Interim Decision #1332

MATTER OF ORNHAIIIFER

In DEPORTATION Proceedings
A-13669381
Decided by Board Apra 20,1964
Since an indeterminate sentence is a sentence for the maximum term, respondent's indeterminate sentence to imprisonment in the California Institution for Women for an offense punishable under applicable California statute
by imprisonment from 6 months to 14 years, is a sentence to confinement for
a year or more within the meaning of section 241(a) (4), Immigration and
Nationality Act..
CHARGES :

Order : Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4))—Convicted of
crime involving moral turpitude, committed within 5 years after
entry, and sentenced to confinement for a year or more, to wit: Usu.
ing check without sufficient funds (1908).
1251(a) (2))--Nonimrai.
Lodged: Act of 1952—Section 241(a) (2) (8
grant (temporary visitor for pleasure)—Remained longer.

The special inquiry officer, in a decision dated December 10, 1963,
directed that the respondent be deported to Canada, alternatively to
England, on the lodged charge only. The trial attorney appealed to
this Board from that decision, urging that the charge stated in the
order to show cause should also have been sustained.
The record relates to a female alien, a native of England and subject of Great Britain, who has been admitted to Canada as a "landed
immigrant." She last entered the United States from Canada on or
about November 15, 1962. She was then admitted as a nonimmigrant
temporary visitor for pleasure, for a period not to exceed six months.
She has remained. here since May 15, 1963, without authority.
The foregoing establishes respondent's deportability on the charge
lodged at the hearing. This has been conceded and is unchallenged
here. The point needs no further discussion.
Deportability on the charge contained in the order to show cause
is predicated on respondent's September 16, 1903, conviction, in the
Superior Court of California for the County of San Diego, on her
plea of guilty, of the crime of "issuing check without sufficient funds,"
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in violation of section 476a, of the California Penal Code. In substance, said section makes it a crime to willfully issue cheeks without
sufficient funds, with intent to defraud.
The foregoing crime involves moral turpitude because one of its
essential elements is intent to defraud (People v. Pitts,196 CA 2d 841;
Jordan v. DeGeorge, 341 U.S. 223; Park& v. Day, 16 F. 2c1 38). It
was committed in 1963, which is within 5 years of respondent's last
entry in 1962. She has been confined since her conviction, but the
period thereof does not yet amount to one year.
Accordingly, the only issue before us is whether respondent's
sentence "to imprisonment in the California, Institution for Women
for the term prescribed by kw" (emphasis supplied) is a commitment
"for a, year or more." This judgment was in conformity with section
1168a of the California Penal Code, which reads :
Every female convicted of a public offense, for which imprisonment in any
State prison is now prescribed by law shall, unless such convicted female is
placed on probation, a new trial granted, or the imposing of sentence suspended,
be sentenced to detention at the California Institution for Women, but the court
in imposing the sentence shall not fix the term or duration of the period of
detention.

Under such a, statute, the judgment of the court properly consists
of a recital of the offense, a designation of the prison to which the
de,fendant is committed, and nothing more (People v 22" ondosa, 1'78 C.
509, 1'73 P. 998). However, the failure of the judgment here to have
included the phrase "for the term prescribed by law" would not have
rendered the order of commitment invalid (People v. Y melons, 96 CA
2d 562,215 P. 2d 745).
The limits of "the term prescribed by law" as applied to this case
are determined by sections 476a and 18b of the California Penal Code.
The former, which makes it a crime to issue checks without sufficient
funds, provides for imprisonment in the county jail for not more than
1 year, or in the state prison for not more than 14 years. The latter,
a minimum term statute of general application, provides that the
duration of the respondent's period of detention may be as short as 6
months (see /are Humphrey, 64 CA 572,222 P.366) .
The crux of this case, therefore, is whether, under California law,
the minimum or maximum limit of an "indeterminate sentence" of
from 6 months to 14 years is determinative. On the strength of the
following authorities, we hold that it is a sentence for the maximum
term.

The courts of California have uniformly held that an indeterminate sentence such as the one we are confronted with here is in legal
effect a sentence for the maximum term (People v. Donbley, 68 P. 2d
354). In so doing, they have pointed out that the statutes dealing
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with the Indeterminate Sentence Law do not infringe the right to due
process of law because a judgment pursuant thereto is in legal effect
a sentence for the maximum term and is, therefore, c4rtain and definite
(In re Bandonann, 51 C. 2d 388, 333 P. 2d 339) rather than being
unconstitutional as "void for vagueness" (People v. Lava, 285 P. 2d
46). They have also pointed out that the pronouncing of sentence

thereunder is a judicial act; that the punishment which the sentence
pronounces comes from the law itself, and is established or provided
for by the legislature; and that the act does not confer upon the Board
of Trustees of the California Institution for Women, post, the right
to determine the punishment any given crime shall bear (In re Larsen,
283 P. 2d 1043).
The foregoing is consistent with Federal court rulings (see U.S. ew.
rel. Paladin v. Commissioner, 43 F. 2c1 821) to the effect that indeterminate sentences have long been held to be sentences for the maximum terms for which the defendant might be imprisoned. In so
ruling, those courts have pointed out that this is the construction not
only placed upon sentences where a maximum and a minimum period
of imprisonment appears in the sentence, but also upon sentences where
no term is mentioned and the statute sets the maximum. They have
further pointed out that such sentences would afford a basis for
deportation under section 19 of the Act of February 5, 1917 (former
8 U.S.C. 155) even though a duly designated administrative authority
might subsequently greatly diminish, indeed almost totally abate, the
period of imprisonment. Finally, they have pointed out as their
reason the fact that in all such cases the defendant can be brought

back and required to serve the remainder (maximum) of the sentence?
It is also consistent with the following precedent decisions of this
Board to the effect that an indeterminate sentence is measured by the
possible maximum- term of imprisonment. One of these (Matter
of R—,11. & N. Dec. 209) involved an alien convicted of assault with a
deadly weapon under the law of Utah; the sentence imposed. was
"for the indeterminate term as prescribed by law"; and the statute
provided for imprisonment not to exceed 5 years, or by fine not to
exceed $1,000, or by both and apparently with no minimum being set.
Another (Matter of R—, 1 I. & N. Dec. 540) concerned an alien convicted, inter die, of petty larceny; he was sentenced to imprisonment
in the penitentiary of the County of New York, there to be dealt with
according to law; and the statute under which he was convicted prescribed the term of imprisonment not to exceed 3 years.
—

The same reason has been cited in upholding the deportation, under the
present law, of an alien given an indeterminate sentence (Colorado) of up to
10 years, but who only served 7 months and 5 days—Petsche v. Clkwan, 273 F. 2d
688.

