Interim Decision #2359

MATTnR.

OF LEE

In Visaa Petition Proceedings
A-20316834

Decided by Board March 21, 1975
The petitioner, a United States citizen, applied for preference status for the beneficiary as
her brother under the provisions of section 203(a)(5) of the Immigration and Nationality
Act. However, blood tests excluded the claimed relationship and the visa petition
approval was revoked. Petitioner's mother now claims that she adopted the beneficiary
at birth in Hong Kong in 1957. The petition must be denied for two reasons. First, under
Chinese law, the beneficiary's mother could not adopt without the consent of her
husband (who was unaware of the alleged adoption in 1957). Such consent was not
forthcoming until 1973. after beneficiary had passed the age of 14 years (see section
101(b)(1)(E) of the Act). Secondly, the sole evidence presented in support of the
adoption was a statutory declaration executed by the putative adoptive mother in 1973.
This evidence does not meet the standards for proof of Chinese customary adoption. See
Matter of Kulan, 14 L & N. Dec. 175 (BIA 1972) andMatter of Chin, 14 I. & N. Dec. 150
(BIA 1972).
ON BEHALF OF PETITIONER: Z. B. Jackson, Esquire
Jackson & Hertogs
585 Washington Street
San Francisco, California 94111

The United States citizen petitioner applied for preference status for
the beneficiary as her brother under section 203(a)(5) of the Immigration
and Nationality Act. The district director approved the petition on June
15, 1973. However, when blood tests'excluded the claimed relationship,
the district director notified the petitioner of his intent to revoke approval of the petition. After giving the petitioner an opportunity to
submit evidence in opposition to revocation, the district director revoked approval of the visa petition in a decision dated July 18, 1974. The
petitioner has appealed from that decision. The appeal will be dismissed.
The petitioner's mother now claims that she adopted the beneficiary
at birth in Hong Kong in 1957 and raised him as her son. Her husband
was not informed of the adoption until sometime after October 16, 1973;
prior to that time he had allegedly considered the beneficiary to be his
blood son.

Upon learning the true circumstances of the beneficiary's birth, the
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husband purportedly consented to the adoption. By that time, however,
the beneficiary was beyond the 14-year age requirement for adoption in
accordance with section 101(b)(1)(E) of the Act. See Matter of Butterly,
14 I. & N. Dec. 460 (BIA 1973).
The law of adoption applicable to Chinese domiciled in Hong Kong, in
addition to recent enactments by the Hong Kong authorities, has been

Chinese law and custom. Matter of Poon, 14 I. & N. Dec. 155 (BIA
1972); Matter of Ng, 14 I. & N. Dee. 135 (ETA 1972). The record contains a
memorandum regarding Chinese law and custom in Hong Kong prepared
in March 1974 by the Far Eastern Law Division of the Library of
Congress.
That memorandum contains the following passage taken from T'ungtsu Chu, Law and Society in Traditional China 104 (Paris: Mouton &
Co. 1965):
A wife's authority was controlled and limited by her husband. To be sure, she had the
right to disckgine her children and arrange for their marriages, but she could not go
counter to her husband's will. And while she had authority to control the household and
the household property, this authority also derived from her husband. Any activity over
and above roatine matters had to be approved by him. This was clearly stated by the
Supremo Court [of China] as late as 1916 Undonbtedly, it reflected a traditional
viewpoint.

The same source also indicates that under the principle of the "three
dependencies," the wife in the Lra.ditional Chinese household could

never act autonomously.
Another authority on Chinese law indicates that the wife in traditional Chinese society was not the equal of her husband. The concept of
husband and wife having "equal rank" was merely an external aspect;
inside the house, the wife owed obedience to her husband. M. J. Meijer,
Marriage Low and Policy in the Chinese People's Republic 15 (Hong
Kong: Hong Kong University Press 1971).
In an unpublished decision, Matter of Wing lion Leong, A-17190825
(BIA September 30, 1971), we considered the question of an adoption by
a married woman without her husband's consent under the law of China

prior to the effective date of the Civil Code of the Republic of China. We
found that there was no provision of Chinese law in effect prior to the
Civil Code which would have permitted an adoption to be effective as to
a married man without his consent or knowledge.
Counsel has relied on an earlier unpublished decision, Matter of Lung
Chan, VP3-1.423920 (BIA April 30, 1962). In that case we recognized
an adoption •ander Chinese law and custom in Hong Kong where there
evidently had been an accidental switch of children at birth, and neither
parent knew that the child was not their blood child until blood tests
were undertaken. The result in that case may have been influenced by

the sympathetic factors present; we do not believe that it represents a
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correct application of the adoption laws of Hong Kong, and we decline to
follow it in the present situation.
In Matter of Rodriguez, 14 I. & N. Dec. 335 (BIA 1973), we held that
an adoption by a single woman was possible under Chinese law and
custom in Hong Kong. Obviously, that case is distinguishable from the
present situation involving a married woman who allegedly adopted
without her husband's consent or knowledge.
Nevertheless, counsel has pointed out that in Matter of Rodriguez we
noted an assertion by the district director "that the courts of Hong Kong
have accepted the principle that a married woman was capable, acting
alone, of adopting a child, In Re T.M.H. (An Infant), 1962 H.K.L.R.
[1813 184." In the context of Rodriguez, that statement was only dictum. Moreover, upOn a rereading of In Re T.M.H., supra, we are
satisfied that case does not establish that a married woman can adopt
without her husband's consent under Chinese law and custom in Hong
Kong.
Counsel has also referred to our unpublished decision in Matter of Yu
Lung Hei, A- 19192671 (BIA October 3, 1973). That case, however, dealt
with adoption under the Civil Code of the Republic of China and is not
applicable to the present situation involving Chinese law and custom in

Hong Kong.
On the basis of the information presently available to us, we conclude
that the petitioner has failed to establish that a married woman is
empowered to adopt without her husband's consent under Chinese law
and custom in Hong Kong. Moreover, there is an additional basis for not
approving this visa petition.
The sole evidence of the alleged adoption is a Hong Kong statutory
declaration executed by the putative adoptive mother on October 16,
1973. This evidence does not meet the standards for proof of Chinese
customary adoptions set forth in Matter of Ewan, 14 I. & N. Dee. 175
(MA 1972), and Matter of Chin, 14 I. & N. Dec. 150 (BIA 1972).

The district director's decision to revoke approval of the visa petition
was correct. The appeal will be dismissed.
ORDER: The appeal is dismissed.

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Interim Decision #3970

Matter of O-F-A-S-, Respondent
Decided December 6, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Torturous conduct committed by a public official who is acting “in an official
capacity,” that is, “under color of law” is covered by the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened
for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197,
U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988), but such conduct by an official who is not acting in an official capacity,
also known as a “rogue official,” is not covered by the Convention.
(2) The key consideration in determining if a public official was acting under color of law
is whether he was able to engage in torturous conduct because of his government
position or if he could have done so without a connection to the government.
FOR RESPONDENT: Amanda Perez, Esquire, Roswell, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: James F. Polivka, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members
MALPHRUS, Board Member:

In a decision dated November 2, 2017, an Immigration Judge denied the
respondent’s applications for asylum and withholding of removal under
sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality
Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2012), and his request
for protection under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for
signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture” or
“Convention”). The respondent has appealed from that decision. The appeal
will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala who entered the
United States on April 24, 2016, without a valid entry document. He was
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subsequently placed in removal proceedings where, through counsel, he
conceded removability and filed applications for relief from removal.
The respondent’s persecution claim stems from an incident in Guatemala
in 2016. He testified that he worked for 12 years as a salesman for a beverage
distributor in Guatemala. In 2015, the respondent and six other employees
were laid off, and he received a severance package of 167,000 quetzales
(approximately $21,500). He used 70,000 quetzales to purchase land and
cattle, and he went into the cattle business.
In the middle of 2015, a family member warned the respondent to be
careful, telling him that a number of police cars had been spotted around his
house. On March 13, 2016, the respondent received a phone call from an
unknown person who asked him for 120,000 quetzales, stating that he knew
the respondent had money. When the respondent said he had no money, the
caller said, “Yes. We know you do.” The caller told the respondent he must
pay, or he and his associates would kill the respondent’s family.
Two weeks later, on March 31, 2016, five men wearing shirts with the
insignia of the Policia Nacional Civil (“PNC”), Guatemala’s national police,
appeared at the respondent’s door carrying high-caliber firearms. The
respondent opened the front door part way, and the men pushed the door open
and hit the respondent in the left shoulder with a gun, causing his shoulder to
dislocate. The men also handcuffed the respondent and began trashing his
house, looking for money. They threatened to cut off the respondent’s
fingers if he did not pay them.
The respondent told the men that he had 10,000 quetzales in his car,
which one of them retrieved. After he returned to the house with the money,
another of the men received a phone call indicating that a neighbor had
contacted the police to report a disturbance at the respondent’s house and that
the police were en route. At that point, the men removed the handcuffs from
the respondent and told him that he had 10 days to pay the balance of the
amount they demanded, or he would be killed. One man threatened to take
out the respondent’s good eye if he reported them to the police. 1 The
respondent did not report the incident to the police. He also did not see a
doctor for his shoulder injury but was, instead, treated by a layperson.
The respondent left Guatemala, entered the United States on April 24,
2016, and filed an application for asylum on September 5, 2017. After an
individual hearing, the Immigration Judge issued a decision pretermitting the
respondent’s asylum application as time-barred. The Immigration Judge also
denied the respondent’s application for withholding of removal, finding that
he failed to establish that it was more likely than not he would face
persecution on account of a protected ground and that the Government of
Guatemala was unwilling or unable to protect him from his attackers.
1

The respondent lost one eye in a fireworks accident when he was 12 years old.

