Interim Decision *1642

MarrEn of

Looiczno

In Section 246 Proceedings
A-5746800

Decided by Board September 20,1966
Since dismissal of pertinent counts of indictment for income tax 'violation
after commencement of criminal proceedings, on agreement of counsel, does
not estop the Service from examining facts in rescission proceedings, to
determine If respondent was a person of good moral character at the time
of adjustment of his status under section 249 of the Immigration and
Nationality Act, such adjustment of status Is rescinded because respondent,
who had fraudulently underStated his income during 1958 and 1959 for
the purpose of avoiding payment of a substantial sum In U.S. income
taxes. was not a person of good moral character at the time he secured
adjustment of status on November 17, 1980, and therefore, was not statutorily eligible for such relief..

This case is before us on appeal from a decision of a special inquiry officer dated October 22, 1905, rescinding the adjustment of
status previously granted to the respondent under section 249 of the
Immigration and Nationality Act [8 U.S.O. 1259]:
The respondent is a 62-year-old married male who is a liative and
citizen of Italy. The special inquiry officer's findings (decision, 'pp.
1, 5-6, 61, 65-68, 72) are to the effect that the respondent' entered
the United States about April 12, 1928.as a. stowaway aboard the SS
"St. Joseph Philadelphia"; the he was granted adjustment of statue
on November 17, 1960 under section 249 of the Immigration and
Nationality Act; that he willfully failed to file a United States income tax return for 1957 although required to do so; that he filed
false and fraudulent United States income tax returns for 1958
and 1959 claiming taxable income- of $2,408.20 and $4,827.70 respectively; that his taxable income for the years 1957, 1958 and 1959 was
actually $9,295.65, $10,864.16 and $16,104.08 respectively; that the
respondent was attempting to evade and defeat the payment of income tax; that the ropondent violated 26 U.S.C. 7201 on or about
April 15, 1958, April 15, 4950 - and April 15, 1960; and that these
805

Interim Decision #1642
violations precluded the respondent from possessing good nioral
character at the time adjustment of status was granted.
The sole issue is whether the special inquiry officer's action in
rescinding the adjustment of status was correct. As stated in the
last paragraph on page 5 of the "Notice" (Ex, 1) served on the respondent, it was asserted that he was not eligible for adjustment of
status because he was not a person of good moral character. Although there was an allegation that the respondent failed to disclose
his full arrest record in his application for adjustment of status, the
principal basis for the assertion that the respondent was not a person
of good moral character relates to the United States income tax delinquencies for the years 1957, 1958 and 1959.
We have carefully reviewed the entire record. The special inquiry
officer has thoroughly discussed the evidence on which his findings
were based, and we concur fully in his discussion and findings with
the exception of the last two findings mentioned above and with the

further exception that we will not make a definite determination as
to whether there was a tax violation for the calendar year 1957. During the oral argument, the appellate trial attorney stated that it was
unnecessary for the special inquiry officer to find that the respondent
had violated 26 U.S.C. 7201, and we agree that this is correct. In
other words, we concur in the special inquiry officer's various subordinate findings which resulted in his ultimate conclusion that the
respondent had violated 26 U.S.C. 7201 but we can perceive no
reason why the special inquiry officer or this Board should make a
determination as to whether or not the respondent was guilty of
violating a particular penal provision. The other finding of the
special inquiry officer in which we do not concur is that the violations
precluded the respondent from possessing good moral character.
Instead, we hold that, by reason of the respondent's attempt to evade

and his evasion of United States income taxes for the years 1958 and
1959, he was not a person of good moral character at the time his
application under section 249 was granted.
We understand that counsel relies, not only on his contentions during the oral argument, but also on those stated in the brief submitted
by former counsel. We have considered fully all of these contentions. Insofar as concerns contentions based on factual allegation 17
of Exhibit 1, we find it unnecessary to discuss these since the special
inquiry officer held that the allegation was not sustained and we concur in that conclusion. With respect to a contention that the Service
did not establish that adjustment of status .under section 249 was
necessary, it was the respondent himself who filed the application
under that statutory provision, and Exhibit 8 shows the nonexistence
806

Interim Decision #1642
of a record of the respondent's lawful admission in April 1922 or on
April 12, 1923 on the SS "St Joseph Philadelphia". During the
oral argument (p. 8), counsel stated that the respondent has been in
the United States for 42 years and that the Government is now seeking to deport him. Actually, the matter before us is solely whether
the adjustment of status granted to the respondent should be rescinded. If a deportation procieding should be instituted in the
future, the respondent will have the opportunity of offering his
defense to that action.
In the brief, it was stated that there was a denial of due process by
reason of the introduction into evidence of the record of the•respondent's conviction for violation of 26 U.S.C. 7201. This relates to the
fourth count of the indictment (Ex. 5) which charged that on or
about April 15, 1961 the respondent attempted. to evacl and defeat a
large part of the income tax due for the calendar year of 1960 by
stating his taxable income as $8,219.00 and tax Its $1,736.94 whereas
his taxable income was $32,782.87• and the tax due was $10,791.43.
The respondent pleaded guilty to this charge on January 13, 1965.
The contention is based on the fact that the offense was committed
on or about April 15, 1961 which was subsequent to the date on
which adjustment of status was granted—November 17, 1960. We
believe it is clear from the special inquiry officer's decision that he
did not consider this conviction as being evidence that the respondent was not a person of good moral character at the time adjustment
of status was granted. Accordingly, this contention of counsel is
dismissed.
Following the respondent's plea of guilty on January 13, 1965, sentence was imposed on February 17, 1965 and thereupon the first
three counts of the indictment were dismissed on motion of the
Asqistant United States Attorney. Counsel states that the Government relied on the offenses mentioned in the first three counts in this
rescission proceeding; that the dismissal _of these counts constituted
an acquittal of these charges; and that the Government is barred from
using these three offenses under the doctrine of res judieata. We
reject this contention on the authority of Helmering v. Mitchell, 303
U.S. 391, 397 (1938), in which there was an acquittal in a criminal
prosecution. The court said that the doctrine of estoppel by judgment did not preclude the Government from recovering the 50 percent penalty for fraudulent, intent to evade payment of income tax,

and that the acquittal was merely an adjudication that the proof was
not sufficient to overcome all reasonable doubt of the guilt of the
accused. •
SO7

Interim Decision #1642
Counsel seeks to avoid the clear ruling of ifebering v. Mitchell,
supra; by contending that the burden of proof-here is the same as in.
a criminal case, citing a decision of the Second Circuit on September 22, 1965 in Sherman v. Immigration and Naturalization Service,.
350 F.2d 894. This decision was reversed on January 17, 1966 upon
rehearing by the Court en bane, and the case is new before the Supreme Court on certiorari. In any event, that case involved a deportation proceeding against a long-time resident of the United States
and, as we have already pointed out, the respondent's case is not a.
deportation proceeding. Section 246(a) of the Immigration and
Nationality Act [8 U.S.C. 1256(a)] directs the Attorney General to
rescind the action grunting adjustment or status if "it shall appear
to the satisfaction of the Attorney General that, the person was not
in fact eligible for such adjustment of status * * *", and we have
held that this means that the Service must establish its contention in
the rescission proceeding by a preponderance of evidence which is
reasonable, substantial and probative. Matter of Barreiros, 10 I. &
N. Dec. 536, 538 (1964). For the reasons indicated above, we hold
that the dismissal of the first three counts of the indictment does not
preclude the special inquiry officer and this Board from determining
whether the similar- factual allegations numbered 11, 12 and la of
the "Notice" - (Ex. 1) are true and, if so( whether this shows a lack
of good moral character on the part of the rapondent.
The respondent refused to testify in this proceeding, and his wife
also did not testify. William C. McCafferty, who has been a Special
Agent of the Intarnel Revenue Service for ten years and investigated

the respondentN tax liability, appeared as a Government witness at
the hearing. He had conferences with .the respondent on August 20
and 24, 1962, March 18, 1963 and December 23, 1963. Immediately
after each meeting With the respondent, Mr. McCafferty prepared a
report concerning the matter and these are a part of the record as
Eihibits 54, 55, 56 and 58. The respondent's wife was present at
each conference except the one on August 24, 1962. The respondent
stated that he had no financial records. He had acknowledged to
Mr. McCafferty (Tr. p. 48) that he had not filed any income tax
returns between 1945 and 1957, claiming that he had not received
sufficient income 'during those years to require the filing of returns.
The 11th factual allegation of the "Notice" relates to the failure to
file a return for the calendar year 1957. The income tax returns for
the calendar years 1958 and 1959 (Exs. 39 and 46) were joint returns
filed by the respondent and his wife.
Two contentions, made during the oral argument (pp. 4-5, 16-17),
involve Nina Giarratano. Counsel refUrred to her as being the
808

Interim Decision #1642 respondent's niece but actually she was his stepdaughter, being his
first wife's daughter by her first marriage. In 1952 Nina had married
Frank Giarratano who died on December 6, 1955. In October 1956,.
she Married her - deceased' husband's' brother, Joseph Giarratano.
Nina Giarratimo died on July 16, 1957.

One of these contentions relates to the source of the funds which
were used in the purchase of a $28,000 two-family house in 1957.
The legal title was placed in the name of the respondent's wife but
he referred to himself as the owner while being questioned by Mr.
McCafferty on August 20, 1962 (Ex. 54) in the presence of his wife..
The respondent stated that a $15,000 mortgage had been -obtained
and that Nina Giarratano had turned over about $14,000 in cash to
her mother, the respondent's wife. Mrs. Locicero stated that her
daughter obtained the funds as the result of the death of her husband, Frank: 'Frank Giarratano was last employed as a truck driver
for the Post Office. Exhibit 48 shows that his wife, Nina, received
two checks for insurance on hii life in December 1955—from the
Prudential Insurance Company of America in the sum of $1,015.80
and from Federal Employees' Group Life Insurance in the sum of
$4,000. The latter was deposited on December 28, 1955 in Nina
Giarratano's 'account at Bay Ridge Savings Bank and, after two
other deposits and ten withdrawals, the entire amount had been -withdrawn by June 26, 1956. Mr. McCafferty testified concerning Nina
Giarratano's earnings during 1949, 1950 and 1951 and that there was
no record of any earnings thereafter. The contention that Nina
Giarratano had given approximately $14,000 to the respondent's wife
was discussed by the special inquiry officer in his decision (pp. 1822) and he concluded that this claim was not in accord with fact.
It is our finding that the respondent and his wife did not receive
$14,000 nor any substantial amount from Nina Giarratano.

