MATTER OF Z—

In DEPORTATION Proceedings
A-8866185
Decided by Board June 9, 1961
Expatriation—Section 349(a)(4)(A), 1952 act—Economic duress.
Where the record falls to rerute respondent's testimony that his employment
as a music teacher in the Israeli school system for a period of about one
year (1956-57) was a matter of economic compulsion, the Government has
failed to sustain its heavy burden of proving that his conduct was voluntary. Accordingly, a native-bona United Staten citizen who under Israeli
law acquired Israeli citizenship upon his arrival there as a Jewish immigrant
in 1950, is held not to have expatriated himself under section 349(a) (4) (A)
of the 1952 Act by reason of such employment.
CHARGE :
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant, remained longer.

BEFORE THE BOARD

DISCUSSION: The case comes forward upon certification by the
special inquiry officer of his order dated February 13, 1961, directing
that the deportation proceedings be terminated.
The respondent was born at Detroit, Michigan, on October 19, 1928.
He went to Israel in October 1950, and last entered the United States
at the port of New York on September 2, 1958, and was admitted as a
transit nonimmigrant, authorized to remain in the United States for
one day, upon presentation of an Israeli passport visaed for transit
to Mexico. However, he has remained in the United States, claiming
United States citizenship. The order to show cause charges that the
respondent, although a native of the United States, became a citizen
of Israel on July 14, 1952, and that he expatriated himself in 1956
under the provisions of section 349(a) (4) of the Immigration and
Nationality Act by accepting employment as a teacher under the
Israeli Ministry of Education and that he is subject to deportation
as charged in the order to chow cause. The primary issue is the
alienage of the respondent.
The respondent was born a citizen of the United States in Detroit,
Michigan. He is of the Jewish faith. He testified he left college
after completing his first year to earn enough money to get married
829

and was married in August 1950. He stated he and his wife had been
considering going to Israel to help in the development of the new
state and in October 1950 the respondent went to Israel, his wife
following in January 1951. His wife became pregnant in 1952 and
their child was born in Israel in 1953.
The respondent testified that he went to Israel to see what it was
like because it was a newly formed state, and perhaps to give them
a helping hand in its formation, if possible, but that he did not go
with the intention of remaining there permanently. He further
stated that in 1952 he and his wife had decided to return to the
United States but financial difficulties arose because of the illness
of the child and of the respondent so that they remained on a cooperative farm where at least their immediate needs were supplied.
The respondent's mother corroborated her son's testimony stating
that he went to Israel to see what the country was like; that he had
planned to go for several months before he did; that he remained
there for a number of reasons, including illness, the pregnancy of

his wife, the illness of his child and the lack of money to return;
that she took a loan to help bring the respondent's wife and child
home and the respondent remained there to earn money for his passage home.
The respondent testified that the employment situation in Israel
was critical and jobs there were hard to find. After leaving the
communal farm he obtained a job with the Haifa Port Authority in
September 1959 as a laborer and a crane operator. He testified that
in order to obtain the job with the Haifa Port Authority he was
required to participate in the Port orchestra and in rehearsals two
or three times a week. He testified that if it had not been for his
musical background he would not have gotten a job and that his
participation in the orchestra was a condition of his employment.
Through a friend who knew about his musical background he obtained a job as a music teacher for seven or eight months for which
he received about 170 Israeli pounds a month. The Israeli Ministry
for Foreign Affairs states that the respondent was employed by the
Ministry of Education and Culture as a music teacher from September 5, 1955, to August 31, 1956; that Israeli law does not require
teachers to he Israeli citizens and allegiance to Tsrael is not required.
The respondent testified it was necessary for him to obtain work
in order to support his wife and child; that he had no funds and
did not want to appeal to his parents for financial assistance. This
claim of employment under economic compulsion is not refuted by
the record.
The Service's case for expatriation is predicated upon section 349
(a) (4) (A) of the Immigration and Nationality Act (8 U.S.C.

1481(a) (4) (A)) which provides in pertinent part:
330

• • • a person who la a national of the United States whether by birth or
naturalization, shall lose his nationality by— • • accepting, serving in, or
performing the duties of any office, post, or employment under the government
of a foreign state or a political subdivision thereof, if he has or acquires the
nationality of such foreign state • • •.

According to a communication dated February 10, 1960, addressed
to the American Vice Consul at Haifa, Israel, by the District Office
for Immigration and Registration for Haifa, the respondent, immigrated to Israel on October 16, 1950, on which date he was granted
Israeli citizenship in accordance with section 2(b) (2) of the Israeli
Nationality Law which states, "citizenship by return' is acquired
by a person having come to Israel as an 'oleh' (a Jewish immigrant)
after the establishment of the State with effect from the date of
his immigration"; that, since then, the respondent is an Israeli
citizen, and on April 22, 1956, lie received an Israeli passport
valid until April 22, 1958. For the purpose of discussion of possible
expatriation under section 349(a) (4) (A) of the Immigration and
Nationality Act, it will he assumed that the respondent had or
acquired Israeli nationality at least from the viewpoint of the
Israeli Government. Inasmuch as the respondent has established
citizenship by birth in the United States, the burden of proof is
upon the Government to prove that the respondent subsequently expatriated himself. That burden is a heavy one; the proof to establish
loss of citizenship must be clear, unequivocal and convincing, not by
a bare preponderance of evidence which leaves the issue in doubt?

The burden is upon the Government to establish that the expatriatory
act was performed voluntarily.'
If the expatriating act is performed under duress, it follows that
the act was not done voluntarily and will not result in loss of citizenship. The duress may take various forms and the law does not
exact a crown of martyrdom as a condition of retaining citizenship.'
"Economic duress" is a valid defense to expatriating conduct. 5 In
the case of Kenji Kamada et al. v. Dulles, 145 F. Supp. 457, in which
one of the plaintiffs (Tsume Sakamoto) was employed as a teacher

The Law of Return of July 6, .1950 (the Hebrew year 5710) provides:
1. Every Jew has the right to come to this country as an "oleh" (a Jew
immigrating to Israel permanently) ; 2 (a) "Aliyah" (the immigration of a
Jew lulu the Land of Israel) shall be by olch'© visa; 9(a) A. Jew who conies

to Israel and subsequent to his arrival expresses his desire to settle in Israel
is entitled, while in Israel, to receive an oleh's certificate. Laws Concerning
Nationality, United Nations Legislative Series (1954), page 263.
.:`,7,6114;lca, uva, v. Dullao, 956 U.S. 120;

Baumgartner v. United State& R22

U.S. 665; Schneiderman v. United States, 320 U.S. 118.
3 Nishikawa v. Dulles, Myra; Perez v. Brownell, 356 U.S. 44 ; Matter of G---,
8-31T.
4 Aohoson v. Maenza, 202 F.2d 453 (C A, D.C., 1959).
Stipa v. Dulles, 233 F.2d 551 (C.A. 3, 1956).

331

in Japan from 1941 to 1949 in primary schools operated by a Japanese
municipality, it was held upon the facts than the plaintiff's service
as a school teacher was a matter of economic compulsion and, hence,
was not her free and voluntary act and did not constitute a cause of
expatriation .°
Upon careful consideration of the evidence in the present case
surrounding the circumstances of employment as a music teacher in
Haifa, Israel, we find that the respondent was required to take such
employment under the necessity of supporting himself, his wife and
infant child, and that such employment as a school teacher was a
matter of economic compulsion or economic duress such as would
vitiate the expatriating effect of such an act. It, therefore, follows
that expatriation under section 349(a) (4) (A) of the Immigration
and Nationality Act has not been proved by the Government. Inasmuch as alienage has not been established, the proceedings must
be terminated.
In view of the conclusion reached that alienage has not been established, we find it unnecessary to discuss other possible grounds of

expatriation which have not been urged by the Government. We,
however, find ourselves in general agreement with the conclusion of
the special inquiry officer that expatriation has not been established
under section 349(a) (1) or section 349(a) (10) of the Immigration
and Nationality Act and we note that the Government does not urge
expatriation on either of these grounds. As to the use of a passport,
the respondent testified that this was the only way he could obtain
a visa and also testified that his wife, although issued a United
States passport, was also required to obtain an Israeli passport before she could depart from Israel. The respondent testified he was
not required to take an oath of allegiance to Israel to obtain an
Israeli passport, and the mere use of such a passport does not establish expatriation.? The order of the special inquiry officer terminating proceedings will be approved.
ORDER: It is ordered that the order of the special inquiry
officer dated February 13, 1961, terminating proceedings be and the
same is hereby approved.
6 We find it unnecessary to rely upon the dictum in Kenji Kameda v. Dulles,
supra, to the effect that teaching in a pubic school system operated by a for-

eign government or a political subdivision thereof was not the type of employment by a foreign government which was contemplated by the similar
predecessor statute, section 401(d) of the Nationality Act of 1940.
Jaibuena v. Dulles, 254 F.2d 379; Baer, v. Brownell, 116 F. Supp. 298.