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As to the respondent’s claim for protection under the Convention Against
Torture, the Immigration Judge held that the respondent did not establish that
the five men who beat, robbed, and threatened him were bona fide police
officers. In the alternative, the Immigration Judge held that even if they
actually were police officers, the respondent did not establish that the men
acted in an official capacity, as opposed to acting for personal gain, or that
they acted with the consent or acquiescence of a public official or other
person acting in an official capacity. For these reasons, the Immigration
Judge denied the respondent’s claim for protection under the Convention
Against Torture. On appeal, the respondent contends that he has met his
burden of proving that he is eligible for asylum, withholding of removal, and
protection under the Convention Against Torture.

II. ANALYSIS
The primary issue in this case concerns whether the men who harmed the
respondent were acting “in an official capacity,” that is, “under color of law”
or were, instead, “rogue officials.” To resolve this issue, we must look to the
language of both the Convention Against Torture and the implementing
legislation and regulations. See generally INS v. Stevic, 467 U.S. 407, 414
(1984) (beginning the analysis of the case by examining the relevant “sources
of law”). We begin our analysis with the history and language of the
Convention.
A. Convention Against Torture
The United Nations Convention Against Torture was adopted by
unanimous agreement of the United Nations General Assembly on December
10, 1984, and was entered into force on June 26, 1987. 2 It established “a
regime for international cooperation in the criminal prosecution of torturers,
relying on the principle of ‘universal jurisdiction’ and the obligation to
extradite or prosecute.” S. Exec. Rep. No. 101-30, at 2 (1990).

2
Adoption of the Convention Against Torture in 1984 culminated more than a decade of
efforts at the international level to prohibit the practice of torture. In 1973, the United
Nations General Assembly adopted Resolution 3059 rejecting “any form of torture and
other cruel, inhuman or degrading treatment or punishment.” G.A. Res. 3059 (XXVIII)
(Nov. 2, 1973). Two years later, it adopted the Declaration on the Protection of All Persons
from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. G.A. Res. 3452 (XXX) (Dec. 9, 1975). The Declaration was the foundation
for the Convention.

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Article 1 of the Convention Against Torture defines “torture” to mean
any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or
a third person, or for any reason based on discrimination of any kind, when such pain
or suffering is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity. It does not include
pain or suffering arising only from, inherent in or incidental to lawful sanctions.

(Emphasis added). According to Article 3 of the Convention,
No State Party shall expel, return (“refouler”) or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being
subjected to torture.

The United States signed the Convention Against Torture on April 18,
1988, and the President transmitted it to the Senate on May 20, 1988, with
several proposed conditions. In transmitting the document, the President
observed that “the Convention applies only to torture that occurs in the
context of governmental authority, excluding torture that occurs as a wholly
private act or, in terms more familiar in United States law, it applies to torture
inflicted under color of law.” Message from the President of the United
States Transmitting the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, S. Treaty Doc. No. 100-20,
at 4 (1988) (emphases added). After the Convention was resubmitted to the
Senate with revised conditions in 1990, the Senate Committee on Foreign
Relations passed a resolution of ratification for the advice and consent of the
Senate. The accompanying report specifically stated that “acts of torture
committed by private individuals are excluded.” S. Exec. Rep. No. 101-30,
at 6. These documents are critical to understanding our nation’s obligations
under the Convention and how we should determine what conduct is covered
by it.
To implement the Convention domestically, Congress enacted section
2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Division
G of Pub. L. No. 105-277, 112 Stat. 2681, 2681-822 (codified as a note to 8
U.S.C. § 1231), which provides that “the heads of the appropriate agencies
shall prescribe regulations to implement the obligations of the United States
under Article 3 of the United Nations Convention Against Torture.” Id.
§ 2242(b).
The United States Department of Justice promulgated an interim rule
to implement the obligations of the United States under Article 3 in the
context of removal of aliens. Regulations Concerning the Convention
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Against Torture, 64 Fed. Reg. 8478 (Feb. 19, 1999). The rule created two
separate provisions for protection under Article 3. Id. at 8489–90. The first
provision established withholding of removal under the Convention for
aliens who are not subject to the bars to eligibility in section 241(b)(3)(B) of
the Act. See 8 C.F.R. § 208.16(c) (2000). The second, called “deferral of
removal,” provided protection for aliens who are ineligible for withholding
of removal under section 241(b)(3)(B). See 8 C.F.R. § 208.17(a) (2000).
The rule defined “torture” with respect to both withholding of removal and
deferral of removal, incorporating the provision in Article 1 of the
Convention that torture must be “inflicted 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. § 208.18(a)(1) (2000).
The regulations governing claims raised in removal proceedings for
protection under the Convention Against Torture are currently at 8 C.F.R.
§ 1208.16(c) through § 1208.18 (2019). 3 Under 8 C.F.R. § 1208.18(a)(1),
the Convention extends to acts of torture that have been “inflicted by . . . a
public official or other person acting in an official capacity.” (Emphasis
added.) The regulation, like the treaty, envisions that torture could be
inflicted by a government official who is acting outside the rubric of the
Convention, that is, in a personal capacity. The history and purpose of the
treaty reflect that its protection was intended to apply only to torture that
occurs in the context of governmental authority.
There is no indication that the Department of Justice intended to exceed
the intent of the drafters of the treaty when the regulation was promulgated.
Thus, under the treaty and its implementing regulation, torturous conduct
committed by a public official who is acting “in an official capacity,” that is,
“under color of law” is covered by the Convention Against Torture, but such
conduct by an official who is not acting in an official capacity, also known
as a “rogue official,” is not covered by the Convention. 4 “Rogue officers” or
3

Prior to 2002, the regulations regarding the Convention Against Torture in Part 208 of
title 8 of the Code of Federal Regulations were issued by the former Immigration and
Naturalization Service (“INS”), which was part of the Department of Justice. The functions
of the INS were transferred to the Department of Homeland Security pursuant to the
Homeland Security Act of 2002, Pub. L. No. 107-296, § 403, 116 Stat. 2135, 2178
(amended 2003). The Department of Justice subsequently published a final rule
reorganizing title 8 to reflect the transfer of those functions and the division of jurisdiction
over the regulations. See Aliens and Nationality; Homeland Security; Reorganization of
Regulations, 68 Fed. Reg. 10,349, 10,349 (Mar. 5, 2003) (Supplementary Information).
4
We recognize that the United States Court of Appeals for the Ninth Circuit has held that
there is no “rogue official” exception to protection under the Convention Against Torture
and 8 C.F.R. § 1208.18(a). Barajas-Romero v. Lynch, 846 F.3d 351, 362–63 (9th Cir.
2017). The court reads the regulation’s use of the word “or” rather than “and” between the

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“rogue officials” are public officials who act outside of their official capacity,
or, in other words, not under color of law.
1. Under Color of Law
Although the regulations do not define the term acting “in an official
capacity,” the Attorney General has interpreted the phrase to mean “under
color of law.” Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270, 285 (A.G.
2002) (“The scope of the Convention is confined to torture that is inflicted
under color of law.” (citing Ali v. Reno, 237 F.3d 591, 597 (6th Cir. 2001)));5
see also United States v. Belfast, 611 F.3d 783, 808 (11th Cir. 2010) (noting
that “there is no distinction between the meaning of the phrases ‘under the
color of law’ and ‘in an official capacity’”).
Giving deference to the Attorney General’s determination that acting “in
an official capacity” means “under color of law,” two Federal courts of
appeals have drawn from their own interpretation of that phrase in civil rights
phrases “public official” and “other person acting in an official capacity” to mean that
torturous conduct may be inflicted by a public official acting in a private capacity and be
covered by the Convention Against Torture. This is inconsistent with our interpretation of
the regulation, which, like the treaty, “deals only with torture committed in the context of
governmental authority” or “inflicted under color of law.” S. Exec. Rep. No. 101-30 at 6,
14; see also 64 Fed. Reg. at 8483.
Regarding the regulatory language, the issue is whether the phrase “acting in an official
capacity” is intended to qualify only the term “other person,” or if it also applies to “a
public official.” If the regulation is read as “a public official” or “other person acting in an
official capacity,” it would provide protection to persons tortured by a public official acting
in a private capacity, such as a police officer, or even any government employee who acted
in furtherance of his own personal objectives. In our view, this was not the intent of the
Convention or the regulation, and the best reading of the regulation is that the phrase
“acting in an official capacity” qualifies both “a public official” and “other person.”
The Ninth Circuit’s interpretation also appears to imply that the term “public official”
is limited to law enforcement or security officials (local or national) who engage in
torturous conduct. However, neither the Convention nor 8 C.F.R. § 1208.18(a)(1) defines
the term “public official” in this manner. See Kamara v. Att’y Gen. of U.S., 420 F.3d 202,
215 (3d Cir. 2005). Furthermore, its common meaning may include any person in a
government position. The term therefore extends beyond law enforcement officers and
could apparently encompass other government workers such as teachers and postal workers.
See generally Kasneci v. Gonzales, 415 F.3d 202, 205 (1st Cir. 2005) (addressing a claim
that alleged attacks by townspeople dressed in military uniforms “were carried out by or
with the acquiescence of a public official”). This is especially true in forms of government
where most employees work for the State. The broadness of the term “public official”
further supports our view that it is modified by the phrase “acting in an official capacity”
in the regulation.
5
Contrary to the respondent’s argument, Matter of Y-L-, A-G- & R-S-R- remains good
law on this point.

