework for Adjudicating Cases With
Inter-Proceeding Similarities
Neither the Board nor the United States Court of Appeals for the Ninth
Circuit, in whose jurisdiction this case arises, has issued a precedent
decision addressing the situation presented here. However, the Second
Circuit considered this issue in Mei Chai Ye v. U.S. Department of Justice,
489 F.3d 517 (2d Cir. 2007), and has approved of the reliance on
inter-proceeding similarities in credibility determinations.
In this case, the Immigration Judge relied on the Second Circuit’s
approach in making his adverse credibility finding based on substantial
similarities between the respondent’s asylum application and that of his
brother. We find that this approach provides a useful framework for
adjudicating cases with inter-proceeding similarities.2
Mei Chai Ye involved an asylum claim related to China’s family
planning policies. After the alien testified, the Immigration Judge noted
that the testimony “strikingly resembled” that of an alien in a different case.
Id. at 520. The DHS produced a redacted version of the application from
that other case. After reviewing the documents, the Immigration Judge
concluded that they were so “similar in language and grammatical
structure” that the number of similarities between them was too great to be
the result of an accident. Id. at 522. The Immigration Judge provided
continuances for the alien to address this issue but ultimately rejected her
explanations and entered an adverse credibility determination.
In denying the alien’s petition for review, the Second Circuit approved
of the procedural safeguards that were meticulously followed by the
Immigration Judge to avoid making a mistaken finding of falsity. Id. at
524–25. However, the court stated that it did “not purport to promulgate
and impose a specific set of procedural safeguards which [Immigration
Judges] must follow in all respects and in all cases.” Id. at 526.
We are not aware of any circuit court that had rejected the Second Circuit’s approach.
See Nadeem v. Holder, 599 F.3d 869, 873 (8th Cir. 2010) (citing Mei Chai Ye in a case
where an alien submitted letters that contained “similar language, grammar, and spelling
errors”); see also Dehonzai v. Holder, 650 F.3d 1, 13−15 (1st Cir. 2011) (Thompson, J.,
dissenting) (stating that Mei Chai Ye is “helpful” and noting its emphasis on the “specific
procedural protections” that should be followed).
2

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As the Second Circuit noted, cases such as these present a difficult
issue. Id. at 519. On the one hand, some inter-proceeding similarities are
so significant that, when left unexplained, they cannot be ignored. See id.
at 524. On the other hand, innocent similarities may be mistakenly
interpreted as evidence of falsity. We therefore conclude that Immigration
Judges may rely on inter-proceeding similarities as part of an adverse
credibility determination, but we must also review such determinations with
“an especially cautious eye.” See id. at 519–20.
To preserve the fairness of the proceedings, we adopt the following
three-part framework for Immigration Judges to use when relying on
inter-proceeding similarities as part of an adverse credibility determination.
First, the Immigration Judge should give the applicant meaningful notice of
the similarities that are considered to be significant. Second, the
Immigration Judge should give the applicant a reasonable opportunity to
explain the similarities. Finally, the Immigration Judge should consider the
totality of the circumstances in making a credibility determination. Each of
these steps must be done on the record in a manner that will allow the
Board and any reviewing court to ensure that the procedures have been
followed. This framework will permit Immigration Judges to draw
reasonable inferences of falsity from inter-proceeding similarities while
establishing procedural safeguards to protect faultless applicants.
In the first step of our framework, the Immigration Judge should
identify the similarities between the documents or other evidence under
consideration and notify the applicant of the similarities that need to be
explained.3 The Immigration Judge should provide the applicant with
copies of the statements or documents in question and explain how the
similarities appear to undermine the applicant’s credibility. Identifying all
the similarities clearly on the record will make it easier for the Immigration
Judge to ascertain the extent and nature of similarities in the case and will
facilitate any appellate review of the credibility finding.
Identification of a substantial number of instances where the same or
remarkably similar language is used to describe the same kind of incident
or encounter would tend to raise credibility questions that should be further
addressed. This is particularly true where there is additional material in
3

This should be done in a manner consistent with the confidentiality concerns of the
regulation at 8 C.F.R. § 1208.6 (2015). In that regard, 8 C.F.R. § 1208.6(a) provides:
Information contained in or pertaining to any asylum application, records
pertaining to any credible fear determination conducted pursuant to § 1208.30, and
records pertaining to any reasonable fear determination conducted pursuant to
§ 1208.31, shall not be disclosed without the written consent of the applicant,
except as permitted by this section or at the discretion of the Attorney General.