Counsel's second contention concerning Nina Giarratano is that
Mr. McCafferty had included, as chargeable to the respondent, the
sum of $1,300 [actually $1,334] paid for the funeral of Nina's first
husband, Frank Giarratano. It appears from Mr. McCafferty's
testimony (Tr. pp. 402-404; 423-425) that Joseph Giarratano had
stated that the respondent and his wife had paid the funeral bills of
Frank Giarratano and Nina Giarratano. During the hearing, the
funeral director testified that there was an Italian custom that people attending the wake or funeral would leave contributions to defray expenses. 'While it is true that Mr. McCafferty had used this
amount of $1,334 in his computation for the year 1955, counsel is in
error in stating (oral argument, pp. 16-17) that the special inquiry
officer also considered this amount as an. expenditure chargeable to
-

809.

Interim Decision #1642
the respondent inasmuch as the special inquiry officer (decision, pp.
• 3-20 specifically found that this item of $1,334 could not be allowed
as a charge against the 'respondent and his 'wife. He also found
that the contributions at the funeral did not exceed the amount of the
funeral bill. While counsel did not specifically refer to the funeral
bill for Nina Giarratano in the amount .of $1,790, the special inquiry
officer disallowed this amount (decision, pp. 8344).
Counsel•also contended (oral argument, pp. 3-4) that the respond• nt's wife would not have signed the contract to purchase the $28,000
louse on 'January 8, 1957 unless she had the required cash on hand;
that she must have had these funds by the end of 1956; and that the
Government had made the claim that the $14,000 paid in cash must
have been income accrued in 1957. Actually, there were two cash
payments which were made on or about January 8, 1957 and April
:9, 1957 totaling $13,000 rather than $14,000, -and there is nothing in
the record to indicate that the Government considered:this *amount as

income earned in 1957. On the contrary, the Government included,
among other assets which the respondent and this wife had on hand at
the end of 1956, $5,000 in cash and $4,509 on deposit in Bay Ridge
Savings Bank Account B 176082 (Exs. 12A and 16A). In addition,
Appendix "7" attached to the special inquiry officer's decision shows
that during 1957 the net worth of the respondent and his wife had
increased merely $4,752.55 and that their corrected taxable,income, as
found by the special inquiry officer, was only $9,293.65 (Lines 9 and
41.)
Counsel has also made certain contentions based on the fact that,
because no income tax return was filed for the year 1957, it cannot be
assumed that rents received and expenses for the maintenance of the
two-family house are chargeable to the respondent inasmuch as the
-

legal title was in his wife's name. This contention is not'urged concerning the years 1958 and 1959 when the respondent and his wife

_filed joint income tax returns and were, therefore, required to report
all of their income. It is our conclusion that the special inquiryofficer
was correct in bolding that the respondent fraudulently understated
leis income during 1958 and 1959 for the purpose of avoiding the payment of a substantial sum in taxes. We hold, therefore, that he was
not a person of good moral character at the time he secured adjustment of his immigration status on November 17, 1960. Under the circumstances, it is unnecessary to reach any determination concerning
the failure to file an-income tax return for the year 1957 as specified
in the 11th factual allegation of the "Notice". We have carefully
considered the remaining contentions of counsel but they are without
merit and do not require spedfizs_discussion, In view of the forego.

810

Interim Decision #1642
ing; via:lipid that the respondent was not statutorily eligible for

adjustment of his status on November V, 1960 and that the order of
the' special •nquiry officer rescinding that action was correct. Accoidingly, the appeal will be dismissed.
•ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

811


Interim Decision #2078

MATTER OF WIGHTON
In Exclusion Proceedings
A-11157823
Decided by Board September 4, 1970 and March 19, 1971
A native and citizen of Canada who was admitted to the United States for
permanent residence in 1959 but who lived in Canada and commuted daily
to the United States to work until he voluntarily terminated his employment in November 1968, after which he obtained a job in Canada for approximately a year, lost his commuter status because of a break in his
United States employment of more than 6 months, notwithstanding entries
into this country in the interim and his allegation that he had no intention of abandoning his pelmanent resident status in the United States.
EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182 ( a) (20) ]—Immigrant without valid immigrant visa.
ON BEHALF OF SERVICE:
Adolph F. Angelilli
Trial Attorney
(Brief filed)
R. A. Vielhaber
Appellate Trial Attorney

ON BEHALF OF APPLICANT:
David I. Rosin, Esquire
2156 Penobscot Building
Detroit, Michigan 48226
(Brief filed)

BEFORE THE BOARD

(September 4, 1970)
This is an appeal from the decision of the special inquiry
officer who ordered that the applicant be excluded and deported
from the United States. The applicant applied for admission to
the United States at Detroit, Michigan on November 20, 1969 as
a returning resident alien and presented an alien registration receipt card (Form 1-151) which had been issued to him when he
first entered the United States as an immigrant on August 12,
1959. He was excluded and deported pursuant to section
212(a) (20) of the Immigration and Nationality Act, as an immigrant not in possession of a valid unexpired immigrant visa or
other valid entry document as required by section 211 (a) of the
Act.

683

Interim Decision #2078
The applicant is a 37-year-old single male alien, a native and
citizen of Canada. Shortly after entry as an immigrant in 1959 he
obtained a job with the First Federal Savings and Loan Association of Detroit. He held this job until November 13, 1968, when
he resigned. During that entire period of slightly more than nine
years he actually resided in Canada and commuted to his job
daily in Detroit. After leaving the United States in November of
1968 he obtained a position with the Chrysler Corporation in
Canada, in which job he stayed approximately a year. During
that period of time he made several trips each month to the
United States. On November 20, 1969, when he presented himself
for admission to the United States as a returning resident alien,
he was held for an exclusion hearing. The Service contended that
he had abandoned his permanent resident status and thus he
could not be admitted on the basis of his alien registration receipt
card. The applicant's attempt to enter the United States as a returning resident alien occurred just two days less than one year
from the time he went to Canada to work.
It is not disputed that for the approximate nine years the applicant worked in the United States before going to Canada he
was in a commuter status. He resided in Canada and not in the
Jnited States. Counsel contends respondent did not lose his cornnuter status while living and working in Canada, and that he is
!ntitled to return as a returning resident alien. The special inFuiry officer rejected this argument, and we will affirm his deciion.
The special inquiry officer correctly held that after this resient commuter alien had not worked or lived in the United States
Dr more than six months he was deemed to have abandoned his
ermanent residence status, notwithstanding entries in the in!rim, as aforestated. 1 Having forfeited his permanent residence
atus he must now, pursuant to section 211 of the Immigration
ld Nationality Act and 8 CFR 211.1 (a), present a valid unexred immigrant visa. Since he lost his resident status his alien
gistration receipt card is not valid as an entry document and he
n no longer be considered as a returning resident alien. 2
The class of immigrant aliens known as commuters has been
cognized since 1927. Their status has been fully treated in Mat1

Matter of Bonanni, 11 I. & N. Dec. 791 (ETA, 1966); Matter of Bailey,
I. & N. Dec. 466 (BIA, 1966); Matter of L—, 4 I. & N. Dec. 454 (MA,

51)
Matter of M—D—S-- & L—G— & W—D—C--,

IA, 1958).

684

8 I. & N. Dec. 209

Interim Decision #2078
L—, supra, and Matter of M—D—S— & L—G— & WD—C—, supra. For the purpose of the immigration laws a com-

ter of

muter is considered as a resident of the United States and is entitled to readmission under section 211 (b) of the Act as a
returning resident while he maintains this status. 3 The immigration statutes make no mention of the commuter status; it is an
administrative device originated on April 1, 1927 by the Commissioner General issuing General Order No. 86 to permit the continued entry of Canadian and Mexican nationals domiciled in their
native lands who had for years been coming to the United States
to work as nonimmigrants, but whose continued entry as nonimmigrants was made impossible by legislation which classed all
persons coming to the United States to perform labor as immigrants. It is predicated upon good international relations maintained between friendly neighbors. Congressional approval of the
commuter status is found in the fact that Congress has shown
awareness of the status and has not criticized it, nor has it in immigration legislation (including the Immigration and Nationality
Act of 1952) included commuters in its definition of nonimmigrants.
To maintain the status of commuter, an alien must have regular employment in the United States, have a continued intention
to come for such purpoese and have no break in employment in
the United States for as long as six months.' An alien commuter
who has been out of employment in the United States for six
months is deemed to have abandoned his status of residence in
the United States. 3
An exception to the above rule occurs when the commuter's absence from the United States was due to illness, accident or pregnancy, in which event we have held that the six months conclusive presumption that residence has been abandoned is tolled
until the alien is again employable. 6
In the instant case the applicant voluntarily terminated his employment in the United States and immediately thereafter took
another job with another corporation in Canada. He has testified
that he had no intention of abandoning his permanent resident
Matter of H-0--, 5 I. & N. Dec. 716 (BIA, 1954).
Matter of Bailey, supra; Matter of Bonamni, supra; Matter of L—, 8 I.
& N. Dec. 643 (BIA, 1960) ; Matter of Gerhard, 12 I. & N. Dec. 556 (BIA,
3

4

1967).
Matter of Bailey, supra.
Matter of Gerhard, supra; Matter of Burciaga-Salcedo, 11 I. & N. Dec.
665 (BIA, 1966) ; Matter of M—D—S— & L—G-- & W—D—C—, supra;
Matter of L—, 4 I. & N. Dec. 454 (BIA, 1951).
5

6

685

Interim Decision #2078
status in the United States and that his taking the job in Canada
was for the purpose of receiving further work experience ancl
training with the hope that he could then transfer with the same
corporation (the Chrysler Corporation) to a job in the United
States, which, however, failed to materialize. His job with the
savings and loan association in the United States was not held
open for him, but they indicated that he would be subject to rehire if he should apply. To maintain the status of a commuter,
the alien, previously admitted for permanent residence, must
have regular employment in the United States, have a continuing
intention to come for such purpose and have no break in employment for six months. Although the intent of the alien is one factor to be considered in determining whether he has retained his
ommuter status, it is not the only criterion. In the instant case
;he applicant has had a break in employment in the United States
or almost one year, and we have consistently held that a break
n employment for six months, with the several exceptions noted
Lbove, constitutes an abandonment of permanent resident status.'
L'ounsel's argument that intent alone is the factor which deternines this matter is not in accordance with our many previous
ecisions.
Counsel cites an unreported decision, Matter of Max Pilavin,
,--11696184 (BIA, 1964), as upholding the applicant's position
tat he should be admitted to the United States as a returning
?sident alien because of his intent. However, in Matter of Piyin, the alien, who had been in a commuter status, actually gave
) his Canadian residence and moved to and lived in the United
ates for a period of two weeks prior to taking a trip to Europe
r approximately 11 months. In that case we held that he could
admitted as a returning resident alien since he had given up
3 commuter status and had established a residence in the
cited States prior to going abroad. This distinguishes it from
instant case.
The applicant must now be regarded as a special immigrant
thin the definition contained in section 101(a) (27) (A) of the
migration and Nationality Act, and as such is required by seen 211 of the Act and 8 CFR 211.1 (a) to be in possession of a
id unexpired immigrant visa. Since he has no such document
is excludable under section 212(a) (20) of the Act. We affirm
order of the special inquiry officer ordering that the applicant
excluded and deported from the United States.
-

Vatter of Bailey, supra, and cases cited therein.