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case law to apply it in the immigration context. Ramirez-Peyro v. Holder,
574 F.3d 893, 900 (8th Cir. 2009) (“While our circuit has yet to adopt the
agency’s interpretation of ‘in an official capacity’ as the equivalent of ‘under
color of law’ as used in the civil-rights context as reasonable, we do so
now.”); see also Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014) (stating
that under the Attorney General’s standard, “we interpret under color of law
as we would in a civil rights case”). We will follow that approach in
analyzing a claim involving conduct by a public official who is not acting in
an official capacity, that is, a “rogue official.”
We apply the law through case-by-case adjudication in removal
proceedings under the Act, and in so doing, we have an obligation to promote
consistency in the application of the immigration laws through Board
precedent. See Matter of M-E-V-G-, 26 I&N Dec. 227, 248–49 (BIA 2014)
(noting the role of Board precedent in defining the United States’ obligations
under international agreements and in establishing that claims relying on
those agreements are adjudicated with consistency in removal proceedings).
See generally Immigration Reform and Control Act of 1986, Pub. L. No.
99-603, § 115(1), 100 Stat. 3359, 3384 (stating Congress’ intent that “the
immigration laws of the United States should be enforced vigorously and
uniformly”). While no one case and no one circuit’s law is dispositive, we
set forth a national standard based on the general import of civil rights law
as relevant in the immigration context. See INS v. Orlando Ventura, 537 U.S.
12, 16–17 (2002) (per curiam) (recognizing the importance of allowing the
Board to “make an initial determination” so that it “can bring its expertise to
bear” on matters that arise in the immigration context).
In the civil rights context, a public official “acts under color of law when
he misuses power possessed by virtue of . . . law and made possible only
because he was clothed with the authority of . . . law.” Ramirez-Peyro, 574
F.3d at 900 (alterations in original) (citations omitted). An act that is
motivated by personal objectives is under color of law when an official uses
his official authority to fulfill his personal objectives. Garcia, 756 F.3d at
892. “The dispositive question is whether the [official] was exercising the
power [he or] she possessed based on state authority or was acting only as a
private individual.” Butler v. Sheriff of Palm Beach County, 685 F.3d 1261,
1265 (11th Cir. 2012). In other words, in determining if a public official who
engaged in torture was “acting in an official capacity,” it is key to consider
if he was only able to accomplish the acts of torture by virtue of his official
status. See United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991).
In evaluating if a public official is acting under color of law in inflicting
torture, circuit courts have significantly relied on whether government
connections provided the officer access to the victim, or to his whereabouts
or other identifying information. For example, the United States Court of
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Appeals for the Fifth Circuit determined in an extortion case that the
offenders’ ability to obtain information about the victim’s whereabouts and
his financial status from other public officials who had acquired that
information in their official capacities was a strong indication that the
offenders were acting in their official capacity. Garcia, 756 F.3d at 892–93.
Two extortion attempts and threats to the victim in that case occurred shortly
after he had provided required information to government officials: first,
when he applied for a national identity card, and second, when he was
stopped and questioned at a police checkpoint. Id.; see also Ramirez-Peyro,
574 F.3d 905–06 (remanding based on evidence that Mexican Government
officials who, in their official capacity, obtained information about the
victim’s identity and whereabouts could provide that information to drug
cartels who would torture and kill the victim); United States v. Picklo, 190
F. App’x 887, 889 (11th Cir. 2006) (per curiam) (holding that a government
official who robbed a person “acted under color of law because he identified
himself as a state investigator, flashed a badge, and used his official status to
get [the victim] to follow his instructions”). In these cases, the person’s
official capacity effectively provided the means to access, locate, or harm the
victim.
In contrast, in Miah v. Mukasey, 519 F.3d 784, 788 (8th Cir. 2008), the
Eighth Circuit approved of our conclusion that an elected official who
attempted to take control of other people’s property was a “rogue” official
because his actions fell outside of his official duties. In determining that the
official was not acting in an official capacity, we noted that other government
officials did not assist him but, instead, made an effort to investigate and
prosecute him criminally for his illegal activities.
Also relevant to the analysis is whether a law enforcement officer was on
duty and in his official uniform at the time of his conduct. If so, it is more
likely that he acted under color of law. However, the use of an official
uniform or service weapon is not dispositive of the issue, because those items
can be obtained outside the normal channels of government operations, and
they may not be necessary to the official’s ability to engage in the torturous
conduct. See Barna v. City of Perth Amboy, 42 F.3d 809, 816–19 (3d Cir.
1994) (holding that a police officer did not act under color of law, even
though he was in uniform and used a government-issued nightstick to beat
the victim, because he was off-duty and outside his jurisdiction, and he did
not encounter the victim as part of police business); see also Ramirez-Peyro,
574 F.3d at 901; Vargas Hidalgo v. U.S. Att’y Gen., 154 F. App’x 827, 829
(11th Cir. 2005) (per curiam). Moreover, in general, the higher a position in
law enforcement that a person holds, the more likely his conduct will be
under color of law, even if his actions are taken for personal gain. He is in a

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position to more easily abuse his authority without adverse consequences
than, for example, a line police officer.
A similar consideration is whether the officer threatened to retaliate
through official channels if the victim reported his conduct to authorities.
See Tarpley, 945 F.2d at 809 (holding that an assault by a police officer was
under color of law where he repeatedly told the victim that, because he was
an officer, he could beat and even kill the man without any consequences).
In this regard, the Seventh Circuit held that, even though an officer attacked
an inmate for personal reasons, he acted under color of law where he was on
duty and in uniform at the time of the attack and enlisted the aid of other
officers in the jail. United States v. Christian, 342 F.3d 744, 751–52 (7th
Cir. 2003). This case reflects that consideration should be given to whether
a government official is acting to fulfill purely personal objectives, but it is
not dispositive of the rogue official question. By contrast, in Almand
v. DeKalb County, 103 F.3d 1510, 1515 (11th Cir. 1997), the Eleventh
Circuit determined that an officer’s conduct in breaking down an apartment
door and raping a woman occupant while he was in uniform was not under
color of law since there was no evidence that he accomplished the act because
of the power he possessed under State authority. It was, instead, an act that
any “ruffian” could have done. Id.
It has been held that the use of government-issued equipment, such as a
service weapon or handcuffs, to beat or restrain a victim does not
automatically render the conduct under color of law. Rather, an Immigration
Judge should consider whether a private citizen could obtain the same
weapons or restrain the victim in the same manner. For example, in Butler,
685 F.3d at 1267–69, the court found that the officer’s use of her
government-issued handgun and handcuffs on the victim did not mean that
she acted under color of law, because someone who is not a law enforcement
officer could also own a handgun and handcuffs and use them to restrain
another person.
Whether a public official’s actions are under color of law is a
fact-intensive inquiry, and an Immigration Judge should assess both the
direct and circumstantial evidence to make this determination. When making
factual findings regarding a public official’s conduct, the Immigration Judge
should not rely on unproven assumptions to find that the official acted under
color of law. In this regard, the First Circuit affirmed our holding that a
police officer did not act under color of law when he repeatedly visited the
applicant’s mother with other officers in uniform and asked for her
daughter’s whereabouts. Costa v. Holder, 733 F.3d 13, 18 (1st Cir. 2013).
The court also noted the government’s on-going efforts to combat police
corruption. It concluded that the direct and circumstantial evidence was too
limited to draw the inference that the officers relied on their status as law
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enforcement officers to threaten the mother, stating that any contrary
determination would be an “unproven assumption[].” Id.
In sum, the key consideration in determining if a public official was acting
under color of law is whether he was able to engage in torturous conduct
because of his government position or if he could have done so without
any connection to the government. Issues to consider in making this
determination include whether government connections provided the officer
access to the victim, or to his whereabouts or other identifying information;
whether the officer was on duty and in uniform at the time of his conduct;
and whether the officer threatened to retaliate through official channels if the
victim reported his conduct to authorities.
2. Acquiescence
Even if a public official has engaged in torture in a private capacity, and
therefore not under color of law, an alien may nevertheless qualify for
protection under the Convention Against Torture if he demonstrates that a
public official or other person acting in an official capacity consented to or
acquiesced in the torture. Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir.
2004). Acquiescence requires that “the public official, prior to the activity
constituting torture, have awareness of such activity and thereafter breach his
or her legal responsibility to intervene to prevent such activity.” 8 C.F.R.
§ 1208.18(a)(7); see also Silva-Rengifo v. Att’y Gen. of U.S., 473 F.3d 58,
67–70 (3d Cir. 2007) (stating that acquiescence includes both actual
knowledge and willful blindness); Chen v. Gonzales, 470 F.3d 1131, 1141
(5th Cir. 2006) (same); Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006)
(same); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242–43 (11th Cir.
2004); Khouzam, 361 F.3d at 171.
An applicant may establish acquiescence by citing to evidence,
particularly country conditions evidence, showing that the torturous conduct
is “routine” and sufficiently connected to the criminal justice system for an
adjudicator to reasonably infer that higher-level officials either know of the
torture or remain willfully blind to it and therefore breach their legal
responsibility to prevent it. Khouzam, 361 F.3d at 171.
3. Application to the Respondent
The Immigration Judge made alternative holdings to support his denial of
the respondent’s claim for protection under the Convention Against Torture.
First, he held that the respondent did not meet his burden of proving that the
five men who beat, robbed, and threatened him were police officers. A
private person who has no actual political or government affiliation is not a
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“rogue official,” even if he purports to be a government official. For
example, an individual who impersonates a police officer by flashing a fake
badge is not a rogue official because that person is not a “public official” in
the first place, let alone one acting under color of law, as required by the
Convention and 8 C.F.R. § 1208.18(a)(1).
The fact that the men wore shirts bearing the insignia of a government
law enforcement agency and carried high-caliber weapons and handcuffs did
not prove that they were actually police officers. As the Immigration Judge
noted, the shirts could have been fake, and it is not unusual to expect a
criminal to carry a weapon. Further, the men did not arrive at the
respondent’s home in police vehicles, and their immediate departure after
learning that an official police car was en route to investigate the disturbance
is a further indication that they were not bona fide police officers. The
Immigration Judge’s determination was a permissible view of the evidence,
and there is no clear error in his findings in this regard.
In the alternative, the Immigration Judge held that, even if the men were
police officers, the respondent did not establish that they were acting in an
official capacity. He found, instead, that they were acting as rogue officials
for personal gain. 6 On appeal, the respondent primarily focuses on this
alternative holding, which requires us to determine when a public official
acts “under color of law” and thus triggers the protections of the Convention
Against Torture. He claims that the facts of his case “strongly suggest” that
the men who attacked him had access to him through official police channels.
Even if they were police officers, this unproven assumption is insufficient to
carry his burden to show that the men were acting under color of law at the
time of the attack.
The evidence does not support the conclusion that a government position
gave the men special access to the respondent’s house or to his private
information, including the fact that he had been awarded a significant amount
of money and kept the cash at his house. Although the respondent received
a threatening phone call prior to the incident indicating that the caller and his
associates knew he had money at the house, there is no evidence that the
caller was a police officer or was associated in any way with the Guatemalan
Government.
Further, the men left immediately after learning that an official police car
was en route to the respondent’s house to investigate the disturbance. They
also threatened to take the respondent’s other eye out if he reported the
incident to the police, raising further doubt that they were acting with
government authority. See Suarez-Valenzuela, 714 F.3d 241, 248 (4th Cir.
6

