Cite as 26 I&N Dec. 731 (BIA 2016)

Interim Decision #3860

Matter of Nejat Ibrahim RUZKU, Beneficiary of a visa petition
filed by Abdalla Ibrahim Ruzku, Petitioner
Decided March 29, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Direct sibling-to-sibling DNA test results reflecting a 99.5 percent degree of certainty
or higher that a full sibling biological relationship exists should be accepted and
considered to be probative evidence of the relationship.
FOR THE PETITIONER: Howard R. Davis, Esquire, Santa Monica, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Haena Lee, Service Center
Counsel
AMICUS CURIAE: American Immigration Lawyers Association 1
BEFORE: Board Panel:
MANN, Board Member.

NEAL, Chairman; ADKINS-BLANCH, Vice Chairman;

MANN, Board Member:

In a decision dated September 17, 2012, the California Service Center
Director (“Director”) denied the Petition for Alien Relative (Form I-130)
filed by the petitioner to accord the beneficiary preference status as his
sister under section 203(a)(4) of the Immigration and Nationality Act,
8 U.S.C. § 1153(a)(4) (2012). The petitioner has appealed from that
decision. Counsel for the Department of Homeland Security (“DHS”)
opposes the appeal. The record will be remanded for further consideration
of the visa petition.
In this case we must decide what the evidentiary value of direct
sibling-to-sibling DNA test results should be and whether the Director may
choose not to consider such evidence. In visa petition proceedings, the
petitioner bears the burden of establishing the claimed relationship by a
preponderance of the evidence; that is, he must show that it is more likely
than not that his claimed sibling relationship to the beneficiary exists.
See Matter of Pagan, 22 I&N Dec. 547, 548−49 (BIA 1999). We review
1

We appreciate the thoughtful brief and additional materials submitted by Russell Reid
Abrutyn.

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Interim Decision #3860

all questions arising in visa petition proceedings de novo. 8 C.F.R.
§ 1003.1(d)(3)(iii) (2015).
The petitioner submitted delayed birth certificates for himself and the
beneficiary, along with an undated family photograph and an affidavit from
two persons asserting that they are relatives who have knowledge of the
sibling relationship. The birth certificates, which reflect that the petitioner
and the beneficiary were both born in Eritrea to the same father and mother,
were issued more than 25 years after their births. The petitioner was
advised by the United States Citizenship and Immigration Services
(“USCIS”) through two Requests for Evidence that this evidence was
insufficient to establish the claimed relationship.
In response, the petitioner arranged for sibling-to-sibling DNA testing
with a facility accredited by the AABB (formerly the American Association
of Blood Banks). That facility provided its DNA report directly to the
USCIS. The report stated that the probability of the petitioner and the
beneficiary being full siblings is 99.8114 percent. Accordingly, the report
concluded that “it is very probable” that they are full siblings.
In denying the visa petition, the Director determined that the petitioner
did not establish that the beneficiary is his sibling. She declined to give
persuasive weight to the delayed birth certificates, the single undated
family photograph, or the relatives’ affidavit, which did not reflect personal
knowledge of the circumstances surrounding the births of the petitioner or
the beneficiary. The Director also afforded no weight to the DNA test
results. Finally, she did not indicate whether she assessed all the evidence
in its totality.
On October 1, 2014, we requested supplemental briefing from the
parties regarding the evidentiary value of sibling-to-sibling DNA test
results. Shortly thereafter, the USCIS issued a policy memorandum
regarding sibling-to-sibling DNA test results, entitled “DNA Evidence of
Sibling Relationships for Service Centers, Domestic and International Field
Offices.” USCIS, DHS, PM-602-0106 (Oct. 17, 2014), reprinted in
91 Interpreter Releases, No. 42, Nov. 3, 2014, app. III at 1995. The
memorandum stated, among other things, that the USCIS “may not afford
any evidentiary weight” to sibling-to-sibling DNA test results and will only
consider parent-child DNA test results for each claimed sibling with a
claimed common parent. 2 Id. at 2−3.

2

We are not bound by policy memoranda issued by the DHS. See Matter of Arrabally
& Yerrabelly, 25 I&N Dec. 771, 776 n.4 (BIA 2012) (stating that policy set forth in DHS
memoranda “is entitled to respect to the extent it has the ‘power to persuade,’ but it is not
binding” (quoting Christensen v. Harris County, 529 U.S. 576, 587 (2000))).

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Interim Decision #3860

The USCIS filed a brief citing to the policy memorandum and stating
that direct sibling-to-sibling DNA testing is not sufficiently reliable to
establish the claimed relationship. 3 The memorandum indicates that the
USCIS “learned that there is no universally accepted standard for
relationship probability in sibling-to-sibling DNA testing” through
consultation with its scientific resources, including the DHS’s Science and
Technology component, the National Institute of Science and Technology,
and the AABB. Id. at 2. However, it cites no published sources to support
its conclusion. The memorandum also notes the continuing need for
research to ensure that a set threshold number “will not exclude valid
sibling relationships.” Id. at 2 n.3.
The petitioner and amicus curiae filed briefs urging us to accord
probative value to direct sibling-to-sibling DNA test results where such
results reflect the scientific community’s accepted level of certainty of
99.5 percent or higher. They further argue that even DNA test results
reflecting a lower level of certainty should be considered in combination
with other evidence submitted to prove the claimed relationship. In support
of its position that a 99.5 percent certainty should be considered probative
evidence, amicus included information that referenced published scientific
studies.
In order to be probative, evidence must tend to prove or disprove an
issue that is material to the determination of the case. See Probative
evidence, Black’s Law Dictionary (10th ed. 2014). The USCIS’s statement
that sibling-to-sibling DNA testing is not sufficiently reliable to establish
the relationship is not adequately supported. The October 2014 policy
memorandum explains that the scientific community does not agree on a
particular statistical probability that conclusively proves a sibling
relationship. However, this does not establish that sibling-to-sibling testing
is universally unreliable and that the results of such tests should be
completely excluded from consideration.
According to a forensic DNA expert whose affidavit was submitted with
the amicus brief, “The statistical and mathematical methods used to
evaluate all of the different kinships are reliable, well established, and
3

There is no dispute that DNA testing between both siblings and a claimed common
parent is the best evidence to establish a biological sibling relationship. Such testing has
long been accepted by the USCIS as conclusive of the parent-child relationship. See
generally Vol. 9, Foreign Affairs Manual § 601.11-1(A)(a)(2) (CT: VISA-3
Nov. 18, 2015) (previous location: 9 FAM § 42.44 note 1 (CT: VISA-2188 Oct. 3, 2014))
(stating that DNA “test results reporting a 99.5 percent or greater degree of certainty”
may be accepted by consular officers as “sufficient to support a biological relationship
between a parent and child in visa cases”). There are circumstances, however, where
such parent-to-child testing is not possible.

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Interim Decision #3860

uniform throughout the industry. What has not been established is the
determination of the level of statistical probability that is convincing of
a non-parentage relationship . . . .” The USCIS has not refuted this
statement.
The USCIS’s policy of barring consideration of any sibling-to-sibling
DNA test results appears to be based on a concern that some results may
reflect a lower level of probability than 99.5 percent, even where there is a
true biological sibling relationship—in other words, that there is a risk of
“false negative” test results that could lead to the denial of some visa
petitions. We acknowledge this concern but do not believe it justifies
the overly broad position taken by the USCIS that it will not accept
sibling-to-sibling DNA test results or give them any evidentiary weight,
even when they reflect a strong degree of certainty that the claimed
biological sibling relationship exists.
As a comparison in this regard, we consider the evidentiary weight
accorded to birth certificates. Birth certificates issued at or near the time of
birth are generally accepted as highly probative evidence of a parent-child
relationship. See generally 8 C.F.R. § 204.2(d)(2) (2015). On the other
hand, because of the potential for fraud, birth certificates that reflect a
delayed issuance may be given less evidentiary weight and “must be
evaluated in light of the other evidence of record and the circumstances of
the case.” Matter of Bueno, 21 I&N Dec. 1029, 1033 (BIA 1997); see also
Matter of Ma, 20 I&N Dec. 394, 397 (BIA 1991); Matter of Serna, 16 I&N
Dec. 643, 645 (BIA 1978). Unlike the sibling-to-sibling DNA test results,
however, the USCIS does not decline to consider timely issued birth
certificates simply because some petitioners may not have them or may
submit fraudulent birth certificates. It is likewise not logical for the
Director to decline to afford any evidentiary weight to probative
sibling-to-sibling DNA test results merely because some results may
not have achieved the same level of probative value.
We acknowledge that DNA testing for siblings is different from
such testing between a parent and child. Nevertheless, the arguments
and scientific information presented on appeal persuade us that
sibling-to-sibling DNA test results reflecting a degree of certainty of
99.5 percent or higher should be afforded some evidentiary value. Giving
consideration to such test results would be in accord with the apparent
consensus in the scientific community that they provide probative evidence
of the biological relationship. We therefore conclude that when an
AABB-accredited facility has determined, from direct sibling-to-sibling
DNA testing of full siblings, that a 99.5 percent or greater probability of the
sibling relationship exists, the test results should be accepted and
considered to be probative evidence of the claimed relationship.
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Interim Decision #3860

However, we do not hold that sibling-to-sibling DNA test results
reflecting any particular percentage probability will alone be sufficient to
establish a claimed full sibling relationship. 4 Rather, we would generally
expect that other evidence of the sibling relationship would be submitted
and that all the evidence, including DNA test results, would be considered
in its totality. The weight to be accorded any particular DNA test results
will depend on the degree of certainty that is reflected in those results. 5
In this case, the petitioner submitted sibling-to-sibling DNA test results
showing that the probability that he and the beneficiary are full siblings is
99.8114 percent. These results should therefore be accepted and considered
by the Director to be probative evidence of the petitioner’s sibling
relationship to the beneficiary. Accordingly, we will remand the record for
the Director to consider all of the evidence presented in support of the visa
petition, including the sibling-to-sibling DNA test results, and to determine
whether the petitioner has met his burden of establishing the claimed full
sibling relationship by a preponderance of the evidence. On remand, the
petitioner may be given an opportunity to present additional evidence.
ORDER: The record is remanded to the Director for further
proceedings consistent with the foregoing opinion and for the entry of a
new decision.