686

Interim Decision #2078
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
BEFORE THE BOARD

(March 19, 1971)
Counsel moves the Board to reconsider its decision of September 4, 1970, excluding applicant from entry into the United
States as an immigrant without a valid immigrant visa. Counsel
contends that the applicant occupies the status of a commuter
and as such he should be admitted to the United States as a returning resident alien.
The facts have been set forth in detail in our previous decision
and need not be reiterated at this time. We held that the applicant, who had been admitted to the United States as a permanent
resident but who lived in Canada and commuted daily to the
United States to work, lost his commuter status because of a
break in his United States employment for more than six months.
We have consistently held that a break in employment for six
months or more, with several exceptions, none of which applies
to this applicant, constitutes abandonment of permanent resident
status.?
We have carefully reviewed counsel's brief and we find that the
issues raised, the arguments made and the cases cited are substantially the same as those previously presented on the original
appeal. Our prior decision is dispositive of the issues raised the
instant motion and nothing has been adduced which wi,uld warrant- our receding from that decision.
Accordingly, the motion will be denied.
ORDER: It is ordered that the motion be and the same is
hereby denied.

In Matter of Jaurrieta, A-12700329, unreported (BIA, 1970), we declined
to enlarge the exceptions beyond those laid down in previous decisions,
namely, illness, accident or pregnancy.

687


Interim Decision 40525

MATTER or Ian:was
In Visa. Petition Proceedings'
A-13840192
Decided by Board April 35, 7966
Petition by United States citizen, pursuant to section 204(a), Immigration and
mationality Act, as amended, to accord "immediate relatives' status Tinder
section 201(b) of the Act to his wife, time beneficiary, npua the basis of their
marriage in 1964 is denied because a valid marriage for immigration purposes does not exist at the present time as the marriage has not been consummated, the parties are not now living together and have never lived
together in a husband and wife relationship. '
,

, The case comes forward on appeal from the order of the District.
Director, Boston District, dated January 21; 1966, denying the visa
petition for the reason that the petitioner's marriage to the beneficiary is not considered a bona Me marriage within the meaning of
section 201(b) of the Immigration and Nationality Act, as amended,
pursuant to section 204(a) of the same Act.
The petitioner, a native of Greece and a naturalized citizen of the
United States, 62 years old, male , filed a visa petition on August 28,
1964, seeking nonquota status under the Immigration and Nationality
Act, (now immediate relative status under the provisions of section.
201(b) of the'Immigration and Nationality Act, as amended, by the
Act. of October 3, 1965).- Thd beneficiary is a native and citizen of
Greece, 38 years old, female. The parties were married on June 22,
1964, at Nashua, New Hampshire.
The notice of denial by the District Director, Boston District, is
accompanied by a memorandum. The evidence discloses a curious
marital situation. The petitioner testified that he was introduced
to the beneficiary through correspondence by a priest; that he first
met her two or three months before their marriage; and met her
two or three times before they were married, on June 22, 1964. Both
parties agree that they hive never slept together and have never had
marital relations. The 'evidence further establishes that the petitioner and the beneficiary have -never Ewa together as husband and wife
- 613

Interim Decision #1585
' in a common apartment although they visited each other in homes in

Bronx, New York; Nashua, New Hampshire; and Bedford, Massachusetts. The beneficiary gave birth to. a child on July 9, 1965, and
both parties agree that-the petitioner is not the father of the child.
The petitioner is unwilling to assume the responsibility for the beneficiary's child, but is willing to provide a home for her if she will
join him without the child. The petitioner refused to marry the bene-

ficiary in A religious ceremony after she became pregnant, since he
well knew the child was not his. The beneficiary states that the petitioner will marry her religiously when her father takes the child
to Greece. Additional evidence in the file indicates that the bens' ficiary still has the care and custody of the child and that the pasties are not living together.

The burden of establishing eligibility for a benefit sought-under
the immigration laws rests upon the petitioner. As indicated above,
the parties have never lived together; no religious ceremony has been
performed; the marriage has never been consummated; and the
beneficiary has given birth to an illegitimate child. Where no bona
Ede husband -wife relationship is intended, the marriage is deemed
invalid for immigration purposes regardless of whether it would
be considered valid under the domestic law of the jurisdiction where
performed'
In view of all the circumstances of the case, upon the present
record we cannot find that a bona, fide husband and wife relationship
for immigration purposes exists at the present time. It is- concluded
that the petitioner has failed to carry his burden of establishing a
bona Me husband and wife relationship. The appeal will be dis-

missed.
ORDER: It is ordered that:the appeal be and the same is hereby
Manor of M—, 8 I. & N. Dec.217.

614


Interim Decision #2521

MATTER OF DAVILA.
In Deportation Proceedings
A-21419729
Decided by Board August 23, 1976
(1) In order to establish respondent's deportability as an overstay, the Service introduced, over the objections of counsel, a Form 1-213 (Record of Deportable Alien), a
Form 1-214 (Warning as to Rights) and a fingerprint card relating to respondent. The
Form 1-213 bore the same name and Alien Registration Number as the order to show
cause issued respondent; the Form 1-214 was signed by respondent and indicated she
had been advised of her rights and had voluntarily waived them. Na evidence was
adduced at the hearing to indicate that the Forms 1-213 and 1-214 did not relate to
respondent or were in any way incorrect, or that the statements given by respondent
were not given voluntarily_

(2) A respondent in deportation proceedings has no right to refuse to testify except on a
reasonable claim of privilege under the Fifth Amendment. Remaining in this country
longer than permitted is not a criminal offense. Respondent made no showing that there
was any basis for a claim of Fifth Amendment privilege and there was no constitutional
basis for her refusal to testify.
(3) In the absence of any proof that Forms 1-213 and 1-214 relating to respondent contain
information which was incorrect or obtained by coercion or force, these forms are
inherently trustworthy and would be admissible even in court as an exception to the
Hearsay Rule as public records or reports as provided in Rule 803(8) of the Federal
Rules of Evidence.
(4) Since the respondent's deportability was proven at the hearing by untainted evidence
which was clear, convincing, and unequivocal, even assuming a defect in the arrest
procedure, it would be of no consequence in this deportation proceeding.
CHARGE:

Order: Act of 1952 Section 241(a)(2) [8 U.S.C. 1251(a)(2)} Nonimmigrant visitor-remained longer
—

—

ON BEHALF OF RESPONDENT: Bert D. Greenberg, Esquire
8484 Wilshire Boulevard

Beverly Hills, CA 90211

The respondent appeals from the immigration judge's decision of
October 1, 1975. Theimmigration judge found the respondent deportable as charged, granted her 14 days voluntary departure, and entered
an alternate order providing for the rcIsponclent's deportation to Peru.
The appeal will be dismissed.
781

Interim Decision #2521
On appeal, the respondent contends, in effect, that her deportability
has not been established by clear, convincing and unequivocal evidence.
According to her, all the evidence in the record was produced as a result
of her arrest; that arrest was unlawful; and, therefore, the evidence
should have been suppressed.
At the hearing before the immigration judge, the respondent identified herself by name, and counsel stipulated that the order to show
cause related to her. Through counsel, she denied all the allegations in
the order to show cause and her deportability as charged. Thereafter,
on Fourth and Fifth Amendment grounds, she refused to answer any
questions on the issues of alienage and deportability. Her later tes-

timony was confined to a motion to suppress and to her application for
voluntary departure. The immigration judge determined that her refusal to testify on constitutional grounds was unjustified.
In the order to show cause it was charged that the respondent was
subject to deportation as an overstay. Remaining in this country longer
than permitted does not constitute a criminal offense. A respondent in
deportation proceedings has no right to refuse to testify except on a
reasonable claim of privilege under the Fifth Amendment. Otherwise,
the immigration judge may direct the respondent to testify. ChavezRaya v. INS, 519 F.2d 397 (C.A. 7, 1975); Laqui v. INS, 422 F.2d 807,
809 (C.A. 7, 3.970). Counsel stated in his brief that the respondent had

entered the United States as a visitor. No showing was made that there
was any basis for a claim of. Fifth Amendment privilege. Thus, there
was no constitutional basis for the respondent's refusal to testify.
To establish alienage and deportability the Service introduced, over
the objections of counsel, a Form 1-213, Report of Deportable Alien, a
Form 1-214, Warning as to Rights, and a fingerprint form. The Form
1-213 bears the same name and Alien Registration number as the order
to show cause. It reflects birth in Peru and entry into the United States
on November 30, 1972• as a visitor. The Form 1-214 is signed "Elba
Davila". It warns the alien of her rights, including the right to advice of
counsel; it also reflects that she understood her rights and voluntarily
waived them. The respondent did not deny that these documents related to her, and no offer of proof was made that they are in any way
incorrect, or that the information they contained was not given voluntarily.
In the absence of any proof that the Forms 1-213 and 1-214 contain
information which is incorrect or which was obtained by coercion or
force, we find that these forms are inherently trustworthy and would be
admissible even in court as an exception to the hearsay rule as public
records and reports. Fed. Rules of Evid., Rule 803(8). See Matter of
Swissair "Flight SR 168," 15 I. & N. Dec. 372 (BIA. 1975).
In view of Lae identity of name and Alien Registration number on the
782