The Immigration Judge also determined that the respondent did not establish that the
five men were acting with the consent or acquiescence of a public official or other person
acting in an official capacity.

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2013) (finding no acquiescence where an officer tortured the applicant to
keep him from testifying against the officer, thus evidencing that the officer
feared official repercussions for his actions). The Immigration Judge
reasoned that the men were concerned that they could be discovered by the
police. He concluded that they would not have reacted in this manner if they
thought they could act with impunity and had no reason to fear adverse
consequences if their conduct was discovered by law-abiding officers. This
was a permissible view of the evidence. See id.
Moreover, the fact that the men carried high-caliber weapons and
handcuffs does not automatically place their conduct under “color of law”
because, as the Immigration Judge explained, it is reasonable to expect that
persons engaged in the criminal act of threatening and robbing others would
carry weapons. See Butler, 685 F.3d at 1267.
Finally, it is significant that the respondent did not report the incident to
the police. As a result, there is no way to evaluate whether the police would
have investigated the incident and taken action against any of the attackers.
See Joaquin-Porras v. Gonzales, 435 F.3d 172, 175, 181 (2d Cir. 2006)
(upholding an Immigration Judge’s finding that a police officer’s rape of the
alien, who did not report the incident to official authorities, was “an isolated
attack by a corrupt official”); cf. Barajas-Romero v. Lynch, 846 F.3d 351,
355 (9th Cir. 2017) (noting that a local police officer refused to investigate
an attack after the alien stated that the officer’s colleagues were responsible).
It is not sufficient to simply assume that the police would not have responded.
See Almutairi v. Holder, 722 F.3d 996, 1003 (7th Cir. 2013) (stating that
“because [the alien] never mentioned the threatening calls to anyone in the
Kuwaiti police or military, he could only speculate that the Kuwaiti
government might not protect him if he did seek its help”). For all the above
reasons, we conclude that even if the men were bona fide police officers, the
Immigration Judge properly determined that they were not acting under color
of law. 7 We therefore concur with his denial of the respondent’s claim for
protection under the Convention Against Torture.
B. Asylum and Withholding of Removal Under the Act
The Immigration Judge also properly denied the respondent’s claim for
asylum as time-barred because he did not file his application within 1 year
of his arrival date. Section 208(a)(2)(B) of the Act. The respondent entered
the United States on April 24, 2016, but did not file his asylum application
until September 5, 2017. He did not identify, much less demonstrate, any
7

The Immigration Judge’s reasons for determining that the men were rogue officials were
based on reasonable inferences that, while not dispositive as to that fact, were proper for
him to make.

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changed or extraordinary circumstances to excuse the late filing. See section
208(a)(2)(D) of the Act; 8 C.F.R. § 1208.4(a)(4)–(5) (2019). On appeal, he
contends that he did not understand the instructions his prior attorney gave
him on how to file the completed asylum application while he was in
detention, and the attorney did not advise him of the consequences of failing
to timely file. However, the respondent makes no claim that the attorney
provided ineffective assistance of counsel. Nor did he comply with the
procedural steps for asserting such a claim of ineffective assistance of
counsel. See Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988); 8 C.F.R.
§ 1208.4(a)(5)(iii)(A)–(C). Under these circumstances, the respondent’s
asylum claim was properly pretermitted.
We also agree with the Immigration Judge that the respondent did not
establish eligibility for withholding of removal under the Act because he
failed to prove that he was persecuted in the past or that he faces a clear
probability of persecution upon his return to Guatemala. See section
241(b)(3)(A) of the Act; Stevic, 467 U.S. at 429–30; 8 C.F.R. § 1208.16(b).
Persecution is “an ‘extreme concept,’ requiring ‘more than a few isolated
incidents of verbal harassment or intimidation.’” Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (citation omitted). To rise to the
level of persecution, the claimed physical harm generally must involve
severe mistreatment. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1353 (11th Cir. 2009) (finding no persecution where the applicant was
detained for 4 days, interrogated and beaten for 5 hours, and subsequently
monitored by authorities, but he suffered no physical harm).
The respondent has not established that he suffered past persecution
because the one incident where the men threatened him, put him in handcuffs,
and beat and struck him on the shoulder with the butt of a gun was not severe
enough to rise to the level of persecution. He was briefly detained in his
home and did not suffer any permanent physical injury or seek formal
medical attention from a doctor for his shoulder injury, being treated by a lay
person instead. See Martin v. Sessions, 723 F. App’x. 35, 37–38 (11th Cir.
2018) (stating that an alien who did not testify that he suffered any injuries
or sought medical treatment did not establish that the harm he alleged rose to
the level of past persecution); Jian Qiu Liu v. Holder, 632 F.3d 820, 822
(2d Cir. 2011) (per curiam) (finding that an alien who “suffered only minor
bruising from an altercation . . . , which required no formal medical attention
and had no lasting physical effect” had not experienced past persecution).
In the absence of past persecution, the respondent is not entitled to a
presumption of a clear probability of future persecution. See 8 C.F.R.
§ 1208.16(b)(1). He has not presented evidence that anyone is looking for
him or asking about his whereabouts. On this record, the respondent did
not establish past persecution or a clear probability of future persecution to
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meet the high burden of proof to qualify for withholding of removal. See
Chen v. Gonzales, 470 F.3d 1131, 1138 (5th Cir.2006) (stating that “the
requirement of ‘clear probability’ of persecution requires the applicant to
show a higher objective likelihood of persecution than that required for
asylum”); Matter of Y-B-, 21 I&N Dec. 1136, 1139 (BIA 1998); 8 C.F.R.
§ 1208.16(b)(2).
Further, the Immigration Judge did not clearly err in finding that the
respondent failed to establish that the Government of Guatemala is unwilling
or unable to protect him from the men who threatened and beat him. An alien
“who alleges persecution by a private actor must prove that his home country
is unwilling or unable to protect him” because the Act only protects him
“against persecution by non-governmental groups that the government
cannot control.” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 950 (11th Cir. 2010)
(citation omitted); see also De Castro-Gutierrez v. Holder, 713 F.3d 375, 381
(8th Cir. 2013) (stating that “an alien seeking to establish persecution based
on the violent conduct of private actors must show more than ‘difficulty
controlling’ private behavior” (citation omitted)); Matter of A-B-, 27 I&N
Dec. 316, 337 (A.G. 2018) (same). It was proper for the Immigration Judge
to find that the reason the respondent’s attackers fled when they learned an
official police car was en route was that they feared bona fide police officers
were coming to the respondent’s aid. See Guillen-Hernandez v. Holder, 592
F.3d 883, 887 (8th Cir. 2010) (stating that certain evidence reflected that the
applicant “fear[ed] punishment at the hands of a government ready and
willing to enforce its criminal laws”).
The respondent also did not report the threatening phone call or the
incident at his house to the police, and there is no showing that it would have
been futile to do so. See Mulyani v. Holder, 771 F.3d 190, 199 (4th Cir.
2014) (noting that the alien “never notified the police or any other
governmental authorities” about the attacks on her, and her claim that the
government was unable or unwilling to control her attackers was belied by
the fact that they fled when a man nearby yelled at them). We recognize that
failure to report persecution to local authorities does not automatically bar an
alien from asylum and withholding of removal. See Lopez v. U.S. Att’y Gen.,
504 F.3d 1341, 1345 (11th Cir. 2007). However, a failure to report
“generally is fatal” to a persecution claim unless the alien can show it would
be futile to make a report, which the respondent did not do. Id. (citing
Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1327 (11th Cir.
2001)); cf. Matter of S-A-, 22 I&N Dec. 1328, 1335 (BIA 2000) (excusing
the applicant’s failure to request protection from the Moroccan Government
as futile).
The country conditions evidence in the record that reported on crime and
safety issues in Guatemala also does not establish that it would have been
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futile for the respondent to report the beating incident to the police. See U.S.
Dep’t of State, Bureau of Diplomatic Sec., Overseas Security Advisory
Council, Guatemala Crime Safety Report (2017, 2018). Although the reports
reflect that the PNC lacks personnel and training to control gang activity and
that police investigations typically do not result in an arrest or a conviction,
they also indicate that the PNC has made some progress in the reduction of
crimes. Further, the fact that the police were dispatched to the respondent’s
home when they were called is evidence that the Immigration Judge
reasonably considered in finding that it would not have been futile for the
respondent to report the beating incident. Consequently, we conclude that
the Immigration Judge properly denied the respondent’s application for
withholding of removal under the Act. 8