4

We note that the scientific probabilities set forth in DNA test results are different from
the legal standards that generally apply to the burden of proof in visa petition cases. The
forensic DNA expert whose affidavit was submitted with the amicus brief points out that
the courts have not yet set the bar on what statistical probability is necessary to prove a
biological relationship, but he states that “high probabilities can be trusted and low
probabilities should be viewed as non-confirming.” Other evidence offered by amicus
from the United Kingdom indicates that DNA test results of 90−99.99 percent are
considered “[v]ery strong evidence” of the sibling relationship but that results of
10−89.99 percent would be considered “inconclusive.” In addition, the DNA test result
report that was submitted in this case suggests as a guideline that a probability of
90 percent or greater should “support” a claim of a full sibling relationship; 98 percent or
greater should “strongly support” the claim; and 99 percent or greater should “practically
prove” the claim.
5
There may be a stronger need for additional evidence in the case of half-sibling
relationships. The scientific information submitted by amicus indicates that half-siblings
share only 25 percent of their DNA (unlike full siblings who share 50 percent of their
DNA) and that their relationship to one another is “genetically identical” to
that of other second-degree relationships, such as those of grandparent-grandchild and
aunt/uncle-niece/nephew. Thus, while DNA test results might reflect that the parties are
biologically related, additional evidence will be needed to establish, by a preponderance
of the evidence, which of those genetically similar relationships, in fact, exists.

735


Interim Decision #2349

MATTER OF HOSSEINPOUR
In Deportation Proceedings
A-19865881

Decided by Board March 5, 1975
Where a nonimmigrant respondent indicates his desire to remain-in this country permanently, by filing for adjustment of status under section 246 of the Immigration: and
Nationality Act, this action in itself, does not constitute a failure to maintain status
under section 241(a)(9) of the Act. However, where the period of respondent's authorized stay expired, and respondent neither applied for nor received an extension of
stay, he was deportable under section 241(a)(2) of the Act, as charged in the order to
show cause issued after respondent's period of authorized stay had expired. [Matter of
Gaitares Interim Decision #2177 (BIA 1972) modified]
CHARGES:

•

Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9)]—Nonimmigrant failed to
II
comply with conditions of nonimmigrant status under which
admitted.
Lodged: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]--Nonimmigrant remained
longer than permitted.
ON BEHALF* OF RESPONDENT: Rod L. Poirot, Esquire
701 Elm Street, Suite 500
Dallas, Texas 75202

In a decision dated August 29, 1974, the immigration- judge found the
respondent deportable on both of the above charges and granted him the
privilege of departing voluntarily from the United States within 64 days
in lieu of deportation. The respondent has appealed froni that decision.
The appeal will be dismissed.
The alien respondent is a native and a citizen of Iran who entered the
United States in May 1970 as a nonimmigrant student. He obtained
authorization to remain in the United States until May 25, 1973. In
February 1973, the respondent filed an application for adjustment of
status under section 245 of the Immigration and Nationality. Act. On
June 21, 1973, the district director denied that application and informed
the respondent that he would be permitted to depart from the United
States voluntarily on or before July 21, 1973 without the institution of
deportation proceedings. The respondent has not departed. 191

Interim Decision #2349

The immigration judge concluded that the respondent was deportable
under section 241(a)(9) of the Act for failure to comply with the conditions of his nonimmigrant status because he submitted an application for
adjustment of status. That conclusion was based on language in Matter
of Gallares, 14 L & N. Dec. 250 (BIA 1972), which indicates that a
nonimmigrant who seeks adjustment of status under section 245 of the
Act thereby ceases to maintain status as a lawful nonimmigrant. We
believe that our language in Gallares concerning the effect of an application for adjustment of status upon the maintenance of valid nonimmigrant status was overly broad.
As originally enacted, section 245(a) of the 1952 Act contained an
express provision that: `!Any alien who shall file an application for
adjustment of his status under this section shall thereby terminate his
nonimmigrant status." Act of June 27, 1952, ch. 477, § 245, 66 Stat. 217.
The 1958 amendments to Section 245 eliminated this provision. Act of
August 21, 1958, Pub. L. No. 85-700, § 1, 72 Stat. 699. Since the
legislative history of the 1958 amendments indicates that Congress was
well aware of the provision automatically terminating nonimmigrant
status, we must assume that the deletion of that provision was intentional. S. Rept. No. 2133, 85th Cong., 2d Sees., 1958 U.S. Code Cong. &
Admin. New: 3698, 3701. See also 2 C. Gordon & H. Rosenfield, Immigration Law and ProCedure § 7.7(b) (1975).
Moreover, courts have held that a desire to remain in this country
permanently :.n.accordance with the law, should the opportunity to do so
present itself, is not necessarily inconsistent with lawful nonimmigrant
status. Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 195'1); Bong Youn
Choy v. Barber, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of
H—R—, 7 I. & N. Dec. 651 (B.C. 1958).
To the extant that our language in Matter of Gallares, supra, indicates that an application for adjustment of status automatically terminates lawful nonimmigrant status, that case is modified. We now hold
that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status.
Evidence introduced at the hearing indicates that the respondent has
been enrolled in school full time since his arrival in 1970 (Exhs. 6a, fib,
6e, 7). The respondent's testimony indicated that he intended to remain
a student even though he had applied for permanent resident status,
and that he was willing to return home when his studies were completed
if ordered to do so (Tr. pp. 46-7). The respondent also stated that he had
not engaged :in unauthorized employment, and that he was supporting
himself and paying child support with funds from his family (Tr. p. 60).
The Service apparently based the out of status charge, solely on the fact
that the respondent applied for adjustment of status. We conclude that
the Service has failed to establish by dear, convincing, and unequivocal
,

192

Interim Decision #2349
evidence that the respondent is deportable under section 241(a)(9) of the
Act for failure to comply with the conditions of his nonimmigrant status.
Nevertheless, the record establishes that the respondent's authorized
stay in the United States expired on May 25, 1973 (Exh. 3). The
respondent received no extension of his authorized stay beyond that
date (Exh. 3; Tr. p. 48). Consequently, the respondent's deportability
under section 241(a)(2) of the Act as a nonimmigrant who remained in
the United States after the expiration, of his authorized stay has been
established by clear, convincing, and unequivocal evidence.
Counsel contends that the respondent is not deportable as an overstay

because by charging him with being out of status the Service in effect
precluded him from obtaining an extension of his stay as a nonimmigrant
student. The answer to this contention is threefold: (1) there is no
evidence in the record that the respondent ever applied for an extension
of his stay as a nonimmigrant student, (2) the order to show cause
charging the respondent with being out of status was not issued until
after the expiration of the respondent's authorized stay, and (3) the
decision whether or not to extend a nonimmigrant's authorized stay is
within the sole discretion of the district director and is not reviewable
by the immigration judge or by us. Matter of Halabi, 15 I. & N. Dec.
(BIA 1974).
Finally, counsel contends that the immigration judge should , have
reinstated the respondent to student status. However, the immigration
judge had no jurisdiction to reinstate the respondent's student status.
Matter of Gallares, supra; see Matter of Halabi, supra; Matter of Sourbis, .111. & N. Dec. 335 (BIA 1965).
The respondent is deportable as a nonimmigrant who remained beyond the authorized length of his stay. The appeal will be dismissed.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from, the United States voluntarily
within 64 days from the date of this order or any extension beyond that
time as may, be granted by the district director; and in the event of
failure so to depart, ,the respondent shall be deported as provided in the
immigration judge's order.

193


MATTER OF H—V-

In DEPORTATION Proceedings
A-10743391
Decided by Board August 17,1961
Deportability—Narcotics offense—Finality of conviction.

Where conviction for narcotics offense resulted in respondent's commitment
for treatment and super-vision under the Federal Youth Correction Act, held

that for purposes of section 241(a) (11) of the Immigration and Nationality
Act his conviction was "final" without regard to imposition of sentence.
CILUIGES :

Order: Act of 1952—Section 241(5) (11) [8 U.S.C. 1251(a) (11)1—Convicted
of a violation of any law j r regulation relating to the illicit traffic in narcotic drugs.
BEFORE THE BOARD

DISCUSSION: This case comes forward on appeal from an order
entered by the special inquiry officer on July 14, 1961, denying the respondent's motion requesting reopening and reconsideration of the decision of April 21, 1960, directing that the respondent
be deported from the United States pursuant to law on the charge
stated in the order to show cause. Counsel on appeal asserted that
the respondent's wife and minor child are citizens of the United
States. He argued that the respondent's conviction in the United
States District Court, Southern District of California, Southern
Division, San Diego, California, on March 21, 1960, is not a final
conviction within the meaning of the Immigration and Nationality
Act, in that, to constitute a conviction thereunder a sentence must
be imposed rather than commitment for treatment and reformation.
The respondent, a 23-year-old married male, native and citizen
of Mexico, has resided continuously in the United States since his
admission at San Ysidro, California, on June 15, 1956. The record
reflects the respondent was convicted on his plea of guilty in the
United States District Court, Southern District of California,
Southern Division, San Diego, California, on March 21, 1960, for
illegally importing narcotics into the United States in violation of
section 174, Title 21, United States Code. Following this convic,

428

Lion, the respondent was sentenced to the custody of the Attorney
General for treatment and supervision until discharged by the
Youth Correction Division. It was adjudged and recommended
that the respondent he given an opportunity to further his education and learn a useful trade or occupation. Deportation proceedings were instituted against the respondent on April 13, 1960.
During the hearing held in deportation proceedings nt the Federal

Correction Institution, Lompoc, California, on April 21, 1960, the
respondent admitted the truth of the several factual allegations set
forth in the order to show cause and conceded deportability on the
charge stated therein. The record shows that the respondent is
subject to deportation on the charge designated above. The special
inquiry officer's decision of April 21, 1960, became final when no
appeal was taken therefrom.