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both statements that “wouldn’t necessarily have to be mentioned but [was]
mentioned.” Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d at 521 (quoting
the Immigration Judge). But the presence of even a relatively few
similarities could raise the same credibility concerns if, in the context of an
overall asylum claim, distinct language was used or unique factual
circumstances were repeated without reasonable explanation. See, e.g.,
Dehonzai v. Holder, 650 F.3d 1, 8 (1st Cir. 2011) (rejecting the applicant’s
explanation that language describing a beating with a bundle of wires
attached to a tennis ball, which was “virtually identical” to his cousin’s
statement, was “mere coincidence”).
The second step of our framework provides the applicant with an
opportunity to explain the similarities. If appropriate, the Immigration
Judge may continue the hearing to allow the applicant to obtain evidence in
support of his or her explanation. We can envision scenarios in which an
applicant will offer a reasonable explanation or credible evidence to dispel
doubts about the authenticity or reliability of the initial evidence. As the
Second Circuit has noted, a reviewing court can more confidently defer to
an Immigration Judge who has considered
(a) whether there is a meaningful likelihood that [the inter-proceeding similarities]
resulted from mere coincidence, (b) whether it is plausible that different asylum
applicants inserted truthful information into a standardized template or, for
illiteracy reasons, conveyed it to a scrivener tied to an unchanging style;
(c) whether the same translator converted valid accounts into a peculiarly similar
story; and (d) whether there is a likelihood that the petitioner was an innocent
“plagiaree.”

Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d at 526–27.
As a final step in the credibility determination, the Immigration Judge
should assess all of the alien’s evidence for reliability to determine whether,
considering the totality of the circumstances, it adequately explains the
inter-proceeding similarities. See Matter of J-Y-C-, 24 I&N Dec. at 262.
B. Respondent’s Claim
The respondent’s asylum claim is based primarily on two alleged
incidents of arrest and abuse at the hands of the police in his home State of
Uttar Pradesh, India. According to the respondent, in both of the incidents,
which occurred in April and May 2010, he was arrested and taken from his
home to a police station, where he was accused of being connected to
Kashmiri militants and aiding Muslim terrorists at his place of business.
The respondent claimed that in the first incident, which occurred at 8 p.m.,
he was forced to undress and was beaten on his buttocks and back with
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sticks and was released when his father paid a 350,000 rupee bribe. During
the second arrest, he was undressed, beaten on his back and buttocks with
batons, and held by his feet and arms while two sets of officers pulled his
legs and arms apart. The respondent stated that during this incident, which
occurred at 9 p.m., he refused to sign a blank sheet of paper. Again, he
alleged that he was released upon payment of a bribe by his father. The
respondent stated that he sought medical attention on both occasions and
was never charged with a crime or fingerprinted.
The DHS raised the issue of similarities between the respondent’s
declaration and the asylum application of his brother, who was granted
asylum in 2009.4 The brother’s claim related to two arrests in 2004 and
2006, during which he was accused of aiding Muslim terrorists. His
application stated that the arrests occurred at the same time in the evening
as the respondent’s and that he was similarly beaten on his back and
buttocks after having his clothes removed. The respondent’s brother was
allegedly arrested the second time with his wife, so his application included
claims that they were both mistreated while in detention. He stated that
during his second arrest, he was allegedly told to sign a blank form, but he
refused. The brother also claimed that his legs were pulled apart by officers
and that his release was secured when his father paid a bribe.
The respondent’s application used similar language to describe events
that were almost identical to those claimed by his brother.5 Both brothers’
declarations included the same spelling and grammatical errors. In
referring to the harm he suffered, the respondent used the pronouns “we”
and “us,” as did his brother, whose claim, however, also related to his wife.
Because of these similarities between the respondent’s asylum declaration
and the statement submitted by his brother, both the DHS and the
Immigration Judge questioned the respondent in this regard. Among other
4

This case comports with the confidentiality requirements in 8 C.F.R. § 1208.6 because
the respondent’s brother waived his confidentiality protections. The brother’s unredacted
declaration was part of the record below, so the parties and the Immigration Judge were
able to fully compare the two documents. The respondent was permitted to use the
separate declaration, including information about the transcriber, in attempting to
demonstrate that the inter-proceeding similarities did not undermine his credibility. We
do not address what procedural protections are sufficient to offer an adequate opportunity
to explain similarities between asylum applications absent a confidentiality waiver.
5
For example, in regard to the first arrest, each brother stated that “the impact of this
incident is still on my mind” and that whenever he remembered it, he would “start
shivering.” Both applications identically alleged that the police “again falsely blame that
I have still connection with the Muslim” militants. Each brother also stated, “I was very
much astonished on their allegation and I told them I am not aware” of the terrorists.
They added, “They did not beleive [sic] me and they told me that they had record of my
last police arrest.”