Interim Decision #2521
order to show cause and the Form 1-213, the respondent's duty to
testify, and her burden to show time, place, manner of entry into the
United States pursuant to section 291, Immigration and Nationality
Act, we conclude that alienage and deportability were established at the
deportation hearing by untainted evidence which is clear, unequivocal,
and convincing. Thus, because the respondent's deportability was
proved by sufficient evidence at the hearing, even if we were to assume
a defect in the arrest procedure, it would be of no consequence in this
deportation proceeding. U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149
(1923); La Franca v. INS, 413 F.2d 686, 689 (C.A. 2, 1969); Vlissidis v.
Anadell, 262 F.2d 398, 400 (C.A. 7, 1959).
Accordingly, the following order will be entered.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 14 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

783


Interim Decision #2910

MATTER OF CHEW
In Bond Proceedings Pursuant to 8 C.F. R. 242.2(b)
A-22683002
Decided by Boaid July 1,

1982

An alien may apply to the District Director for modification of the conditions of his
custody status after the immigration judge has been divested ofjurisdiction by the lapse
of seven days following. the alien's release from custody or by the entry of a final
administrative order of deportation, regardless of whether the immigration judge has
previously made a custody determination in his case; accordingly, Matter of Vea. 18
l&N Dec. 171 (BIA 1981), is amended insofar as it indicates that an appeal to the
Board is an alien's sole and exclusive recourse from a custody determination of an
immigration judge.
ON BEHALF OF RESPONDENT:
James Hallman, Require
30 West Washington

ON BEHALF OF SERVICE:
George A. Rayner

Assistant District'
Director'

Chicago, Illinois 60602

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca,Board Members

The respondent appeals from the imposition of a bond condition barring him from engaging in unauthorized employment. The appeal will be
dismissed.
The record reflects that the respondent was apprehended on December 2, 1981, pursuant to an Order to Show Cause which set bond at
$2,500 and imposed as a condition of that bond a prohibition against

unauthorized employment. The respondent requested modification of
the conditions of his custody status. On December 4, 1981, an immigration judge reduced the amount of bond initially set by the District Director to $1,000 but left in effect the nonemployment rider. That same day,
the respondent was released from custody upon posting bond; no appeal
was taken from the immigration judge's determination.
On January 14, 1982, the respondent applied to the District Director
for further amelioration of the conditions•of his release, seeking cancellation of the no-work rider. The District Director denied the respondent's
request on its merits on February 5, 1982, and the respondent filed the
appeal presently before us.
A threshold jurisdictional issue is presented. In our recent decision in
262

Interim Decision #2910
Matter of Yea, 18 I&N Dec. 171 (BIA 1981), we stated in dictum that

once an application for modification of custody status has been properly
considered by an immigration judge,
the respondent's recourse thereafter lay in an appeal to the Board from the immigra
tion judge's determination and mot, as the immigration judge indicated, in a request for

amelioration to the District Director with a right of appeal to the Board from that
official's determination.. (Emphasis added.)'

The question whether the District Director has authority to consider
a request for change in custody status after an immigration judge has
acted .upon such request is now squarely before us. Upon further
deliberation, we conclude that the District Director has jurisdiction
over the application and we therefore retreat from the dictum in Matter
of Vea, cited above.
As noted in Vea, the regulations give an alien the right to apply to an
Munigration judge for modification of the conditions of his release at any
time after an initial custody determination has been made by the District Director and before an order of deportation becomes administra,
tively final If the alien has been released from custody, however, he
must apply to the immigration judge within seven days from the date of
release; thereafter, his application can only be considered by the District Director. See also Matter of Sio, 18 I&N Dec. 176 (BIA 1981).
We further noted that an alien may appeal to the Board from a custody determination' of an immigration judge within five days after written notification of such determination is served on him. Insofar as we
indicated in Vea that an appeal to the Board is the alien's sole and
exclusive recourse from a custody determination of an immigration judge,
we •erewith amend that decision. We find nothing in the regulations
that would preclude an alien from reapplying to the District Director for
modification of‘the conditions of his custody status after the immigration
judge hag been divested of jurisdiction by the lapse of seven days follow- ing the alien's release from custody or by the entry of a. final administrative order of deportation. Whether or not the immigration judge has
previously made a custody determination in his case is, in our opinion,
irrelevant.z We accordingly conclude that the District Director had jurisdiction to entertain the respondent's application for amelioration.
We now turn to the merits of the respondent's request for cancellation
of the nonernployment rider. The Code of Federal Regulations, 8 C.F.R.
103.6(a)(2), sets forth a number of factors to be considered in determining whether a nonemployment rider ought to be imposed as a condition
-

of bond. A principal concern manifest in the regulation is the impact of
I

In Manor of Veil, supra, the District Director's determination was not before ns

The District Director may, of course, deny the application for failure on the part of the
alien to show changed circumstances.
2

263

Interim Decision #2910
the alien's employment upon the American labor market. Matter of yea,
supra. Other considerations specifically mentioned are the existence of
prior immigration law violations relating to unauthorized employment

and the likelihood of continued violations with the same employer, the
number of aliens involved in performing the unauthorized employment,
the recentness of the alien's arrival in the United States and the time
lapse between arrival and commencement of employment, the prospectsfor a grant of discretionary relief from deportation, and the presence or
absence of a spouse or children dependent upon the alien for support.
See 8 C.F.R. 103.6(a)(2)(1). 3 See generally Matter of Leon-Perez, 15
I&N Dec. 239 (BIA 1975).
The record reflects that the respondent, a native and citizen of
Guatemala, is married but separated from his United States citizen wife
and has a citizen child. He entered this country without inspection in
August 1979 and immediately returned to his current employer for whom
he had worked as a machinist without Immigration and Naturalization
Service permission since September 1976. He was arrested by the Service in February 1981 and released after posting bond conditioned upon
his refraining from engaging in unauthorized employment. He returned
to work the day after his release, thereby breaching that bond. The
espondent was subsequently found deportable but was granted the

privilege of voluntary departure in lieu of deportation. He departed the
United States under the grant of voluntary departure but returned to
this country in April 1981, apparently again evading inspection by immigration authorities. Upon his return, the respondent resumed his unauthorized employment with his longtime employer and remained so
employed to the time of his arrest by the Service in December 1981.
A memorandum to file prepared by the Service indicates that the

Illinois Employment Office has advised that there is no shortage of
applicants for the position occupied by the respondent and that due to
current labor conditions, qualified applicants can immediately be referred
for the job. The memorandum further states that the respondent has no
3 8 C.F.R. 103.6(a)(2) provides:
. (iii) Factors to be considered. Among the factors to be considered in connection with the
imposition of the bond condition barring unauthorized employment are: Safeguarding
employment opportunities for United States citizens and legal resident aliens; impact on
and dislocation of American workers by alien's employment; the number of aliens involved
in performing the unauthorized employment; prior immigration violations relating to
acceptance of unauthoriZed employment by the alien; the likelihood of continued violations with the same employer; the recentness of the alien's arrival in the United States;
the acceptance of the unauthorized employment shortly after such arrival; whether

there is a reszonable basis for consideration of discretionary relief; whether a spouse or

children are dependent on the alien for support, or other equities exist. These factOrs
are intended as examples only and are not exclusive.

264

Interim Decision #2910
immediate family dependent upof him for support, that he does not
qnalify for discretionary relief from deportation, and that numerous
aliens work at his place of employment.'
In denying the respondent's request for removal of the no-work rider,
the District Director noted that the respondent does. not support his
United States citizen child, an observation not refuted by the.respondent.
The.District Director alsb noted that an asylum application submitted
by the respondent has been reviewed and appears to have been filed
solely for the purpose of prolonging his stay in the United States. 5
We conclude, as did the immigration judge and the District Director,
that the imposition of the bond condition against unauthorized employment is apptopriate in this case. It has specifically been determined that
the'respondent's employment has an adverse impact on employment
opportunities for United States citizens and lawful permanent resident
aliens. His history of immigration law violations, both with respect to
unauthorized employment and otherwise, is a matter of record. He does
not appeaar to be eligible for any form of relief from deportation that

would permit him to remain in this country permanently or for an
extended period of time. Finally, the fruits of hii continued unauthorized employment would not benefit his United States citizen wife or
child. For the foregoing reasons, we shall permit the nonemployment
rider to stand.
ORDER The bond condition against unauthorized employment is
permitted to stand.

4 The memorandum does not, however, indicate whether any or all of such aliens are in
this country unlawfully.
The respondent cites the deteriorating political climate in Guatemala as the basis of his
claimed fear of persecution. However, there is no indication in the record that he personally will be singled out for persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion if deported to that country. See 8
C. F. R. 208.5.

265


MAI ILIt OF

In EXCLUSION Proceedings
A-10067176
Decided by Board March 11, 1960
W aiver of excludability—Nune pro tune exercise of sections 5 and 7, Act of

September 11, 1957, not authorized to correct documents issued prior to that
date—Conviction in absentia.
(1) Nuns pro

tunc waivers of inadmissibility under sections 5 and 7 of Act
of September 11, 1957, are not authorized to correct immigrant visas issued
prior to that date.
(2) Alien's conviction in the Netherlands for receiving stolen property, although he was not present in court when the case was called, is not a con.
viction in absentia when he had notice of the proceedings, appeared after
the conclusion thereof, took no appeal, and paid the fine.

EXCLUDABLE: Act of 1952—Section 212(a) ( 9 ) [8 U.S.C, 1132(a) (9)]—Convicted of crimes involving moral turpitude, to wit: receiving
stolen goods (two offenses).
Act of 1952—Section 212(a) (19) [8 U.S.C. 1182(a) (19) ]—Has
procured -visa by fraud or by willfully misrepresenting a ma

-

terial fact.
APPLICATION: Admission to the United States for permanent residence and
waiver of excludability under sections 5 and 7 of Public Law
85-316, the Act of September 11, 1957 (8 1182b and
1251a).