The section [241(a) (11) of tha Immigration and Nationality
Act] under which the respondent has been found subject to deportation provides that an alien in the United States shall be deported
who at any time has been convicted of a violation of any law or
regulation relating to the illicit traffic in narcotic drugs. The aforementioned section 241 (a) (11) requires only a conviction of a narcotic offense without regard to the imposition of a sentence. Moreover, this Board has held that a conviction which results in commitment under the Federal Youth Correction Act possesses sufficient
finality to sustain a deportation charge under section 241(a) (4) of

the Immigration and Nationality Act which, among other things,
provides for the deportation of twice-convicted aliens without regard for the sentence imposed (cf. Hatter of P—, 8-517).
For the reasons hereinbefore set forth, the request made by counsel on behalf of the respondent for reopening of the proceeding and
reconsideration must be denied. This case, like so many of its kind,
is a hard one and has many appealing factors. However, it is our
duty to apply and interpret the law as it is given us. As previously
stated, the record clearly establishes that the respondent is subject
to deportation under the provisions of section 241(a) (11) of the
Immigration and Nationality Act, in that, he at any time has been
convicted of a violation of any law or regulation relating to the
Mich traffic in narcotic drugs, to wit, illegal importation of narcotics, in violation of Title 21, U.S.C., section 174. The other
points raised by counsel have been adequately disposed of by the
special inquiry officer. After carefully coneidering all the evidence

of record, together with the exceptions noted on appeal, the deCision
of the special inquiry officer will he affirmed. Accordingly, the following order will be entered.
ORDER: It is ordered that the appeal be dismissed.
429


MATTER OF S

J

S

Creation of Record of Lawful Entry
A-5859139
Decided by Assistant Commissioner October 20, 1959
Record of lawful entry

—

Section 249 of the 1952 act

—

Residence.

Applicant who was deported from the United states in 1945 after having

entered as a crewman in 1939 and who thereafter was readmitted to the
United States at various times in pursuit of his calling as a crewman held
inoligihle on two counts for the benefits of section 249 of the act. (1) Deportation in 1945 broke the conunmty of his reidenco in the United States
(cf. Matter of P , A 4577395, Interim Decision No. 976). (2) Mere temporary admissions as a nonimmigrant crewman over a period of years do
not establish continuous "residence" in the United States within the meaning of the statute.
APPLICATION: For creation of a record of lawful entry for permanent residence under the provisions of section 249 of the Immigration
and Nationality Act.
-

BEFORE THE ASSISTANT COMMISSIONER

Discussion: The applicant., a 54-year-old male, a native and
citizen of China, first entered the United States on June 17, 1939,
as a crewman. He remained in the United States illegally and a
warrant of arrest in deportation proceedings was served on him on
June 26, 1942. On February 12, 1943, the Board of Immigration
Appeals ordered him deported and granted him a waiver of inadmissibility under the 9th proviso of section 3 of the Act of February
5, 1917 for entry into the United States from time to time as a
bo7,a, fide crewman. A warrant of deportation was issued the same
date and the applicant effected his own deportation by departing
from the United Slates on SoptembAr 22, 1945, as a crewman aboard
the SS. Pm Berlanqa.
Subsequently, the applicant was admitted to the United States at
various times an a crewman under the provisions of section 3(5) of
the Immigration Act of 1924. On July 17, 1951, he applied for
suspension of deportation under the provisions of section 19(c) of
the Immigration Act of February 5, 1917. It was found that he
had been last admitted to the United States un June 4, 1951, at San
Francisco under section 3(5) of the Immigration Act of 1924 for a
period of 29 days and had remained for a longer period than per463

milted under that section of law. A warrant of arrest in deportation proceedings was issued on September 17. 1951, but the applicant
departed from the -United States before service of the warrant of
arrest. He filed an application for permission to reapply after
arrest and deportation with the District Director at San Francisco
on September 12, 1952. This application was denied bn January
12, 1953, and no appeal was taken. A warrant of arrest in deportation proceedings was issued on February 9, 1954, charging that at
the time of entry on January 3, 1954, the applicant was inadmissible
under section 212(a) (17) of the Immigration and Nationality Act
as an alien who had been arrested and deported and who had not
been granted permission to reapply. He was accorded a hearing on
February 10, 1954, and was granted the privilege of departing voluntarily from the United States at his own expense. He departed
on March 20, 1954, as a crewman.
The applicant again made application for permission to reapply

for admission after d Tortation and such permission was granted
on June 30, 1954. An order to show cause in deportation proceedings was issued on February 17, 1958, alleging that the applicant
had last been admitted as a nonimmigrant crewman at San Francisco on December 13, 1957, for a period not to exceed 29 days and
that he remained in the United States for a longer period than
authorized. He was accorded a hearing on February 26, 1958, and
the special inquiry officer granted him the privilege of voluntary
departure. Pursuant to that order he departed from the United
States on March 22, 1958. The applicant is married and his wife
and children reside in Yokahama, Japan.
On December 2, 1958, the instant application was filed. The applicant alleges that he has resided continuously in the United States
since June 17, 1939. The application was denied by the district
director on January 19, 1959, on the ground the applicant had failed
to establish continuous residence in the United States since prior
to June 28, 1940, in that the deportation on September 22, 1945,
constituted a break in residence. That order was appealed to the
Regional Commissioner at San Pedro and on April 13, 1959, the
Regional Commissioner affirmed the district director's order. The
case was then certified to this office.
The sole issue to be determined is whether the applicant has resided continuously in the United States since June 17, 1039. The
applicant cites the decision in Matter of .31 I. & N. Dec. 82,
to establish that his deportation on September 22, 1945, did not
break the continuity of his residence. That decision concerned the
effect of deportation upon an alien's eligibility for relief under the
7th proviso of section 3 of the Act of February 5, 1917. The 1917
act was repealed upon enactment of the Immigration and Nation464

Nation
ality Act now defines residence, for the purposes of the Act, as the
principle, actual dwelling place in fact, without regard to intent.
It has been held that departure from the United States as a result
of exclusion or expulsion proceedings breaks the continuity of residence for the purposes of section 249 of the 1952 act (Matter of
ality Act and section 1U1 (a) (33) of the Immigration and

p

, A z1.7,7729f, Interim Decision No. 976). The applicant de—

voluntarily under a warrant of deportation on September
22, 1945. Therefore, the continuity of his residence was broken.
There is an additional basis for finding that the applicant has
failed to establish continuous residence in the United States since
June 17, 1939. In his application form applicant does not show a
place of residence in the United States from November 1945 to
November 1958, and apparently relies on admissions as a crewman
in pursuit of his calling to establish residence. However, in statements made before officers of this Service on September 11, 1952,
May 18, 19,74, and on January 15, 1050, the applicant each time
stated that he entered the United States solely in pursuit of his
calling and intended to reship as a crewman. In the statement made
on May 18, 1954, at San Francisco he stated that be had no place
to stay in San Francisco and would remain aboard the ship while
it was in port. He also stated that the United States address he
had given was merely a mail drop. Mere temporary admissions
over a period of years as a nonimmigrant crewman cannot be used
now as a basis for establishing continuous residence in the United
States for the purposes of section 249 of the 1952 act.
Inasmuch as the applicant has failed to establish continuous residence in the United States since a date prior to June 28, 1940, the
decision of the Regional Commissioner will be affirmed.
parted

Order : It is ordered that the decision and order of the Regional

Commissioner be affirmed.
Editor's Note: Motion of the subject alien for summary judgment, filed with
the United States District Court for the Northern District of California, was
denied by that court on March 11, 1960 (see Sit Jay Sing v. Nice, 182 F. Supp.
292).

465


M ATTER OF YATCTT CARTRBEAN STAR

In FINE Proceedings
MIA-10/61.235

Decided by Board May .12, 1961
Fine—Payoff and/or discharge of alien crewman without permission—Temporary departure from United States without termination of services and with

intention of returning to vessel.
Liability to fine for paying off and/or discharging an alien crewman is not
incurred where the crewman who has been paid earned wages plus a $50
advance temporarily leaves the United States for Nassau to obtain papers
necessary for his promotion to master of the vessel; his delay In rejoining
the vessel has resulted from circumstances beyond the control of any of the
parties concerned; and it is still intended that he will rejoin the vessel,
when repairs are completed, as its master.

Besis Foe FINE; Act of 1952—Section 250 (8 U.S.C. 1288).
BEFORE THE BOARD

DISCUSSION: This appeal is directed to an administrative penalty of $50Q ($1,000 mitigated to the extent of $500), which the
District Director at Miami has ordered imposed on Edwin P. LeMay
and Associates as owners and/or agents of the above-named vessel
which arrived at the port of Miami, Florida, from foreign on September 1, 1960. The specific violation charged is the paying off
and/or discharging of the alien crewman, G—W—A—, without prior
permission from the Attorney General or his duly designated representatives. The appeal will be sustained.
The vessel involved is a charter boat of British registry which,
at the time of its last arrival (supra), was returning a charter party
to the United States. This crewman, who was then its mate, was
granted a D-1 conditional landing permit. Under the terms thereof,
he was required to depart from the United States on the vessel's
next foreign sailing; in no event was he to remain in this country
in excess of 29 days; and he could not be paid off or discharged without prior permission from immigration officers, acting for the Attorney General.
It had apparently been decided, prior to the vessel's arrival, to
promote this crewman to the position of master of the vessel. This
272

necessitated his return to Nassau to obtain "papers" covering the
latter rating. And, since the vessel was in need of minor repairs,
it was agreed by the owners that the crewman should combine his
business trip to Nassau with a vacation. It was the understanding
of all parties concerned, however, that the crewman would return to
the United States and assume command of the vessel as soon as it
could be repaired. Accordingly, he was paid the wages he had
earned to date, plus a $50 advance against future earnings.
On September 3, 1960, the crewman left the United States for
Nassau aboard an aircraft operated by Pan American World Airways. He then surrendered his D-1 conditional landing permit
(supra) to that carrier, and the latter endorsed it to show his departure and forwarded it to the Service. According to the record, this
was the procedure the crewman was told to follow by the immigration officer who admitted him. Apparently he had advised said

officer of his intended brief trip to Nassau at the time of his
admission.
Now, however, it develops that the crewman is still in Nassau and
has accepted part-time employment there. The reason given is that
hurricane Donna wrecked the vessel, and that its owners have not as
yet been able to raise the funds necessary to render it seaworthy
again. Thus, the date of the crewman's resumption of his duties
aboard the vessel is uncertain. But the record definitely demonstrates that he intends to rejoin it eventually, and that its owners
still consider him its master.
Under this section of the law, the element essential to establish a
violation is the termination of the crewman's employment by an
affirmative act of the parties responsible for the vessel or of the
crewman himself (United States v. Seaboard Surety Company, 239
F.2d 667). But there is no evidence of any character here to show
the existence of that crucial factor. Therefore, we hold that liability
to fine for paying off and/or discharging the crewman has not been
incurred.
The payment of wages in full to the crewman did not, in and of
itself, constitute a breach of the statute (United States v. Seaboard
Surety Company, supra). The granting of a leave of absence
(vacation) to him did not, as we have consistently held, constitute a
termination of the crewman's services aboard the vessel on which
he arrived in the United States, being merely a temporary interruption thereof. His temporary departure from the United States
did not sever his connection with the vessel and was obviously made
with Service approval and in compliance with the conditions of his
admission, at least from the time limitation standpoint. His delay
in rejoining the vessel has resulted from circumstances beyond the
control of any of the parties concerned, and certainly not from the
273
654677—A5

19

affirmative act or desires of any of them. Finally, no claim has
been advanced or showing made that the crewman has been signed
off the vessel's articles or given a discharge slip.
ORDER: It is ordered that the appeal be sustained and that the
fine be not imposed.