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things, he was asked to explain why the experiences of the two brothers
were so similar, why identical language was used by each brother to
explain what happened and how those events made them feel, why each
declaration had the same syntax and spelling irregularities, and why the
respondent used plural pronouns in his statement.
The respondent’s explanation was that he and his brother were brought
up in similar ways and experienced mistreatment in a similar place. He
also claimed that the similarities in their applications could be attributable
to the fact that they used the same transcriber, who may have inserted his
own “flair for words and syntax.” The respondent stated that he provided a
verbal account of his experiences in India to the transcriber, who then wrote
his statements out and read them back over the course of two meetings.
The respondent denied ever seeing his brother’s asylum application prior to
submitting his own.
The respondent’s brother testified that he had used the same transcriber
to prepare his asylum application and had introduced the respondent to him.
The brother initially stated that the transcriber used a written version of
events prepared in Hindi by the respondent to complete the respondent’s
application and that this written document was then discarded. At a
subsequent hearing, the brother retracted this testimony, stating that he was
confused and that the transcriber actually prepared the respondent’s
application from a verbal account only. He added that, in any case, he was
not privy to the transcriber’s conversations with the respondent because he
was not sitting close enough to hear what was said at the time.6
The Immigration Judge granted the respondent approximately 3 months
to locate the transcriber and present his testimony or a statement describing
the preparation of the application. However, the respondent did not
produce the transcriber to testify. Even when the respondent appeared at
the continued hearing without the transcriber’s testimony, the Immigration
Judge indicated that he would be willing to reopen the record if the
respondent obtained additional evidence bearing on the preparation of his
application. The respondent did not do so.
In his decision, the Immigration Judge found that the similarities
between the respondent’s claim and that of his brother indicated that they
were not created independently of one another. Citing specific examples,
he observed that both applications shared identical wording, typographical
and spelling errors, and spacing irregularities in describing the same events.
The Immigration Judge found that the respondent’s brother’s testimony regarding his
confusion was not credible. We find no clear error in this determination. We note in
particular that the brother’s claim that he thought the questions referred to the manner in
which he prepared his own statement is belied by the transcript, which includes his clear
testimony that the respondent wrote out a statement in Hindi for the transcriber to use.
6

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In addition, the Immigration Judge noted that the respondent’s statement
used plural pronouns, as did his brother’s declaration, which also related to
his wife.
Having identified the inter-proceeding similarities that he believed
negatively affected the respondent’s credibility, the Immigration Judge
gave the respondent a reasonable opportunity to explain them. In response,
the respondent argued only that it was reasonable for his claim to be similar
to his brother’s since they come from the same location, they were accused
of the same offenses, and they used the same transcriber.
Considering the totality of the circumstances, the Immigration Judge
determined that the respondent lacked credibility. In addition to the
similarities in the applications, the Immigration Judge pointed to the
conflicting accounts of how the respondent’s application was prepared and
his brother’s incredible explanation for the inconsistency. He also noted
the absence of testimony from the transcriber and the lack of any other
persuasive evidence to establish that the respondent’s claim was credible.
We conclude that the Immigration Judge’s adverse credibility
determination is not clearly erroneous. The record fully supports his
finding that the nearly identical wording in the brothers’ accounts raises
substantial concerns about the respondent’s credibility. The Immigration
Judge identified similarities in the declarations that were too numerous and
obvious to be coincidental. Both declarations use the same distinctive
descriptions of the alleged events, using an almost identical narrative. Each
misspells several words in exactly the same way. The brothers both
claimed they were arrested at the same times in the evening, although the
respondent stated that his arrests occurred several years later. The
respondent’s declaration has spacing gaps that suggest that words included
in the brother’s declaration were simply deleted.
Moreover, the Immigration Judge did not clearly err in determining that
the respondent’s explanation did not sufficiently account for the similarities
in the brothers’ declarations. The respondent’s assertion that their nearly
verbatim statements are the result of their common backgrounds and
experiences is not persuasive. Nor is his claim that the similarities were
created by the transcriber. Also, the respondent did not account for the fact
that his declaration contains plural pronouns in a narrative describing a
scenario that he testified happened only to him. Furthermore, the brothers
gave inconsistent explanations of the transcriber’s preparation of the
declarations and their encounters with him.
The Immigration Judge considered the totality of the circumstances in
making his adverse credibility determination. Not only did he detail the
numerous inter-proceeding similarities in the case, he also thoroughly
analyzed the respondent’s explanations for them and outlined his reasons
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for finding them to be unpersuasive. Although the Immigration Judge gave
the respondent an opportunity to provide the transcriber’s testimony, the
respondent did not produce any additional evidence. Under these
circumstances, there is no clear error in the Immigration Judge’s
determination that the respondent did not present a credible claim for relief.
The respondent also did not meet his burden of proof through
independent corroborating evidence. See section 208(b)(1)(B)(ii) of the
Act; Matter of J-Y-C-, 24 I&N Dec. at 263. Without credible testimony, and
in the absence of other reliable evidence sufficient to prove his claims, the
respondent cannot satisfy the burden of proof that is applicable to asylum or
the more stringent burden required for withholding of removal. See Matter
of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
The respondent argues that the Immigration Judge erred in not giving
dispositive weight to his documentary evidence, including a medical
document, letters from his father and brother-in-law, and copies of his
driver’s license and election commission card. However, the Immigration
Judge did not find this evidence insufficient merely because the
respondent’s documents were unauthenticated and submitted by witnesses
who are unavailable for cross-examination. Rather, he determined that the
conclusory and generic nature of the evidence was insufficient to
independently establish that the respondent had a well-founded fear of
persecution.7 The Immigration Judge did not clearly err in finding that
although the respondent’s evidence of country conditions in India reflects
that human rights abuses by the Government or its agents were reported,
particularly in certain areas of conflict, the evidence did not reflect a pattern
or practice of persecution of suspected associates of Kashmiri militants
outside of those areas.
Finally, we affirm the Immigration Judge’s conclusion that the
respondent has not established eligibility for relief under the Convention
Against Torture. The respondent did not establish a credible basis to
believe that he was detained and mistreated as claimed. Moreover, the
other evidence of record was insufficient to show that it is more likely than
not that anyone in India will torture the respondent with the consent or
acquiescence of a government official. See Ridore v. Holder, 696 F.3d 907
(9th Cir. 2012). Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