832


Interim Decision # 1635

Kam

OF VELASQUEZ-HERNANDEZ

In Deportation Proceedings
A-10410009
Decided by Board August

4, 1966

Since respondent, a native of Mexico, who is subject to the provisions of section 212(a) (14) of the Immigration and Nationality Act, as amended by

P.L. 89-236, who has been in the U.S. labor market since 1957, and who is
employed as a cooks helper for which occupation the required certification
by the Secretary of Labor is precluded by 20 CM 80.2(a) (2) and Schedule

of 29 ORR 60, he is inadmissible to the United States and ineligible to
obtain a special immigrant visa; therefore, be comes within the proviso
to section 244(f) of the Act and is not barred by clause (3) of section
244(f) from establishing statutory eligibility for suspension of deportation
under section 244(a) (1) of the Act.
Munn:
Order: Act of 1952—Section 241(a) (2) [8 U.S.0. 12517—Entered- without
B

Inspection.

On February 27, 1961, a special inquiry officer granted the respondent's application for voluntary departure, but provided for
his deport:a.tion from the United States to Mexico, on the charge
contained in the order to show cause, in the event of his failure
to so depart. That decision became final for want of an appeal,
and the respondent failed to take advantage of the voluntary departure privilege. Thereupon, a, warrant of deportation was issued
on January 18, 1986.
On that same date, desponuent moved for reopening of the proceedings to permit him to file and prosecute an application for
suspension of deportation, pursuant to section 244(a)(1) of the
Immigiation and Nationality Act (8 U.S.O. 1254), as amended by

the Act of October 24, 1962 (76 Stet. 1247). On. January 25, 1966,
the epeCiil inquiry officer denied that motion. It is the appeal from
that denial which brings the ease before this Board for consideration.
781

Interim Decision #1635
The record relates to an unmarried male alien, a native and
national of Mexico, who last entered the United States on or about
June 25, 1957. He did not then present himself for inspection,
and ho was nob inspected by an immigration officer. Accordingly;

his deportability on the above-stated charge is established. It is
also uncontested.
The special inquiry officer's denial of respondent's motion is based
on a conclusion that the latter is not eligible for suspension of
deportation because of section 244(f) (3) of the Immigration and
Nationality. Act which provides, inter alia, as follows:
No provision of this section snail se applicanie to an auen who • * * (a) is
it native of any country contiguous to the United States.

Respondent, however, contends that his case is not controlled by the
foregoing section because of the Proviso thereto, which readsThat the Attorney General may in his discretion agree to the granting of
suspension of deportation to an alien specified in clause (3) of this subsection
if such alien establishes to the satisfaction of the Attorney General that he
is ineligiate to obtain a nutmeats immigrant vita.
(Emphasis supplied.)

He urges that his case falls squarely within that Proviso, because
of section 212(a) (14) of the Act, which states:
Except that as otherwise provided in this Act, the following classes of aliens
shall be ineligible to receive visas and shall be excluded from admission into
the United States: * * * Aliens seeking to enter the United States for the
purpose of performing skilled or unskilled labor unless the Secretary of Labor
has determined and certified to the Secretary of

State and to the Attorney

General that (A) there are not sufficient workers in the United States who
are able, willing, qualified, and available at the time of application for a
visa and admission to the United States and at the Place to which the alien
is destined to perform snail skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. * * .

The respondent states that he is employed as a cook's helper, and
that this is an occupatien. for which a labor certification cannot be
obtained, because of "Schedule B" of the Department of Labor
regulations. He argues that if he is in a job classification udder
which it is legally impossible to obtain a labor certification then it
follows both logically and legally, that he is, under the foregoing
provisions of the statute, inadmissible to the United States, ineligible for a visa, and entitled to apply for suspension of deportation.
The Service concedes' that determination and certification of a
cook's helper is now precluded by 29 CFR 60.2(a) (2) and Schedule B of 29 OFR 60.4. But it nevertheless contends that the fact
of respondent's employment as a cook's helper, if true, is insufficient
782

Interim Decision #1635
under the law, in and of itself, to establish his ineligibility to receive
a visa.
Section 244(f) (3) of the Immigration . and Nationality Act contains only ordinary words, which must be given their usual and
commonplace meanings It is part of a. remedial section of the law
and, therefore, is to be interpreted liberally. 2 The same is true of
the Proviso thereto, which is in the nature of an exception. 3 Section 212(a) (14) of the Act must be similarly co±istrued in connection with section 244(f) (3), so that the statute will produce a harmonious whole.' These considerations likewise apply to the related
regulation of the Department of Labor (29 OFR 60 et seg.), which
cannot exceed the scope of the law on which it depends . 3
We are convinced that a literal reading of sections 244(f) (3) and
212(a) (14) of the Immigration and Nationality Act, plus 29 OIM
602(x)(2) and 60.4, in' the light of the foregoing applicable rules
of statutory construction, requires confirmation of the respondent's
position. The Service seeks to overcome his argument by asserting
that a review of the history of the legislation involved reveals no
intent on the part of the Congress to permit an alien native of a
contiguous country, who happens to have the requisite physical
presence here, to establish eligibility to apply for suspension of
deportation merely by taking a job listed in Schedule B of 29 CFR
60.4 which, per se, mikes him ineligible for a -visa under section
212(a) (14). This contortion, however, ignores both the fact the
respondent has 'been engaged in the same employment since approximately 1957, and the fact that there is likewise no expressed
intent by the Congress to exclude such an alien from relief, either.
The Service position in this respect also overlooks the rules that:
(1) the language of the law cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general
purpose for which it was enacted; 6
(2) mere convenience of enforcement cannot justify a strained
construction of the lahguage used ;T and
(3) the guides for statutory construction only come into play when
they shed light nn some ambiguous word or phrase, and are but tools
dues v. Phillips Petroleum Co., 25 F.S. 458.
• SuSurrzana, Statutory Construction, SCI. ed., "VoL 2, sec. 3302.
3 Sutherland, Statutory Construction, 3d. Ed., VOL 2, sec. 4936.
I

`

U.S. v. National Surety Co., 20 F. 2d. 972.
U.S. v. Smull, 236 U.S. 405.

• In ye McDonaugh, 48 Fed. 800.
7

U.S. v. J. H. 'Winchester & Co., kno., 40 P. 2d 472.

783

Interim •Decision #1635
to resolve a doubt; they cannot undo or limit that which the text
makes plain.g
We could speculate, as does the Service; that .lair-sisrave oversight
has resulted in the respondent being in 0, position to be rewarded
with suspension of deportation. However,' we think it more probable
that the Congress intended the attendant problems outlined by the
Service handled administratively. Thus if, as the Service asserts,
the respondent's occupation is not actually of such a. nature as to
bring him within Schedule B of 29 CFI 60.4—or if the question
of good faith arises by reason of his qualifications for and the
availability of other types of employment (or in the supposititious
situation outlined by the 'Service where an alien suddenly obtains
a position covered. by Schedule B)—this can easily be ascertained
in appropriate proceedings. In view of the foregoing, and the fact
that respondent has been in the labor market here since 1957, we
think he has made out a prima facie case 'entitling him to same,
the contentions of the Service to the contrary notwithstanding.
Support for our holdi g herein, if such be necessary, can be had

by comparing sections 244 and 245, both of which are remedial in
nature. Both subsections •(f) (3) of the former and (c) of the latter
specifically state that they shall not be applicable to aliens who are
natives of countries of the Western Hemisphere or of .any of the
adjacent islands named in section 101(b) (5) of the Immigration
and Nationality Act. But section 244(f) (8) also contains a specific
exemption thereto not found in section. 245(c). The failure of the
Congress to spell out a similar exception in section 245 (c) is most
persuasive. And we fail to see how the Service can logically support our rulings that an alien who cannot obtain a "Labor clearance" is ineligible for relief ender section 245? and not reach a
similar conclusion here where there is a prime facie showing of
ineligibility for a visa.gg • •
ORDER: It id ordered that the appeal be sustained; that the
special inquiry officer's decision. of January 25, 1966 be withdrawn;
and that these proceedings be reopened for appropriate action not
inconsistent with the foregoing opinion.
Application of Barnes, 219 F. 2d 187.
° Matter of T—T—, A-13,550,800, B.I.4L, 5/17/68; Int. Dec. No. 1591.
" Cf. Matter of D—R—, A-13,513,290, B.I.A., 5/18/66; Int. Dec. No. 1587.