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It is not inconsistent with the prior precedent decision of this Board
(Matter of V—, 7 I. & N. Dec. 577) relied on by the special inquiry
officer. In that ,case, the court, instead of imposing sentence and
suspending its execution, suspended the imposition of the sentence.
This was not the ease here.
Support for our conclusion in this case, if such is necessary, is found
in the procedural provisions of the California Penal Code controlling
the sentencing of female offenders, and the judicial decisions clarifying
them. Thus, section 3325 of the California Penal Code imposes the
duty of fixing the terms of imprisonment for female convicts, within
the foregoing minimum and maximum limits, on the Board of Trustees
of the California Institution for Women. As is the case with the
Adult Authority, which is responsible for adult male convicts under

section 3020 of the California Penal Code, that board determines and
redetermines, after the expiration of 6 months from and after the
actual commencement of imprisonment, what length of time the convict shall be imprisoned. However, there is no time prescribed within
which the prisoner's sentence must be fixed or even considered (In re
Quiff" 25 C. 2d 799, 154 P. 2d 875) , so that if no such action is taken
the term is the maximum. If, on the other hand, such action is taken
and the term set at less than the maximum, it is only tentative and may
be changed, ie.—increased (in re Costello, 262 F. 2d 214). Also, the
subsequent fixing of the actual term of imprisonment by the duly
designated administrative officials is merely a limitation of the term
and not a setting thereof (In re Daniels,106 CA 43, 288 P. 1109) , otherwise the statute would be unconstitutional as conferring judicial
powers on a nonjudicial body (see People v. I I ostal, 159 CA. 2d 444, 323
P. 2d 1020).
Respondent's only contention throughout, has been that she should
not be deported because her crime was not serious. The answer to
this argument, however, is that if the judge had not found her crime
serious he had the alternative under the statute of placing her on
probation instead of sentencing her to confinement, which would have
been an act of clemency rather than punishment (see 18 Stan. LR 252
and 340), but he did not so exercise his discretion. In any event, this
Board is bound by the record of the respondent's conviction, as hereinbefore discussed.
Finally, under the foregoing circumstances the respondent just is not
eligible for discretionary relief in any form. Deportation, therefore,
is required.
ORDER! It is ordered that the Service appeal be and the same is

hereby sustained.
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It is ivirth,er ordered that the alien be deported from the United
States to Canada, alternatively to England, on the charge stated in the
order to show cause as well as on the charge lodged at the hearing.

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Interim Decision #4000

Matter of H-Y-Z-, Respondent
Decided November 13, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Absent a showing of prejudice on account of ineffective assistance of counsel, or a
showing that clearly undermines the validity and finality of the finding, it is inappropriate
for the Board to favorably exercise our discretion to reopen a case and vacate an
Immigration Judge’s frivolousness finding.
FOR RESPONDENT: Jan Potemkin, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Gregory Mayer, Assistant
Chief Counsel
BEFORE: Board Panel: KELLY, COUCH, Appellate Immigration Judges; PEPPER,
Temporary Appellate Immigration Judge
COUCH, Appellate Immigration Judge:

In a decision dated June 28, 2004, an Immigration Judge denied the
respondent’s applications for asylum and related relief and ordered her
removed from the United States. 1 We dismissed the respondent’s appeal on
October 27, 2005, and we denied her motion to reconsider our decision and
reopen the proceedings on December 22, 2005. The respondent filed a
second motion to reopen on November 12, 2019. The motion will be denied.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of the People’s Republic of China.
In proceedings before the Immigration Judge, she conceded that she is
removable, and she applied for relief from removal. The Immigration Judge
found that the respondent’s testimony was not credible and, after advising
her of the adverse consequences of knowingly filing a frivolous asylum
1

The respondent also applied for withholding of removal and requested protection under
the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N.
GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,
1987; for the United States Apr. 18, 1988).

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application, determined that “material elements” of her claim were
“deliberately fabricated,” as required for a frivolousness finding under
8 C.F.R. § 1208.20 (2004). 2
The respondent’s first attorney who represented her at trial timely
appealed that ruling, alleging as one of the four reasons for the appeal that
the “Immigration Judge erred in finding the Respondent’s application to be
frivolous as it was not fabricated.” The respondent’s second counsel
prepared and filed the respondent’s appellate brief, which did not address the
frivolous application finding. We dismissed the respondent’s appeal, and
specifically affirmed the Immigration Judge’s determinations that she lacked
credibility and submitted a frivolous application for asylum.
A third counsel filed a petition for review of our decision, which the
United States Court of Appeals for the Third Circuit denied on December 18,
2006. 3 Zhou v. Att’y Gen. of U.S., 206 F. App’x 237, 239 (3d Cir. 2006).
Quoting the Immigration Judge’s finding that the respondent’s asylum
application was frivolous, the court concluded that there was “no basis to
reject the findings of either the [Immigration Judge] or the [Board].” Id.
On November 28, 2005, while the respondent’s petition for review was
pending, the same attorney also filed a motion to reconsider our decision and
reopen the removal proceedings based on an alleged mistranslation of a
foreign document that was previously submitted and considered as evidence
by the Immigration Judge. We denied the motion, which was not appealed.
We now address the respondent’s second motion to reopen, filed by her
fourth attorney 14 years after we dismissed her appeal and denied her motion,
which seeks to vacate the Immigration Judge’s finding that she knowingly
filed a frivolous asylum application in an effort to overcome the statutory bar
2

The Immigration Judge appropriately based his findings on the respondent’s lack of
credibility and poor demeanor while testifying within the context of other contradictory
evidence in the record. See Matter of Y-L-, 24 I&N Dec. 151, 155 (BIA 2007) (recognizing
that “the serious consequences of a frivolousness finding” require Immigration Judges to
afford asylum applicants certain procedural safeguards under the regulation); see also
Matter of B-Y-, 25 I&N Dec. 236, 240 (BIA 2010) (“[W]hile some incorporation by
reference from the adverse credibility findings and analysis is permissible, the Immigration
Judge’s frivolousness determination should separately address the respondent’s
explanations in the context of how they may have a bearing on the materiality and
deliberateness requirements unique to that determination.”).
3
The respondent has made no reference in her current motion to the fact that our 2005
decision was later affirmed by the Third Circuit. Although a supplemental filing made a
passing reference to the denial of her petition for review, her current counsel has not
provided the official citation to the case. Counsel is admonished that a moving party “shall
state whether the validity of the . . . removal order has been or is the subject of any judicial
proceeding and, if so, the nature and date thereof, the court in which such proceeding took
place or is pending, and its result or status.” 8 C.F.R. § 1003.2(e) (2020) (emphasis added).