7

We do not assess whether the above evidence would have sufficiently corroborated the
respondent’s claim if he had been found credible.

666


Interim Decision #2578

MATTER OF DANQUAH
In Deportation Proceedings
A-20719285
A-20719286
Decided by BoarcZ April 19, 1977
(1)Respondents who are husband and wife applied in reopened deportation proceedings
for adjustment of status under section 245 of the Immigration and Nationality Act based
on issuance of a labor certification to the female respondent as an African Specialty
Cook. The application of the husband is dependent on that of his wife. The immigration
judge denied the applications on the ground that the labor certification issued to the
female respondent was no longer valid since she had left the employment specified in the
labor certification.
(2)Female respondent had received two labor- certification° as an African Specialty Cook_
From October 1975 to March 26, 1976, she was employed in the capacity specified in her
labor certification at the second establishment She was forced to cease her employment
March 26, 1976, temporarily for emergency surgery and hospitalization. She attempted
to return to her employment May 5, 1970, but did not do so because her employer was
only operating on a part-time basis, would not pay her the agreed-upon wage, and had
not remodeled the kitchen area as promised.
(3)An application for adjustment of status filed under section 245 of the Act is assimilated
to an application for an immigrant visa made to consular officer abroad. An applicant for
a visa overseas, whose offer of employment on which the labor certification was based
was withdrawn, could no longer base his visa application on that labor certification.
Similarly, an applicant for adjustment of status, who is no longer employed in the
position for which the labor certification was granted, la not eligible for an immigrant
visa based on that labor certification. The immigration judge properly denied respondents' applications.
(4) Metter of Stevens, 12 I. & N. Dec, 494 (BIA 1968) reaffirmed.
CHARGE:
1251(a)(2))—Nonimmigrant visitor—
Order: Act of 1952—.Section 241(a)(2) 18
remained longer (both respondents)
ON BEHALF OF RESPONDENTS: Joseph F. O'Neil, Esquire
116 Lincoln Street
Boston, Massachusetts 02111
BY: MilhoIlan, Chairman; Wilson, Maniatis, and Appleman, Board Members
The respondents,, husband and wife, were found deportable under
section 241(a)(2) of the Immigration and Nationality Act, as temporary

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Interim Decision #2578
visitors who had overstayed the terms allowed in their visas, on June
26, 1975, and were granted the privilege of voluntary departure. On
November 4, 1975, we dismissed an appeal from that decision. On
August 9, 1976, the District Director denied their application for a stay
of deportation. On September 9, 1976, we ordered the reopening of
proceedings to allow consideration of an application by each of the
respondents for adjustment of status under section 245 of the Act, based
upon a labor certification which had been granted to the female respondent. At the reopened hearing on November 15, 1976, the immigration
judge denied adjustment of status to both respondents on the ground
that the female respondent's labor certification was no longer valid, and
the application of the male respondent depended directly upon the
success of the female's application. The respondents now appeal from
the denial of adjustment of status. The appeal will be dismissed.
The respondents are natives and citizens of Ghana. The female respondent was accorded a labor certification by the Department of Labor
in October, 1975 as an African Specialty Cook. On March 3, 1976, she
obtained a second labor certification for another establishment, also as
an African Specialty Cook. The respondent was employed in the capacily specified on her labor certification al.. the second establishment from
December 1975 until March 26, 1976, when she was forced to cease
employment temporarily upon being hospitalized on an emergency basis
for surgery. The respondent. was discharged from hospitalization on