784


Interim Decision #1334

MAT= OF WONG
In DEPORTATION Proceedings
A-12645326
Decided by _Marti April 99,1984
Respondent, who has never been lawfully admitted to the United States for
Permanent residence, is ineligible for suspension of deportation under section 244(a) (1), Immigration and Nationality Act, ao amended, since he In
precluded from establishing continuous physical presence by reason of his
brief absences of a few hours to Canada on 4 or 5 occasions during the statutory
period. (Rosenberg v. Pleuti, 374 U.S. 449, inapplicable.)
CELAIIGE:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ]—Entered
without inspection.

The case comes forward on appeal from the order of the special
inquiry officer dated January 23,1964; denying the respondent's application for suspension of deportation and ordering that the respondent
be deported from the United States to the Republic of China on
Formosa.
The record relates to a native and citizen of China, 27 years old,
male, single, who last entered the United States sometime in 1958 at
Buffalo, New York, and was admitted upon his false representation
that he was a citizen of the United States, exhibiting a certificate of
citizenship which had been issued to him in support of this claim.
He has conceded that he originally entered the United States upon
a knowing false claim of United States citizenship. The evidence
establishes and the respondent has conceded that he is subject to
deportation as charged in the order to show cause.
The case was last before us on December 18, 1963, pursuant to certification by the special inquiry officer of his decision dated June 25,
1903. On December 5, 1958, the respondent was inducted into the
United States Army and served until November 15, 1960. This period
of service was 20 days short of 2 years of service and he was transferred to the Army Reserves apparently for the convenience of the
Government. We considered the question of whether the respondent
76S-156-65-34

513

Interim Decision #1334

was entitled to the benefits of section 244 (b) of the Immigration and
Nationality Act, as amended, by the Act of October 24, 1962 (76 Stat.
1247), which exempted from the requirement of continuous physical
presence in the United States specified in the Act, aliens who had
served for a period of 24 months in an active duty status in the Armed
Forces of the United States. We held that respondent was not within
the exception set forth in section 244(b) of the Act because he had
not in fact served the full 24 months required by that section . 1
The evidence establishes that while he resided at Buffalo, New York,
the respondent had made 4 or 5 short visits to Canada during the
period 1955 to 1958, and was readmitted by exhibiting his certificate
of citizenship and falsely claiming United States citizenship. In our
order of December 18, 1962, we remanded the case for consideration
in the light of Rosenberg v. Fleuti, 374 U.S. 449 and for such other
action as might appear appropriate.
The respondent testified that on the occasion of each of his 4 or 5
visits to Canada from December 1955 to December 1958, he traveled
to Fort Erie, Ontario, Canada, by bus and remained there a few hours
each time, staying overnight once for the purpose of visiting, going
to the movies, and things of a similar nature. The ease of Rosenberg
v. Fleuti 2 interpreted the term entry as defined in section 101(a) (13)
as "any coming of an alien into the United. States, from a foreign port
or place * * * except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry
into the United States for the purposes of the immigration laws
if the alien proves to the satisfaction of the Attorney General
that his departure to a foreign port or place * * * was not intended
by him * "." Inasmuch as Fleuti had been admitted to the United
States as a lawful permanent resident before his brief visit to Mexico,

the court extended the Intent exception provided for in motion.
101(a) (la) to cover a brief, casual trip to Mexico and ruled that
the alien in that case had not made a meaningful departure disruptive
of his physical presence in the United States. HoweVer, Fleuti was
a lawful permanent resident in the United States and the definition
in section 101 (a) (13) applied to him. In the instant case the respondent had never been lawfully admitted for permanent residence and
the Fleuti case is not deemed applicable.
Inasmuch as the respondent is not within the exceptions set forth
in section 244(b) of the Act, he must establish that he has been physically present in the United States for a. continuous period of not less
than 7 years immediately preceding the date of his application on
June 25, 1963. The record establishes that he has been absent from
'Matter

of

Louis, Int. Dec. No. 1310 (December 12, 1993).

'374 U.S. 449.

514

Interim Decision #1334
the United States for 4 or 5 visits during the period from December
1955 to December 1958. The statute makes it clear that to qualify
for suspension the respondent must have been in the United States
without any absence, no matter how brief for the continuous period.'
The case of J—M--D—,1 I. & N. Dec. 105, involved an alien whose
absence from the United States during the statutory period was caused
by his military service. The requirement of continuous physical
presence is now dispensed with by section 244(b) of the Immigration
and Nationality Act, as amended, in the case of an alien who now
serves for 24 months in military service. The ease of McLeod v.
Peterson, 283 F. 2d 180, also cited by counsel in his brief, involved an
alien who departed upon erroneous advice of an Immigration Service
Officer. There were present in that case peculiar equitable considerations, which excused the absence, not present in the instant case. The
appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
,

United States ex rel. Bruno v. Savoretti, 133 F. Snpp. 3 (W.D. Mo., 1955)
affirmed 235 F. 2d 801 (8th Cir., 1956) ; Matter of S—R—, 6 L & N. Dec. 405;
Matter of Z—A—N—, 5 I. .E N. Dee. 298, but see Waft= v. Immigration and
Naturalization Service, 18,645 (9th Oir., March 20, 1904).

515


Interim Decision #2435

MATTER OF THOMOPOULOS
In Section 223 Proceedings
A-30519762

Decided by Acting Regional Commissioner September 26, 1975
(1) In determining whether an applicant for a reentry permit under section 223 of the
Immigration and Nationality Act intends to depart temporarily from the United States,
the following Factors serve as a reliable indication of intent: the duration of the applicant's absence; the motive for departure; the location of applicant's job, family ties, and
property holdings; and the date of the intended return.
(2) Application for a reentry permit is denied in the instant case since applicant's departure from the United States is not deemed to be for the purpose of making a temporary
visit abroad but rather for the purpose of returning to his domicile in Greece. At the
time of his departure, applicant left nothing in the United States and was returning to
his family, his farm, and to a job he was holding in Greece in addition to his farming
responsibilities.

This case is before the Regional Commissioner on appeal from the
decision of the district director, Los Angeles, who found that the applicant's absence from the United States is not of a temporary nature, and
that his actual dwelling place is in fact Greece and not the United States.
The applicant is a 46-year-old married male, native and citizen of
Greece. His wife and two minor children are natives and residents of
Greece. He was originally admitted to the United States as a lawful
permanent resident on June 22, 1970, in fifth preference classification,
based on an approved visa petition filed by his United States citizen
brother. He worked in the United States for one year and then returned

to his family in Greece. Prior to leaving the United States, he made
application for a reentry permit. The reentry permit was issued to expire
on July 21, 1972, and was forwarded to the American Embassy in Athens
for delivery. It was extended until July 20, 1973. The applicant next
returned to the United States approximately July 16, 1973, and made the
application now before us for consideration. He directed that the reentry
permit be sent to the American Embassy in Athens for delivery, and he
then returned to Greece in August 1973.
The applicant stated in his first application for a reentry permit that he
was going abroad to take care of personal business and to "bring his
family." In the application to extend that permit, he stated that he wished
466