274


Interim Decision #1298

MATIIR OP BANJECIAV

In DEPORTATION Proceedings
A-15804394

Decided by Board August 28, 1983
Respondent, a 27-year-old Yugoslav crewman, has not established that because
he deserted his vessel he will be subject to physical persecution within the
meaning of section 248(h), Immigration and Nationality Act; if deported. to
Yugoslavia, since the penalties for such desertion are reprimand, line and loss
of wages earned (but ordinarily not jail.)
OsAim:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2) I—Nonimmigrant
(crewman)—remained longer.

On April 29, 1963, the special inquiry officer, after finding that the
respondent had failed to establish that he would be subject to physical
persecution if deported to Yugoslavia, authorized the privilege of
voluntary departure for him, with the provision for his deportation
to Sweden, alternatively to Yugoslavia, on the charge contained in

the order to show cause in the event of his failure to so depart. The
appeal from that decision, which brings the case before this Board
for consideration, will be dismissed

The record relates to a 27-year-old male alien, a native and citizen
of Yugoslavia, who last entered the United States on or about September 21, 1962. He was then admitted as a crewman for the period
of time his vessel was to remain in port, but in no event to exceed
29 days. He has remained in this country since the expiration of the
temporary period of his admission 'without authority. Accordingly,
his deportability on the above-stated charge is -established. It is also
conceded.
The special inquiry officer has granted the respondent's request for
voluntary departure. In this connection, the respondent has testified
that he has never been arrested or had any difficulty with the police.
There is no evidence of record indicating that he has been other than
a person of good moral character during the past five years. He is
351

Interim Decision #12.98
married to a naturalized citizen of the United States, who testified in
his behalf in the course of the deportation proceedings. The record
confirms the respondent's testimony that he surrendered himself voluntarily to the Immigration Service. He has asserted that he is ready
and willing to leave the United States at his own expense rather than
be deported. The special inquiry officer was satisfied that, if faced
with the alternative of deportation, the respondent would depart from
the 'United States to some country of his choice. For these reasons,
we agree with the special inquiry officer that voluntary departure is
merited in these premises. His action in this respect, therefore, is
affirmed.
The only issue remaining to be resolved here is whether the respondent has met the burden resting upon him. in this proceeding of establishing that he would be subjected to physical persecution if deported
to Yugoslavia. For the reasons hereinafter stated, we find that he has
not. Therefore, the appeal will be dismissed.
Generally speaking, physical persecution, the likelihood of which
authorizes a stay of deportation under this section of the law, means
confinement, torture, or death inflicted on account of race, religion or
political viewpoint? The main thrust of respondent's argument here,

ignoring the questions of race and religion, is that he will be subjected to persecution because of his political viewpoint. In essence,
his claim is that he has openly expressed opposition to communism,
Yugoslav style, by persistently refusing to join the party; and, at least
on his last four voyages, by discussing with fellow crew members the
good points of the capitalistic system and the weaknesses of dictatorships. We, however, agree with the special inquiry officer that the
-record, showing that respondent was able to speak as he did and resist
all overtures to join the Party, without detriment to his career, does
not support the respondent's position.
For about three years prior to becoming a crewman, respondent
was an office worker, sailed on a small river boat, and served in the
Yugoslav navy. After his discharge, he sailed as a cadet officer for
two years, and then took an examination for the merchant marine.
He was qualified for this by the training he had received in the naval
academy. During his years as a crewman, he rose to the position of
second navigating officer.
In our opinion the respondent's progress careerwise, as set forth
above, belies any claim to persecution because of opposition to communism. As a matter of fact, respondent has testified that the worst that

would happen to him for his refusal to join the Party and his viewpoint
1

Blazina v. Bouchard, 286 F.26 507 (C.A. 3, 2/2161).

352

Interim Decision #1298
would be assignment to ships destined to the Indian Ocean, and denial
of scholarships for higher education.
It also has been judicially determined that economic proscription so
severe as to deprive a person of all means of earning a livelihood may
amount to physical persecution. 2 However, the respondent concededly
does not base his claim to physical persecution on utilitarian sanctions.
In his own words: "Ile was doing rather well for himself at the time

he jumped ship and gave up a career with considerable potential * * *." 8 This aspect of the case, then, speaks for itself and requires no further comment.
It has further been ruled that imprisonment for illegally deserting
a vessel is a criminal sanction reconcilable with generally accepted
concepts of justice, and not physical persecution within the purview
of this section of the law.' The court later modified this ruling, however, to the extent of holding that an alien threatened with long years
of imprisonment, perhaps even a life sentence, for attempting to escape
a communist dictatorship would be entitled to a stay of deportation

on the ground of physical persecution: , And still subsequently it
decided that possible incarceration for one (1) or two (2) years resulting from illegally deserting a ship is not physical persecution"
In our opinion, the facts of this record, applied in the light of the
foregoing precedents, do not call for reversal of the special inquiry
officer. The respondent has submitted an affidavit . T by a qualified expert on Yugoslav law.® Specifically, the affidavit points out (p. 4)
that the abandonment of his ship by a Yugoslav crewman is, theoretically, a disciplinary offense punished pursuant to Article 48 of the
"Decree Concerning the Crews of the Merchant Marine of September

D mat v. Harney, 297 F.24744 (C.A. 3, 1/24/62).
1st two sentences, last II, p. 6—Brief on Appeal.
• Diminia v. Eaperdg, 299 F.2d 244 (C.A. 2, 12/29/61) ; cert. den. 4/9/62-82
S. CL 875.
5 Soria v. Bounty, 31 L.W. 2585,13 Ad. L. 2d 619 ( C.A. 2, 5/15/63).
Zupicich. v. Esperdy, C.A. 2, 6/28/63, 319 F.2d 773.
T Exhibit 3.
Branko M. resell, Esq.—member of the Yugoslav bar and a practicing attorney
In that country (1931-1945)—research assistant, Free Europe, Inc., in charge
of the office of the Library of Congress working on various international, legal,
social and political problems (19-50-1955) —member of D.C. bar and local practicing attorney (since 1955)—special attorney, U.S. Dept. of justice, Office of
Alien Property, Foreign Law Section (1956-1958)--USIA, Voice of America,
Yugoslav Service (present)—Adjunct Professor of Law, Georgetown Univ., lecturing on Socialist Law and the Socialist Legal System (present)—publisher
of, infer alia, THE SOCIALIST CHARACTER OF YUGOSLAV LAW, "Review"
Vol. 1, No. 2, London, 1961; and "Contemporary Croatia in the Yugoslav Federation : Its Constitutional Status and Socioeconomic Position," journal of Croatian
Studies, Vol. 11 (1961) pp. 80-133.
2
3

763-456-65-21

353

Interim Decision #1298

17, .1949." It further sets forth that the penalties for such desertion
thereunder are reprimand, fine, and loss of earned wages, but ordinarily
not jail. This, certainly, does not support a claim of possible long
imprisonment for "jumping ship."
Respondent's attempts to nevertheless bring himself within the scope
of the &via case (5, ante), on the theory that his conduct aboard ship,
as hereinbefore described, would bring him within Article 118 of the
Yugoslav Code of Criminal Procedure providing for imprisonment up
to 12 years in the case of a person who "represents the social political
conditions in the country maliciously and untruthfully," is mere conjecture on his part. The success of his career as a merchant mariner,
as outlined above, deprives such an assumption of any validity whatsoever. As a matter of fact, as indicated previously, he has himself
stated that the worst that could happen to him would be assignment
to ships destined to the Indian Ocean and the denial of scholarships
for higher education.
-

Finally, on this point, the respondent was not persecuted during all
the years that he lived in Yugoslavia or served aboard its ships. His
mother and sister still live in Yugoslavia and no showing has been
made that they have been subjected to physical persecution either.
Again, these matters speak for themselves.
Actually, what the respondent seeks on appeal is a delay in the time
for his voluntary departure until he can legalize his status by taking
advantage of a nonquota, visa petition filed by his citizen wife and
approved by the Service on May 20, 1963. 9 In effect, then, the respondent desires an extension of the time for his voluntary departure.

.But this is a matter properly for the consideration of the District
Director having jurisdiction over respondent's place of residence, not
this Board. Accordingly, and in view of the foregoing, the special
inquiry 'officer's decision of April 29, 1968, is hereby approved.
ORDER : It is ordered that the appeal be and the same is hereby
dismissed.
°He asserts that immigration procedures via the -United States Embassy in
Dublin, Ireland, have been initiated.

354


MATTER 01'

J—

In DEPORTATION Proceedings
A-11003340

Decided by Board August 12, 1958
Loan of oitiaonahip Sootion 350 of the 1952 eat Roue& sought must he substantial and must be followed by 3 years' residence in foreign state—Obtaining foreign passport without using it not sufficient to cause expatriation.
(1) Expatriation under section 350 of the 1952 act does not take place unless
the benefits of the foreign nationality are sought or claimed after December 24, 1952, following which, and subsequent to the individual's 22nd birthday, he must have resided in the foreign country for 3 years. (Cf. Matter
of G—Q—, A-8949215, 7 I. & N. Dec. 195; Matter of V—, A-6913827,
7 I. & N. Dec. 218.)
(2) Australian passport obtained In 1947 by dual national of United States
and Australia who resided in latter country between December 24. 1952, and
Starch 1. 1117, the date ha enmmenend to reside in the United States. did
not cause loss of U.S. citizenship under section 350 in absence of convincing
evidence that foreign passport was used in travel during that period.
(3) Presentation of Australian passport at time of admission to U.S. on
March 5, 1957, although constituting a claim to the benefits of foreign nationality, did not result in expatriation since subject did not thereafter complete 3 years in residence in Australia.