BEFORE THE BOARD

Discussion: The special inquiry officer on December 3, 1959, found
the applicant excludable under the provisions of sections 212(a) (9)
and (19) of the Immigration and Nationality Act (8 U.S.C. 1182(a)
(9) and (19) ) as an alien convicted of crimes involving moral turpitude and as one who has procured a visa by willfully misrepresenting
a, material fact. Pursuant to the authority contained in sections
5 and 7 of the Act of September 11, 1957 (Public Law 85-316), the
special inquiry officer waived the grounds of inadmissibility and
-ordered the applicant admitted to the United States for permanent
residence. The case is before us on certification for review of the
special inquiry officer's order of December 3, 1959.

The applicant is a native and citizen of the Netherlands, male,
married, 62 years of age. He arrived at the port of New York on
608

May 10, 1954. He presented a valid Netherlands passport, No. D
852114, issued December 15, 1953, and a quota immigrant visa issued
by the United States Consul at Rotterdam, Netherlands, on February
8, 1954 valid to June 7, 1954. The applicant was paroled pending
determination of his admissibility.
The applicant prior to entry was convicted on two occasions of
offenses which may be designated "receiving stolen property" according to standards prevailing in the United States. The record establishes that he was convicted by a Netherlands court-martial on June
24, 1947, of the crime of buying articles belonging to the Netherlands
armed forces from members of said forces, knowing or reasonably
suspecting such articles to have been obtained criminally, in violation
of article 2 of the Decree Combatting Looting during Wartime. He
was again convicted by the Police Judge of the District Court of
Arnhem, Netherlands, on October 31, 1947, of the crime of concealment in violation of article 416 of the Netherlands Criminal Code.
There is affirmative evidence that the applicant made formal application for an immigrant visa to the American Consul at Rotterdam,
Netherlands, on December 16, 1953, and willfully concealed the aforestated convictions
The Immigration Service urges that the applicant is ineligible for
a waiver under sections 5 and 7 of the Act of September 11, 1957
(Public Law 85-316), because these provisions are available only to
correct documents issued on or after September 11, 1957. The applicant's visa was issued prior to that date. Recent decisions by the
Attorney General support the Service position (Matter of DeF—,
A-10547426, Int. Dec. No. 978 (Atty. Gen., Feb. 26, 1959) , and Matter
of DeG , et al., A-10641351, A-10847616, A-11404466, A-11067405,
Int. Dec. No. 1036 (Atty. Gen., Dec. 14, 1959) ). Accordingly, we
find the applicant ineligible for the waivers granted by the special
inquiry, officer pursuant to the authority contained in sections 5 and 7
of the Act of September 11, 1957 (Public Law 85-316).
Counsel in this proceeding attacks the sufficiency of the applicant's
exclusion as a matter of law. He questions whether the applicant
was convicted of offenses which involve moral turpitude. A review
of the judgments of conviction entered as evidence in this record convinces us that the applicant was convicted on two occasions for receiving certain articles stolen from the armed forces of the Netherlands. Offenses of this nature involve moral turpitude (Matter of
Z—, 7 I. & N. Dec. 253 (B.I.A., July 6, 1956) ; Matter of
6 I. & N. Dec. 772 (B.I.A., Oct. 27, 1955) ; Matter of G , 2 I. & N.
Dec. 235 (B.I.A., Jan. 13, 1945) ).
Counsel also attacks the legality of the applicant's convictions by
the Netherlands tribunals. Counsel argues that the statute defining
the offense of which the applicant was convicted on June 24, 1947,
609

requires that it be committed "in time of war" and that it was subsequent to the termination of World War II that the applicant was
convicted. Counsel maintains that the applicant's second conviction
on October 31, 1947, is a nullity because he was convicted in absentia.
We are not permitted to go behind the record of the judgment of
conviction to determine the applicant's guilt or innocence of the
offenses charged against him (United States ex rel. Robinson v. Day,
51 F.2d 1022 (C.C.A. 2, 1931) ; United States ex rel. Mylius v. Uhl,
203 Fed. 152 (S.D.N.Y., 1913), aff'd 210 Fed. 869). The record of
the October 1947 conviction shows that the applicant was not present

when his case was called in the District Court at Arnhem. He testified, however, that he had notice of the proceeding, appeared after
ti-e conclusion thereof, took no appeal and paid the fine. We agree
with the special inquiry officer that under these circumstances the
applicant was not convicted in absentia.
The applicant is the spouse of an alien lawfully admitted for permanent residence. I-Es wife arrived at the port of New York on
September 14, 1959. She testified that she is wholly dependent on
the applicant for her support. We agree with the special inquiry
officer that there are mitigating factors present in the applicant's
case. However, we are aware of no provision of the immigration
laws which will permit an adjustment of the applicant's status except
a departure from the United States and obtaining a new visa pursuant to the waivers provided by sections 5 and 7 of the Act of Sep-

tember 11, 1957 (Public Law 85-316). An order providing for the
applicant's exclusion will be entered.
Order: It is ordered that the order entered by the special inquiry officer on•December 3, 1959, admitting the applicant pursuant
to waivers granted under sections 5 and 7 of the Act of September
11, 1957, be and the same is hereby withdrawn.
It is further ordered that the applicant be excluded from the
United States under the provisions of sections 212(a) (9) and (19) of
the Immigration and Nationality Act in that he is an alien who has
been convicted of a crime involving moral turpitude and has procured a visa by willfully misrepresenting a material fact.

610


Interim Decision #2558

MATTER OF LA_U

In Visa Petition Proceedings
A-21330675

Decided by Board October 29, 1976
the
beneficiary as his sister under section 203(a)(5) of the Immigration and Nationality Act
which was denied by the District Director and petitioner appealed.
(2) Petitioner claimed that beneficiary was adopted by his pirents in 1936. However,
petitioner's mother stated that no adoption papers as required under the Civil Code of
the Republic of China, Article 1079, were executed at the time beneficiary was adopted.
(3) Where no adoption papers were executed when the adoption took place, and the
Chinese documents which were submitted to prove the relationship were conclusory in
nature and there was an absence of specific facts establishing the claimed relationship,
the evidence submitted was not sufficient to establish that beneficiary was petitioner's
adopted sister within the meaning of section 101(1)(1)(E) of the Act, and the District
(1) The United States citizen petitioner applied for preference classification for

Director's decision was correct.
ON BEHALF Or PETITIONER: Pro ce

The United States citizen petitioner applied for preference classification for the beneficiary as his sister under section 203(a)(5) of the
Immigration and Nationality Act. In a decision dated May 26, 1976, the
District Director denied that petition. The petitioner has appealed from
that denial. The appeal will be dismissed.

The petitioner is a 28-year-old male who is a native of China and a
naturalized citizen of the United States. The beneficiary is a 48-year-old
married female alien who is a native and citizen of China. She presently
resides in Hong Kong.
The petitioner claims that the beneficiary was adopted by his parents
in China in 1936; and that, therefore, the beneficiary is his sister. In
support of his claimed relationship to the bnefitiary, the petitioner has
submitted a statutory declaration from Lee Chow Cheung, the petitioner's mother, various photographs of unidentified individuals; and
several letters written in the Chinese language which appear to be
addressed from the beneficiary to the petitioner (no translations were
provided by the petitioner).
In her statutory declaration executed in Hong Kong on June 26, 1968,
Lee Chow Cheung stated that Lau Kuen Cham is her blood son and was
born in China in September of 1948; that she and her husband, Lau Yiu
115

Interim Decision #2558
Lam aka Lau Hai Sung adopted a daughter; that she was born on
January 12, 1928; and that her name is Lau Choi Wah.
The Service reported in a memorandum dated May 24, 1976, that the
petitioner and his mother, Lee Chow Cheung, were interviewed concerning the adoption of the beneficiary. The petitioner's mother stated
that she married her husband on October 19, 1934; that her husband
departed China for Cuba in February or March of 1936; that she adopted
the beneficiary in 1936 just before her husband's departure; and that no
adoption papers were executed at the time of the adoption.
On appeal, the petitioner submitted copies of documents which pur-

port to be a Chinese "Birth Certificate" issued on February 16, 1976, by
Kwong Mee-Fong, Officer in Charge, Bureau of Public Notary, Toi
Shan District, Kwong Tung Province. Attached to the Chinese documents is a copy of a document signed by Lai Yan Fun, Deputy Director,
Divison of Consular Affairs, Ministry of Foreign Affairs, People's Republic of China and dated May 12, 1976, which purports to certify that
the seal and signature of the notary of the aforementioned documents
are true. Copies of English translations of the Chinese documents are of
record. The translator is identi fi ed as Whittier H. H. Cheng.
The English translation of the Chinese "Birth Certificate" certifies
that Wong Choi Wah alias Lau Choi Wah, a female, was born on
January 12, 1929, in Toi Shan District, Kwangtung Province, People's
Republic of China; and that her adopted father is named Lau Hei-Chung
alias Lau Yiu Lam and her adopted mother is named Lee ChowCheung. The English translation of the Chinese "Relationship Certificate" relates that the "Applicant" Wong Choi-Wah alias Choi-Wah, a
female born in 1929, presently resides in Kowloon, Hong Kong; that the
"Relations" Lee Chow-Cheung, a female born in 1913 presently resides
in the United States and Lau K-uen-Chars, a male born in 1948, presently resides in the United States; and that the notary certifies that

Wong Choi-Wah is the adopted daughter of Lee Chow-Cheung as well
as the adopted elder sister of Lau Kuen-Cham.
In visa petition cases, the petitioner bears the burden to establish
eligibility, Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). In
order to support the claimed "brother-sister" relationship under section
203(a)(5), the petitioner has to establish that both he and the beneficiary

once qualified as "children" of a common "parent" within the meaning of
sections 101(b)(1) and (2) of the Act. Matter of Raman, Interim Decision 2450 (BIA 1975); Matter of Garner, Interim Decision 2357 (BIA.
1975); Matter of Heung, Interim Decision 2334 (BIA 1974). Section
101(b)(1)(E) includes:
a child adopted while under the age of fourteen years if the child has thereafter been in
the legal custody of, and has resided with the adopting parent or parents for at least two
years. . . .