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Interim Decision #4000

to benefits in section 208(d)(6) of the Immigration and Nationality Act,
8 U.S.C. § 1158(d)(6) (2018). She also seeks reopening based on the fact
that on January 27, 2014, her husband filed a petition to accord her derivative
status as a U nonimmigrant under section 101(a)(15)(U) of the Act, 8 U.S.C.
§ 1101(a)(15)(U) (2012). 4

II. ANALYSIS
The Board may at any time reopen or reconsider on its own motion any
case in which it has rendered a decision. See 8 C.F.R. § 1003.2(a) (2020).
In order to sustain his or her burden on a motion to reopen, an alien must
establish that the ultimate relief they seek would be merited as a matter of
discretion. See Matter of Coelho, 20 I&N Dec. 464, 472 (BIA 1992).
Motions to reopen are disfavored and strict limits are enforced in removal
proceedings where every delay works to the advantage of an alien illegally
residing in the United States who wishes to remain. INS v. Doherty, 502 U.S.
314, 323 (1992); INS v. Abudu, 485 U.S. 94, 107 (1988); Xu Yong Lu
v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001); Matter of S-Y-G-, 24 I&N Dec.
247, 252 (BIA 2007). The respondent has the heavy burden of demonstrating
that the “new evidence offered would likely change the result in the case.”
Matter of S-Y-G-, 24 I&N Dec. at 251 (quoting Matter of Coelho, 20 I&N
Dec. at 473).
There are three principal grounds on which an Immigration Judge or the
Board may deny a motion to reopen immigration proceedings: (1) the
movant has failed to establish a prima facie case for the relief sought, (2) the
movant has failed to introduce previously unavailable material evidence that
justified reopening, or (3) in cases in which the ultimate grant of relief being
sought is discretionary, the Board can pass by the first two bases for denial
and determine that even if they were met, the movant would not be entitled
to the discretionary grant of relief.5 Filja v. Gonzales, 447 F.3d 241, 255 (3d
Cir. 2006) (citations omitted).
4

The only relief the respondent seeks relates to her derivative status claim, so we need
not address the effect of the section 208(d)(6) bar on a claim to withholding of removal
under the Act or the Convention Against Torture. See 8 C.F.R. § 1208.20 (“[A] finding
that an alien filed a frivolous asylum application shall not preclude the alien from seeking
withholding of removal.”).
5
A request to reopen or reconsider any case in which a decision has been made by the
Board, which request is made by the Service, or by the party affected by the decision, must
be in the form of a written motion to the Board. See 8 C.F.R. § 1003.2(a). With limited
exceptions, a motion to reopen must be filed within 90 days of the date of entry of a final
administrative order of deportation or removal. See section 240(c)(7)(C)(i) of the Act,
8 U.S.C. § 1229a(c)(7)(C)(i) (2018); 8 C.F.R. § 1003.2(c)(2). Absent certain exceptions

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In her motion to reopen, the respondent requests we vacate the
Immigration Judge’s determination that she knowingly filed a frivolous
application for asylum, so she may overcome the statutory bar precluding her
from receiving any immigration benefit under section 208(d)(6) of the Act.
Through counsel, the respondent contends that the Immigration Judge
habitually made erroneous frivolousness findings in asylum cases like hers,
which she was unable to overcome on appeal due to her second attorney’s
ineffective assistance of counsel in the preparation and filing of her appellate
brief. Cham v. Att’y Gen. of U.S., 445 F.3d 683 (3d Cir. 2006).
A claim of ineffective assistance of counsel, if properly established, may
constitute proper grounds for reopening removal proceedings. Xu Yong Lu,
259 F.3d at 131–32. In the case of untimely motions to reopen, ineffective
assistance of counsel can serve as the basis for equitable tolling of the time
limit for filing only if it is substantiated and accompanied by a showing of
due diligence. Alzaarir v. Att’y Gen. of U.S., 639 F.3d 86, 90 (3d Cir. 2011)
(per curiam) (citing Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.
2005)). The Board’s “sua sponte” authority to reopen or reconsider cases is
limited to exceptional circumstances and is not meant to cure filing defects
or circumvent the regulations. Chehazeh v. Att’y Gen. of U.S., 666 F.3d. 118,
140 (3d Cir. 2012) (citing Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997)).
A.
A finding that an application for asylum is frivolous, “unlike a
determination in regard to eligibility for [other] form[s] of relief . . . , is a
preemptive determination which, once made, forever bars an alien from any
benefit under [section 208(d)(6) of] the Act.” Matter of Y-L-, 24 I&N Dec.
151, 157 (BIA 2007). We appreciate the severity of the consequences
accompanying a finding of frivolousness, which has been described as a
“death sentence” for an asylum-seeker’s hopes of securing permanent, lawful
residence in the United States. Luciana v. Att’y Gen. of U.S., 502 F.3d 273,
278 (3d Cir. 2007) (citation omitted). And as the Attorney General
emphasized when 8 C.F.R. § 1208.20 was promulgated in 1997, the
regulatory standards for the frivolousness finding were formulated “with the
severity of the consequences in mind.” Matter of Y-L-, 24 I&N Dec. at 158
(citation omitted).
“The bar on relief due to the filing of a frivolous asylum application
becomes ‘effective as of the date of a final determination on such
application.’” Ribas v. Mukasey, 545 F.3d 922, 931 (10th Cir. 2008) (quoting
not applicable to this case, section 240(c)(7)(A) of the Act limits an alien ordered removed
to filing only one motion to reopen. See Luntungan v. Att’y Gen. of U.S., 449 F.3d 551,
557 (3d Cir. 2006).