III. CONCLUSION
The Immigration Judge properly denied the respondent’s application for
protection under the Convention Against Torture. He determined that the
men who beat, robbed, and threatened the respondent were not public
officials and, even if they were, they were not acting in an official capacity
and were therefore rogue officials. Further, the Immigration Judge properly
concluded that the respondent did not establish his eligibility for asylum and
withholding of removal under the Act. Accordingly, the respondent’s appeal
will be dismissed.
ORDER: The appeal is dismissed.

8

The Immigration Judge also held that the respondent’s proposed social group was not
cognizable under the Act. However, given our disposition of the appeal on other grounds,
we need not address this aspect of the decision.

723


Interim Decision #1853

BUTTER OF STEVENS

In Deportation Proceedings
A-13079128
Decided by Board Apra 12,1968
Where an applicant for adjustment of status under section 245 or the Immigration and Nationality Act, as amended, subject to the labor certification requirements of section 212(a) (14) of the Act, is no longer employed by the employer
who obtained the labor certification submitted in conjunction with her application, each certification ie no longer valid for adjustment of status purposes and
she is statutorily ineligible for the benefits of section 245 in the absence of a
new certification.

Cmgamel:
Order: Act of 1952—Section 211(a) (2) [8 II.S.C. 1251(a) (2) j—liemained
longer, visitor.
ON 1014 ATM of SERVICE:

ON BEHALF OP RESPONDENT:

William S. Howell
Trial Attorney
(Brief filed)

Hiram W. Ewan, Esquire
1011 North Broadway
Los Angeles, California 90012
(Brief filed)

The respondent, a native and citizen of Great Britain, appeals from
an order entered by the special inquiry officer on December 6, 1967
granting her voluntary departure in lieu of deportation as an alien
who after admission as a nonimmigrant visitor has remained longer
than permitted (8 U.S.C. 1251 (a) (2) ). Exceptions have been taken to
the denial of the respondent's application for an adjustment of her
status to that of a permanent resident alien pursuant to section 245
of the Immigration and Nationality Act (8 U.S.C. 1255).
The respondent, a divorced female alien, 29 years of age, last entered
the United States through the port of Blaine, Washington on or about
July 3, 1961. She was admitted as a nonimmigrant visitor and thereafter authorized to remain in the United States until September 10,
1963. She has remained in the United States subsequent to Septem-

ber 10, 1963 and concedes that she is deportable as charged in the order
to show cause.

694

Interim Deeision. #1853
The respondent has applied for an adjustment of her status to that
of a permanent resident alien pursuant to the provisions of section 245
of the Immigration and Nationality Act. The application discloses
that the respondent will have to engage in employment in the United
States. As a nonpreference immigrant, the respondent is required to obtain a labor certification as a condition precedent for eligibility for
relief under section 245 (supra) (8 U.S.C. 1182 (a) (14) ). A labor certification required by section 212(a) (14) of the Act was issued on
July 14, 1967 based upon the respondent's employment as a domestic
with James C. Thomas. A report of investigation conducted at Los
Angeles, California dated September 29, 1967 together with a sworn
statement executed by the respondent's former employer, James C.
Thomas, on September 28, 1967 establishes, inter alia, that the respondent is no longer employed by him; that he had to let her go because
there was not enough work for her; and that he desired to withdraw
Form ES-575B previously submitted in the respondent's behalf.
Since the respondent is no longer employed by the person who petitioned in her behalf for a labor certification, the certification is no
longer of any validity in this proceeding and she requires a new certification. Accordingly, the respondent is ndt eligible under the law and
regulations to status as a permanent resident alien at this time.
The respondent is the mother of a child born in the United States.
Counsel in his brief moves for a remand of the case to the special
inquiry officer for further hearing at such time as the respondent is
able to secure a labor certification and adjust her status to that of a
permanent resident alien. The trial attorney on the other hand maintains that the respondent neither warrants nor should. be granted any
further consideration inasmuch as there is a record of dilatory tactics
on the part of the respondent dating back to September of 1961.
We have carefully reviewed the record together with the briefs of

both counsel and the trial attorney. The fact that the respondent is the
mother of a child born in the United States is of no aid to her in connection with her application for adjustment of status inasmuch as
the child is under the age of 21 years. Counsel's request for further
delay is speculative as there is no assurance that a labor certification
will be issued. The appeal will be dismissed.
ORDER : It is directed that the appeal be and the same is hereby
dismissed.

695


Interim Decision #1255

MAW= or FRISONE

In DEPORTATION Proceedings
A-8836375
Decided by Board November 19,1960
An alien who has been the beneficiary of a visa petition based on a marriage
found later to have been contracted for the purpose of evading the immigration
laws (section 205(c)) cannot claim the benefit of the waiver provided by
section 241(f) of the Immigration and Nationality Act, as amended.
CHARGE:
Order: Act of 1932—Sections 241(a) (2) and (c) [8 U.S.O. 1251(a) (2) and
(c))—Visa procured by fraud in vioiation of section 212(a) ( 19)
[8 U.S.O. 1182].

Respondent is 35 years of age, married, male, alien, a native and
national of Italy. He first entered the United States in June 1954
as a deserting seaman. He was apprehended by the Immigration
and Naturalization Service in October 1954 and was paroled for one

week to arrange to post a $1,000 bond. He last arrived in the United
States on August 8, 1955 and was admitted for permanent residence
upon presentation of a nonouota immigrant visa. This case has been
before the Board on several occasions. It is necessary to retrace
briefly the proceedings to date. On August 21, 1958, following a
thorough hearing, during which respondent was represented by counsel
of his choice, the special inquiry officer ordered respondent deported
on the charge set forth above. Respondent appealed to this Board,
and his counsel filed a brief in support of the appeal. On October 22,
458 we dismissed the appeal. We found that respondent bad obtained his visa on the basis of his marriage to a United States citizen
at Syracuse, New York on November 13, 1954, and that marriage was
annulled on July 9, 1956. We stated October 22, 1958, p. 3),
"Clearly, the respondent has failed to sustain his burden under the
statute and the Government has established by a preponderance of
the evidence that he entered into his marriage with Frances Buda to
evade the quota requirements of the immigration laws."
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Interim Decision #1255
During the proceedings in 1958 there was an indication that
respondent had entered into another marriage with a United States
citizen, but he offered no evidence regarding this marriage during the
deportation proceedings and made no request that the second marriage
be considered in any grant of discretionary relief. Counsel's memorfundiim in support of the appeal to this Board stated that respondent
was married to a legally resident alien. The record indicates that
respondent's present wife is now a naturalized United States citizen
and that two citizen children have been born to this marriage.
There was no action taken in this matter after our order of October
22, 1958 until March 20, 1962 when the Board received a notice of
motion for a reopening, reconsideration and termination of warrant
proceedings filed by present counsel. The Board heard oral argument on the motion, ordered the outstanding order and warrant of
deportation withdrawn and the proceedings reopened. We agreed
that evidence relating to respondent's present marriage and his two
United States citizen children should be made a part of the record,
particularly in light of legislation enacted since the entry of the
outstanding order of deportation which, counsel alleged, made respondent nondeportable. We pointed out that the proceedings also
should be reopened in order to give the Service an. opportunity to
consider or oppose the grant of relief sought by counsel under the
new legislation.
Following the reopened hearing on July 3, 1962, and the filing of
briefs by both counsel for the alien and by the examining officer, the
special inquiry officer denied respondent's application for the waiver
Hume pro tune provided by section 16 of the Act of September 26, 1961,
adding section 241(f) to the Immigration and Nationality Act?. The
special inquiry officer granted him voluntary departure. The special
inquiry officer found that deportation of respondent would result in
serious detriment and hardship to his citizen wife and children, that
the wife is unemployed and that respondent is the sole support of tha
family. The special inquiry officer denied the mono pro taw waiver
under section 241(f) solely on the ground that he found the alien
Section 16 of the Act of September 26, 1961 provides :
Sec. 16. Section 241 of the Immigration and Nationality Act (8 U.S.C. 1251)
is hereby amended by adding the following :
(f) The provisions of this section relating to deportation of aliens within
the United States on the ground that they were excludable at the time of entry
as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall
not apply to an alien otherwise admissible at the time of entry who is the
spouse, parent, or a child of a tralted States citizen or of an alien lawfully
admitted for permanent residence.
1