Car-anon
Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Admitted as
nonimmigrant—Remained longer than permitted.

BEFORE THE BOARD

Discussion: This case is before its on appeal from a. decision
of a special inquiry officer directing the respondent's deportation.
The respondent is a 30-year-old married male, a native of Australia claiming United States citizenship, who last entered the United
States on March 5, 1057, and was admitted as a nonimmigrant for
business. The period of his authorized admission expired on March
5, 1958. He had been in the United States on only one prior occasion, that is, as a visitor from August 23, 1947, to October 1948.
The sole issue to be determined is whether the respondent is a
United States citizen or an alien. For the reasons hereinafter
stated, we hold that the Government has not established alienage.
112

We are satisfied from the evidence of record that the respondent's
parents were lawfully married on March 12, 1927, and that he was
born in Australia on March 3, 1928. We agree with the special
inquiry officer that it has been satisfactorily established that the
respondent's father was born in Oklahoma on June 19, 1899. He
lived in the United States until 1905, or later, when his parents
returned to Australia and thereafter he remained in Australia
until his death in 1916. His death certificate contains the statement
that he was born in Oklahoma City, United States of America. The
respondent testified that his father never committed any expatriating act and always considered himself a United States citizen.
The respondent's father became a United States citizen under the
14th Amendment to the Constitution of the United States and
section 1992 of the Revised Statutes. The respondent acquired
United States citizenship under section 1993 of the Revised Statutes.
The issue resolves itself into whether the respondent has become
expatriated.
The special inquiry officer held that the respondent became expatriated under section 350 of the Immigration and Nationality
Act (8 U.S.C. WO) which provides, in part, as follows:
A person who acquired at birth the nationality of the United States and of
a foreign state and who has voluntarily sought or claimed benefits of the nationality of any foreign state shall lose his United States nationality by hereafter having a continuous residence tor tnree years in the foreign otato of
which he is a national by birth at any time after attaining the age of twentytwo years unless he shall * * *.

The special inquiry officer adopted the factual allegations and
the charge contained in the order to show cause as his findings of
fact and conclusion of law. The order to show cause does not contain any allegation that the respondent was ever a citizen of the
United States or that he became expatriated. Hence, the result of
the special inquiry officer's adoption of the factual allegations is
that, on the issue of expatriation, the formal findings of fact are
merely that the respondent is not a citizen or national of the
United States and that he is a native and national of Australia.
While adoption of the factual allegations in the order to show
cause is in accordance with 8 CFR 242.17, we believe that additional findings of fact should be made where they are essential as in
the respondent's case. Here, there should have been formal findings
of fact as to the specific matters which would bring the case within
the terms of 8 H.S.C. 1482.
Neither the examining officer nor counsel questioned the respondent at the hearing as to whether he had sought or claimed the
benefits of Australian nationality. It is clear that the Government
relies entirely on an affidavit (part of ex. 2) which was made by
113

the respondent on September 11, 1957, and the special inquiry officer
set forth in his decision (pp. 2 and 3) much of the contents of the
affidavit. The respondent applied for an Australian passport on or
about June 2, 1947, and traveled to various countries between that
date and March 5, 1957, when he last arrived in the United States.
Parenthetically, we observe that while the plural form - "passports"
was used at one point in the special inquiry officer's decision, the
record does not disclose whether the respondent obtained any
Australian passport other than the one issued on June 2, 1947, nor
whether it was ever revalidated. While the respondent had been
absent from Australia at various times, we believe that the evidence
of record required a finding that he resided continuously in Australia
from his birth until March 5, 1997, and that since that date he has
resided in the United States. His wife and children accompanied
him to this country on the date mentioned.
The special inquiry officer cited our decisions in Matter of
Q—, A- 8949245, 7 I. & N. Dec. 195 (May 7, 1956), and Matter of
17— , A- 8943827, 7 I. & N. Dec. 218 (May 15, 1956). Apparently
ho wan of the opinion that the respondent, used the Australian passport after December 24, 1952, and that this was sufficient to bring
about expatriation under the decision in Matter of 17—, supra,

In that case, there was a claim of Mexican nationality on December 20, 1951, and we held, in effect, that there was a continuing
claim of Mexican nationality until after the effective date of the
Immigration and Nationality Act (December 24, 1952). However,
both decisions make it clear that the 3-year-period of residence
mentioned in 8 U.S.C. 1482 cannot begin to run until after December 24, 1952. Hence, we disagree with a statement in the special
inquiry viiker's decision which is to the effect that, since the respondent became 22 years of age on March 3. 1950, the requirement concerning the 3-year-period of residence was fulfilled on
March 3, 1953.
Matter of V
, supra. did not alter any of the principles set
forth in Matter of supra. We held there that 8 U.S.C.
1482 must be given prospective application; that acts performed
prior to the effective date of the Immigration and Nationality Act
(December 24, 1952) must be disregarded; and that there must be a
seeking or claiming of the benefits of a foreign nationality after
December 24, 1952, following which, and subsequent to the individual's 22nd birthday, there must be a residence of 3 years in

the foreign state.
When the respondent applied for an Australian passport on or
about June 2, 1947, he was seeking and claiming the benefits of his
Australian nationality. However, such action did not cause expatriation under the law then in existence, and the 1947 applies-

114

tion must also be disregarded under 8 U.S.C. 1482, effective December 24, 1952, for the reasons stated in Matter of G
supra. Similarly, 22 CFR 50.6 is not controlling. Although this
regulation does not purport to set forth all tho aete which might
constitute seeking or claiming the benefits of a foreign nationality,
it does specifically mention "appking for a foreign passport or identity card" but is silent as to the use of a foreign passport previously
obtained.
In view of what has been said, we need not concern ourselves
with the respondent's activities prior to December 24, 1952, but
only with events occurring subsequent thereto. The respondent's
affidavit of September 11, 1957, shows that he returned to Australia
in September 1951, and remained there until he went to England,
the date of the trip to England being stated in the affidavit both
as "1954" and "June 1953." He came back to Australia in June
1954, and thereafter divided his time between Australia and New
Zealand until his departure for the United States in March 1957.
When the respondent presented his passport at the time of his
admission to the United States on March 5, 1957, he was claiming
the benefits of Australian nationality. Our decision in Matter of
G—r-Q—, supra, demonstrates that the presentation by the respondent of the Australian passport on March 5, 1957, did not
cause expatriation because he did not thereafter complete 3 years'
residence in Australia. Similarly, since we hold that he has resided in the United States since March 5, 1957, it necessarily follows that any claim of the benefits of Australian nationality sufficient to cause expatriation must have occurred more than 3 years
prior to March 5, 1957. In other words, it must have antedated
March 5, 1954, because a claim after that date would not have resuited in the completion of 2 Team' residence in Australia. Since
the claiming of the benefits of Australian nationality must also have
occurred subsequent to December 24, 1952, it is obvious that such
claim must have been made between December 24, 1952, and March
5, 1954. The only event that occurred during that period was that
the respondent traveled from Australia to England in "1954" or
in June 1953.
In view of the foregoing, the question to be determined is further
resolved into whether, on the one occasion mentioned above, the
respondent used his Australian passport; whether, if such use occurred, it constituted the seeking ot claiming of a benefit of Australian nationality; and whether in accordance with our decision in
, A- 8995287, 7 I. & N. Dec. 718 (May 26, 1958),
Matter of it S
the benefit sought was substantial and indicative of a preference for
the foreign country to a degree inconsistent with United States
citizenship.

115

In connection with the question of whether the respondent used
his passport on the journey to England in 1954 or in June 1953,
his affidavit, of September 11. 1957, contains four references to his
use of an Australian passport. In the order in which they appear
in the statement, these references are: (1) that he used an Australian
passport in August 1947; (2) that he used it in October 1948; (3)
that he always traveled on his Australian passport, a statement
which follows an account of his activities between October 1948 and
November 1949, and precedes an account of his activities subsequent to November 1949; and (4) that he used his Australian passport when he entered the United States in March 1957. Other than
the all-inclusive third statement, the respondent made no specific
admiszion that he used the passport at any time subsequent to

December 24, 1952, and prior to his arrival in the United States
in March 1957. In the absence of any specific admission by the
respondent that he presented an Australian passport on the occasion of his journey to England in 1953 or 1954 and inasmuch as this
travel was between two countries of the British Empire, we do not
believe it has been established that the respondent sought or claimed
the benefits of Australian nationality at that time.
It is well settled that in a deportation proceeding the burden of
establishing alienage rests upon the Government (United States
se eat. .1317ahan.hy Y. rod, 253 U.S. 140, 113 (1923)). It was held
in Gonzales v. Landon, 350 U.S. 920 (1955), that the Government
must establish expatriation by clear, convincing and unequivocal
evidence.
The principle stated in the Gonzales case was extended in Nishldawn v. Dulles, 356 U.S. 129 (March 31, 1958), in which the Court
said (pp. 135, 137) that the Government also has the burden of
proving by clear, convincing and unequivocal evidence "that the
act showing renunciation of citizenship was voluntarily performed"
and that voluntary conduct is the essential ingredient of expatriation. The question involved was whether expatriation occurred because of the citizen's service in the Japanese army, and the court
held that the Government had not established that the service was
voluntary. Counsel cited this case and apparently contends that
the respondent's application for an Australian passport on June 2,
1947, was not voluntary because he had previously attempted to obtain a United States passport without. sureass Since we have held
that the respondent's 1947 application for passport must he disregarded, we need not consider this contention.
Two other decisions of the Supreme Court on March 31, 1958.
have a certain relevance. Both involved section 401 of the Nationality Act of 1940 as amended (8 U.S.C. 801, 1946 ed.). Perez
v. Browned, 356 U.S. 44, held that subdivision (e) of that section
116

was within the authority of Congress under its power to regulate
relations of the United States with foreign countries.
Trap v.
Dulles, 356 U.S. 86, held that subdivision (g), as applied to Trop,
exceeded constitutional limits and that he did not become expatriated.
For the reasons indicated above, we do not believe that the
Government has established that the respondent is an alien. Accordingly, we sustain his appeal.
Order: It is ordered that the appeal be sustained; that the
special inquiry officer's order of deportation be withdrawn ; and
that the proceedings be terminated.