May 5, 1976, and immediately sought to resume her employment. However, she testified at the hearing that upon her return, her employer
was only operating on a part-time basis, would not agree to pay her the
agreed-upon wage, and had not effected various renovations of the
kitchen area as promised. The respondent therefore did not return to
work at the restaurant. She also testified at the hearing that she had
accepted no other employment since the termination of her work at the

restaurant, and that she was willing to resume employment in her
former position if that job were again offered to her.
In Matter of Stevens, 12 I. & N. Dee. 694 (BIA 1968), we held that an
applicant for adjustment of status under section 245 of the Act who was
subject to the labor certification requirements of section 212(a)(14) of
the Act, and who was no longer employed by the employer who had
petitioned for the labor certification, was no longer in possession of a
valid labor certification. The facts in the instant case fall directly within
that holding.
Respondent's counsel, however, cites to the line of cases in which we
have held that an alien who has been accorded lawful permanent resident status on the basis of a labor certification secured abroad in good
faith, and who has for various reasons failed to accept or retain the
designated employment after his arrival in the United States, is not
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Interim Decision #2578
subject to deportation for the lack of a valid labor certification. See
Matter of Cardoso, 13 I. & N. Dec. 228 (BIA 1969); Matter of Marcoux,
12 I. & N. Dec. 827 (BIA 1968); Matter of Klein, 12 I. & N. Dec. 819
(BIA 1968). Counsel argues that we should extend the rationale of these
cases to the present facts, and hold that an applicant for adjustment of
status who, for justifiable reasons, has ceased the employment upon
which her labor certification was based is nonetheless eligible for adjustment of status. For the following reasons, we decline to extend the
rationale of these decisions to the facts of this case.
Counsel would have us assimilate the female respondent in this case
to the alien who has been accorded an immigrant visa overseas based
upon a labor certification, and who has traveled to the United States
only to find upon arrival that his offer of employment is no longer open,
or that the employment is justifiably unsatisfactory. The analogy, however, is not well drawn. Counsel misperceives the position of an applicant for adjustment of status. An application for adjustment of status is
assimilated to an application for an immigrant visa made to a consular
officer abroad. Matter of Mirza, 11 I. & N. Dec. 756 (BIA 1966). While
an applicant for adjustment of status is admittedly already present in
the United States at the time of his application for an immigrant visa,
such presence should not be allowed to place the applicant in a better
legal position than one who applies for an immigrant visa overseas. To
do so would reward those who, as in this case, have abused their
nonimmigrant visas, or who have entered this country illegally, at the
expense of those aliens overseas who desire admission but seek such
admission in the legally prescribed manner.
It is well settled that an applicant for admission overseas whose offer
of employment, upon which his labor certification is based, has been
withdrawn prior to the grant of an immigrant visa may no longer base
his application on that labor certification. See Matter of Paco, 12 I. & N.
Dec. 599 (BIA 1968). We decline to place the applicant for adjustment of
status in a better position than one who applies for admission at an
overseas consulate. We shall therefore affirm the validity of Matter of
Stevens, supra, and hold that an applicant for adjustment of status no
longer employed in the position for which his labor certification was
granted is not eligible for an immigrant visa based upon that labor

certification. Accordingly, the appeal of the female respondent will be
dismissed. Since the application of the male respondent is directly
dependent upon the success of the application of his wife, his appeal will
also be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondents are permitted to depart from the United States voluntarily
N.vithin 30 days from the date of this order or any extension beyond that
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Interim Decision #2578
time as may be granted by the District Director; and in the event of
failure so to depart, the respondents shall be deported as provided in the
immigration judge's order.

194


Interim Decision #1863

MATTER OF

Worm

In Deportation Proceedings
A-14490364
Decided by Board May 23, 1968
The term "inspected" within the purview of section 245 of the Immigration and
Nationality Act, as amended, means that an alien presented himself before a
proper official of the Immigration Service for inspection as an alien or if he
presented himself as a United States citizen he honestly and truthfully believed
:he was a citizen [Matter of Wong, 11 I. & N. Dee. 712, reaffirmed]. Hence,
respondent, who was admitted to the United States upon a knowing false claim
to citizenship has not been "inspected and admitted" within the meaning of
section 245 of the Act and, therefore, is statutorily ineligible for adjustment of
status under that section.
CHARGE :

Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)3—Entered with
out inspection.
ON BEHALF or SERVICE:
Maurice Glover
Trial Attorney

ON BVIVATV OF RESPONDENT:

Nathan T. Notldn, Esquire,
11 South La Salle Street
Chicago, Illinois 60603
(Brief filed)

The case is before us on appeal from the decision of the special
inquiry officer finding respondent deportable as charged, denying his
application for adjustment of status -under section 245, Immigration
:and Nationality Act, and granting the privilege of voluntary departure
with an alternative order of deportation to the Republic of China on
Formosa if respondent did not leave the United States as and when
directed. The appeal is from that portion of the order denying respond•nt's application for adjustment of status under section 245.
The respondent is a 34-year-old married male alien, a native and citizen of China, who wns admitted to the -United States at Honolulu,
Hawaii on or about July 14, 1962 upon a false claim to United States
citizenship. Respondent admitted the allegations of fact contained in
the order to show cause and 'he conceded that he is deportable as
'charged.
733