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Interim Decision #1255
not to have been "otherwise admissible", as required by that section,
at the time of his last entry on August 8,1955.
At the time of his last entry respondent was the beneficiary of a
visa petition filed by his first wife and previously was accorded nonquota status under section 101 (a) (27) (A). We have again reviewed
the entire record. The special inquiry officer's decision restates at
some length facts which were adjudicated by the special inquiry officer
and this Board in 1958. Counsel argues that this constituted a reopening of the entire record, and justifies his request to cross-examine
the alien's first wife. He seeks, first, to readjudicate the issue of
whether the first marriage was fraudulent upon the part of the alien,
asserting that the marriage broke up after seven or eight months of
genuine effort by the alien to make it a good marriage. Counsel

pleads that the marriage was basically a misalliance, and that the
religious barrier was only one of the obstacles.
There is no claim of new evidence relating to the first marriage
which required the presence of the first wife at the reopened hearing.
The fraudulent nature of the first marriage was established in 1958.
The alien contracted a second marriage which is undoubtedly bona
fide. It was to give him an opportunity to show the facts of the new
marriage, asserted as the basis for relief, that this case was reopened
and returned to the special inquiry officer. The refusal of the special
inquiry officer to subpoena the first wife and to treat the case as a
hearing de novo was not error.
Counsel argues, second, that respondent did not commit a fraud
by entering as the nonquota spouse of a United States citizen, because
for some purposes an annulment does not annul the marriage from
the beginning, but only from the date of the annulment. Counsel
claims that the Domestic Relations Law of New York makes respondent's first marriage void only from the Lime a judgment is rendered
by the court. He quotes section 7 of that statute as follows, "A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto . . . (4) consents to such
marriage by reason of force, duress or fraud." Counsel admits that
the New York cases generally sustain the idea in spite of the statutory declaration, that a voidable marriage declared void by a court
is void ab imitio. Counsel contends, however, there is a minority view
and cites Barker v. Barker,172 App. Div. 244 (1916) .
The special inquiry officer found respondent was not the lawful
spouse of a United States citizen at time of entry and was not, therefore, a nonquota immigrant. He states (special inquiry officer, August
9,1962, p.11) :
Had all the facts been known by the Government on August 8, 1055, the date
of respondent's entry, he would have been found inadmissible under section 212

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Interim Decision #1255
(a) (20) of the Immigration and Nationality Act (8 U.S.C. 1182 (a) (20) ) as an
immigrant who is not in possession of a valid unexpired immigrant visa or other
entry document. The respondent has failed to clearly establish that he was
"otherwise admissible" at the time of entry.. .

The special inquiry officer did not consider or refer to the provisions
of section 205 (c), as amended by section 10 of the Immigration and
Nationality Act of September 26, 1901. 2
The Service representative argued before this Board (1) that respondent was either not a nonquota immigrant or he had no valid visa,
and (2) that even had the annulment not taken place, if the marriage
was in fact a fraudulent marriage, the no valid visa charge would be
sustainable, if the Service had chosen to bring that charge.
On several occasions the Board has had appeals from denials of visa
petitions, and we have said that a visa petition proceeding was not
the correct form in which to litigate the legality of a marriage. In
those cases we have returned the visa petition to the Service for the
purpose of having the validity of the marriages adjudicated in deportation proceedings. This is just such a case, and it comes up now in
a deportation proceeding.
Counsel pleads that the equities of the ease justify waiving the fraud

of the respondent's first marriage, if there was fraud. Counsel admits
that if respondent is required to depart, he is not again eligible for
nonquota status as the spouse of a United States citizen because of the
prohibition of section 10 of the Act of September 26, 1961, amending
section 205(c) of the Immigration and Nationality Act (see footnote 2).
The Board has held routinely in visa petition cases where an alien
has been accorded nonquota status as the spouse of a United States
citizen and approval of the visa petition was later revoked for fraud,
that such a beneficiary could not qualify for nonquota status on the

basis of a subsequent marriage, even though the subsequent marriage
may be bona fide. Matter of 1V—, Int. Dec. No. 1222 (B.1-4.., May 22,
1962) ; Matter of A—, Int. Dec. No. 1223 (B.I.A., June 1, 1962).
Both the Service representative and counsel recognize that Public
Law 87401, September 26, 1961, contains two divergent provisions.
In application these provisions appear to be conflicting. Section 16
(see footnote 1) is an abbreviated but broadened reenactment of section
7 of the Act of September 11, 1957, which was conceived primarily to
' Section 10 of the Act of September 26, 1961, amends section 205(c) of the
Immigration and Nationality Act by adding: "Notwithstanding the provisions
of this subsection, no petition shall be approved if the alien previously has been
accorded, by reason of marriage determined by the Attorney General to have
been entered into for the purpose of evading the immigration laws—(1) a nonquota status under section 101(a) (27) (A) as the spouse of a citizen of the
United States. . ."

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Interim Decision #1255
assist refugees and displaced persons who had made misrepresentations to avoid repatriation to certain geographical areas in Europe
following World War II, or for other defensive reasons.
The Board was precluded from granting advance waivers under
section 7 of the Act of September 11, 1957 to aliens within the United
States, as that provision was interpreted by the Attorney General in
Matter of DeF—, 8 I. & N. Dec. 68. Under that statute respondent in
the instant matter would have been precluded from the waiver, because he would have to depart from the United States to obtain it, and
then the prohibition of section 10 of the Act of September 26, 1961
(against granting a visa petition on the basis of his second marriage)
would have come into play. However, the waiver provided by section
16 of the Act of September 20, 1901 dearly gives the authority simply

to terminate proceedings when the waiver is granted.
Section 10 of the Act of September 26, 1961 is an entirely new
provision of law. Referring to section 10, this Board said in Matter
of R—, Int. Dec. No. 1188 :
The legislative history indicates that the amendment was proposed to
strengthen existing law by giving the Attorney General a new legal instrumentality to counteract the increasing number of fradulent acquisitions of nonquota status through sham marriages between aliens and United States citizens.
The legislation was prompted by a recent report of the Attorney General to
Congress about the increasing number of such sham marriages, indicating the
existence of marriage schemers operating in various parts of the country
arranging for high fees, for deceitful marriages involving in most instances alien
seamen,

Sections 12, 14, 15 and 16 of the Act of September 26, 1961 give

en-

larged rights and special consideration to aliens who are the spouse,
parent or child of a United States citizen or legally resident alien, and
who otherwise, would be excludable or deportable. However, section
10 of the same Act indicates that Congress intended that the expanded
privileges are not to be available even to a Zrona fide spouse, if he has
in the past been party to a sham marriage entered into for the purpose
of evading the immigration laws. Even though section 10 of the
Act of 'September 26, 1961 specifically forbids only the approval of a

visa petition in his behalf, it indicates the intention of Congress that
the immigration status of such a person is not to be adjusted under any
of the ameliatory acts.
Counsel maintains that the words "otherwise admissible" in section 16 are not a' ar to a grant of the waiver, claiming that this phrase
refers to a state of inadmissibility which might exist apart from the
fraud, e.g., criminality, feeble-mindedness, insanity, epilepsy. Counsel asserts that the words "otherwise admissible" mean that, except
3

B. Rept. No. 1086, S7th Cong., 1st Sess., pp. 36, 37.

121

Interim Decision #1255
for the fraud and the impediment of the fraud, respondent must not
have had some other impediment at the time of entry that would

make him inadmissible.
The -Service asserts that to be "otherwise admissible" means that the
respondent must have been in possession of a valid visa at the time of

his entry, and that respondent cannot receive the waiver. He was
actually a quota immigrant, who entered as a nonquota immigrant.
See Matter of D'O—, 8 I. & N. Dec. 215 (1958), wherein we held that
proceedings could not be terminated under section 7 of the Act of
September 11, 1957 (P.L. 85-316) where respondent evaded the quota
restrictions by securing entry as a nonquota immigrant. We stated in
D'O that there is nothing in the history of section 7 of the Act of September 11, 1957 which indicates that it was the intention of Congress to
remove the careful protection which had been built into the immigration laws regarding quotas. We stated, "Section 7 excuses the presence of fraud. It does not wipe out the existence of all other grounds
of inadmissibility which may have been present. Section 7 also excuses the fact that an alien had been charged to the wrong quota."
We agree with the Service contention that respondent was not "otherwise admissible" at the time of his last entry as required by section 16
of the Act of September 26, 1961.
We are well aware of the hardship factors on which counsel has
dwelt at length. The same factors exist in the visa petition eases, of
which Interim Decisions Nos. 1222 and 1223 are examples. There are
certain to be family ties in. the alien's favor in these cases; otherwise,
this problem in statutory construction could not arise since there would
be no visa petition filed in his behalf, and no request for a waiver under
section 241(f) which is available only to a spouse, parent or child of a
United States citizen or lawfully resident alien.
We find nothing in the record to justify reexamination of the issue
of the good faith of respondent's first marriage. Aside from the testimony of respondent's first wife, he admitted that he would have left
the United States when he was first apprehended if he had not found
someone to post the $1,000 bond for him. He also testified that he
knew that some of his friends from Sicily had married in the United
States and had been permitted to remain here. Respondent was represented 'throughout the 1958 proceedings by counsel who was vigorous
and knowledgeable.
Section 16 of the Act of September 26, 1961 provides an absolute
waiver for an alien who has procured documentation by fraud and who
comes within the other requirements of the provision. If respondent
were given such a waiver he and the Government would be in an untenable position. He could not get a visa, because of the prohibition
contained in section 10 of the Act of September 26, 1961, but neither
—