117


Interim Decision #2654

MATTER

OF RAHMATI

In Visa Petition Proceedings
A-17019199
Decided by Board June 26, 1978
A determination by an immigration judge in rescission proceedings that an alien was
accorded nonquota status as the spouse of a United States citizen by reason of a
nonviable marriage does not preclude the alien under section 204(c) of the Immigration
and Nationality Act, 8 U.S.C. 1154(c), from obtaining immigrant status under a new
visa petition since it does not follow from the fact that a marriage is nonviable that it
was entered into for the purpose of evading the immigration laws.
ON BEHALF OF SERVICE:
George Indelicato
Appellate Trial Attorney

ON BEHALF OF PETITIONER:
Pro se

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

The United States citizen petitioner applied for immediate relative
status for the beneficiary as her spouse under section 201(b) of the
Tmmigiation and Nationality Act, 8 U.S.C. 1151(b). The petition was
approved on October 20, 1977. In a decision dated February 15, 1978,
the District Director revoked approval of the petition on the ground that
the beneficiary had previously been accorded immediate relative status

as the spouse of a United States citizen by reason of a marriage determined by the Attorney General to have been entered into for the
purpose of evading the immigration laws. The petitioner has appealed.
'The appeal will be sustained.
The beneficiary, a 36-year-old native and citizen of Iran, married the
petitioner in 1973. The record reflects that this was his second marriage
to a United States citizen, The first occurred in 1967.
On the basis of the 1967 marriage, the beneficiary was granted immediate relative stab's under section 201(b) of the Act as the spouse of a
United States citizen, and his status was adjusted to that of a lawful
permanent resident under section 245 of the Act, 8 U.S.C. 1255.
On April 27, 1971, after proceedings under section 246(a) of the Act, 8
U.S.C. 1256(a), an immigration judge ordered the beneficiary's grant of
status as a lawful perrnanent resident rescinded on the ground that the
-

538

interim Decision ifzoo
1967 marriage was no longer viable when it was used as a basis for
adjusting the beneficiary's status. Although the beneficiary and his
spouse had lived together, and a child had been born to them, they had
not lived together continously for more than a few months at a time and
she had left him before his status was adjusted. The record reflects that
she obtained a divorce on November 19, 1968.
The District Director based his decision on section 204(c) of the Act, 8
U.S.C. 1154(c), which states that ". . . no petition shall be approved if
the alien has previously been accorded a nonquota or preference status
as the spouse of a citizen of the United States ... by reason of a

marriage determined by the Attorney General to have been entered into
for the purpose of evading the immigration laws." The District Director
apparently considered the prior decision of the immigration judge in the
rescission proceedings to be a conclusive determination that the beneficiary's prior marriage to a United States citizen was entered into for
the purpose of evading the immigration laws. This conclusion was erroneous.
The section 204(c) decision is to be made on behalf of the Attorney
General by the District Director in the course of his adjudication of the
subsequent visa petition. Matter of Samson, Interim Decision 2205

(BIA 1974). In making that adjudication, he may rely on any relevant
evidence, including evidence having its origin in prior Service proceedings involving the beneficiary. This determination, however, is for the
District Director to make, and he should not ordinarily give conclusive
effect to the determinations made in the prior collateral proceedings. He
should reach his own independent conclusion based on the evidence
actually before him. See Matter of F , 9 I. & N. Dec. 684 (BIA 1962).
The record in this case does not support the District Director's conclusion that the beneficiary's prior marriage was entered into for the
purpose of evading the immigration laws. The rescission determination
dealt only with the viability of the marriage at the time when adjustment of status was granted. Section 204(c), however, goes to the underlying purpose of the marriage. Matter of Samson, supra. We note,
moreover, that the beneficiary and his spouse of that marriage apparently lived together as man and -wife and had a child together. Thus, it
does not appear that the marriage was entered into for the purpose of
—

evading the immigration laws.

We conclude, therefore, that the District Director's determination
regarding the beneficiary's previous marriage is erroneous. Accordingly, the petitioner's appeal will be sustained, and the District Director's decision will be reversed.
ORDER: The appeal is sustained, and the approval of the visa petition is reinstated.
539


Interim Decision #2461

MATTER OF JAMES
In Visa Petition Proceedings
A-20356519

Decided by Board December 22, 1975
Under the law of Dominica, British West Indies, legitimation may be accomplished only if
the illegitimate child's mother and father subsequently marry each other. Since beneficiary's father, the U.S. citizen petitioner, has never been married to her mother,
beneficiary, wt o was born out of wedlock in Dominica in February of 1988, has not been
legitimated within the meaning of section 101(b)(1)(C) of the Immigration and Nationality Act, as amended, and, therefore, is ineligible for preference classification
under section :03(a)(1) of the Act as the unmarried daughter of petitioner.
ON BEHALF OF PETITIONER: Gustave Lippman, Esquire
11 Park Place, Suite 1510
New York, New York 10007

In a decision dated January 24, 1975, the district director denied the
petition to classify the beneficiary as the unmarried daughter of the
United States citizen petitioner under section 203(a)(1) of the Immigration and Nationality Act. The petitioner has appealed from that decision. The appeal will be dismissed.
The beneficiary was born in February of 1938 and is a native of
Dominica, British West Indies. The record indicates that the petitioner
is her father, but that her father has never been married to her mother.
The district &rector denied the petitioner on the ground that the beneficiary did not qualify as the daughter of the petitioner for immigration
purposes.
In order to qualify as a "daughter" for preference purposes, the
beneficiary must once have qualified as the child of the petitioner under
section 101(b)(1) of the Act. Nazareno v. Attorney General, 512 F.2d
936 (D.C. Cir., 1975), cert. denied, 44 U.S.L.W. 3201 (No. 74-1473);
Matter of Coker, 14 I. & N. Dee. 521 (BIA 1074). The only subdivisions

of section 101(b)(1) possibly relevant to this case are sections
101(b)(1)(A) aid (C), which provide:
The term "child" means an unmarried person under twenty-one years of age who is—
(A) a legitimate child; or
* * *

(C) a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the United States, if such

544

Interim Decision #2461
legitimation takes place before the child reaches the age of eighteen years and the child
is in the legal custody of the legitimating parent or parents at the time of such
legitimation.

The term "legitimate" as used in section 101(b)(1)(A) refers solely to a
child born in wedlock. See Matter of Dela Rosa, 14 I. & N. Dec. 728
MIA 1974); Matter of Kubicka, 14 I. & N. Dec. 303 (BIA 1972). The
beneficiary was not born in wedlock, and she therefore cannot qualify as

the petitioner's legitimate child.
Counsel for the petitioner contends that the beneficiary was legiti/dated in Dominica when the petitioner allegedly acknowledged his
paternity to the Registrar General of Births and Deaths. Counsel,
however, has not led us to any statute or court case relating to the law of
Dominica which supports his assertion.
We have inquired of the Library of Congress regarding legitimation
in Dominica, and we have received a photocopy of the statute governing
legitimation. The pertinent provisions of the legitimation Ordinance, III
Laws of Dominica, chapter 196, provide:
3. (1) Subject to the provisions of this section, where the parents of an illegitimate
person marry or have married one another, whether before or after the commencement
of this Ordinance the marriage shall, if the father of the illegitimate person was or is at
the date of the marriage domiciled in the Colony, render that person, if living, legitimate from the commencement of this Ordinance, or from the date of the marriage,
whichever last happens.
(2) Nothing in this Ordinance shall operate to legitimate a person whose father or
mother was married to a third person when the illegitimate person was born.

It thus appears that legitimation in Dominica may be accomplished
only if the illegitimate child's mother and father subsequently marry
each other. This is evidently a typical requirement within the British
West Indies. See Matter of Archer, 10 I. & N. Dec. 92 (BIA 1962). The
decision of the district director was correct.
ORDER: The appeal is dismissed.

545


D'LS TTER OF E—
In DEPORTATION Proceedings
A-8600520
Decided-by Board Auglz,! -,-t. Si, 1961
Crime involving moral turpitude—Conspiracy to interfere with lawful functions of U.S. agency.
Conspiracy to defraud the United States under 18 U.S.C. 371 by impeding,
obstructing, and attempting to defeat the lawful functions of an agency of
the United States is a crime involving moral turpitude.
CHARGE :
Order : Act of 195` Section 241(a) (4) [El U.S.C. 1251(a) (4)1—Convicted of
crime involving moral turpitude committed within five years after
entry and sentenced to confinement therefor in a prison or corrective institution for a year or more, to wit, conspiracy to defraud the. United. States by impeding, impairing, obstructing and
attempting to defeat the lawful functions of the Securities and
Exchange Conimiosion, an agency of the United States, in violation of Title 18, U.S.C., sections 2 and 371, by unlawfully, willfully and knowingly failing to file required reports; hindering,
obstructing and delaying the required filing of documents, reports
and information ; and by causing to be made and filed with the
New York Stock Exchange and the Securities and Exchange Commission reports which were false and misleading with respect to
material facts and containing omissions of material facts.
BEFORE THE BOARD

DISCUSSION: Respondent, is 56 years of age, married, male, alien,
a native of China and a citizen of the United Kingdom and colonies.
His last entry was in A ugust 1958, after a brief visit to Canada.
He states that he has been in the United States since. 1950, that he
was admitted on January 7, 1954, for permanent residence at Rouses
Point, .New York, after having gone to Canada to secure an immigrant visa. 14e was ordered deported from the United States on the

charge set forth above and he appeals to this Board.
On January 27, 1960, respondent and others were convicted in
the United States District Court, for the Southern District of New
York of a conspiracy to defraud the United States in violation of
U.S.C. 871., The defendant pleaded not guilty and was eon-

victed by a jury on 15 of 21 counts of the indictment of the offeeLi
of unlawfully, willfully and knowingly failing to file with the
New York Stock Exchange and the Securities and Exchange Commission statements indicating the beneficial ownership and the
changes in the beneficial ownership of equity securities; hindering,
delaying and obstructing the making and filing of annual and cur

rent reports required to be filed with the New York Stock Exchange
and the Securities and Exchange Commission; and conspiracy to
commit these offenses (Title 15, secs. 78p(a), 78ff (a), 78t(c) ; Title
18, secs. 2 and 371, United States Code) and to defraud the United
States by impeding, impairing, obstructing and attempting to defeat the lawful functions of the Securities and Exchange Commission. He was sentenced to imprisonment on February 17, 1960, and
on September 30, 1960, his prison sentence was reduced from 2 years
and 11 months to 1 year and 11 months on count 21, the conspiracy
count, and he was fined

$io,non.