Interim Decision #1863
After the original deportation hearing on December 7, 1966 the proceedings were reopened upon respondent's motion for consideration of
an application for adjustment of status under section 245 of the Act,
which application was denied by the special inquiry officer on January 15, 1968. The instant appeal ensued.
The special inquiry officer found that respondent was not statutorily
eligible for adjustment of status for the reason that he was not inspected and admitted to the United States as required by the provisions of section 245. He found that the respondent secured admission
to the United States when he first arrived on September 20, 1950 and
then later when he entered on July 14, 1962 upon the basis of a
knowing and willful false claim to United States citizenship. It is
settled law that one who enters the United States upon his knowing
false claim to citizenship has not been "inspected" pursuant to the
provisions of section 245 of the Immigration and Nationality Act, as
amended? In Matter of T V mg, II 1. & N. Dec. 712, we affirmed previous
decisions made by the Board dating back to 1946 that an alien who
honestly believed that he was a citizen and appeared before an immigrant inspector can properly be considered to have been inspected

within the meaning of the immigration laws but that if he knowingly
and willfully falsly claims United States citizenship he was not inspected. Counsel contends that we should at this time abandon this
position and hold that it should not make any difference whether
the alien believed or did not believe he was a citizen and that he
should in both instances be considered as having been inspected. We
will not deviate from our previous position in this matter but we
reaffirm our holdings that the term "inspected" in section 245 of the
Act can have no other meaning than that an alien presehted himself
before a proper official of the Immigration Service for inspection
as an ahem or if presenting himself as a United States citizen, he
honestly and truthfully believed he was a citizen.
The sole question of fact for determination is whether respondent
honestly believed that he was a citizen of the United States when he
entered or whether he knew that he was not a citizen but still gained
entry by elniming citizenship. A most careful review of the record
leads us to the conclusion reached by the special inquiry officer that
respondent was aware that he was not a citizen when he claimed
that he was upon entry. A personal history statement was given by
respondent on February 1, 1966 to the Immigration and Naturalization Service, (Ex. 4). This statement was given at a time when
2

Goon Mee Iteung v. Immigration and Notvranzagion Service, 280 F.2d 236,
9 I. & N. Dec. 599; Matter of Woo, 11 I. & N.

(1st Cir., 1967) Matter of

Dee. 706.

734

Interim Decision #1863
respondent had surrendered for cancellation the Certificate of United
States Citizenship previously issued to him and was attempting to
regularize his immigration status. The statement was in the nature of
a confession as to respondent's true identity and immigration history
and in the statement he says he knew when he entered the United
States in 1950 and again in 1962 that his alleged "father" through
whom ho claimed United States citizenship was not in fact his father

(Ex. 4, pp. 10, 12). At the reopened hearing subsequently held respondent contradicted these statements and others made by him under oath
when he gave the personal history statement in February 1966. The
special inquiry officer found that respondent's testimony at the reopened hearing was not credible or worthy of belief. The hearing
.officer enjoys an inestimable advantage of seeing and hearing the

witness and judging his demeanor and is in the best position to determine the accuracy, reliability and truthfulness of his testimony. 2
There is no basis for overruling the decision of the special inquiry
officer. Accordingly we will dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is hereby

-dismissed.
a Tedaro v. Pederson, 205 F. Supp. 612, 615 (II.S.D.O., N.D. Ohio, 1961), affirmed
3O5 F.20 877 (6th Cir., 1962), cert. den. 371 U.S. 891 (1962). See also Matter of
11 , I. & N. Dee. 417.
—

735


Interim Decision #2490

MATTER

OP

In Deportation

LIMA

Proceedings

rot

A-11408079
Decided by Board April 16, 1976
(1) Respondent was convicted of the unlawful possession of marijuana in violation of
section 11530 of the Health and Safety Code of California. Subsequently, the California
court ordered that respondent's record of arrest and conviction, and other official
records in the case, including all records resulting in the criminal conviction be sealed
pursuant to section 1203.45 of the California Penal Code, and also ordered that the
charges be dismissed pursuant to section 1203.4 of the California Penal Code.
(2) The sealing of respondent's record of arrest and conviction of marijuana posseanion
under section 1203.45 of the California Penal Code eliminated the conviction for possession of marijuana as a basis for deportation under section 241(a)(11) of the Immigration
and Nationality Act.
(3) Matter of Andrade, 14 1. & N. Dec. 651 (DIA 1974) followed.
CHARGE:

U.S.C. 1251(a)(11)3—Violation of a law
relating to illicit possession of marijuana.