-

122

Interim Decision #1255
could he be deported. He could not be granted a legal status, but
neither could his illegal status be litigated, because these proceedings
would have been terminated. Aside from the finding that respondent
was not "otherwise admissible" at entry, it is our conclusion that an
alien who has been the beneficiary of a visa petition based on a marriage found later to have been contracted for the purpose of evading
the immigration laws, cannot claim the benefit of the waiver provided
by section 16 of the Act of September 26, 1961, adding section 241(f)
to the Immigration and Nationality Act. This is the only interpretation which reconciles section 205 (c) as amended, with section 241(f)
of the Immigration and Nationality Act.
ORDER: It is ordered that the appeal be and is hereby dismissed.

123


Interim Decision #2350

MATTER OF RUBINO
In Visa Petition Proceedings
A-10747407

Decided by Board January 9, 1975
Where a prior visa petition classifying the beneficiary as the spouse of a United States
citizen was apprwed, then subsequently revoked because the marriage was 'entered
into for the purpose of according immigration benefits to the beneficiary and the
beneficiary was not issued a visa or granted adjustment of status on the basis of the
prior petition, se2tion 204(c) of the Immigration and Nationality Act did not operate to
preclude approval of a subsequent petition filed to accord that same beneficiary fifth
preference classification. ON BEHALF or Pawnor:En:
Irving I. Freedman, Esquire
134 N. LaSalle Street, Suite 1616
Chicago, Illinois 60602

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney

In a decision dated April 11, 1974, the district director revoked
approval of a visa petition classifying the beneficiary as a preference
immigrant under section 203(a)(5) of the Immigration and Nationality
Act. The United States citizen petitioner has appealed from that decision. The appeal will be sustained and the record remanded to the
district director for further action consistent with this opinion.

The visa petition, filed in order to accord -the beneficiary status as the
petitioner's brother, was approved on September 15, 1973. The district
director does not appear to contest the existence of the claimed relationship. Although the record as forwarded on appeal does not contain the
district director's decision, a copy of that decision supplied by counsel
for the petitioner at oral argument indicates that the district director
predicated his revocation of approval on section 204(c) of the Act. The

record does contain a copy of the district director's letter to the petitioner, dated March 11, 1974, which gave notice of the intention to
revoke approval of the petition and which specified section 204(c) as the
authority upon which the district director was relying.
Section 204(c) provides, in pertinent part:
. no petition shall be approved if the alien has previously been accorded a nor's:mote
or preference status as the spouse of a citizen of the United States or the spouse of an

194

Interim Decision #2350
alien lawfully admitted for permanent residence, by reason of a marriage determined by
the Attorney General to have been entered into for the purpose of evading the immigration laws.

In October of 1972, an earlier visa petition classifying the beneficiary
as the spouse of a United States citizen was approved. Approval of that
petition was revoked in March of 1973 pursuant to a request by the
earlier petitioner that the petition be withdrawn. At that time both the
beneficiary and the earlier petitioner signed statements indicating that
their marriage was entered into for the purpose of according immigration benefits to the beneficiary.
The District Director relied an the beneficiary's earlier classification
as the spouse of a United States citizen in determining that section
204(c) prohibits the approval of the present petition. The beneficiary,
however, was not issued a visa or granted adjustment of status on the
basis of that earlier petition.
An alien who merely has been classified as the spouse of a United
States citizen has not been "accorded a nonquota or preference status,"
as that phrase of section 204(c) has been interpreted. Amarante v.
Rosenberg, 326 F.2d 58 (C.A. 9, 1964); Matter of Piscotta, 10 I. & N.
Dec. 685 (BIA 1964). Accordingly, the beneficiary does not fall within
the prohibition of that section. The district director's decision revoking
approval of the visa petition was incorrect.
The record indicates that the district director was aware of the case
law regarding section 204(c) prior to the forwarding of the record on
appeal. While it may be that the decision to commence the proceeding to
revoke approval of this visa petition was made without an appreciation
of the case law, it is clear that the district director, or persons acting in
his behalf, desired to challenge that case law. The manner in which that
challenge was raised, however, presents some serious problems.
Pursuant to 8 CFR 3.1(g), our precedent decisions are binding on the
Service in all proceedings involving the same issue or issues. This
regulation does not entirely foreclose the Service from attacking case
law it deems erroneous. However, the Service is bound by the regulation and any such attack should be done in a manner which affords
adequate protection to the interests of the person or persons affected.
In this case, the district director could easily have instituted the
proceeding to revoke appioval of the visa petition, then have made a
finding in favor of the petitioner on the basis of Matter of Pisciotta,
supra, and then have certified the record to us with a statement as to
why that case should be overruled or modified. Such a sequence of
events would assure our review of the record. We would be enlightened
regarding problems in the application of a Board decision, and the
protection of an individual's interests would not depend upon the accident of an appeal.
195

Interim Decision #2350

ORDER: The appeal is sustained and the approval of the visa petition
is reinstated.
Further order: The record is remanded to the district director for
further action consistent with this opinion.

196


Interim Decision #2180

MATTER OF ABELLANA AND DONOVAN
In Deportation Proceedings
A-20028370
A-20036650 ,

Decided by Board January 30, 1973
Where the Board of Immigration Appeals has entered an order in a case which
is then subjected to review by a court which directs a remand for further
proceedings, the proper procedure for the Service on remand is to refer the
case initially to the Board. This procedure should be followed regardless of
whether the reviewing court is a Court of Appeals in proceedings under
section 106(a) of the Immigration and Nationality Act or a District Court in
habeas corpus or declaratory judgment proceedings.
CHARGE:

Order: Act of 1952—Section 241(a)(2)
U.S.C. 1251(a)(2)l—NOnimmigrant
visitor—remained longer than permitted (both aliens)

ON BEHALF OF RESPONDENTS: John L. Weir, Esquire
483 Castro Street
San Francisco, California 94114
(Brief filed)

These cases are before us on certification from the special
officer who denied respondents' motions to reopen their
cases. The respondents sought to reopen so that they could apply
for adjustment of status to that of aliens lawfully admitted for
permanent residence pursuant to section 245 of the Immigration
and Nationality Act. The special inquiry officer's decision, dated
October 19, 1972, contained a specific finding that respondents'
marriages to United States citizens were sham marriages. The
inquiry

special. inquiry officer's decision will be affirmed.

The records relate to a former married couple who are both
natives and citizens of the Philippines. The male respondent is 43
years of age. The female respondent is 36 years of age. They
entered the United States on August 27, 1969 as visitors for
pleasure, accompanied by their four children. A fifth child was
born to them in this country since then. They were authorized to
remain in the United States until May 15, 1070. Since that date
they have remained in the United States without authority.
262

Interim Decision #ntsu
At their deportation hearing, conducted February 9, 1972, both
respondents conceded deportability. In the course of the hearing
both testified that they had not worked in this country. An order
of deportation was entered on February 9, 1972 granting them the
privilege of voluntary departure on or before March 10, 1972. They
did not appeal from this order but they did not depart. On March
27, 1972 they were divorced in Reno, Nevada. On April 27, 1972 the
husband married a 25-year-old citizen of the United States. On
April 29, 1972 the wife married a 25-year-old citizen of the United
States. Visa petitions on behalf of the respondents were submitted
by the respective citizen spouses, and the petitions were approved.