Interim Decision #2435
to remain in Greece to liquidate property and to have his children
complete the 1972-1973 school year. In the August 1973 application
before us, he states that he intends to stay abroad for two years for
business, and to complete his children's education. In a letter contained in
the file, the applicant states that he needs the reentry permit because he
does not want to leave his land in Greece untilled and because he has a job
there and owes certain obligations to his employers. On appeal, applicant
states that his return to the United States has been delayed by the death.
of his father. However, he furnishes no details regarding when the death
occurred or why it affected his return to this country.
Section 223 of the Immigration and Nationality Act, in pertinent part,
provides that an alien lawfully admitted to the United States for permanent residence, who intends to depart temporarily from the United
States, may make application to the Attorney General for a permit to
reenter, and if it is found that he was lawfully admitted for permanent
residence and that he desires to visit abroad and return to the United
States to resume the status existing at the time of his departure for such
visit, the Attorney General may in his discretion issue the permit which
shall be valid for not more than one year from date of issuance. It is
provided that the Attorney General may, in his discretion, extend the

reentry permit for a period or periods not to exceed one year in the
aggregate.
It is agreed that the applicant had been legally admitted to the United
States for permanent residence. The question of whether the applicant
intended to depart temporarily from the United States when the instant
application was filed must be resolved.
The duration of the absence must be considered in determining
whether it can be deemed temporary, and the word "temporary" cannot
be used to describe along absence, although it may have been induced by
a highly commendable sense of filial duty, Gamero v. INS, 367 F.2d 123
(C.A. 9, 1966). The motive for the alien's departure from the United
States, the location of his job, family ties and property holdings are all to
be considered in determing whether an absence from the United States is
temporary, Santos v. INS, 421 F.2d 1303 (C.A. 9, 1970). In defining a
"temporary visit" the intention of the departing immigrant must be to
return within a period relatively short, fixed by some early event. Also,
the intention of the alien with respect to the location of his actual home
must be considered, U. S. ex rel. Lesto v. Day, 21 F.2d 307 (C.A. 2, 1927).
Where an alien leaves the United States with no definite intention either
of staying away permanently or returning, the stay abroad would not be a
"temporary visit," United States ex rel. Alther v. McCandless, 46 F.2d
288 (C.A. 3, 1931). In cases of prolonged absences from the United
States, some aliens have been able to establish to the satisfaction of the
Attorney General that their absence was caused by circumstances over
-

467

Interim Decision #2435
which they had no control and which continued for a longer period than
anticipated. However, in the absence of an actual admission of abandonment of residence, the circumstances and actions as discussed in the
aforementioned cases serve as the most reliable indication of intent.
In the instant case, the applicant was admitted to the United States as
an immigrant in 1970. After one year, he made application for a permit to
reenter the United States, and returned to Greece. He stated that he was
returning to tali e care of personal business and to bring back his family.
In Greece the reentry permit was extended until July 20, 1973, on his
claim of need to liquidate property in Greece and permit his children to
complete the school year. Prior to the expiration of that reentry permit,
the applicant ca:-neto the United States, made the instant application for
another reentry permit, and returned to Greece all within a month. He
left instructions that the permit was to be forwarded to Greece for
delivery. He stated that he wanted to remain abroad for business and to
complete his children's education. At the time of his last departure from
the United States, the applicant was returning to his family, his farm, and
to ajob he was holding in addition to his farming responsibilities. He was
definitely not leaving to return to this country within a relatively short
period fixed by some early event, Lesto v. Day, supra. He left nothing in

the United States and had no contact with this country other than filing
Federal Income Tax returns as a nonresident alien at the American
Embassy in Ataens, Greece, for the years 1971, 1972, and - 1973. The
record contains copies of the three returns furnished as the result of a
request by the Service dated December 21, 1973. Each return is dated as
having been filed on March 20, 1974.
The entire record in this case has been carefully considered. The
applicant's departure from the United States cannot be deemed as being
for the purpose of making a temporary visit abroad. The evidence
substantiates the finding that the applicant departed from the United

States for the purpose of returning to his domicile in Greece. It is
concluded tha the district director properly denied the application, and
the appeal will '3e dismissed.
ORDER: It is ordered that the appeal be dismissed.

468


Interim Decision #2760

MATTER OF CSONKA
In Section 248 Proceedings
A-22855988
Decided by Regional Commissioner April 18, 1978
(1) Applicant sought a change of nonimmigrant classification under section 248 of the
Immigration and Nationality Act, 8 U.S.C. 1258, from that of visitor for pleasure to
that of treaty investor under section 101(a)(15)(E)(ii) of the Act, 8 U.S.C.
1101(a)(15)(E)(ii). In order to so qualify, applicant must show he has invested or is
investing capital in a bona fide enterprise and is not seeking to come to the United
States to invest a small amount of capital in a marginal enterprise. Applicant's
investment consisted of 00,000 consisting of notes on which another individual was
guarantor. There is no showing that he invested any of his own money, and the
business was shown to be a losing venture.
(2) Where there is no evidence that the applicant has invested his own funds in an
enterprise, loans guaranteed by a party other than the applicant cannot be considered
as an investment by the applicant, notwithstanding that the 51 per cent share of the
business owned by the applicant was pledged to the guarantor as security for the

loans.

Orr

BEHALF OF APPLICANT:

William T. Johnson, Esquire
Myers and Johnson
842 Petroleum Building
Beaumont, Texas 77701

The application was denied by the District Director, Houston, Texas,
and is now considered on appeal.
The applicant is a 25-year-old single male, a native and citizen of
England. He was admitted as a visitor for pleasure on July 18, 1977,
with an authorized period of stay to August 19, 1977.
The application was denied by the District Director because it was
decided that the applicant had failed to establish that he had invested
or was actively in the process of investing a substantial amount of
capital in a business enterprise in the United States.
At present, Service regulations do not address the question of who
may qualify for treaty investor status. However, Operations Instruction 214.2(e) requires that the notes to 22 C.F.R. 41.40 and 41.41 in
Volume 9, Visas, Foreign Affairs Manual, must be consulted when
254

Interim Decision #2760
considering matters involving treaty traders and treaty investors.
22 C.F.R. 41.41 relates specifically to treaty investors and provides
that an alien shall be classifiable as a nonimmigrant treaty investor if
he establishes to the satisfaction of the Consular Officer that he
qualifies under the provisions of section 101(a)(15)(E)(ii) of the Act,
that he intends to depart from the United States upon termination of
his status, and that he is an alien who has invested or is investing
capital in a bona fide enterprise and is not seeking to proceed to the
United States in connection with the investment of a small amount of
capital in a marginal enterprise solely for the purpose of earning a
living.

On appeal the applicant, through counsel, presents an unaudited
balance sheet indicating that the total assets of the business on
December 31, 1977, was $26,651-46, with a net loss of $3,546.94 for the 4
month period ending December 31, 1977. The audit reveals notes payable consist of a $20,000 loan from the American Bank of Beaumont,
Texas, payable on January 5, 1978, with interest at 8.75%. The note has
been subsequently renewed and is currently due on April 5, 1978, with
interest at 8.75%. Both loans were guaranteed by a relative of the
corporation's shareholders and officers. The guarantor is identified as
Charles H. Moore, M.D., Houston, Texas. The stockholders are identified as Ms. Vivion P. Moore with 500 shares of common stock at $1.00
par value, and the applicant with an identical shareholding. For some
reason it was decided that the applicant should own 51% of the
common stock, whereupon a special meeting was held on February 23,
1978, and he was issued an additional 25 shares at $1.00 par value.
In counsel's brief it is stated that subsequent to December 31, 1977,
the Csonka Moore Company (the enterprise under consideration) has
obtained additional funds to the extent that it is now responsible for
notes payable in the amount of $30,000. The additional $10,000 is in the
form of a single payment note due on February 24, 1978, with a $221.91
finance charge, the borrower being Charles H. Moore, M.D., Houston,
Texas.
It is noted that the loan guarantor, Dr. Charles H. Moore, is the
-

brother of Kilburn Moore, the zeal estate developer presently involved

in developing Westheimer Oaks Village where the enterprise is located, and the one other stockholder is the wife of Kilburn Moore.
Despite expectations and hopes of the participants for the future, so
far the business has been a losing venture and may realistically be
classified as a marginal enterprise.
Supporting documentation contains an agreement by Dr. Charles H.
Moore, guarantor, and the applicant to the effect that the applicant is
personally responsible to the guarantor for the repayment of notes to
American National Bank from his share of earnings or dividends
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Interim Decision #2760
realized from the operation of "Byron's," the business enterprise. The
applicant then assigns to the guarantor as security for the payment of
such notes, his stock shares of 51% in the Csonka-Moore Company.
While these machinations are interesting, they in no way establish
how the applicant has invested or is investing capital in a bona fide

enterprise. The capital has been invested by Dr. Charles H. Moore, not
the applicant. There is no evidence to suggest that the applicant has
brought funds from England or any other place and invested them in
this country. He has never had unrestricted use of the monies made
available by the note guarantor.
The entire record has been carefully reviewed with consideration
given the information provided on appeal. It has been decided, for the
reasons stated above, that the application was properly and correctly
denied, and that the decision will be affirmed.
ORDER: The decision of the District Director is affirmed, and the
appeal is dismissed.