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section 208(d)(6) of the Act). Therefore, the subsequent filing of a motion
to reopen, even one that challenges a frivolousness finding, has no effect on
the statutory bar to immigration benefits. Id. (holding that a frivolousness
finding was final despite the Board’s erroneous grant of a motion to reopen
that did not address that finding). This is consistent with the regulation
regarding motions to reopen before the Immigration Judge at 8 C.F.R.
§ 1003.23(b)(4)(i) (2020), which states that if an “asylum application was
denied based upon a finding that it was frivolous, then the alien is ineligible
to file either a motion to reopen or reconsider”). Because the respondent’s
frivolousness finding was upheld by the Board and the Third Circuit, it is
final, and section 208(d)(6) of the Act renders her ineligible for any relief.
Absent a showing of prejudice on account of ineffective assistance of
counsel, or a showing that clearly undermines the validity and finality of the
finding, it is inappropriate for the Board to favorably exercise our discretion
to reopen a case and vacate an Immigration Judge’s frivolousness finding.
Otherwise, cases could be reopened for the sole purpose of avoiding the
adverse consequences of the statutory bar to any immigration benefit
imposed by the Act. Indeed, without such prejudice, to allow an asylum
applicant to relitigate a finding of frivolousness “would undermine both the
plain language of, and the policy behind, section 208(d)(6)—as well as the
potency of the required warnings.” Matter of X-Y-C-, 25 I&N Dec. 322,
325–26 (BIA 2010). An alien, such as the respondent, who filed a frivolous
application as determined by an Immigration Judge “could escape the
consequences deliberately chosen by Congress to prevent such abuse of the
system” if we permit her to later relitigate the issues which led to those
consequences simply because she may be eligible for legal status through
some alternate means. Id. at 326; see also Matter of G-D-, 22 I&N Dec.
1132, 1135–36 (BIA 1999) (“Engaging in such a readjudication would be
tantamount to granting reconsideration, with its concomitant expenditure of
adjudicatory resources, even if we were ultimately to determine that the new
precedent did not alter the outcome.”).
Applying section 208(d)(6) of the Act to this case, the Immigration
Judge’s frivolousness finding became final on October 27, 2005, when we
dismissed the respondent’s appeal of his decision. 8 C.F.R. § 1208.20. The
consequences of this finding should have been apparent to the respondent at
the time because she was advised of them during the conduct of her removal
proceedings, and through a warning printed on the asylum application (Form
I-589) she signed under oath. Thus, the respondent had both constructive
and actual notice that she was statutorily barred from receiving any
immigration benefit at the time her husband filed a Petition for Qualifying
Family Member of U-1 Recipient (Form I-918, Supplement A) on January
27, 2014. The respondent therefore fails to establish prima facie eligibility
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for U nonimmigrant status under section 101(a)(15)(U) of the Act, because
at the time her husband filed his petition, the respondent was subject to a
statutory bar from such relief based on her previous filing of a frivolous
asylum application. See Tchuinga v. Gonzales, 454 F.3d 54, 60 (1st Cir.
2006) (citing 8 U.S.C. § 1158(d)(6)).
B.
The respondent’s motion does not demonstrate an exceptional situation
that would warrant the exercise of our discretionary authority to reopen her
proceedings. See Sang Goo Park v. Att’y Gen. of U.S., 846 F.3d 645, 650
(3d Cir. 2017) (citing 8 C.F.R. § 1003.2(a)). In this case, the respondent
seeks to reopen her proceedings based on equities that were acquired while
she remained illegally in the United States after being ordered removed.
Equities established in this manner generally do not constitute such truly
exceptional circumstances as to warrant discretionary reopening. See Matter
of J-J-, 21 I&N Dec. at 984 (citing former 8 C.F.R. § 3.2(a) (1997)).
Nor do we consider the respondent’s claim of ineffective assistance of
counsel to be a valid basis to reopen her removal proceedings and vacate the
frivolousness finding. See 8 C.F.R. § 1003.2(a). Based upon the record
presented, we are not persuaded that the filing deadline should be equitably
tolled because the respondent was prejudiced by the ineffective assistance of
her second counsel resulting from the appellate brief he filed in 2005.
Although the respondent has substantially complied with the procedural
requirements for a claim of ineffective assistance of counsel as outlined in
Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988), she did not establish
that the deficiency in the appellate brief filed was prejudicial to her case. Id.
at 640; see also Fadiga v. Att’y Gen. of U.S., 488 F.3d 142, 155 (3d Cir.
2007). The respondent’s previous counsel had already explicitly disputed
the frivolousness finding on her Notice of Appeal (Form EOIR-26).
Contrary to the respondent’s contention, this Board considered both the
adverse credibility and frivolousness findings on the merits. Moreover, a
third counsel filed a timely motion to reconsider, which again set forth
numerous arguments contesting the adverse credibility finding, but the
motion was denied.
On these facts, we find no reasonable likelihood that the outcome of the
respondent’s proceedings would have been different if counsel had
challenged the frivolousness finding in the appellate brief he prepared and
filed for the respondent. See Gui Ying Chen v. Att’y Gen. of U.S., 488
F. App’x 607, 609–10 & n.2 (3d Cir. 2012) (per curiam) (rejecting the alien’s
assertion that the outcome of her asylum claim would have been different but
for counsel’s ineffective assistance in failing to expressly address a
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frivolousness finding on appeal); see also Zheng v. Gonzales, 422 F.3d 98,
107 & n.6 (3d Cir. 2005) (holding that counsel’s failure to file a brief was
not prejudicial because the alien’s motion to reopen showed no reason to
believe that the denial of asylum might otherwise have been reversed).
Therefore, no prejudice has been established. Matter of Lozada, 19 I&N
Dec. at 638-–39; cf. Huai Cao v. Att’y Gen. of U.S., 421 F. App’x 218,
220–21 (3d Cir. 2011) (finding prejudice from ineffective assistance of
counsel for failure to expressly challenge a frivolousness finding on appeal).
Despite the various efforts of the three attorneys who represented the
respondent, she has also not explained why she apparently made no inquiries
regarding the frivolousness finding or took any steps to contest it between
the years 2005 and 2019. This inaction for the nearly 14-year period between
our administratively final order and the filing of her current motion
demonstrates a lack of due diligence. Alzaarir, 639 F.3d at 91.
Even assuming that the time and number bars may be equitably tolled,
the Third Circuit has declined to apply that remedy in the absence of some
unfairness surrounding a previous motion to reopen, because if an alien was
provided “a fair chance to be heard,” there is no equitable reason to permit
another motion. Luntungan v. Att’y Gen. of U.S., 449 F.3d 551, 557–58 (3d
Cir. 2006) (per curiam). Since the respondent’s first motion to reopen gave
her a fair opportunity to allege any impropriety in regard to her application
for asylum, we are unpersuaded that the time and number bars should be
equitably tolled based on her claim of ineffective assistance of counsel.

III. CONCLUSION
For the reasons set forth above, we conclude that the respondent is
ineligible for any immigration benefit under section 208(d)(6) of the Act.
The respondent has not made a persuasive claim for ineffective assistance of
counsel that constitutes exceptional circumstances which clearly undermines
the validity or finality of the Immigration Judge’s frivolousness finding. We
therefore decline to exercise our discretionary authority to reopen these
proceedings as the respondent has not demonstrated prima facie eligibility
for the relief sought. Filja, 447 F.3d at 255 (citing Doherty, 502 U.S. at 323,
and Abudu, 485 U.S. at 105) (other citations omitted). Accordingly, the
respondent’s motion to reopen will be denied.
ORDER: The motion to reopen is denied.
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 Department of Homeland
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Security, 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).

163


Interim Decision #2372

MATTER OF GHUNAIM

In Deportation Proceedings
A-17650517

,Decided by Board April 17, 1975
Respondent was charged With the crime of murder in the first degree under 29 Ohio
Revised Code Annotated 2901.01 (1954). He pleaded guilty to a charge of Manslaughter First Degree, 29 Ohio Revised Code Annotated 2901.06 (1954), and was sentenced
to serve not less than one nor more than twenty years in the Ohio State Reformatory.
This manslaughter statute applies to both voluntary and involuntary manslaughter. In
order to determine whether a crime involving moral turpitude has been committed under
this statute, the conviction record must be analyzed. Here, respondent was indicted for
murder, a voluntary crime. Examination of the conviction record leads to the conclusion
that tho respondent's conviction was for voluntary manslaughter, a crime involving
moral turpitude. Since respondent was admitted to the United States in 1966, and
convicted of this crime involving moral turpitude in 1968, he was deportable under
section 241(a)(4) of the Immigration and Nationality Act.
CHARGE:
Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4))—Convicted of a crime involving moral turpitude committed within five years after entry and
sentenced to a year or more, to wit: manslaughter, first degree.
ON

BEHALF OF RESPONDENT:' Pro se

This is an appeal from the June 30, 1970 decision of the immigration
judge in which he found the respondent deportable as charged, denied
the respondent's application for temporary withholding of deportation
under section 243(h) of the Immigration and Nationality Act, found him
ineligible for any discretionary relief, and ordered his deportation. We
agree with the immigration judge, and shall dismiss the appeal.
The alien respondent, a native and citizen of Jordan, last entered the
United States on November 12, 1966. In the state of Ohio he was
indicted for murder in the first degree under 29 Ohio Revised Code
Annotated section 2901.01(1954). 3 The indictment stated that on September 4, 1968 he "unlawfully, purposely and of deliberate and premediI No person shall purposely, and either of deliberate and premeditated malice, or by
means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery, or
burglary, kill another. . . .