116

Interim Decision #2558
The pertinent provision of the Civil Code of the Republic of China,
Article 1079, required that an adoption of any child over the age of seven
years be in writing. See Matter of Tang, Interim Decision 2159 (BIA
1972); Matter of Kwok, Interim Decision 2145 (BIA 1972). Although the
beneficiary was about eight years old at the time of the alleged adoption,
no adoption papers were executed at the time of the adoption according to

the statement of the petitioner's mother.
With respect to the Chinese documents submitted by the petitioner
on appeal, we point out that we do accept official foreign records when
they fully comply with the procedural requirements relating to authenticity in 8 C.F.R. 287.6. See Matter of Nand, 13 I. & N. Dec. 336 (BIA
1969). However, while the Chinese documents submitted by counsel
have the color of authenticity, we note that the information contained
therein is insufficient to establish that the petitioner and the beneficiary
are children of common parents. Upon review of the Chinese documents, we are unable to determine whether the documents were
created contemporaneously with the births of the petitioner and the
beneficiary. We also do not know whether birth records existed at the
time the Chinese documents were executed on February 16, 1976.
Further, we are unable to determine whether the "notary public" who
signed the Chinese documents had a duty to record births, maintain
legal custody of official records, or examine such records. Certainly, it is
not clear whether a search of birth records or other official records was
conducted. In the absence of specific facts establishing the claimed
relationship, we find that the conclusionary statements contained in the
Chinese documents have little probative value.
Accordingly, we conclude that the evidence submitted by the petitioner is not sufficient to establish that the beneficiary is the petitioner's
adopted sister within the meaning of section 101(b)(1)(E). The result
reached by the District Director was correct, and the appeal will be
dismissed.
ORDER: The appeal is dismissed.

117


Interim Decision #1537

Marrer or Quovrantia-QumNTANILLA
In Deportation Proceedings
A-5096094,

Decided by Board November 29, 1965

‘The return to the United States on December 22, 1963, of respondent, a law-
ful permanent resident of thie country aince 1087, following a wock spent
: im Mexico visiting, relatives and making-a pilgrimage, did not constitute
+ an entry (Rosenderg v. Fleuti, 374 U.S, 449} upon which to predicate 2
ground of deportation since respondent, in making a short visit to Mexico
ae he haa heen asonctamed ta do annnally for many vears without anv in-
terruption of his legal residence; in retaining in the United States his
assets, his business—a large farming operation, and his family, consisting
of a U.S. citizen wife and 7 citizen children of whom & are dependents} and
iw presenting upon return his Alien Registration Card, an immigration
document required to be carried by every alien in the United States, has es-
tablished his departure in a meaningful manner was not intended or expected.
CHARGE:
Order: Act of 1053 Hection B11(a) (4) [@ U.8.C, 1951 (a) (4) ]—Concioted
of crime involving moral turpitude within five years
after entry and sentenced to a year or more.

This is an appeal from the order of the special i inquiry officer re-
quiring respondent's deportation upon the ground stated in the cap-
tion. The appeal will be sustained.

Respondent, a 88-year-old Mexican national, hee, excopt for short
visits to Mexico, been in the United States since he was legally ad-

,_ mitted’ for permanent residence in 1927, His last return to the
United States (after a visit of a week to Mexico) was on December
22, 1968. Some months later respondent killed a man (allegedly in
self-defense). He was found guilty of murder on January 27, 1965
and received a sentence of two years which he is serving,

+ ‘Respondent's conviction of u crime invulving moral turpitude and
his confinement under 2 sentence to confinement for a year or more
are established. If his return in 1963 constituted an “entry,” re-

- spandant ic elearly departahla as charged.

432,
Interim Decision #1537

Prior to Rosenberg v. Fleuti, 74 U.S. 449 (1968), an “entry” for
immigration purposes existed when there was a voluntary coming of
an alien into the United States whether it was the first coming or a
return. Fleuti held that « lawfully resident alien who returns after
a brief ‘absence not intended to disrupt his resident alien status, and
whose purpose in leaving and returning is lawful, has not made an
“entry” subjecting him to the qualitative restrictions of the immi-
gration law (Rosenberg v. Fleuti, 8174 U.S. 449 (1963) ; Matter of
Kolk; Int. Dec. No. 1443; Matter of Caudillo-Villalobos, Int. Dec.
No. 1498). -

After considering Fleutt and several -Board decisions interpreting
Fleuti (Matter of Abi-Raohid, Int. Deo. No. 1344; Matter of Karl,
Int. Deo. No. 1896; and Matter of Caudillo-Villalobos, supra) the
special inquixy officer decided that tho instant once doce not come
within’ the Fleuti rule. The special’ inquiry officer ruled that re-
sporident had made’an “entry” upon his return in 1963 and he was
therefore: depérteble as one who-had committed a crime within five
-years'of the “entry.” The special inquiry officer held that respond-
‘nt was'tiot Within te Flewté vule‘beciuse-Fleutizhad made a casual
“visit of*s fonts to Mexicd whereas-the respondent had planned.
‘his trip for-somo time,'had purchased on automobile for the trip,
‘hadpresented his’ Alien Registration Card, and had remained in
‘Mexiéd for'a-Week.) @ 1 : A 7
+ PRese-aile’the pertinent facts. Respondent, 6 United States resi-
-dent for 38 years, is mortied-to & United States citizen and has seven ~
United ‘States citizen dhildfen of #hom five are dependents. He
-eonductéra large: farming operation, Fronr the time of respondent's
entry until 1054 whon dio fatlior diod, he mado yearly. trips to
Mexico to his native town sbout an hour from the border. His
-brothers, sisters antt'stepmother still live in his native'town, : Prior
to his last entry, he had-been in Mexico in 1956. In July 1963 while
“ill, he made 2 vow that'if he recovered, he would go on a pilgrimage
to Mexico.“ Upon recovery, he bought 2 car to make the pilgrimage
and to visit his relatives in Mexico, At the border he applied to
Mexican officisls for’s special permit entitling him to take his car
to México. In Mexico, he gave his Alien Registration Card to the
Mexican officials who held it as security that he would bring his ‘car *
back ‘out of Mexico. He presented his Alien Registration Card to
United States officials upon his return. He spent about a week in
Mexico in visiting and in making his pilgrimage.

Matter of Caudillo-Vitlalobos, xupra, is distinguishable from the
instant case because it involved an alien whose departure was under
legal process whereas the respondent’s departure was not. . The find-

438

‘Interim Decision #1587

ing in Abé-Rachéd that an “entry” was made 1s based on three fac-
tors, two of which on reconsideration, are no longer deemed of im-
: ; therefore, we do not consider the case of significant pre-
cedeut value. The threo foctors are the length of absence, the pre-
sentation of an Alien Registration Receipt and Border Crossing
Card (I-151) upon return, and the fact that the act on which the
ground of deportability was based was committed after the return.
The lest two factors, neither of which was shown to relate to the in-
tent with. which the departure and return were made, seem, in and
of themselves, of little significance in determining whether an alien
intended to make a departure interruptive of his legal residence. AS
to the presentation of an Alien Registration Card, it is merely the
showing of a card which every alien is required by lew to carry with
him at all times — moreover it bears » notice that it can be used for
e return to the United States from foreign (Aatter of You, Int. Deo
No. 1805) ; as to the commission of an act after return it may or may

‘not have 2 bearing in determining the intent with which an alien 7

doparted from the United States. Matter of Karl. supra, presents &
closer analogy. Karl was absent on e vacation trip in Mexico for
ten days; he returned. illegally on » false claim to United States
citizenship. We held an “entry” was made upon return; we took
into consideration the length of siay. The art case was decided on
March 9, 1964’ before either the decision in Wadman v. Immigration
and Naturalization Service, 329 F.2d 812 (9th Cir., March 26, 1964),
‘or Zimmowman v. Tahmann, 339 F.2d 943 (7th Cir. January 7,
1965), cases dealing with aliens who had taken brief vacations in
contiguous territory. ‘The administrative decision must therefore be
reviewed in light of these judicial ecisions.

Wadman, supra (@ case in which the Bourd is secking clarifica-
tion concerning an aspect not pertinent here, Matter of Wong, Int.
Dee. No. 1444), involved an alien who had been administratively
found to have broken the continuity ef his physical presence in the
‘United States by spending e five-day vacation trip in Mexico. The
court found that, the length of Wadman’s stay in Mexico did not
ipso facto take his case out-of Fleuti; the court returned the case
for further scratiny. to determine “whether the interruption [te
residence], viewed in balance with its consequences, can be said to
have been # significant one under the guides Jaid down in Fleuti”
929 In2d (at 816). : i ;

Zimmerman, supra, involved an alien who had been lawfully
admittéd for permanent residence in 1918 and who had in July
1952 visited Ganada for & five or six-day vacation. In-1953 he
visited Canada for Jess than 24 hours and upon trying to return

ai
Interim Decision #1537

was considered as one excludable at his return in July 1952 because
he had been convicted of a crime prior to that entry; he was.
paroled into the United States and leter given an exclusion hearing
at which he was ordered excluded on the same theory. He sought
judicial review; the court held that respondent had not made an
“entry” upon his return in 1952, and that his status as a resident
alien was therefore not impaired. The court relied upon Fleuti and
‘Wadman, and pointed to the long legal residence enjoyed by the
alien, the fact that he was married to an American citizen, the fact
that he had three minor dependent citizen children, and the fact
that he had a residence and business in the United States. ‘Ihe
court stated, “From the fact that he took his family on a harmless,
innocent vacation trip to Canada, it would border on the absurd,
to ascribe to him an intontion of impairing hie status as 2 permanant
resident of this country” (339 F.2d at, 949).

‘We thus have judicial authority for the view that a vacation trip
of five days outside the United States ‘can fall within the Fleuti
rule, The question then apart from the length of the stay m
Mexico, is therefore whether the respondent intended to depart in
@ manner meaningfully interruptive of the 38 years of legal resi-
dence he had in the United States. Based on the philosophy of the
Fleuti rule, we hold he has not. In visiting Mexico for a short visit
as he had been accustomed to do.for many years without any in-
terruption of his Iegel residence, in retaining his business, assets,
and family in thé United States, and in entering with an immigra-
tion document which was no more than the document required to
be carried by every alien in the United States we think respondent
hae eetablished his departura in a meaningful manner was not in-
tended or expected. Proceedings will be terminated.