256


Interim Decision #2082

MATTER OF ARIAS-URIBE

In Deportation Proceedings
A-8760789
Decided by Board April 30, 1971
Where an application for relief under section 212 (c) of the Immigration and
Nationality Act is not coupled with an application for adjustment of status under section 245 of the Act, the applicant must meet the statutory
requirement that he be returning to resume a lawful unrelinquished domicile of seven consecutive years following a temporary voluntary departure
not under an order of deportation. Hence, respondent, a native and citizen
of Mexico, whose deportability is predicated on his 1969 narcotics conviction and whose only departure from this country since his 1954 admission
for permanent residence was in 1958 or 1959, is ineligible for section
212(c) relief since he is not an alien returning to resume a lawful unrelinquished domicile.
[Matter of S—, 6 I. & N. Dec. 392; Matter of G—A—, 7 I. & N. Dec.
274; and Matter of Smith, 11 I. & N. Dec. 325, distinguished.]
CHARGE:
Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11))—Convicted of violation of law relating to the illicit
possession of a narcotic drug, to wit, heroin (section 11500, California Health and Safety Code)
ON BEHALF OF RESPONDENT: William A. Herreras, Esquire,
Thorpe, Sullivan, Clinnin & Workman
940 East Santa Clara Street
Ventura, California 93001
(Brief filed)

The respondent, a native and citizen of Mexico, concedes that
he is deportable under section 241(a) (11) of the Immigration and
Nationality Act as an alien convicted for possession of heroin in
violation of section 11500 of the California Health and Safety
Code. His appeal is directed to the denial of an application for
advance permission to return to an unrelinquished domicile of
seven consecutive years pursuant to the provisions of section
212 (c) of the Immigration and Nationality Act, 8 U.S.C. 1182 (c).
The respondent, a married male alien, 23 years of age, was adgog

Interim Decision #2082
mitted to the United States for permanent residence on October
11, 1954. He was convicted in the Superior Court of the State of
California for the County of Los Angeles for possession of heroin
on January 13, 1969 and granted five years' probation on condition that he spend the first 90 days in jail. He was released from
the county jail on April 15, 1969. He testified that his only departure from the United States since his original admission for permanent residence occurred in either 1958 or 1959.
The issue presented by the case is whether a lawful permanent
resident for more than seven years, who was convicted of possession of heroin in the United States after entry and, therefore, deportable under section 241(a) (11) of the Immigration and Nationality Act, is statutorily eligible for discretionary relief under
section 212(c) of the Act in a deportation proceeding. The special
inquiry officer concludes that the respondent is not statutorily eligible for the relief requested because since his conviction he is
not an alien returning to the United States to resume a lawful
domicile of seven consecutive years as required by section 212(c)
of the Act.
Counsel maintains that the respondent is statutorily eligible for
relief from deportation pursuant to section 212 (c) of the Act.
Section 212(c) provides in substance that aliens lawfully admitted for permanent residence, who temporarily proceed abroad voluntarily and not under an order of deportation and who are returning to a lawful unrelinquished domicile of seven consecutive
years, may be admitted in the discretion of the Attorney General
without regard to certain specified grounds for exclusion enumerated in section 212 (a) of the Act, including an alien convicted of
a narcotic violation as set forth in section 212 (a) (23). Counsel
argues that present administrative practice, as well as tacit Congressional approval, permits an alien in a deportation proceeding
to seek relief under section 212(c), notwithstanding the language
of the statue which limits the relief to an alien who "temporarily
proceeded abroad voluntarily and not under an order of deportation, and who [is] returning to a lawfully unrelinquished domicile of seven consecutive years."
Counsel cites several reported decisions of this Board in support of his argument. The cited cases are distinguishable from
the case before us. Our grant of relief under section 212(c) in
Matter of S— and Matter of G—A---, supra, footnote 1,
6 I. & N. Dec. 392 (BIA, 1954, approved A.G. 1955);
1 Matter of S—,
Matter of G—A—, 7 I. & N. Dec. 274 (BIA, 1956); Matter of Smith, 11 I.
& N. Dec. 325 (BIA, 1965).

697

Interim Decision #2082
amounted to a nunc pro tune correction of a record of entry to
avoid deportation. The aliens in both cases were statutorily eligible for section 212 (c) relief in that they had been lawfully admitted for permanent residence, their deportability stemmed from
grounds of inadmissibility which arose prior to their voluntary,
temporary departure not under an order of deportation and they
were returning at the time of their last entry to an unrelinquished domicile of seven consecutive years. Our action in both
cases was in accordance with long-established administrative
practice which had its origin in an opinion by the Attorney General that relief under the 7th Proviso to section 3 of the 1917 Act,
the predecessor of section 212(c), was available in deportation
proceedings as well as exclusion proceedings, provided the alien
came within the terms of the statute, Matter of L—, 1 I. & N.
Dec. 1, 6 (A.G., 1940). The respondent in the instant case has
had no entry preceded by a voluntary, temporary departure since
he became deportable under section 241 (a) (11) of the Act by reason of his conviction as a narcotic violator in January of 1969.
Counsel also maintains that the technical objection to the availability of section 212 (c) relief, to wit, that the respondent as a
lawful resident is not "returning to the United States" following
a temporary, voluntary absence was overruled in Matter of
Smith, 11 I. & N. Dec. 325 (BIA, 1965). We do not agree. The
Smith case was concerned with an application for adjustment of
status under section 245 of the Immigration and Nationality Act
which was submitted during the deportation proceeding accorded
him on December 8, 1964. The order to show cause charged deportability under section 241 (a) (4) as an alien who, after entry,
had been convicted of two crimes involving moral turpitude. It
was stated for the record that the applicant would apply for an
exercise of the discretion contained in section 212 (c) in connection with his application for adjustment of status under section
245. The special inquiry officer adjourned the hearing without decision for the conduct of an investigation by the Immigration and
Naturalization Service in connection with the alien's application
for relief under section 245. The District Director denied the application for relief under section 212 (c) on the ground that the
applicant did not warrant the favorable exercise of discretion because of two criminal convictions within the past five years. The
applicant appealed this decision to the Board of Immigration Appeals.
The notice of appeal in Matter of Smith urged error in that the
special inquiry officer improperly refused to consider the appli-

698

Interim Decision #2082
cant's application for advance permission to return to an unrelinquished domicile in conjunction with his application for an
adjustment of status under section 245 of the Act. The Service
argued that counsel was attempting to use a deportation case as a
vehicle for obtaining relief which is by statute limited to an exclusion proceeding. We held that the proper procedure in deportation case in which an alien applies for a waiver of a ground
of inadmissibility under section 212 (c) in connection with an
application for adjustment of status pursuant to section 245 is
for the special inquiry officer to fully consider and adjudicate
both applications. We stated in our opinion at pages 326 and 327:
An applicant for adjustment of status under section 245 stands in the
same position as an applicant who seeks to enter the United States with an
immigration visa for permanent residence. Such an applicant must ... submit to all of the tests as if he were an applicant at a port of entry (8 CFR
245.5). Since this respondent, as an applicant for relief under section 245, is
subject to all of the exclusion provisions of section 212(a), we find no valid
reason for denying him the benefits of section 212(c) on the technical
ground that he is not returning to the United States after a voluntary departure. Such a conclusion is not required by the statute and would ignore
substance for procedure.

The respondent in the case before us, z native of the Western
Hemisphere, is not eligible for relief under section 245 of the Act.
Unlike Matter of Smith, this respondent is not subject to the excluding provisions of section 212 (a) in connection with an application for adjustment of status. The issue, therefore, is whether
we have authority under the 1952 Act to grant the relief requested. There is no question but that we had such authority
under the 7th Proviso to section 3 of the 1917 Act. 2 It is patent
from a comparison of the provisions of the two statutes that section 212 (c) of the 1952 Act limits the areas in which relief may
be granted in two respects : (1) lawful admission for permanent
residence became a specific requirement; and (2) the relief could
no longer be given unless the alien left the United States voluntarily and not under an order of deportation (see Senate Report
No. 1515, 81st. Cong. 2d Sess., at p. 384). Unlike the alien in
Matter of Smith, this respondent does not stand in the same position as an applicant who seeks to enter the United States with an
immigrant visa because he is not eligible for relief under section
2 The 7th Proviso to section 3 of the Immigration Act of 1917 reads as follows: "That aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted
in the discretion of the Attorney General, and under such conditions as he
may prescribe."