Order: Act of 1952—Section 241(a)(11) [8

ON BEHALF OF RESPONDENT: Marilyn Hall Patel, Esquire
220 Bush Street
San Francisco, California 94104

This case is before us on certification from an order of the immigration
judge terminating deportation proceedings. The decision of the immigration judge will be affirmed.
The respondent is a 25-year-old native of the Azores Islands and
citizen of Portugal who was admitted to the United States for perma-

residence on December 19, 1957. On August 30, 1971,. in the
Superior Court of the State of California for the County of San Joaquin,
the respondent was convicted of the unlawful possession of a quantity of
marijuana, a misdemeanor, in violation of Section 11530 of the Health
and Safety Code of California. The California Court ordered that the
imposition of sentence be suspended for a period of three years, and that
the defendant be placed on probation for that period. The respondent
did not appeal the conviction nor did he move for a new trial.
On January 28, 1974, the Service obtained a correct copy of the
nent

661

Interim Decision #2490
original record of respondent's conviction from the County Clerk and
Clerk of the Superior Court of the State of California, County of San
Joaquin. On September 17, 1974, the district director issued an order to
show cause against the respondent on the basis of his criminal conviction
for marijuana possession.
Under section 241(4(11) of the Immigration and Nationality Act, an
alien in the United States is deportable if, at any time after entry, he
has been convicted of a violation of, or a conspiracy to violate, any law or

regulation relating to the illicit possession of or traffic in narcotic drugs
or marijuana.
On September 27, 1974, the respondent petitioned the Superior Court
of California for an order sealing the record of his criminal conviction.
On September 30, 1974, the California court ordered that respondent's
records of arrest and conviction and other official records in the case,
including all records resulting in the criminal conviction be sealed pursuant to Section 1203.45 of the California Penal Code. On September 30,
1974, the - c ourt also issued a separate Order of Dismissal pursuant to
Section 1202.4 of the California Penal Code which substituted a plea of

"not guilty" for the respondent's previous plea of "guilty", and dismissed
the accusation against him.
At the hearing, trial counsel sought to have a copy of respondent's
record of conviction admitted into evidence. Counsel for respondent
objected to the admission of the record on the grounds that it was sealed
by the Superior Court of the State of California, and that therefore, it
could not be used in a deportation proceeding. The copy of the record of
conviction was marked Exhibit 3 for identification and was entered into
the record.
In a decision dated February 7, 1975, the immigration judge found
that the respondent was not deportable as charged. He concluded that
the California Superior Court order which sealed the record of respondent's arrest and conviction of possession of marijuana falls within the
ambit of Matter of Zingis, 14 I. & N. Dec. 621 (BIA. 1974) and Matter of
Andrade, 14 I. & N. Dec. 651 (BIA. 1974). The immigration judge

terminated the proceedings and certified the case to us.
The issue before us is whether the sealing of respondent's record of

conviction under Section 1203.45 of the California Penal Code can oper-

ate to eliminate the conviction as a basis for deportation under section
241(a)(11) of the Act.
On the date that respondent's offense was committed, February '7,
1971, Section 1203.45(a) of the California Penal Code provided as follows:
In any case in which a person was under the age of 21 years at the time of commission of
a misdemeanor and is eligible for, or has previously received, the relief provided by
Section 1203.4 or 1203.4a, such person, in a proceeding under Section 1203.4 or 1203.4a,

662

Interim Decision #2490
or a separated proceeding, may petition the court for an order sealing the record of
conviction and other official records in the case, including records of arrests resulting in
the criminal proceeding and records relating to other offenses charged in the accusatory
pleading, whether defendant was acquitted or charges were dismissed. If the court finds
that such person was under the age of 21 at the time of the commission of the
misdemeanor, and is eligible for relief under Section 1203.4 or 1203.4a or has previously
received such relief, it may issue its order granting the relief prayed for. Thereafter
such conviction, arrest, or other proceeding shall be deemed not to have occurred, and
the petitioner may answer accordingly any question relating to their occurrence.',

Section 1203.45(d) provides as a general rule that the provisions for
sealing a record of arrest and conviction do not apply to a person
convicted of more than one offense.
The record reveals that respondent was 20 years old at the time he
committed the misdemeanor offense, and that he had no prior criminal
convictions. We also note that respondent obtained an expungernent of
the record of his conviction pursuant to Section 1203.4 of the California
Code.
It appears that the California legislature, by enacting Section 1203
.45, intended to provide a means for elimiriating or ameliorating a life
long stigma that may result when a youthful offender is convicted of a
single misdemeanor. Under Section 1203.45, a state agency or subagency may not maintain the record of conviction which has been sealed,
and such a record may not be used in a subsequent administrative or
judicial proceeding within the state of California. The legal effect is
that, upon the sealing of the record by order of the California court, the
arrest, conviction and all other proceedings related to the offense are
forever treated as if they did not occur. Also by the express language of
the statute, the individual whose record has been sealed, may answer
inquiries concerning his arrest and conviction as if they never occurred.
A single statutory exception exists in the instance of a defamation action
or proceeding. 2
In Matter of Zingis, 14 L & N. Dec. 621 (BIA 1974), we held that the
setting aside of a narcotics conviction pursuant to the provisions of the
Federal Youth Corrections Act (18 U.S.C. 5021(b)) operates to elimi8ection 1203.45 of the California Penal Code was amended in 1072, after respondent's
conviction, to change the age for which relief could be sought from 21 to 18. This
amendment does not apply to persons who committed misdemeanor offenses prior to
March 7, 1973, and who were under 21 years of age at the time of the commission of the
offenses.
2 Section 1203.45(f) of the California Penal Code provides that:
In any action or proceeding based upon defamation, a court, upon a showing of good
cause, may order any records sealed under this section to be opened and admitted into
evidence. The records shall be confidential and shall be available for inspection only by
the court, jury, parties, counsel for the parties, and any other person who is authorized
by the court to inspect them. Upon the judgment in the action or proceeding becoming
final, the court shall order the records sealed.