269

Interim Decision #2372
tated malice killed [a person]." The respondent originally pleaded not
guilty to the offense charged in the indictment. Subsequently he retracted his former plea of not guilty and entered a plea of guilty to
Manslaughter First Degree, 29 Ohio Revised Code Annotated section
2901.06 (1954), a lesser included offense. He was sentenced to the Ohio
State Reformatory for an intermediate period, not less than one year
nor more than 20 years.

The respondent is charged with being deportable under section
241(a)(4) of the Act as an alien in the United States who has been
"convicted of a crime involving moral turpitude committed within five
years after entry and either sentenced to confinement or confined therefor in a pr.son or corrective' institution, for a year or more. . . ." The
only issue to be resolved in this case is whether the crime of which the
respondent was convicted is one involving moral turpitude. If there is a
guilty plea to a lesser crime than that charged in the indictment, moral
turpitude is assessed on the basis of the crime to which the alien pleaded
guilty. Valenti v. Karmuth, 1 F. Supp. 370 (N.D.N.Y. 1932); Matter of
V—T—, 2 I. & N. Dec. 213, 214-15 (BIA 1944).
The respondent in this case was convicted under 29 Ohio Revised
Code Annotated section 2901.06 (1954) of manslaughter in the first
degree. 2 Before the 1935 codification of the Ohio criminal law, manslaughter was defined as follows: "That if any person shall unlawfully kill
another wthout malice, either upon a sudden quarrel, or unintentionally while the slayer is in the commission of some unlawful act, every
such person shall be deemed guilty of manslaughter." It has been held
by the Ohio courts that the present manslaughter statute encompasses
the same offenses as did the crime of manslaughter at common law,
including both voluntary and involuntary manslaughter. Patrick v. Baldridge, 107 Ohio App. 331, 159 N.E.2d 461 (1958); State v. McDaniel,

103 Ohio App. 1963, 1967, 144 N.E.2d 683 (1956). Murder and voluntary
manslaughter are crimes involving moral turpitude; involuntary manslaughter is not. Matter of Lopez, 13 I. & N. Dee. 725 (BIA 1971).
Because the Ohio statute includes both voluntary and involuntary
manslaughter, one of which involves moral turpitude and the other of

which does not, we must study the conviction record, i.e. the charge or
indictment, the plea, the judgment or verdict, and the sentence, to
determine under which aspect of the statute the respondent was convicted. Toper v. Miller, 87 F. Supp. 285, 287 (S.D.N.Y. 1949).
The indictment charged that the respondent "unlawfully, purposely
and of deliberate and premeditated malice killed [a person]." This is a
first degree murder charge. However, the respondent was not convicted
2 No person shall unlawfully kill another. Whoever violates this section. . . [exceptions
not relevant here] is guilty of manslaughter in the first degree, and shall be imprisoned not
less than one nor more than 20 years.

270

Interim Decision #2372
of first degree murder. He was convicted of first degree manslaughter, a
lesser included offense. Therefore, we must disregard those allegations
contained in the indictment which are pertinent only to the greater
crime but not to the lesser. Matter of Beato, 10 I. & N. Dec. '730, 732-3,
735 (S.I.O.; BIA 1964). See Matter of W—, 4 I. & N. Dec. 241, 245 (BIA
1951). The Ohio manslaughter statute -makes no mention of malice. It
simply states that manslaughter is the unlawful killing of another person, not amounting to murder. 29 Ohio Revised Code Ann. §2901.06
(1954), supra.
For the respondent to have been convicted of manslaughter in the
first degree, he had to have been convicted of unlawfully killing another,
either upon a sudden quarrel (voluntary), or unintentionally while in the
commission of some unlawful act (involuntary). State v. McDaniel,
supra. It is not alleged in the . indictment that the respondent was
involved in the commission of some unlawful act other than the unlawful
killing. It appears, then, that the conviction was not for involuntary
manslaughter, because a necessary element of that crime Was not alleged in the indictment. Id. The respondent was indicted for murder, a
voluntary act by definition. Both because it appears that he was not
convicted of involuntary manslaughter, and because he was indicted for
a voluntary crime, our examination of the conviction record leads us to

the conclusion that the respondent was convicted of voluntary manslaughter.
In Matter of S—, 2 I. & N. Dec. 559 (A.G. 1947), an Ohio case
involving the predecessor to section 2901.06, which was similar in wording and history to the statute here involved, the Attorney General found
that the convictions did involve voluntary manslaughter because the
original indictments, for second degree murder in that case, clearly
charged the alien with voluntary killing. Matter of Lopez, supra, is
distinguishable, although the Alaska statute involved there is virtually
identical to the one in the present ease, because the manslaughter
indictment in that case did not clearly charge that respondent with a
voluntary killing.
In sum, we find that the respondent's deportability as charged in the

order to show cause has been established by evidence which is clear,
convincing, and unequivocal. Moreover, we agree with the immigration
judge that the respondent is ineligible for discretionary relief and for
temporary withholding of deportation under section 243(h) for the reasons stated by the immigration judge in his excellent opinion. Accordingly, the following order will be entered.
ORDER: The appeal is dismissed.

271


Interim. Decision #1623

MAT= or Sairent
In Exclusion Proceedings
A-13471451
Decided by Board truly SS, 19Cd

Where an alien acquired commuter status in 1968 in connection with which she
was employed in her sister's restaurant; her commuter status was subsequently lost due to unemployment after the sale of the restaurant in 10et;
and she thereafter made numerous entries into the United States as a commuter, last applying for admission in such status on April 25, 1968, by presentation on each such occasion of her Form 1-151 and a false letter of
employment which showed that she was still employed in her sister's restaurant, such false letter of employment constitutes "other documentation"

which was procured by fraud or willful misrepresentation of a material
fact; therefore, she is inadmissible under section 212(a) (19) of the Immigration and Nationality Act.
Elcoguraram: Act of 1952—Section 212(a) (19) [8 U.S.O. 1182(a) (19)—Has
procured "other documentation," and seeks to
enter the 'United States by fraud or by willfully
misrepresenting a material fact.