699

Interim Decision #2082
245 of the Act. The requirement that an alien must have "temporarily proceeded abroad voluntarily and not under an order of deportation" makes it clear that Congress curtailed our authority
for the advance exercise of section 212 (c) relief in a deportation
proceeding. Where a section 212(c) application is not coupled
with an application for adjustment of status under section 245 of
the Act, we have no basis for avoiding the statutory requirement
that an alien lawfully admitted for permanent residence must be
returning to resume a lawful domicile of seven consecutive years
following a temporary, voluntary departure not under an order of
deportation. The respondent cannot qualify under this requirement of the statute.
The respondent is married to a United States citizen and is the
father of two minor citizen children. He has resided in the United
States continuously since his lawful admission in 1954. He testified that his only departure since his original admission was in either 1958 or 1959. His deportation would undoubtedly cause great
hardship to his citizen spouse and two minor children. The
respondent is not eligible for discretionary relief under sections
244 (a) (2) or (e). He does not qualify for relief under section
241 (f). Our only alternative is to affirm the order of deportation
entered by the special inquiry officer and dismiss the appeal.
ORDER: It is directed that the appeal be and the same is
hereby dismissed.

Inn


Cite as 28 I&N Dec. 68 (BIA 2020)

Interim Decision #3993

Matter of Jorge Vicente NIVELO CARDENAS, Respondent
Decided August 5, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Where an alien who has been personally served with a notice to appear advising him
of the requirement to notify the Immigration Court of his correct address fails to do so
and is ordered removed in absentia for failure to appear for the scheduled hearing,
reopening of the proceedings to rescind his order of removal based on a lack of
proper notice is not warranted under section 240(b)(5)(C)(ii) of the Immigration and
Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2018).
(2) The respondent’s failure to update his address for over 18 years indicates a lack of due
diligence and may properly be found to undermine the veracity of his claim that he has
taken actions to maintain his rights in the underlying removal proceedings.
FOR RESPONDENT: Vanessa E. Zwaik, Esquire, Ronkonkoma, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: John G. Jenkins, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS and HUNSUCKER, Appellate Immigration
Judges; GEMOETS, Temporary Appellate Immigration Judge.
HUNSUCKER, Appellate Immigration Judge:

In a decision dated February 20, 2019, an Immigration Judge denied the
respondent’s motion to reopen and rescind the in absentia order of removal
entered against him on January 28, 2000. The respondent has appealed from
that decision. The appeal will be dismissed.
The respondent is a native and citizen of Ecuador who entered the
United States in July 1999. He was detained by the legacy Immigration and
Naturalization Service (“INS”), which charged him with being removable
under section 212(a)(6)(A)(i) of the Immigration and Nationality Act,
8 U.S.C. § 1182(a)(6)(A)(i) (1994), as an alien who was present in the
United States without being admitted or paroled. He was personally served
with a notice to appear on July 23, 1999, and has not challenged the propriety
of its service on him.
The respondent’s notice to appear included information advising him of
the consequences of failing to appear for removal proceedings and the
requirement that he must notify the Immigration Court of his correct address,
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Interim Decision #3993

as required by sections 239(a)(1)(F) and (G)(ii) of the Immigration and
Nationality Act, 8 U.S.C. § 1229(a)(1)(F) and (G)(ii) (Supp. V 1999). 1 He
also received a Notification Requirement for Change of Address form,
informing him of the location where he should report any change of address
and warning him of the consequences of failing to provide that information.
At the time of his release from detention on August 17, 1999, the respondent
signed the form, acknowledging that he was required to report any change of
address and verifying that the mailing address he had provided the INS on a
Form I-830 (Notice to EOIR: Alien Address) was correct. The address he
gave was a specific street address in the town of “Patcbogue,” New York.
On October 1, 1999, the Immigration Court sent a notice of hearing to the
respondent at the address on the two forms, stating that his hearing was
scheduled for January 28, 2000. The notice was returned to the Immigration
Court, stamped “ATTEMPTED, NOT KNOWN,” with a handwritten
notation stating, “Please return it to the sender.” The respondent failed to
appear at the scheduled hearing, and he was ordered removed in absentia.
See Matter of G-Y-R-, 23 I&N Dec. 181, 188 (BIA 2001) (en banc) (“Once
the advisals in the Notice to Appear are conveyed, . . . [i]f the alien fails to
appear for a scheduled hearing, the Immigration Judge may proceed with the
hearing in the alien’s absence and order the alien removed in absentia.”).
On November 19, 2018, over 18 years after he was ordered removed, the
respondent filed a motion to reopen with the Immigration Court, requesting
rescission of the in absentia removal order. The respondent argued that he
did not receive notice of the January 28, 2000, hearing because the notice of
hearing was not properly addressed. Specifically, he claimed that he did not
receive the notice of hearing because the town to which it was addressed was
incorrectly spelled as “Patcbogue,” rather than “Patchogue.” The respondent
1

Sections 239(a)(1)(F) and (G)(ii) of the Act provide that the notice to appear must
specify the following:
(F)(i) The requirement that the alien must immediately provide (or have provided)
the Attorney General with a written record of an address and telephone number (if
any) at which the alien may be contacted respecting proceedings under section 240.
(ii)The requirement that the alien must provide the Attorney General
immediately with a written record of any change of the alien’s address or telephone
number.
(iii) The consequences under section 240(b)(5) of failure to provide address and
telephone information pursuant to this subparagraph.
(G)(i) . . .
(ii) The consequences under section 240(b)(5) of the failure, except under
exceptional circumstances, to appear at such proceedings.

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Interim Decision #3993

further argued that he had provided a correct address, as demonstrated by a
subsequently issued “bag and baggage letter.” The Immigration Judge
denied his motion. On appeal, the respondent reiterates the arguments he
raised in his motion to reopen.
An in absentia removal order may be rescinded if the alien files a motion
to reopen with the Immigration Judge (1) within 180 days of the order,
demonstrating that his failure to appear was because of exceptional
circumstances, or (2) at any time, demonstrating that he did not receive notice
or that he was in Federal or State custody and failed to appear through no
fault of his own. Section 240(b)(5)(C) of the Act, 8 U.S.C. § 1229a(b)(5)(C)
(2018); 2 8 C.F.R. § 1003.23(b)(4)(ii) (2020). Because the respondent’s
motion to reopen was untimely and he was not in custody, he must show that
he “did not receive notice” of the hearing. Section 240(b)(5)(C)(ii) of the
Act; see also Matter of J-G-, 26 I&N Dec. 161, 165 (BIA 2013); Matter of
M-R-A-, 24 I&N Dec. 665, 671 (BIA 2008).
We agree with the Immigration Judge that the respondent failed to
demonstrate that he did not receive proper notice of his January 28, 2000,
removal hearing. Because the respondent was personally served with a
notice to appear that informed him of the statutory address reporting
obligations associated with removal proceedings, he was required to provide
his correct address in the first instance. See section 239(a)(1)(F) of the Act.
The record includes a Form I-830 dated August 17, 1999, showing that
the respondent reported to an immigration officer that his mailing address
would be in “Patcbogue,” New York. He also signed a form confirming that
this was his correct address. The notice of hearing was mailed to the exact
address provided by the respondent, but it was returned to the Immigration
Court with both a stamp indicating that delivery was attempted and a
handwritten notation requesting that the letter be returned to the sender.
Thus, it appears that the United States Postal Service attempted delivery at
the address provided by the respondent and the notice was returned, not
because it was undeliverable, but because someone who received mail at that
address requested that it be returned to the sender.
2

Section 240(b)(5)(C) of the Act states in pertinent part:
[An in absentia] order may be rescinded only—
(i) upon a motion to reopen filed within 180 days after the date of the order of
removal if the alien demonstrates that the failure to appear was because of
exceptional circumstances . . . , or
(ii) upon a motion to reopen filed at any time if the alien demonstrates that the
alien did not receive notice in accordance with paragraph (1) or (2) of section 239(a)
or the alien demonstrates that the alien was in Federal or State custody and the failure
to appear was through no fault of the alien.