In June 1972 the respondents moved to reopen their hearings to be
permitted to apply for adjustment of status as spouses of United
States citizens. They enclosed application forms for adjustment of
status, showing themselves' to be residing with their respective
new spouses at addresses in San Francisco.
Investigation during June 1972 disclosed evidence that the
respondents were then and had been residing together as husband
and wife in a house they had purchased jointly in September 1971
at 964 Skyline Drive, Daly City, California (an address they had
neglected to furnish on any of their applications for immigration

benefits); that both had worked in this country in violation of their
visitor status; and that on loan applications subsequent to their
divorce they listed themselves as married to each other. A hearing
on their 'motions to reopen was conducted on June 16, 1972, at
which testimony was taken of the respondents, their respective
new spouses, a neighbor and the investigator of their case.
The special inquiry officer denied the respondents' motions to
reopen in a decision dated June 19, 1972. He stated that his
decision was based on the fact that the respondents made false
statements at the hearing on February 9, 1972 and in various

applications filed later. He further stated that in view of his
decision not to reopen it was not necessary for him to decide
whether or not respondents' new marriages were sham marriages.
Respondents appealed to this Board, more than a month after
the time for appeal had expired. We dismissed their appeals as
untimely filed, by our order of August 16, 1972, and stated that we
had no authority to extend the time for filing an appeal. We stated

further that we had not overlooked the arguments of counsel and
felt that the case was not of the class of outstandingly meritorious
cases, so as to justify disturbing the decision of the special inquiry
officer. Thereupon respondents brought petitions for habeas corpus in the United States District Court for the Northern District
of California. The court, by its decision dated September 26, 1972,
ordered a remand to the special inquiry officer to make a specific
263

Interim Decision

#2125U

finding as to whether or not the respondents' marriages to United
States citizens were sham marriages. On remand, the special
inquiry officer, by a decision dated October 19, 1972, specifically
found that the marriages of respondents were sham marriages. He
then certified the cases to us.
For the guidance of the Service, we shall comment briefly on the
procedure employed following entry of the, court's order on September 26, 1972. What was then before the court was this Board's
order dated August 16, 1972, dismissing as untimely respondents'
appeal from the special inquiry officer's order denying their
motions to reopen. The court's order in terms directed remand of
the record to the special inquiry officer. The Service followed it
literally, by-passing this Board.
Where this Board has entered an order in a case which is then
subjected to review by a court which directs a remand for further
proceedings, we think the proper procedure for the Service on
remand is to refer the record initially to this Board. This will
enable the Board, after reviewing the court's order, to enter its
own order on remand. While this Board must follow the court's
mandate, in some cases the Board's order on remand may contain
appropriate directives, not inconsistent with the court's order,

which may be helpful to the special inquiry officer in his conduct of
the further proceedings on remand. We think that this procedure
should be employed by the Service, as it usually has been,
regardless of whether the reviewing court is a Court of Appeals in
proceedings under section 106(a) of the Act or a district court in
habeas corpus or declaratory judgment proceedings.
We turn now to a consideration of whether the special inquiry
officer's decision of October 19, 1972 was correct. A special inquiry
officer has the authority to consider the bona fides of a marriage
on which he is requested to base immigration benefits, irrespective
of whether a visa petition has been approved and the approval has
not been revoked, Matter of Bark, Interim Decision No. 2174 (BIA,
November 27, 1972). Thus the special inquiry officer had the
authority to consider the question of the bona fides of respondents'
marriages, as he did.
Counsel contends that the testimony of respondents and their
new spouses constitutes proof of the bona fides of the new
marriages. Credibility is always at issue. The special inquiry
officer and this Board must determine the weight to be given
testimony of witnesses.
Counsel complains that the special inquiry officer's decision was
not based on clear, convincing and unequivocal evidence, which is
the required standard of proof for an order of deportation, Woodby
v. INS, 385 U.S. 276 (1966). These respondents conceded deportabil264

Interim Decision #2180
ity (Tr. of hearing of February 9, 1972, p. 2, line 6). Their
deportability was therefore established by clear, convincing, and
unequivocal evidence. The issue here involved is not whether the
respondents are deportable they have already conceded that
they are—but whether they merit the extraordinary relief from
deportation of adjustment of status to permanent resident. Both
respondents claim eligibility for adjustment of status on the basis
of marriage to a United States citizen. The burden in fact rests on
the respondents to establish that they are eligible for the relief
they seek. They must show that their marriages are bona fide in

order to establish their eligibility for adjustment of status.
Counsel contends that respondents' Sixth Amendment right to
confront witnesses and cross-examine evidence was violated. The

Sixth Amendment applies to criminal cases. Deportation proceedings are civil in nature. However, by section 242(b) of the Act, an
alien has the right at a deportation hearing to examine the
evidence against him and to cross-examine witnesses presented by
the Government. Counsel contends that the respondents were not
afforded an opportunity to cross-examine the Service investigator
of respondents' eases. This contention is without foundation as the
Service investigator appeared as a witness at the hearing held
June 19, 1972 and was cross-examined by counsel.
Counsel further contends that the special inquiry officer was
biased and prejudiced towards counsel and the respondents. The
record contains no indication of any bias or prejudice on the part

of the special inquiry officer.
The special inquiry officer's decision gives a careful exposition of
the evidence in the record, which indicates that respondents' April
1972 marriages were sham. After a careful evaluation of the
record, we concur with the conclusion of the special inquiry officer.
ORDER: The appeal is dismissed.

265


Interim Decision #2864

MATTER OF ZAMBRANO
In Visa Petition Proceedings

A-21682096
Decided by Board May 5, 1981
(1) A more liberal policy toward divorce, as evidenced by the Divorce Reform Act of 1971,
Stat. Ann. 2A:34-1, is now recognized in /slew Jersey. Kazin v. Kazin, Si N.J. 85,
405 A.2(1 360 (1979).
(2) New Jersey now appears to recognize foreign absentee divorces obtained by its residents. Matter of Guzman, 15 I&N Dec. 624 (131A 1976), overruled in part.
(3) Where the record in visa petition proceedings was unclear whether the Dominican
Republic divorce, alleged to constitute proof of the legal termination of the beneficiary's previous marriage and its pronouncement, was for cause or mutual consent,
and it was unclear whether the formalities had been complied with, the record is
remanded for further proceedings.
ON BEHALF OF PETMONER:

Harvey A. Yanks, Esquire

Lewis Tower Building
15th and Locust Street
Suite 1520
Philadelphia, Pennsylvania 19102
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

In a decision dated July 18, 1980, the District Director denied a visa
petition filed by the petitioner on behalf of the beneficiary as her spouse
under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C.
1153(a)(2). The petitioner has appealed from that decision. The record
will be remanded.
The 25-year-old lawful permanent resident female petitioner, native
of Cuba, filed a visa petition on June 8, 1979, on behalf of the 26 year old
-

-

beneficiary, a native and citizen of Colombia. The petitioner and beneficiary were married in New Jersey on May 28, 1975, where they reside.
The District Director denied the visa petition on the basis that the
beneficiary was not free to marry the petitioner inasmuch as his 1975
Dominican Republic divorce from his previous spouse, Carmen, is not
recognized in New Jersey, and hence is not recognized for immigration
purposes, since neither the beneficiary nor Carmen, both then residing
in.New Jersey, waspresent in the Dominican Republic during the divorce
proceedings.
46

Interim Decision #2864
In so holding, the District Director initially relied on Tonti v.
Chadwick, 1 N.J. 531; 64 A.2d 436 (1949), 1 as we did in our earlier

precedent decision, Matter of Gizman, 15 I&N Dec. 624 (BIA 1976), for
the proposition that the Dominican Republic divorce was not entitled to
recognition because the State of New Jersey does not recognize absentee divorces obta ined by its residents. Hence, that beneficiary's subsequent marriage in New Jersey was not valid to confer upon him immediate relative classification. The District Director also relied on Kazin v.
Kazin, 161 N.J. Super. 174, 391 A.2d 546 (1978), a case recognizing the
more liberal policy toward divorce as evidenced by the Divorce Reforin
Act of 1971, N.J. Stat. Ann. 2A: 34-1, should be the law. In Kazin, id.,
the Superior Court of New Jersey, relying on Tonti v. Chadwick, supra,
held that a Mexican divorce decree -obtained -after a 1-day appearance
by the plaintiff, was utterly void for want of jurisdiction. However, the
District Director failed to recognize that on appeal, the Supremp Court
of the State of New Jersey overruled Tonti v. Chadwick, supra, and
stated that "there remains little, if any, interest in encouraging the
• resurrection of deceased marriages, even if pronounced dead by other
tribunals whose processes are not completely consistent with our own."
Kazin v. Kazin, 81 N.J. 85, 405 A.2d 360 (1979). Therefore, we now find
that the State of New Jersey does recognize absentee divorces obtained
by its residents. Kazin v. Kazin, id. Consequently, we recede from the
holding in Guzman, supra, as to the applicable law in the State of New
Jersey.
The record contains documents alleged to constitute proof of the legal
termination of the beneficiary's previous marriage and its pronouncement in the Dominican Republic in 1975. However, these documents
have not been translated. Therefore, it is unclear whether the Dominican divorce terminating the beneficiary's prior marriage was for cause,
or by mutual consent, and hence it is unclear whether the formalities .of
the law of the Dominican Republic have been satisfied. See Matter of
Ducero, 16 I&N Dec. 674 (BIA 1979). Accordingly, the record will be
remanded to the District Director. On remand, the petitioner should
submit a translation of the divorce documents and any additional evidence in support of her petition. If the petitioner relies on foreign law to

establish eligibility for an immigration benefit, she must prove the law
as if it were a question of fact. Matter ofAmong, 14 I&N Dec. 502 (BIA
1973). The petitioner still has the burden to establish eligibility for the
Tenti v. Chadwick, supra, held that where a divorce decree of a foreign country
embodies all the jurisdictional prerequisites and is otherwise sufficient on its face, there is
a presumption in favor of its validity tinder the laws of the sovereignty in which it was
rendered, but extraterritorial recognition rests on the doctrine of comity controlled by
public policy of the state whose recognition is invoked, and the full faith and credit clause
has no application.

47

• ,,

Interim Decision #2864
benefit sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The
District Director will enter a new decision upon review of the translated
divorce decree, the relevant precedents and any further evidence submitted by the petitioner.

GIRDER The record is remanded.

•••

48