ORDER: It is.ordered that the respondent’s appeal be and the
same is hereby sustained and that the proceedings be and are hereby
terminated.

435


Cite as 27 I&N Dec. 778 (A.G. 2020)

Interim Decision #3977

Matter of R-A-F-, Respondent
Decided by Attorney General February 26, 2020
U.S. Department of Justice
Office of the Attorney General
(1) The Board of Immigration Appeals should consider de novo the application of law to
the facts of this case, including whether the deprivations that the respondent would be
likely to encounter upon removal to Mexico would constitute “torture” within the
meaning of the Department of Justice regulations implementing the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States
Nov. 20, 1994).
(2) To constitute “torture” under these regulations, an act must, among other things, “be
specifically intended to inflict severe physical or mental pain or suffering.” 8 C.F.R.
§ 1208.18(a)(5). “‘[T]orture’ does not cover ‘negligent acts’ or harm stemming from a
lack of resources.” Matter of J-R-G-P-, 27 I&N Dec. 482, 484 (BIA 2018) (citing
Matter of J-E-, 23 I&N Dec. 291, 299, 301 (BIA 2002)).
(3) To constitute “torture,” an act must also be motivated by “such purposes as obtaining
from him or her or a third person information or a confession, punishing him or her for
an act he or she or a third person has committed or is suspected of having committed,
or intimidating or coercing him or her or a third person, or for any reason based on
discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1).

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2019), I direct the Board of
Immigration Appeals (“Board”) to refer this case to me for review of its
decision. With the case thus referred, I hereby vacate the Board’s decision
and remand this case for review by a three-member panel.
The Department of Homeland Security (“DHS”) seeks to remove the
respondent to Mexico, but the respondent contends that upon his return, he
would be sent to a Mexican mental health care facility whose poor conditions
rise to the level of “torture.” The respondent therefore seeks deferral of
removal under regulations implementing the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for
United States Nov. 20, 1994) (“CAT”). See 8 C.F.R. § 1208.17(a) (2019).
Because the respondent was convicted of the attempted sexual abuse of a
child, he is not eligible for asylum or withholding of removal, see section
208(b)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C.
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Interim Decision #3977

§ 1158(b)(2)(A)(ii) (2018); 8 C.F.R. § 1208.16(d)(2)–(3) (2019), but he may
qualify for deferral of removal, see 8 C.F.R. §§ 1208.16(c)(4), 1208.17(a).
To so qualify, “[t]he burden of proof is on [the respondent] to establish
that it is more likely than not that he or she would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). In Matter of
R-A-F-, the Board dismissed an appeal by DHS of the immigration judge’s
decision granting the respondent’s application for deferral of removal. The
Board concluded that “we discern no clear error in the Immigration Judge’s
determination that the respondent established that it is more likely than not
that he will be tortured by or at the instigation of or with the consent or
acquiescence (including willful blindness) of a public official or other person
acting in an official capacity in Mexico.” Id., slip op. at 2.
The Board’s decision was contrary to the law. Although the Board
reviews an immigration judge’s factual findings for clear error, it reviews de
novo “questions of law, discretion, and judgment and all other issues in
appeals,” including the application of law to fact. 8 C.F.R. § 1003.1(d)(3)(i),
(ii); see also Board of Immigration Appeals: Procedural Reforms to Improve
Case Management, 67 Fed. Reg. 54878, 54888–89 (Aug. 26, 2002) (“[T]he
Board members will retain their ‘independent judgment and discretion,’
subject to the applicable governing standards, regarding the review of pure
questions of law and the application of the standard of law to those facts.”);
Cruz-Quintanilla v. Whitaker, 914 F.3d 884, 889 (4th Cir. 2019) (recognizing
that the Board “review[s] de novo ‘all other issues,’ including, in cases
involving mixed questions of law and fact, the application of the governing
legal standard to the facts found by the immigration judge”). The Board’s
conclusion that the immigration judge did not commit clear error improperly
merged the factual and legal questions presented by the respondent’s claim
that he was likely to be tortured if removed to Mexico. While the
immigration judge’s “prediction as to ‘what would likely happen’ to the
[respondent] if removed” may have been a factual determination that the
Board reviews only for clear error, “whether that predicted outcome satisfies
the regulatory definition of ‘torture’ . . . constitutes a ‘legal judgment’ subject
to de novo review, as it necessarily involves ‘applying the law to decided
facts.’” Cruz-Quintanilla, 914 F.3d at 890 (quoting Turkson v. Holder, 667
F.3d 523, 528 (4th Cir. 2012)); see also Myrie v. Att’y Gen. U.S., 855 F.3d
509, 516 (3d Cir. 2017) (recognizing that the Board reviews de novo
“whether the likely harm qualifies as torture under the governing
regulations”); cf. Matter of Z-Z-O-, 26 I&N Dec. 586, 591 (BIA 2015)
(“[W]e will review de novo whether the underlying facts found by the

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Interim Decision #3977

Immigration Judge meet the legal requirements for relief from removal or
resolve any other legal issues that are raised.”).1
On remand, therefore, the Board should consider de novo whether the
deprivations that the immigration judge found the respondent likely to
experience upon return to Mexico would rise to the level of torture under the
governing CAT regulations and the relevant precedents. In doing so, the
Board should keep in mind that, to constitute torture, “an act must be
specifically intended to inflict severe physical or mental pain or suffering.”
8 C.F.R. § 1208.18(a)(5) (2019) (emphasis added). The Board has
previously recognized, in applying the specific intent requirement to another
case in which the respondent claimed that the poor conditions in Mexican
mental health facilities would constitute torture, that “‘torture’ does not cover
‘negligent acts’ or harm stemming from a lack of resources.” Matter of
J-R-G-P-, 27 I&N Dec. 482, 484 (BIA 2018) (citing Matter of J-E-, 23 I&N
Dec. 291, 299, 301 (BIA 2002)). It is not enough to show that “the
substandard conditions in mental health facilities, pretrial detention, and
prisons in Mexico are the result of neglect, lack of resources, or insufficient
training and education,” particularly where the government is making
“efforts to improve those conditions.” Id. at 487.
The courts of appeals have affirmed this interpretation of the CAT
regulations. In Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008), for
instance, the Ninth Circuit considered whether the “terrible squalor” of a
Mexican mental health facility would amount to “torture.” Id. at 989. The
court concluded that, even though the reported conditions were “deplorable,”
they did not evince the kind of specific intent to cause pain and suffering that
was required to establish torture. Id.; see also, e.g., Oxygene v. Lynch, 813
F.3d 541, 548 (4th Cir. 2016) (“In re J-E- requires a CAT claimant to
demonstrate that the state actor who mistreats him desires to cause his severe
1

This case arises out of the United States Court of Appeals for the Tenth Circuit, which
similarly recognizes that the Board reviews de novo the application of law to a given set
of facts. See, e.g., Xue v. Lynch, 846 F.3d 1099, 1105 (10th Cir. 2017) (“[T]he BIA has
specifically determined that the ultimate resolution whether a given set of facts amount to
persecution is a question of law reviewed de novo.”). In reviewing the Board’s decisions
under the CAT, the Court of Appeals has recognized that “a request for protection under
the CAT involves factual determinations reviewed for substantial evidence.” Htun
v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016). But the court of appeals’ deferential
review of a final removal order differs from the Board’s review of an immigration judge’s
decision. Compare 8 U.S.C. § 1252(b)(4) (2018), with 8 C.F.R. § 1003.1(d)(3); see also
Xue, 846 F.3d at 1105–06 (recognizing the difference between the standard of review
applied by the court of appeals and the Board). This distinction reflects the general
“[j]udicial deference in the immigration context” to the Board’s decisions, which give
“ambiguous statutory terms concrete meaning through a process of case-by-case
adjudication.” Negusie v. Holder, 555 U.S. 511, 517 (2009) (internal quotations marks
omitted).

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Interim Decision #3977

pain and suffering, and is not merely negligent nor reckless as to the risk. . . .
[T]his interpretation accords with the prevailing meaning of specific intent
and reflects the likely wish of the President and Senate to incorporate that
meaning into the CAT regulations.”); Auguste v. Ridge, 395 F.3d 123, 153
(3d Cir. 2005) (“As the BIA found in Matter of J-E-, the prison conditions,
which are the cause of the pain and suffering of the detainees, result from
Haiti’s economic and social ills, not from any intent to inflict severe pain and
suffering on detainees by, for instance, creating or maintaining the deplorable
prison conditions.”); Pierre v. Gonzales, 502 F.3d 109, 111 (2d Cir. 2007)
(“The failure to maintain standards of diet, hygiene, and living space in
prison does not constitute torture under the CAT unless the deficits are
sufficiently extreme and are inflicted by government actors (or by others with
government acquiescence) intentionally rather than as a result of poverty,
neglect, or incompetence.”).
The Board should further address the remaining elements of the legal
definition of torture, again considering de novo whether the facts as found
by the immigration judge are sufficient to establish each element. Among
other things, the respondent must show that the Mexican health workers who
are alleged to engage in torture would do so “by or at the instigation of or
with the consent or acquiescence of a public official or other person acting
in an official capacity.” 8 C.F.R. § 1208.18(a)(1). The respondent must also
establish that the Mexican health workers would be motivated by “such
purposes as obtaining from him or her or a third person information or a
confession, punishing him or her for an act he or she or a third person has
committed or is suspected of having committed, or intimidating or coercing
him or her or a third person, or for any reason based on discrimination of any
kind.” Id. Absent these determinations, a claim for protection from removal
under the CAT must fail.
The Board on remand thus should review the respondent’s claim
consistent with the requirements of the CAT regulations and the governing
precedent. See Matter of J-R-G-P-, 27 I&N Dec. at 487.