Prison sentences on other counts

were to run concurrently 'with each other and concurrently with
the prison sentence on count 21.
The conviction of respondent and others was affirmed in United
States v. aaterma, 281 F.2d 742 (C.A. 2, 1960), referred to in respondent's memorandum (p. 5), wherein the court said:
. the Government's case on the conspiracy count and on Count 5, relating

to obstructing the filing of the 10 - 1C report, was use-rwholraing estab-

(Emphasis supplied.)
. . . Here we can immediately dispose of Count 5, the charge of intentionally delaying the filing of Jacob's annual report, as to which the proof was
so overwhelming and the criticisms of the Judge's charge so wholly unmeritorious as to make comment supererogatory.
lished. .

The court of appeals affirmed the judgment of conviction of E—
and his co conspirators, with the exception of E--'s conviction on
count nine. The court sustained the conviction on the other counts,
including the conspiracy count, finding no reversible error.
Respondent makes his appeal to the Board primarily on the issue
of the inadequacies of the pleading and evidence. The Board's
jurisdiction does not extend to retrying the respondent's conviction.
Respondent alleges that the indictment charges only that he conspired to violate the laws of the United States and does not ado
quately allege that he conspired to dafraud the United States. He
was found guilty of the offenses set forth in the charge, and his
plea that he was not found guilty of a conspiracy to defraud the
United States is not in accordance with the record. We are bound
by the record of conviction, and the "record" includes the indictment, the plea, the verdict and the sentence. United States ex rel.
-

Zaffaran,o v. Corsi, 63 F.2d 757 (C.C.A. 2, 1933) ; United States ex
rel. Meyer v. Day, 54 F.2d 336 (C.C.A. 2, 1931) ; United States ex
rel. Robinson v. Day, 51 F.2d 1022 (C.C.A. 2, 1931).

422

Count 21, paragraph 2, alleges that the "defendants and co-conspirators would defraud the United States" by the overt acts there
set forth. The amended judgment and commitment of the court
leave no question as to the offenses of which respondent was found
guilty. It has long been held that the true test of the sufficiency
of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense
intended to be charged and sufficiently apprises the defendant of
what he must be prepared to meet. Hagner v. United States, 285
U.S. 427 (1932). The sufficiency and adequacy of conspiracy pleading is discussed in Williamson v. United States, 207 U.S. 425 (1908),
and Glasser T. United States. 315 U.S. 60 (1942). The indictment
in the present case. along with the rest of the conduct of the prosecution, was held sufficient, by the, circuit court of appeals. Certainly
the pleading and the order to show cause are adequate by immigration standards.
It is our opinion that the only question before us for determination is whether the alien's conviction was for an offense involvin
moral turpitude. If the substantive offence charged involves moral
turpitude then the conspiracy to commit that offense also involves
moral turpitude.' We are concerned here primarily with count 21
which charges a conspiracy to defraud the United States under
Title 18, U.S.C., section 371. 2 This statute creates two crimes, first,
a conspiracy to commit an offense against the United States, and,
second, a conspiracy to defraud the United States in any manner
or for any purpose. Respondent was convicted of both offenses
and sentenced for both offenses.
There are many cases wherein the defendants conspired to defraud the Government of money, either in income taxes or liquor
taxes, or to defraud the United States of its governmental functions
in the control and regulation of intoxicating liquor for any purpose, and the offenses were found to be crimes involving moral

turpitude. We will point out primarily, however, cases wherein
1 United States ex rel. Berlandi v. Reimer, 30 F. Supp. 767 (S.D.N.Y., 1939)
Mercer T. Lenee, 96 F.2d 122 (C.C.A. 10, 1938), cert. den. 305 U.S. 611.

Title 18, U.S.C., section 371, provides as follows:
If two or more persons conspire either to commit any offense against the
United States, or to defraud (emphasis added) the United States, or any
agency thereof in any manner or for any purpose, and one or more of such
persons do any act to effect the object of the conspiracy, each shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
it, however, tne orrense, the commission or wnicn is the object or the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not
exceed the maximum punishment provided for such misdemeanor.
This section includes prior statute 18 U.S.C. 88. The revision differs only
cram the precious statute by the liwyrilou of the worils ''or any agency
thereof."
2

the courts have held that pecuniary loss to the Government is not
necessary for conviction under 18 U.S.C. 371, or its predecessor,
section •88.
An outstanding case wherein the court upheld the conviction, even
though the conspiracy to defraud the United. States did not involve
pecuniary loss to the Government, is Latvialc v. United States, 344
U.S. 604 (1953). The defendants were convicted for conspiring
"to defraud the United States of and concerning its governmental
function and right of administering" the immigration laws and the
Immigration and Naturalization Service, by obtaining the illegal
entry into this country of three aliens as spouses of honorably discharged veterans. The substantive counts against all the defendants were dismissed (on a question of venue), and three of the
petitioners were convicted on the conspiracy count.
The majority opinion stated (p. 609) :
There is an abundance of evidence in this record of a conspiracy to contract spurious, phony marriages for the purposes of deceiving the immigration authorities and the:eby perpetrating a fraud upon the United States,
and of a conspiracy to commit other offenses against the United States.

The court said that this conspiracy constituted a fraud on the
United States because Congress, by enacting the War Brides Act,
did not intend to "provide aliens with an easy means of circumventing the quota system by fake marriages" (court of appeals
decision, 195 F.2d 748 (C.A. 7, 1952)).
Haas v. Henkel, 216 U.S. 462 (1910), probably the leading case
where the defendants were indicted for conspiracy to defraud the
United States, states the rule. The conspiracy was that the defendant would cause false statistical reports to be issued from the Department of Agriculture. Certain of the conspirators were to have
advance information of the issue of such reports. The court said:
These counts do not expressly charge that the conspiracy included any direct pecuniary loss to the United States, but as it is averred that the acquiring of the information and its intelligent computation, with deductions, comparisons and explanations involved great expense, it is clear that practices of
this kind would deprive these reports of most of their value to the public and
degrade the department in general estimation, and that there would be a real
financial loss. But it is not essential that such a conspiracy shall contemplate a fitly-vela' lu a or (Ana one shall result. The statute is broad enough
in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of the Government

The court followed Haas v. fien7cel in United States v. Soeder,
10 F. Supp. 944 (W.D. Md., 1035), wherein the conspirators were
indicted under 18 U.S.C. 88 for violating policies and regulations
of the Secretary of Agriculture in carrying out the Agricultural
Adjustment Act by pretending to comply with the law and regulations of the Secretary of Agriculture.. The court said, "The stat424

is
directed against any conspiracy 'to defraud the United States in
any manner or for any purpose.' Pecuniary loss is not necessary,
but it means any impairment of the administration of governmental functions," citing cases.
In United States v. Pezzati, 160 F. Supp. 787 (D.C. Col., 1958), 3
ute relating to the subject of conspiracies is very broad, and it

thedfnaswrcgithonpaydefruUnit
States by fraudulent compliance with section 9(h) of the Labor
Management Relations Act of 1947 (29 U.S.C.A. 159(h)) by filing
of non-Communist affidavits. The court denied the motion of the
defendants to dismiss the indictment, finding that the indictment
adequately charged a conspiracy to defraud the United States by
the impairment, obstruction and defeat of the lawful functions of
the Board, and, therefore, sufficiently stated an offense against the
United States. Other cases following the same reasoning are Curley
v. United States, 130 Fed. 1 (C.C.A. 1, 1904) ; Outlaw v. United
States, 81 F.2d 805 (C.C.A. 5, 1936); and Langer v. United States,
76 F.:2d 917 (C.C.A. 3, 1935). Ussitad States v. Bow108, 183 F.
Supp. 237 (Maine, 1958), held that an Interstate Commerce Commission employee who received $8,000 for services in connection
with the sale of the controlling interest in an interstate trucking
company had conspired to defraud the United States in its right
to have the business of the commission transacted honestly, efficiently and free from corruption. See also Fiswich v. United
States, 329 U.S. 211 (1946), which reversed only for improper instructions to the jury a conviction under 18 U.S.C. 88 for conspiring with others to defraud the United States in the exercise of
its governmental functions by violating the Alien Registration Act
of 1940.
United States ex. rel. Popoff v. Reimer, 79 F.2d 513 (C.C.A. 2,
1935), held squarely that moral turpitude is involved in the fraud

against the United States of knowingly aiding an alien not entitled
to naturalization to apply for or obtain citizenship. The court
(Manton, L. Hand and Swan, J. J.) said:
. . . Criminal frauds with respect to property have universally, so far as
we are advised, been deemed to involve moral turpitude (citing cases). That
the fraud relates to obtaining rights of citizenship rather than to property
does not, we think, make it any the less contrary to community standards of
honesty and good morals.. .
3 This conspiracy was extensively litigated, and the conviction on the first
trial was set aside and a new trial ordered under the name of Travis v. United
States, 247 F.2d 130 (C.A. 10, 1957), but not on any issue of concern here.
The convictions were affirmed on retrial, Travis v. United State, 269 F.2d
92S (C.A. 10, 1059), and 208 F.2d 218 (C.A. 10, 1959), per curiain without
written opinion.

425

As stated above, we have purposely sought cases laid under Title
18, section 371 (or section 88) which do not involve conspiracies
to defraud the United States by failure to pay taxes, preferring,
instead, to seek authority in cases of conspiracies to defraud the
United States by impeding, obstructing and attempting to defeat
the lawful functions of agencies of the United States engaged in

activities other than the collection of taxes. However, there are
a number of cases not to be overlooked concerning conspiracies to
avoid the payment of taxes. Jordan v. DeGeorge, 341 U.S. 223
(1951), held squarely that a conspiracy to defraud the United
States of taxes on distilled spirits is a "crime involving moral turpitude" within the meaning of section 19(a) of the Immigration
Act of 1917. The respondent was indicted first with eight other

defendants for violating the Internal Revenue Code by possessing
whiskey and alcohol "with intent to sell in fraud of law and evade
the tax thereon." Less than a year after his release from a federal
penitentiary he was again tried and found guilty of conspiring to
"unlawfully, knowingly, and willfully defraud the United States
of tax on distilled spirits." Citing extensive authority, the court
said (p. 227) :
. . . Without exception, federal and state courts have held that a crime in
which fraud is an ingredient involves moral turpitude. In the construction
of the specific section of the Statute before us, a court of appeals has stated

that fraud has ordinarily been the test to determine whether crimes not of
the gravest character involve moral turpitude. United States ex rel. Bertandi
v. Reimer, 113 F.2d 429 (1940).
In every deportation case where fraud has been proved, federal courts have
held that the crime in issue involved moral turpitude [citing cases]. . .
•
•
•
•
•
In view of these decisions, it can be concluded that fraud has consistently
been regarded as such a contaminating component in any crime that Ameri
can courts have, without exception, included such crimes within the scope of

moral turpitude. It is therefore clear, under an unbroken course of judicial
decisions, that the crime of conspiring to defraud the United States is a
"crime involving moral turpitude."