663

Interim Decision #2490
nate the conviction as a basis for deportation under section 241(a)(11) of
the Act. We noted in Matter of Zingis, that in enacting the Federal
Youth Corrections Act, COngress expressed its objectives as the rehabilitation al youthful offenders to enable them to become useful citizens in our society, and that this desire of Congress to give youth a new
chance would be thwarted by deportation. InMatter of Andrade, 14 I. &
N. Dec. 651 (BIA 1974), we granted a Service motion to terminate
deportatithi proceedings and vacated the order directing respondent's

deportation under, section 241(a)(11) of the Act in view of the expungement of the record of a conviction of possession of marijuana in violation
of Section 11530 of the Health and Safety Code of California. The
expungement was executed upon the completion of youthful offender
treatment under Section 1772 of the California Welfare and Institutions
Code. In Matter of Andrade we pointed out that:
... The General Counsel informs us that, on the recommendation of the Solicitor
General, the Ssrvice has now adopted the position that marijuana violators who are
treated as youth offenders under state laws will be dealt with in the same manner as
awl& offenders under federal law. The latter are relieved from deportability on ex-

puntement of fie conviction, Mestre Mor'era v. INS, 462 F.2d 1030 (1 CIr. 1972); Matter
-

of Zingis, Interim Decision 2270 (BIA'Atarch 11, 1974).

We 'find a significant parallel in the facts in Matter of Andrade and the
facts presented in this case. The respondents in both cases were youthful offenders who were convicted of the same misdemeanor offense to
wit: pbssession of marijuana in violation of Section 11530 of the California health and Safety Code. Also, the record of conviction in each case
was expunged under California law. While it is true that the respondent
in this case did not receive youthful offender treatment under Section
1772 of the California Welfare and Institutions Code, it is apparent that
the respondent was, in effect, treated as a youthful offender when he
was granted the benefits of Section 1203.45 of the California Penal
Code. At the time of the commission of his misdemeanor offense, only
persons under the age of 21 were permitted to petition the court for an
order sealing the record of arrest and conviction. Under the current
amendment to Section 1208.45 only persons under the age of 18 are
permitted to petition the court for such relief.
We note that by operation of state law, the Service would have been
advised by California authorities that no record of conviction existed
had the Service attempted to obtain a copy of respondent's record
subsequent to the issuance of the order sealing that record.
Section 1203.45 is obviously aimed at the rehabilitation of youthful
offenders by providing them •with a "clean slate". These objectives are
identical to the Congressional objectives expressed in Matter of Zingis,
supra, and to the recommendation of the Solicitor General which .was
664

Interim Decision #2490
enunciated in Matter of Andrade, supra. 3 Accordingly, we conclude that
the sealing of respondent's record of arrest and conviction of marijuana
possession under Section 1203.45 of the California Penal Code operates
to eliminate the conviction as a bails for deportation under section
241(a)(11) of the Act.
For these reasons, we have concluded that the immigration judge's
decision in terminating deportation proceedings was correct.
ORDER: The decision of the immigration judge is affirmed.

In his letter to the General Counsel, Immigration and Naturalization Service dated
Dec. 651 (BIA 1974), the
Solicitor General stated that:
. . . A disparity in treatment' of state and federal youth offenders is particularly
inappropriate in view of the fact that, quite frequently, the underlying facts involve
violation of state and federal law, and may be the basis of either state or federal
prosecution. Indeed, as to persons under 21, federal law encourages the United States
Attorney to forego prosecution and surrender the juvenile to state authorities if "it will
be to the best interest of the United States and of the juvenile offender" to do so. 18
U.S.C. 5001. Where &choice can be made, it is generally the practice that less serious
offenses are handled by state prosecution, and that federal prosecutions are reserved
for the more serious offenses
. . . the Service would be warranted in construing Section 1251(a)(11) as not requiring deportation on the basis of a state marihuana conviction of a ynuth offender which
has been expunged or set aside pursuant to a law comparable to the Federal Youth
Corrections Act, if the youth offender upon conviction could have obtained expungement under the federal law if he had been subjected to federal prosecution.
3

March 7, 1974, (Appendix to Matter of Andrade, 14 L & N.

,

665