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Interim Decision #3993

According to section 239(c) of the Act, service by mail is “sufficient if
there is proof of attempted delivery to the last address provided by the alien
in accordance with [section 239(a)(1)(F)]” of the Act. See also section
240(b)(5)(A) of the Act (stating that written notice sent to the “most recent
address provided under section 239(a)(1)(F)” is sufficient to support an in
absentia removal order).
Even assuming that the respondent inadvertently provided the incorrect
spelling of the city name, he was on notice that he had a duty to correct his
address information and to properly notify the Immigration Court where he
could receive notice. See Fuentes-Pena v. Barr, 917 F.3d 827, 830 (5th Cir.
2019) (indicating that “an alien’s failure to receive actual notice of a removal
hearing due to [his] neglect of [his] obligation to inform the immigration
court of [his] current address does not mean that the alien did not receive the
statutorily required notice”); Hernandez-Castillo v. Sessions, 875 F.3d 199,
205 (5th Cir. 2017) (explaining that where “an alien fails to provide a viable
mailing address to [the Department of Homeland Security (“DHS”)], the
government need not provide notice of the alien’s hearing”); United States
v. Estrada-Trochez, 66 F.3d 733, 736 (5th Cir. 1995) (concluding that notice
that was mailed to the last address that the alien provided afforded him a
reasonable opportunity to appear at his deportation hearing). Inherent in the
concept of notice is the implicit obligation that the intended recipient must
provide the information necessary for the notice to be received. See sections
239(a)(2)(B), 240(b)(5)(B) of the Act (making an exception to the written
notice requirement where the alien failed to provide the address required
under section 239(a)(1)(F)).
“[A]n alien’s statutory obligation to keep the immigration court apprised
of his current mailing address includes an obligation to correct any errors in
that address listed on the [notice to appear],” and if the alien does not “receive
notice of a removal hearing as a result of such an error,” there is no basis to
rescind an in absentia removal order. Mauricio-Benitez v. Sessions, 908 F.3d
144, 148 (5th Cir. 2018). The respondent’s failure to correct his address
before the notice of hearing was mailed demonstrates his lack of compliance
with this obligation. Since the respondent was clearly advised that he was
required to provide a correct address to the Immigration Court and failed to
do so, we conclude that he received constructive notice of his scheduled
hearing, even if he did not receive actual notice of it. See Matter of G-Y-R-,
23 I&N Dec. at 189 (stating that even “where actual notice is not
accomplished, the statute will permit constructive notice when the alien is
aware of the particular address obligations of removal proceedings and then
fails to provide an address for receiving notices of hearing”).
We are unpersuaded by the respondent’s argument that the Immigration
Judge did not adequately consider his claim that he provided the correct
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Interim Decision #3993

address, as indicated on a “bag and baggage letter.” 3 There is no indication
that the respondent provided the address on this document to the INS; nor is
there any indication that he concurrently reported it to the Immigration Court,
as required by the statute. This document also fails to establish that the
respondent independently provided a corrected mailing address to the
Immigration Court upon learning that the city name was incorrectly spelled.
See Fuentes-Pena, 917 F.3d at 830.
In sum, the respondent was personally served with a notice to appear. He
also signed a written notice containing the address that he provided to the
INS and advising him that he was required to notify the Immigration Court
of any change in his mailing address. He never corrected the error in his
address or updated his contact information with the Immigration Court. A
notice of the hearing was sent to the respondent at the address he provided.
Because he had been advised of his obligation to provide a correct address,
that notice constituted constructive notice of his scheduled hearing, which
satisfied the requirements of the statute and constitutional due process. See
Estrada-Trochez, 66 F.3d at 736; Matter of G-Y-R-, 23 I&N Dec. at 186–87
(“The sufficiency of constructive notice depends on whether the notice
comports with the requirements of the applicable statute and the expectations
of due process.”). Under the circumstances presented in this case, we reject
the respondent’s contention that his in absentia order should be rescinded
because he did not receive notice of the hearing.
The respondent also asserts that his proceedings should be reopened
because he took sufficient action to preserve his rights. In a statement
submitted in support of his motion to reopen, he claims that he checked his
mailbox every day for the hearing notice but did not receive anything.
However, the respondent’s failure to update his address for over 18 years
indicates a lack of due diligence and may properly be found to undermine the
veracity of his claim that he has taken actions to maintain his rights in the
underlying removal proceedings. See Mauricio-Benitez, 908 F.3d at 150
(stating that it is proper for the Board to consider due diligence and the
credibility of statements an alien makes in determining if he or she received
proper notice); see also Dieng v. Barr, 947 F.3d 956, 961, 163 (6th Cir. 2020)
(stating that the Board has the discretion “to weigh the credibility of the
proffered evidence on a motion to reopen,” which will be upheld “[s]o long

3

The “bag and baggage letter” to which the respondent refers is, in fact, clearly labeled
as a “bag and baggage checklist.” This document is not from the Immigration Court and
was not part of the record of proceedings. It appears to be an INS document, and it bears
no indication that the respondent provided the information it contains. A “bag and baggage
letter,” which is prepared by the INS, directs an individual to report to an immigration
officer, ready for deportation. See Nen Di Wu v. Holder, 646 F.3d 133, 134 (2d Cir. 2011).

72

Cite as 28 I&N Dec. 68 (BIA 2020)

Interim Decision #3993

as the [Board] adequately indicates its finding that new evidence was
inherently unbelievable”).
In Matter of M-R-A-, 24 I&N Dec. at 676, we explained that a significant
factor supporting reopening where the respondent claimed he received no
notice of the hearing was his “due diligence in promptly seeking to redress
the situation by obtaining counsel and requesting reopening of the
proceedings” within a month of the entry of the in absentia removal order.
Here, by contrast, the respondent waited over 18 years after he was served
with a notice to appear and ordered removed in absentia before filing a
motion to reopen. He has not explained what, if any, actions he took
throughout the years to follow up on his case with the Immigration Court.
He has also not shown that he updated his address or otherwise should not
be held responsible for his failure to appear at his hearing. We are therefore
unpersuaded by his claim that he diligently sought to preserve his rights.
In conclusion, where an alien who has been personally served with a
notice to appear advising him of the requirement to notify the Immigration
Court of his correct address fails to do so and is ordered removed in absentia
for failure to appear for the scheduled hearing, reopening of the proceedings
to rescind his order of removal based on a lack of proper notice is not
warranted under section 240(b)(5)(C)(ii) of the Act. The respondent has not
shown that he provided proof that he timely apprised the Immigration Court
of his correct address, as required by section 239(a)(1)(F)(ii) of the Act, or
otherwise established that he did not receive notice of the hearing, either
actual or constructive. Furthermore, his lack of due diligence militates
against a grant of reopening. We therefore conclude that the Immigration
Judge properly denied the respondent’s motion to reopen to rescind his in
absentia order of removal. Accordingly, the respondent’s appeal will be
dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See Section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

73


Interim Decision #1394

MATTER OF GAGLIOTX

In DEPORTATION Proceedings
A-5064270
Decided by Board September 11,1064
Conviction of conspiracy to commit an unlawful act (establish gambling games)
in violation of 18 Pennsylvania Statutes 4302 is not a conviction of a crime
involving moral turpitude.
CIWZGES :
Order: Act of 1952—Section 241(a) (4) 18 U.S.C. 1251(a) (4) (1958)1—Convicted of two crimes after entry--conspiracy to violate Internal
Revenue Laws; conspiracy to establish gaming devices.

This is an appeal by the trial attorney from the order of the special
inquiry officer terminating proceedings. The sole question presented
on this appeal is whether respondent's conviction for conspiracy to
establish gaming devices involves moral turpitude. We agree with
the special inquiry officer that moral turpitude is not involved and

will dismiss the appeal.
Respondent, a 60-year-old married male, a native and citizen of
Italy, last entered the United States in 1921. The gaming conviction
in question occurred on January 16, 1941, when he was convicted of
conspiracy in the Court of Quarter Sessions for Delaware County,
Pennsylvania under 18 P.S. 4302 1 for "unlawfully, falsely, fraudulently, wilfully and maliciously" conspiring to "commit an unlawful
act." The specifications of the unlawful act are in brief : to establish
gambling games, to permit people to collect for the purpose of gambling, to solicit people to visit the gambling room, and to exhibit

gaming devices.
'18

P.S. 4302. Conspiracy to do unlawful act. Any two or more persons

who falsely and maliciously conspire and agree to cheat and defraud any person

of his moneys, goods, chattels, or other property, or do any other dishonest,
malicious, or unlawful act to the prejudice of another, are guilty of conspiracy,
a misdemeanor, and on conviction, shall be sentenced to pay a fine not exceeding
five hundred dollars ($500), or to undergo imprisonment, by separate or solitary
confinement at labor or by simple imprisonment, not exceeding two (2) years,

or both. 1939, June 24, P.L. 872, Section 302.