See also United States v. Klein, 247 F.2d 908 (C.A. 2, 1957)
(defendants were convicted of conspiring to defraud the United
States by impeding and obstructing the Treasury Department in
collection of income taxes) ; United States ex rel. Carroll() v. Bode,
204 F.2d 220 (C.C.A. 8, 1953) ; Maita v. Haff, 116 F.2d 337 (C.C.A.
9, 1940) (engaging in business of a distiller with intent to defraud
the United States of taxes on the spirits distilled) ; Guarneri v.
Kessler, 98 F.2d 580 (C.C.A. 5, 1938) (smuggling' alcohol into the

United States with intent to defraud the United States involves
moral turpitude).
The Board has followed the above cited judicial decisions in a
1944), found that
series of decisions. Matter of S—, 2 225
-

426

a conviction of conspiracy to defraud the United States involving
an agreement to cause alien members of the German-American Bund
when registering under the Alien Registration Act of 1940 to conceal
membership therein and fail to state that the Bund was an organization which furthered the public policy, public relations and political
activities of a foreign nation, was a crime involving moral turpitude.
Matter of T—, 2-95 (3.1.A., 1944), also charged a conspiracy under
18 U.S.C. 88, to wit, to defraud the Government of tax on distilled
spirits, and we found the crime to be one involving moral turpitude. In Matter of M , S 535 1960), respondent was
convicted in 1938 and again in 1941 under 18 U.S.C. 88 for conspiracy to violate the Internal Revenue Act, and the Board found
that he was twice convicted of crimes involving moral turpitude
in that each indictment charged conspiracy to defraud the United
States Government by avoiding taxes levied under the Internal
Revenue laws.
Respondent was convicted of conspiring to defraud the United
States by the acts set forth in the order to show cause. Conspiracy
to defraud the United States under 18 U.S.C. 371 by impeding,
obstructing and attempting to defeat the lawful functions of an
agency of the United States is a crime involving moral turpitude.
All the reported judicial and administrative decisions require such
a holding
Respondent has asked for any discretionary relief available to
him. He was informed by the special inquiry officer at the hearing
that he is not eligible for any form of discretionary relief. He
has a second wife from whom he is separated but not divorced and
who lives in England. He stated in a sworn affidavit, April 14,
1960, exhibit 7, that he has been living in a "common-law relationship" from the beginning of 1959 with a United States citizen by
whom he has one child. Respondent would be unable to establish
good moral character inasmuch as he has been convicted of a crime
involving moral turpitude committed within five years after his
last entry and has been confined to a prison or corrective institution for a year or more. See section 101(f) (3) and (7). The special inquiry officer was correct that there is no relief from deportation available to respondent under the law. The appoal will he
dismissed.

ORDER: It is ordered that the appeal be and is hereby dismissed.

427


Interim Decision #2770

MATTER OF DA SILVA
In Section 212(i) Proceedings

A-21366856
Decided by Commissioner May 3, 1979
(1) Applicant who resided in the Cape Verde Islands was found to be ineligible to receive
an immigrant visa under section 212(a)(19) of the Immigration and Nationality Act,
8 U.S.C. 1182(2)(19), by the consular °facer. He submitted an application for waiver of
that ground of excludability under section 212(i) of the Act, 8 U.S.C. 1182(i), based on
the fact that he is the spouse of a United States citizen. The application was denied by
the OfReer in Charge, Rome, Italy, and by the District Director, Rome, Italy. and
certified to the Commissioner for decision under 8 C.F.R. 103.4. The application will be
granted.
(2) While hardship is a factor to be considered in deciding whether or not to grant a
waiver of excludability under section 212(1) of the Act, there is no statutory requirement that extreme hardship be established.
(3) A discretionary decision must be based on the weight of the factors present in the
case, both adverse and favorable. Questionable factors should either not be considered
at all, or should be resolved in favor of the applicant.
(4) The fraud for which the applicant seeks forgiveness should not be considered as an
unfavorable factor in deciding whether or not to grant a waiver of excludability under
section 2I2(i).
(5) Waiver application under section 212(i) of the Act will be approved in the interest of
family reunification where the requisite relationship exists and the favorable factors
outweigh the unfavorable factors.
-

ON BEHALF

-

of APPLICANT:

M. David Scheinman, Esquire
888 Purchase Sheet
New Bedford, Massachusetts

This matter is before the Commissioner, Immigration and Naturalization Service, on certification as provided by 8 C.F.R 103.4. The
application was denied by the Officer-in-Charge, Rome, Italy, and
appealed to the District Director, Rome, Italy, pursuant to 8 C.F.R.
103.1(n). The District Director upheld the decision of the Officer-inCharge and dismissed the appeal.
The applicant is 28 years of age, a native of Cape Verde Islands, and
a citizen of Portugal. He is married to a citizen of the United States

288

Interim Decision #2770
and is the beneficiary of an approved immediate relative immigrant
visa petition. He is presently residing in Cape Verde Islands and is an
applicant for an immigrant visa at an American Consulate. The consular officer found the applicant ineligible to receive an immigrant visa
pursuant of section 212(a)(19) of the Immigration and Nationality Act,
8 U.S.C. 1182(a)(19). The consular officer's finding was based on a
determination by the District Director, Boston, Massachusetts, that •
the applicant, after entry as the nonimmigrant fiance of a United
States citizen, entered into a fraudulent marriage with said United
States citizen.
The record reflects that the applicant first entered the United States
•on December 8, 1975, as the beneficiary of an approved fiance petition
filed by a United States citizen. On February 18, 1976, the applicant
married the United States citizen petitioner, 69 years of age at that
time.
During the course of an inquiry conducted as a result of the applicant's application for adjustment of status to permanent resident filed
on February 24, 1976, -it was determined that the marriage was mala

fide and had been entered into solely to obtain permanent resident
status.. His application for permanent residence status was denied on
February 25, 1977, and he was allowed to depart voluntarily from the

United States.
Following his departure from the United States, he entered into his
present marriage in Cape Verde Islands on June 28, 1977. The United
States citizen spouse has visited the applicant in Cape Verde Islands at
various times since the marriage, but is presently living apart from
him in the United States, where she is employed.
The Officer - in--Charge, in his decision of March 8, 1978, cited three

reasons for his adverse decision. The first was that the applicant had
contrived to practice fraud and deceit after his return to Cape Verde
Islands. This was based on an interview conducted before a United
States consular officer in Lisbon on July 15, 1977, when the applicant
stated that his spouse was pregnant, when in fact she was not. The
second was that the applicant had not shown that he had reformed or
rehabilitated, and the third was that there was no showing of extreme
hardship "as required by the statute."
On appeal, the District Director in Rome upheld the Officer-inCharge's decision on April 24, 1978. The Director cited the same three
reasons as did the Officer-in-Charge in deciding that favorable discretion should not be exercised in this case.
In connection with the appeal filed with the District Director, the
applicant's spouse stated in a letter dated March 21, 1978, that her
husband had told the consular officer in Lisbon that she was pregnant
because she herself believed that she was at the time, and he was
289

Interim Decision #2770
acting on this belief at the time of the interview on July 15, 1977. She
further stated that she did not inform him that she was not pregnant
until August 1977. The District Director did not comment on the
explanation offered by the applicant's spouse in his decision even
though he and the Officer-in-Charge based their findings of continued
fraud and deceit and lack of reformation and rehabilitation on this
aspect of the case.
Both the Officer-in-Charge and the District Director stated in their
decisions that there is a statutory requirement that extreme hardship
be shown in section 2I2(1) waiver cases and that the applicant had not
established such a hardship. While hardship is a factor to be considered in deciding a section 212(i) application, there is no statutory
requirement that extreme hardship be established.
Section 212(i) reads as follows:
Any alien who is the spouse, parent, or child of a United States citizen or of an alien
lawfully admitted for permanent residence and who is excludable because (1) he seeks,
has sought to procure, or has procured, a visa or other documentation, or entry into the
United States, by fraud or misrepresentation, or (2) he admits the commission of

perjury in connection therewith, may be granted a visa and admitted to the United
States for permanent residence, if otherwise admissible, if the Attorney General in his
discretion has consented to the alien's applying or reapplying for a visa and for
admission to the United States.

The applicant's past action in obtaining a fiance visa and entering
into a marriage solely for the purpose of obtaining a benefit under the
law was clearly fraudulent and placed him under the exclusion provisions of section 212(a)(19). His subsequent statement to the consular
officer that his wife was pregnant when in fact she was not, would
evidence .a continued pattern of fraud if it was unexplained.
In this case, however, the applicant's wife has furnished an explanation, and since we have no evidence to the contrary, we must accept the
explanation as a valid statement.
A discretionary decision must be based on the weight of the factors
present in the case, both adverse and favorable. Questionable factors
should either not be considered, or resolved in favor of the applicant. In
this case, we have what appears to be a viable marriage between the
applicant and the United States citizen. This is a favorable factor.
They are living apart at a great distance and are undergoing the
hardship of separation, and the economic hardship of maintaining two
separate residences. This is a favorable factor. The applicant's statement regarding his wife's pregnancy has been explained and will not
be considered as an adverse factor. While the initial fraud is obviously
adverse, this is the action for which he asks to be forgiven.
After a careful and complete review of the factors present in this

case, it is considered that the favorable factors outweigh the adverse
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factors and the application should be approved in the interest of family
reunification. It will be so ordered.
ORDER, The decision of the District Director be and is hereby
withdrawn and the application is approved.

nni