781


Interim Decision #2209

MATTER OF Lo
In Visa Petition Proceedings
A-19465933
Decided by Board June 6, 1973
Beneficiary, the child of petitioner and petitioner's concubine, born in China in
1946, is not deemed to be legitimate within the purview of Article 1065, Civil
Code of the Republic of China of 1931, since there is no evidence of any
maintenance of beneficiary by petitioner prior to the year 1955; as the Civil
Code was abolished in 1949 when the Chinese Communists gained control, the
terms of Article 1065 were not met while they were still in effect. Hence,
beneficiary is ineligible for preference classification under section 203(a)(2) of
the Immigration and Nationality Act, as amended.
ON BEHALF OF RESPONDENT:

Casimir F. Sojka, Esquire

80 Mott Street
New York, New York 10013

(Brief filed)

This is an appeal from the District Director's denial of a visa
petition filed to classify the status of the beneficiary as the
unmarried son of the petitioner, a lawful permanent resident. The
petition was considered for benefits under section 203(aX2) of the
Immigration and Nationality Act. The District Director denied the
petition for the reason that the petitioner did not establish that
the beneficiary was his legitimate child. The appeal will be dismissed.
The beneficiary is a 27-year-old male born in China, allegedly to
the petitioner and a woman who was his concubine. Legitimacy
must be established when a father petitions for immigration
benefits on behalf of a child, because an illegitimate child is
accorded immigration benefits by virtue of its relationship to its
mother only (section 101(b)(1XD) of the Act).
At the time the beneficiary was born the law in effect in China
regarding legitimation was the Civil Code of the Republic of China,
Book of Family, Book IV, effective May 5, 1931, Article 1065 of
which provides:
A child born out of wedlock who has been acknowledged by the natural father is
deemed to be legitimate; where he has been maintained by the natural father,
acknowledgment is deemed to have been established.

379

Interim Decision #2209
According to affidavits submitted with the petition, the beneficiary came to live with the petitioner and the petitioner's wife in
1955. There is no evidence of any maintenance of the beneficiary
by the father prior to 1955. Inasmuch as the Civil Code was
abolished in 1949, when the Chinese Communists gained control
and abolished all laws of the Republic of China, the terms of
Article 1065 of the Code were not met while they were still in
effect.
Article 15 of the Marriage Law of the People's Republic of
China, which was promulgated May 1, 1950, provides:
Children born out of wedlock shall enjoy the same rights as children born in
lawful wedlock. No person shall be allowed to harm them or discriminate against
them. Where the paternity of a child born out of wedlock is legally established by
the mother of the child or by other witnesses or by other material evidence, the
identified father must bear the whole or part of the cost of maintenance and
education of the child until the age of eighteen.

In regard to the relationship between children born out of
wedlock and their fathers, Article 15 refers to children whose
paternity is "legally established." It does not describe the method
for legally establishing the paternity. There is no evidence in this
record that the paternity of the beneficiary was ever legally

established. Thus the petitioner has not established that the
beneficiary is his legitimate child.
The decision of the District Director was correct. We do not
reach the questions of whether legally establishing paternity
pursuant to Article 15 is tantamount to legitimation for immigration purposes or, if so, whether Article 15 has retroactive effect,
serving to legitimate persons born prior to its promulgation.
ORDER: The appeal is dismissed.

380


• Interim Decision #2924

MATTER OF BROWN
In Deportation Proceedings
A-30085015

Decided by Board September 30, 1982
(1) Deportation proceedings which have been commenced against an alien are not nullified
by his temporary absence from the United States as long as the allegations and charges
stated in the Order to Show Cause continue to be. applicable.
(2) The Immigration and Naturalization Service need not issue a new Order to Show Cause
when an alien under deportation proceedings departs from the country if upon his return
he is still deportable on the same grounds stated in the Order to Show Cause.
(3) A lawful permanent resident who has applied in deportation proceedings for a waiver
of deportability under section 212(c) of the Immigration and Nationality Act, 8 U.S.C.
•182(c), and subsequently departs from the United States may resume the application
in those proceedings upon his return.
CHARGE:

Order: Act of 1952—Sec. 241(a)(11) [8 U.S.C. 1251(a)(11))—Convicted of a narcotics violation
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Joseph F. O'Neil, Esquire
116 Lincoln Street
Boston, Massachusetts 02111

Frederick J. McGrath
General Attorney

Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

The Immigration and Naturalization Service has appealed from a decision of the immigration judge dated May 5, 1982, terminating deportation proceedings. The appeal will be sustained and the record will be
remanded for further proceedings.
The respondent is a 25-year-old native and citizen of Jamaica who was
admitted to the United States on May 27, 1973, as a lawful permanent
resident. Thesecord reflects that he was convicted on June 3, 1980, in
the District Court of Springfield, in Springfield, Massachusetts, for
possession of marijuana.
On August 28, 1980, an Order to Show Cause was issued charging the
respondent with deportability under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(11), for having been convicted of a narcotics violation. At deportation proceedings conducted on
224

Interim Decision #2924
May 11, 1981, the respondent conceded deportability and applied for a
waiver of deportation pursuant to section 212(c) of the Act, 8 U.S.C.
1182(c). TLe hearing was continued for an investigation regarding that
application
At resumed proceedings on May 5, 1982, the respondent testified that
he had departed from the Unit ul States on August 19, 1981, for a visit
to Jamaica. The immigration judge terminated deportation proceedings,
concluding that the Service was required to institute new proceedings
as a result of the respondent's departure from the United States. He
further stated that by leaving.the country the respondent abandoned his
applicatiom for section 212(c) relief.
We find that the immigration judge erred in terminating the proceedings in this case. Deportation proceedings previously commenced against
an alien are not nullified by his temporary absence from the United
States. The reason for issuance of an Order to Show Cause is to inform
an alien of the deportation charges against him and to notify hiln that he
must show why he should not be deported. See 8 C.F.R. 242.1(b). As
long as the allegations and charges stated in the Order to Show Cause
continue to be applicable, the alien remains subject to deportation. He
cannot compel the termination of deportation proceedings which have
been commenced against him merely by effecting a departure and
reentry. Consequently, we do not find it mandatory that the Service
issue a new Order to Show Cause when an alien departs from the country if upon his return he is still deportable on the same grounds stated
in the Order to Show Cause. This ruling does not, however, preclude
the Service from electing to issue a new Order to Show Cause when
appropriate. •
Furthermore, we conclude that the respondent's application for section 212(e), relief could properly be resumed upon his return to the
United States. See Matter of Lok, 18 I&N Dec. 101 (BIA 1981). Requirr
inghmtoflearpicnwouldsev fprointh
case. Accordingly, the record will be remanded to the immigration judge
for further proceedings consistent with the foregoing opinion and for the
entry of a new decision.
ORDER The record is remanded to the immigration judge for
further proceedings.

325


Interim Decision #2027

MATTER OF ARAI
In Deportation Proceedings
A-18483322
Decided by Board March 4, 1970
Where adverse factors are present in a given application for adjustment of
status under section 245, Immigration and Nationality Act, as amended, it
may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as

family ties, hardship, length of residence in the United States, etc., will be
considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion. [Matter of OrtizPrieto, 11 I. & N. Dec. 317, superseded.]

CHARGE:
Order : Act of 1952—Section 241 ( a) (2 ) [8 U.S.C. 1251 ( a) ( 2) ]—Visitor,
remained longer.
ON BEHALF OF SERVICE:
R. A. Vielhaber
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:
Donald L. Ungar, Esquire
517 Washington Street
San Francisco, California 94111
(Brief submitted)

In our decision of February 6, 1970, we sustained the respondent's appeal, withdrew the order of the special inquiry officer, and
granted respondent adjustment of status under section 245 of the
Immigration and Nationality Act. At that time we stated that an
opinion in greater detail would be forthcoming in the near future.
In sustaining the respondent's appeal we have, in effect, exercised

discretionary power contrary to the manner in which the special
inquiry officer exercised it. In so doing, we did not conclude that
the special inquiry officer was either arbitrary or capricious in
his action or that he abused his discretion in any manner.
The special inquiry officer after finding the respondent to be eligible for the relief, nevertheless, concluded that such should not
Je granted as a matter of discretion. He based his denial on the
:riteria set forth in Matter of Ortiz-Prieto, 11 I. & N. Dec. 317
494

Interim Decision #2027
(BTA, 1965). We there stated that the extraordinary relief described in section 245 can only be granted in meritorious cases.
Having found no outstanding equities in that case, we dismissed
the appeal from the special inquiry officer's denial of the relief as
a matter of discretion.
We are now of the opinion that the language set forth in
Matter of Ortiz-Prieto, supra, should be clarified and modified
because it is too broad in its impact and probably more demanding than necessary. Accordingly, the language of the instant decision will supersede that contained in Ortiz-Prieto.
The respondent is now over 27 years of age. He is single and
was admitted to the United States on March 25, 1968, as a visitor
for a period of time to expire on April 26, 1968. On April 25,
1968, he filed an application for staus as a temporary worker or
trainee. That application was denied on October 4, 1968, and he
was thereafter granted voluntary departure to expire on November 28, 1968. He remained beyond that date and is concededly deportable on the charge contained in the order to show cause.
The special inquiry officer in considering the respondent's application for adjustment of status under section 245 was aware
that the respondent is a specialty cook in Japanese cuisine and
had been accorded a labor certification for such employment. No
finding was made by the special inquiry officer that the respondent was other than a bona fide visitor when he first arrived in the
United States. Apparently the special inquiry officer considered
the respondent's taking of employment before his trainee status
had been acted upon as an adverse factor. He then found that the
respondent's case presented no unusual equities and based his denial of the application on the ruling contained in Ortiz-P••eto.
Section 245 of the Immigration and Nationality Act reposes
with the Attorney General and his delegates the discretionary
power to grant adjustment of status. Therefore it follows that
mere eligibility for that privilege will not automatically result in
a grant of the application.
The record in the instant case presents no adverse factors affecting respondent's application. He is a young man, in good
health and of good moral character. his employment is such that
a labor certification has been issued. The employment could be of
potential benefit to this country. The respondent has no dependents.
It is difficult and probably inadvisable to set up restrictive
guide lines for the exercise of discretion. Problems which may
arise in applications for adjustment must of necessity be resolved
495

Interim Decision #2027
on an individual basis. Where adverse factors are present in a
given application, it may be necessary for the applicant to offset
these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of
residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion.
Our decision to sustain the respondent's appeal was based upon
the foregoing considerations. We do not deem it necessary for the
respondent to establish, in light of the circumstances surrounding
his case, any outstanding equities.

996