719

Interim Deciiion #1394
These specifications are all included within the crime of establishing a gambling place under 18 P.S. 4605 2 for which respondent was
indicted and convicted on the same day as he was for the conspiracy
charge; however, as the special inquiry officer has pointed out, there
is a specific law relating to enticing persons to gamble (18 P.S.
4606) and there is also the possibility that the specifications describe
in part the crime of pool-selling and bookmaking set forth in 18 P.S.
4607. The special inquiry officer, after examination of the cases, ruled.
that none of the substantive crimes mentioned involved moral turpitude because no proof of an evil intent or malice is required for conviction. He then applied the immigration rule that a conviction
for conspiracy does not involve moral turpitude unless the substantive
crime does, and terminated proceedings. The trial attorney contends
the conviction involves moral turpitude because the indictment charges
a fraudulent and malicious intent and the use of fraudulent and malicious means.
It is settled in the immigration laws that the moral turpitude of a,
conviction for conspiracy depends upon whether the substantive
crime involves moral turpitude. Matter of B—, 6 L & N. Dec. 98,
105 7. We see no reason to depart from this rule. Violations of
-

gaming laws do not ordinarily involve moral turpitude.
Concerning a lottery policy violation (New York Penal Code,
article 88, section 974) the Board stated in Matter of Garcia, 56040/
601, March 24 1941, with the approval of the then Attorney General:
* * * Gaming is not an offense eo nomine. It was not in itself a crime at
common law unless conducted in so open a manner as to constitute a public
nuisance. It is true that certain offenses, solely of a statutory class, may,
• P.S. 4605. Establishing gambling places. Whoever sets up or establishes,
or causes to be set up or established, any game or device of address, or hazard,
at wmen money or other valuable thing may or shall be played for, or staked
or betted upon; or procures, permits, suffers and allows persons to collect and
assemble for the purpose of playing at, and staking or betting upon such game
or device of address, or hazard, for money or other valuable thing; or whoever,
being the owner, tenant, lessee or occupant of any premises, leases, hires, or
rents the same, or any part thereof, to be used and occupied, or employed for
the purpose of playing at, or staking and betting upon such game or device of
address, or hazard, for money or other valuable thing, is guilty of a misdemeanor,
and on conviction, shall be sentenced to pay a fine not exceeding five hundred
dollars ($500), or undergo imprisonment not exceeding one (1) year, or both.
The owner of such premises who shall have knowledge that any such game
or device of address, or hazard, has been set up in or upOn the said premises,
and shall not forthwith cause complaint to be made against the person who
has set up or established the same, shall be deemed to have knowingly leased,
hired or rented the said premises for the said purposes.
This section' shall not be construed to apply to games of recreation and
exercise, such as billiards, bagatelle, ten pins, etc., where no betting is allowed.
1939, June 24, P.L. 872, section 605.

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Interim Decision #1394
nevertheless, carry therewith the element of moral turpitude, but, in those
instances, we find an element which is contrary to public morals, such as fraud
or like ingredients malum in se. There are apparently no judicial determinations on the exact point, namely, whether gambling, in violation of a statute
prohibiting it, is a crime involving moral turpitude. The standard by which
a misdemeanor, such as gambling, is to be judged, therefore, is that prevailing
in tne united States as a whole, regarding the common view of our people concerning its moral character.
We find that licensed gambling in connection with horse racing is permitted in
Kentucky, Illinois, Maryland, Nevada and possibly other States. People have
a legal right to gamble until the Legislature specifically decrees otherwise and
such right cannot be restricted to special forms or certain classes of people
(People v. Itevolta (1937) 295 N.Y.S. 102).
The words "involving moral turpitude", as long used in the law with reference
to crimes, refer to conduct which is inherently base, vile or depraved, contrary
to accepted rules of morality, whether it is or is not punishable as a crime.
They do not refer to conduct which, before it was made punishable as a crime,
was not generally regarded as morally wrong or corrupt, as offensive to the
moral sense as ordinarily developed.

Applying the reasoning of Matter of Garcia, supra, we find that
the substantive crime or crimes involved in the gambling conspiracy
charge do not involve moral turpitude (nee United States v. Carroll°,
30 F. Sapp. 3, W.D. Mo. (1939) and Commonwealth. v. Mittleman,
36 A. 2d 860, 865 (1944). It follows that the conspiracy charge does
not involve moral turpitude.
Moreover, even if the rule in conspiracy cases were otherwise than
it is, the trial attorney's appeal would have to be dismissed because the
gambling conspiracy statute does not require an evil intent. Respondent was convicted under that portion of the conspiracy statute, prohibiting the conspiracy to do an unlawful act. The corrupt motive or
criminal intent required for such a conviction is present when the conspirators knowingly agree to commit the unlawful act—a fraudulent
intent is not necessary (Commonwealth. v. Mittleman, mapra). The
appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby

dismissed.

721
76s-456-65--41


Interim Decision #1816

MATTER or Stn.;
In Visa Petition Proceedings
A-11744231
Decided by District Director December

16, 1966

Beneficiary, who has a bachelor's degree with a major in hotel management and
has approximately 3 years' experience in hotel management and related
fields, is a member of the professions within the meaning of section 101(a)
(32) of the Immigration and Nationality Act, as amended, and Is eligibile
for preference classification under section 203(a) (3) of the Act, as amended,
as a hotel manager,

DISCUSSION: The petition was filed to accord the beneficiary a
third preference classification as a member of the professions based
upon his qualifications as a hotel manager. The beneficiary is a male,
single British subject and citizen. of the United Kingdom. He was
born in Hong Kong, British Crown Colony, March 17, 1941.
On June 10, 1963 he graduated from Cornell University, Ithaca,
New York and was awarded a. Bachelor of Science degree. His
transcript reveals that he majored in hotel management with food
preparation and food and beverage control and merchandising an
important part of the curriculum. He has been employed as the Assistant Manager and Manager from October 1963 to October 1965
at the Grand Hotel, Kowloon, Hong Kong, and as Food and Beverage
Manager from October 1965 to July 1966 at the Ambassador Hotel,
Taipei, Taiwan. He is presently employed as a Director, Food and
Beverage at the Jack Tar Hotel, Galveston, Texas. The beneficiary
intends to engage in a field related to his profession of hotel manager
in the United States.
A certification pursuant to section 212(a) (14) of the Act, as
amended, has been issued by the Department of Labor.
Hotel managers are listed under professional, technical and man-

occupations code 187.118 in the Dictionary of Occupational
Titles, Volume 1, third edition, prepared by the United States Department of Labor. .A hotel manager manages a hotel to insure
efficient and profitable operation, establishes standards in matters
agerial

535

Interim Decision #1816
concerning personnel administration and performance, service to
patrons, room rates, and type of patronage to be solicited. He allocates funds, authorizes expenditures, and assists in planning budgets
for departments. He delegates authority and assigns responsibility to
department heads. In small hotels, he processes reservations and
adjusts guests' complaints. Beneficiary has successfully completed college courses in accounting, business law, personnel administration, restaurant management, hotel supervisory training, quantity food preparation, hotel structure and maintenance, special hotel equipment, basic
hotel accounting, and other technical, special courses relating to hotel
management.
The vocations included in. the term "profession" encompass constantly expanding areas of activity consistent with the greater knowledge and specialized training a highly industrialized society demands.
In addition to various seientifie fields, highly specialized activities in
business administration, finance, management, and the like require
training gained only by an extended course of specialized instruction
and study of at least the baccalaureate level. The term "profession"
originally contemplated only theology, law and medicine. However,
as applications of science and learning were extended to other areas of
human endeavor, other vocations were included in that term, which
implies professed attainments in special knowledge as distinguished
from mere skill. It is concluded that the vocation of hotel manager
in its more complex form involving the duties described above for a
large hotel may be considered as a profession. It is also concluded
that the beneficiary, by virtue of his specialized high level education in the field of hotel management and his experience in that field
is qualified as a member of that profession.
Under section 203 (a) (3) third preference status may be accorded
to qualified immigrants who are members of the professions.
Accordingly, the petition will be approved.
ORDER: It is ordered that the petition be and the same is hereby
approved.
-

536