The ease comes forward pursuant to certification by the special
inquiry officer of his order dated May 24, 1966 finding the applicant
excludable under the provisions of section 212(a) (19) of the Immigration and Nationality Act and ordering that she be excluded and
deported from the United States.
The special inquiry officer in a long and exhaustive opinion has
thoroughly discussed the evidence in the case. Briefly, the record
relates to a native and citizen of Canada, 48 years old, married,
female, who applied for admission to the -United States at Detroit,
Michigan on April 25, 1966 as a commuter. She had originally
been admitted for permanent residence on May 15, 1963 and soon
thereafter, in June, 1963, her status was adjusted to that of a commuter (Exhibit 3).
The evidence establishes that the applicant has not been employed
in the United States since May 1964 when her sister's restaurant,
738

Interim Decision #1623
where she had been employed, was sold. Since that time she has
on numerous occasions entered the United States as a commuter by
presentation of her Form I-151, Resident Alien Identification Card,
and a false letter of employment which showed that she was still
employed in her sister's restaurant. The last commuter stamp on
the false employment letter contained an expiration date of March
13, 1966 when she again sought admission as a commuter on April
25, 1966. In addition, the applicant, has on a number of occasions
subsequent to May 1964 obtained admission to the United States as
a -visitor upon presentation of her Canadian birth certificate. The
applicant has admitted that she has rubber stamped the restaurant
letterhead and has forged and presented. other such letterheads for
the purpose of keeping her commuter status current. She explained
she desired to conceal the fact that she had abandoned. her commuter
status for the reason that she expects to move to the United. Statesin a couple of years and had heard that if she surrendered her visa
she could not get it back.
A commuter who has been out of employment in the United States
for six months or more is deemed to have abandoned status as a
permanent resident of the United States and is not admissible without again qualifying for admission as a permanent resident? Thus,
the commuter, even though in possession of an 1-151, Resident Alien
Border Crossing Identification Card, is not entitled to the commuter status under such circumstanees. 2 The applicant's attempt to
qualify as a commuter upon the presentation of a fraudulent employment letter was material to her admission to the United States
and was used in order to facilitate her admission in the capacity
in which she sought to enter as a commuter? The fraudulent letter
of employment constituted "other document" which was procured by

fraud or wilful misrepresentation of a material fact? She is, therefore, inadmissible on the ground stated by the - special inquiry officer.
The applicant's alleged illness occurred, if at all, after she had lost
status as a commuter and was not a factor in the case. The order
of the special inquiry officer will be affirmed.
ORDER: It is ordered that the order of the special inquiry officer
dated May 24, 1966 be affirmed..
'Matter of M D g , of Si, 8 L & N. Dee. 200, 213.
' Matter of D 0 , 8 L & N. Dee. 519
▪Of Matter of
7 L &N.Dee. 488, 487.
4 Matter of 0— and B-0—, 9 I. & N. Dee. 488.
—

-

—

—

—

789


Interim Decision #2768

MATTER OF SUNOCO ENERGY DEVELOPMENT COMPANY
In Visa Petition Proceedings

A-21604541
Decided by Regional Commissioner January 9, 1979
(1) Petitioner sought classification of sixth-preference status for alien beneficiary on the
basis of "skilled worker" under section 203(a)(6) of the Immigration and Nationality

Act, 8 U.S.C. 1153(a)(6). The petition was accompanied by a labor certification issued
on the basis of a job offer for a mining engineer (coal) at the White River Shale
Project, Vernal, Utah. The qualifications of the beneficiary as a mining engineer were
not contested; however, the alien was not employed at the Verual, Utah, project but at
the petitioner's home office in Dallas, Texas. 20 C.F.R. 656.30(c)(2) qualifies a labor
certification as being valid only for the particular job opportunity and for the area of
intended employment stated on the application for the labor certification. Since the
beneficiary was not employed at the lueutiou stated on the application, the certificate
was invalid to support the petition for preference status.
(2) Absent a valid labor certification, section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. 1182(aX14), provides for exclusion of preference immigrant aliens
described in section 203(a)(6) of the Immigration and Nationality Act, 8 U.S.C.
1153(a)(6).
ON BEHALF OF PETITIONER Patrick F. McGowan, Esquire
1200 One Main Place
Dallas, Texas 75250

The petition was denied by the District Director, Dallas, Texas, and
is now considered on appeal.
The petitioner is a subsidiary of Sun Company, Inc., formerly Sun
Oil Company. They are engaged in the exploration and production of
new sources of energy.
The petition to classify preference status of alien on basis of profession or occupation was fried by the petitioner to accord the beneficiary
sixth-preference classification as a Mining Engineer (coal). The petition was filed on May 15, 1978, and was accompanied by a labor
certification issued on May 1, 1975, on the basis of a job offer which he
received as a Mining Engineer (coal) at White River Shale Project,
1315 W. Highway 40, Vernal, Utah 84078.
The beneficiary is a 48-year-old male, native and citizen of Wales,
9312

Interim Decision #2768
United Kingdom. His qualifications as a Mining Engineer (coal) have
not been contested.
The petition was denied by the District Director without prejudice
for lack of a valid labor certification.
Section. 212(a)(14), in part, requires a finding that there are not
sufficient workers available "... at the place where the alien is to
perform such skilled or unskilled labor, ...". The petitioner, on appeal,
argues that the job description on Form MA 7 50B did not specify that
-

-

the employee would work exclusively on this project.
20 C.F.R. 656.30(e)(2) states, in part, that a labor "... certification
involving a specific job offer is valid only for the particular job opportunity and for the area of intended employment stated on the application for Alien Employment Certification form."

Area of intended employment is limited by definition in 20 C.F.R.
656.50 as the area within normal commuting distance of the place
(address) of intended employment."
The regulations are clear. The validity of a labor certification is
limited to the particular job described in the job offer portion of the

labor certification. The beneficiary is not employed in that position nor
does he intend to be. The labor certification, therefore, is not valid. The
visa petition must be denied.
ORDER: It is ordered that the denial decision of the District
Director is affirmed, and the appeal is dismissed.

284


Interim Decision #1660

MATTES

or Itormitzr

In Visa, Petition Proceedings
A-14965713

Decided by District Director October 14, 196'e
Since a dietitian who has -a bachelor's degree with a major in foods and
nutrition and has completed a one-year dietetic iaternahlp program approved
by the American Dietetic Association, or has the equivalent of such education and training, is a member of the professions within the meaning of
section 101(a) (32) of the Immigration and Nationality Act, as amended
by P.L. 89 280, a visa petition is approved to accord bonofiefur7, a qmdified
-

dietitian who has a master of science degree with a major in foods and
nutrition, preference classification undeK section 203(a) (3) of the Act, as
amended.

Discussion: The petition was filed to accord the beneficiary a
third preference classification as a member of the professions based
upon her qualifications as a, dietitian. The beneficiary is a female,
single, native and citizen of the Philippines, age 46, presently residing in New Westminster, British Columbia, Canada.
The beneficiary received a bachelor of science degree in education
in November 1950 from Arellano University, Manila, Philippines,
and a master of science degree with a major in foods and nutrition
in June 1962 from the University of Connecticut, Storrs, Connect
cut. She has been employed as a therapeutic dietitian from September 1961 to March 1963 by St. Vincent's Hospital Bridgeport, Conneticut, and as a dietitian from October 1964 to date by St. Mary's
Hospital, New Westminster, British Columbia, Canada. She has
been an active member- of The American Dietetic Association since
June 1963. The beneficiary intends to engage in her profession in
the United States as a professional dietitian.
A certification pursuant to section 212(a) (14) of the Act, as
amended, has been issued by the Department of Labor.
Dietitians are listed among professional occupations under code
0-39.93 in the Dictionary of Occupational Titles, Volume II, second
869

Interim Decision #1660 .
edition, prepared by the -United.-States Department of Labor. In
the third edition of the above publication, dietitians are listed under
profeisional, technical, and managerial occupations, code 077.
Dietitians plan and supervise the preparation and serving of appetizing and nutritious meals to help people maintain and recover good.
health. Their work includes planning general menus and modified
diets that meet nutritional requirements for medical treatment,
supervisbag the personiel who prepare and serve the meals, managing purchases and accounts, and providing guidance on good. eating habits. They may also serve as instructors in the field of nutrition or take part in research projects concerned with the nutritional

needs of the aging, persons with chronic diseases, or space travelers.
The Occupational Outlook Handbook, 1900-67 edition, of the
United States Department of Labor, states that the minimum education requirement for dietitians is a bachelor's degree with a major
in foods and nutrition and that to qualify for professional recognition, The American Dietetic Association recommends completion of
a one-year dietetic internship program approved by the Association.,
or three years of experience, including two years under the supervision of a dietitian who is a member of the AssoCiation. Graduate

education is usually required for advancement to higher level positions in teaching, research, administrative didetics, or public health
nutrition.
in a pamphlet issued in January 1901 by The American Dietetic
Association, Chicago, Illinois, dealing with opportunities in dietetics,
it is stated that dietetics is a young and vigorous profeision and
there is oppoitunity for professional standing and advancement.
The remarks made by Dr_ John S_ Lundy of the Mayo Clinic,

Rochester, Minnesota, during the course of a speech presented before
the 1959 graduating class of dietetic interns of St. Mary's Hospital,'
Rochester, Minnesota, are contained in the April 1980 issue of the
"Journal of The American Dietetic Association". In this speech
he said that it has been established that dietetics is a profession and
-that his remarks would be concerned with education in preparation
for the profession of dietetics. He told. the membeA of this class
that the great need of their profession was for as many as possible
of them to continue their education in graduate studies. Dr. Lundy
indicated that of the 14,000 members of The American Dietetic
Association approximately 2,000 have the master's degree in nutrition
and 200 hold the degree of .cloctor of philosophy.
- It is concluded. that a. person who has. a bachelor's degree with a
major in foods and nutrition and has completed a one-year dietetic
870

Interim Decision *1660
internship program approved by The American. Dietetic Association
or a person who has the equivalent of such education and traini
is a member of the professions within the meaning of sections 101
(a) (32) and 203(a) (3) of the:Act, as mended. 'The applicant is
entitled to classification as a member of the professions by virtue of
her educational attainments.
ORDER: It is ordered that the petition. be approved and the
beneficiary accorded third preference under section 203(a) (3) of the
Immigration and Nationality Act, as amended.
Cf

871


Interim Decision #2674

MATTER OF SHEN
In Visa Petition Proceedings
A-21676973

Decided by Board October 4, 1978
(1)As a general rule, a visa petition submitted by a mother on behalf of a child, regardless
of the beneficiary's age, must be accompanied by • the birth certificate of the child
showing the name of the mother.
(2)Since birth certificates are nonexistent or unavailable in many countries, the Immigration and Naturalization Service may require secondary evidence in support of a visa
petition such as civil, church, or school records, and photographs, as well as proof of
unsuccessful efforts to obtain documentation.
(5) For persons born in Taiwan, an extract of honsehnld registration (showing the birth

date and the names of the parents of each household member) is an official record
comparable to a birth certificate for the purpose of establishing that the parties to a visa
petition proceeding are mother and child.
(I) Where the petitioner failed to submit a Taiwanese extract of household registration

respecting the birth of the child beneficiary but did submit supporting affidavits, a
divorce agreement, and a renunciation of guardianship, case remanded to allow petitioner reasonable opportunity to submit additional evidence such as the extract of
household registration or to explain its unavailability.
ON BEHALF

OF PETITIONER:

Richard D. Steel, Esquire
636 Public Ledger Building
Sixth & Chestnut Streets
Philadelphia, Pennsylvania 19106

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

The lawful permanent resident petitioner has appealed from the August 12, 1977, decision of the District Director denying a visa petition
filed on behalf of her alleged daughter under section 203(a)(2) of the
Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). The record will
be remanded.
The petitioner claims that the beneficiary was born to her and her
second husband, Chieh Jen Shen (whom she later divorced) on June 23,
1957, on Taiwan. The District Director denied the petition on the
.ground that the petitioner had failed to establish that the beneficiary
-

was her child. He noted that the petitioner had failed to list the ben-

eficiary on her application for an immigrant visa, Form FS-510, dated

■

612

Interim Decision #2674
February 3, 1976, when she was asked to identify her children under 21
years of age (Item 14). The District Director further noted that the
petitioner listed her status as widowed (Item 9) and listed her husband
as CM Cheng, deceased (Item 13) on the same application. In addition,
the District Director stated that the extracts of household registration
submitted for the petitioner's household did not list the beneficiary. He

concluded that inasmuch as the petitioner had presented only "a selfserving affidavit" to explain these discrepancies, the petition must be
denied.

The petitioner has submitted affidavits executed by her and by two of
her children by her first marriage attesting to the birth facts concerning
the beneficiary.' The affidavits of the children state that they were
present in the home when the beneficiary was born to the petitioner in
1957 on Taiwan.
In addition, the petitioner has submitted a photocopy (uncertified as
to its accuracy with the original) and certified translation of an "Agreement of Divorce" between her and her second husband (the alleged
father of the beneficiary), signed July 26, 1959, by both spouses in the
presence of two witnesses The agreement provides that Hsiao - Lei
Shen, their daughter, is to be broughtup by the mother until the father
is able to assume this responsibility and that the father agrees to pay
monthly support for the child. The petitioner has also submitted the
original of a document and certified translation entitled "Paper for
Renunciation of Guardianship," executed on .April 26, 1977, by the
beneficiary's father in which he renounces guardianship over her so that
she can go to the United States and live with her mother. Neither of
these documents bears an official or judicial seal or signature.
The petitioner contends, in essence, that the District Director
minimized the probative value of the documents submitted by her in
support of the petition and placed too much emphasis on the failure to
list the beneficiary on the petitioner's visa application and the
Taiwanese extract of household registration. She also maintains thatthe
Service should be estopped from denying the visa petition in view elan
assurance by a Service officer to her former attorney that "nothing
further would be required" in support of the petition.
The petitioner states that the failure of the beneficiary to appear en

the family registration indicates only that the beneficiary was not living
in the household at that time. She has submitted an affidavit executed
on August 26, 1977, by Reverend Clifford P.C. Liu (evidently her sonin-law) in support of this contention. Second, she claims that her failure
to list the beneficiary as her child on her application for an immigrant
All of the affidavits but one (June 29. 1977) were submitted subsequent to the District
Director's decision with counsers letter urging reconsideration of the District Director's
decision denying the visa petition.
613

Interim Decision #2674
visa was inadvertent and due in part to language difficulties because she
had thought that only minor children by her first husband were to be
listed. She also states that the immigrant visa application was filed out
by a travel agency and that she did not know everything that was in the
application. See affidavits of Lydia Tung Chi Cheng, dated June 29,
19'77, and August 29, 1977.
A petition submitted by a mother on behalf of a child, regardless of
the child's age, must be accompanied by the birth certificate of the child
showing the name of the mother. See 8 C.F.R. 204.2(c)(3). However, in
many foreign countries, contemporaneous records of birth are not available and a petitioner must rely on secondary evidence such as civil,
church, or school records, photographs, and other documentation to establish the claimed relationship. The Service may require proof of

unsuccessful efforts to obtain documents claimed to be unavailable as
well as the submission of additional evidence, including blood tests. See
8 C.F.R. 103.2(b)(1); see generally Matter of Lau, Interim Decision 2558
(BIA 1976); Matter of Ng, 12 I. Fz N. Dec. 27 (BIA 1966).
It appears that official birth certificates as defined by 8 C.F.R.
204.2(c)(3) are nonexistent on Taiwan. However, extracts of household
registration are maintained for each Chinese national (other than military personnel and transients). Among the information listed on the
household registration is the date of birth and the names of the parents
of each household member. See Vol. 9, Foreign Affairs Manual, Appendix B, "China (Taiwan)." Consequently, an extract of household regis-

tration, being an official document, would be comparable to the birth
certificate requirement contained in 8 C.F.R. 204.2(c)(3) for persons
born on Taiwan. See Service Operations Instruction 204.2.
It does not appear that the petitioner has endeavored to obtain the
most probative and reliable evidence to substantiate her claim that the
b eneficiary is her daughter. She has not submitted (or explained why it
is unavailable) an extract of household registration, either for her or her
former spouse's household, that does list the beneficiary. The doeumentmtion that she has submitted (the affidavits, the divorce agreement and

the renunciation of guardianship) do have some probative value and
cannot be dismissed merely self-serving. Unfortunately, the petitioner's failure to claim the beneficiary as her child in proceedirkgs to
obtain her own immigrant visa has created an adverse inference of a
fictitious claim that, in our opinion, has not been satisfactorily overcome.'
2 lf, as the petitioner maintains, a Chinese household registration lists only persons
otarrentiy living in a certain household, then it seems curious that the petitioner was still
lisated on the extract of household registration, dated August 27, 1976, when her immigrant visa indicates that she was admitted to the United States for permanent residence
on April 10, 1976. Also, the petitioner's explanations for the failure to list the beneficiary

614

Interim Decision #2674
At the same time, it appears that the District Director may not have
been apprised of all of the evidence that the petitioner has submitted.
First, counsel's letter of September 13, 1977, contends that the District
Director overlooked a "TAI Form 3155," executed by the petitioner on
March 3, 1976, allegedly referring to her second husband and the beneficiary. This document is not in the record before us and it is unclear
whether it was submitted with the instant petition or with the petitioner's own application for an immigrant visa. Second, since the District Director's decision denying the petition does not refer specifically
to either the "Agreement of Divorce" or to the "Renunciation of Guardianship," he may not have been aware of this evidence.
We have concluded that the record should be remanded to the District
Director for further proceedings consistent with the foregoing discussion. The petitioner should be afforded a reasonable opportunity to
submit additional evidence, such as an extract of household registration
listing the beneficiary, or explain why this evidence is unavailable. The
missing "TM Form 3155" should be located if possible. The District
Director should then render a new decision and serve it upon the
interested parties in accordance with Matter of Li Ganoza, Interim
Decision 2475 (BIA 1976) and Matter of To, 14 I. & N. Dec, 679 (BIA
1974). Accordingly, the appeal will be remanded.
ORDER: The record is remanded for further proceedings consistent
with the foregoing opinion and the entry of a new decision.

°al her immigrant visa application are not altogether convincing. She states that a travel
agency filled out this application yet the application itself reflects that her son assisted her
in filling out the form. Also, any language difficulty that created a misunderstanding
coonceming what child/en she was to list would not seem relevant since the vice application
form is printed in Chinese as well as English.

615


Interim Decision #1395

MATTER os MRAPATASHI

In VISA PETITION Proceedings

A-12508937
Decided by B oard September 14,1964
A marriage entered into in Colorado between first cousins, residents of Illinois,
is a valid marriage in Illinois since the evidence establishes the parties did
not go to Colorado with the primary intention of evading the Illinois statutes
prohibiting the marriage of first cousins and there is no evidence of a strong
public policy in the State of Illinois against such marriages which are valid
in the place where contracted, inasmuch as cohabitation between first cousins
is no longer a crime under Illinois statutes.

The case was originally before us on February 27, 1964 on appeal
from the order of the District Director, Chicago District, dated October 15, 1963, denying the visa petition for the reasons that the petitioner's marriage to the beneficiary is void under the Illinois Revised
Statues; Chapter 89, section 1 prohibits marriage between cousins of
the first degree and prohibited marriages are void if contracted in
another state under Chapter 89, section 19.
The petitioner, a native-born citizen of the United States, seeks nonquota status on behalf of the beneficiary, a native and citizen of Japan.
The prior marriage of the petitioner was terminated by a decree of
divorce on August 6, 1952. The beneficiary was not previously married. The parties were married on July 12, 1963 at Denver, Colorado.
The visa petition indicated that the parties are residents of the State
of Illinois and continue to reside in that state. The marriage certificate, showing the marriage of the parties at Denver, Colorado,
gives their address as Chicago, Illinois. The parties are cousins of
the first degree.
Marriage of cousins of the first degree, if contracted in Illinois by
residents of that state, is prohibited and such marriages are declared
to be incestuous and void under Illinois Revised Statutes, Chapter 89,
section.1. Marriage between first cousins is not prohibited under Article 9, section 40-9-4 of the Colorado Revised Statutes Annotated,
1953. Chapter 89, section 19 of the Illinois Revised Statutes sets forth

722

Interim Decision *1395
the Uniform Marriage Evasion Act which states that if any resident
of Illinois who continues to reside in Illinois and is prohibited from
contracting marriage in Illinois, goes into another state or country and
there contracts a marriage prohibited and declared void by the laws of
Illinois, such marriage shall be null and void for all purposes in Illinois with the same effect as though such prohibited marriage had been
entered into in Illinois.
In our prior order dated February 27, 1964 in. which we reviewed the
general question of validity of marriages incestuous under the law of
the place of domicile but not under the law of the place of celebration,
in view of 37 Opinions Attorney General 102 (1933), where the Attorney General found that the citizen petitioner did not go to Poland
with the intention of marrying his niece and therefore was not subject
to the prohibition of Virginia law; and in the light of the new criminal
code of Illinois of 1961, effective January 1, 1962, which in Chapter 38,
Illinois Revised Statutes, section 11-11 (supplanting previous section
375, Criminal Code 1874) no longer made cohabitation between first
cousins the crime of incest, the case was remanded for the purpose of
having sworn statements taken from the parties regarding their intention in going to Colorado to contract this marriage and to consider the

effect of section 11-11 of the Illinois Criminal Code of 1961.
Sworn statements were taken from the petitioner and the beneficiary
on April 9, 1964, before an immigration officer. The petitioner testified that he went to Colorado for his present employer to explore the
idea of possibly opening an office in Denver, Colorado ; that he knew
of the restriction against marriage of first cousins in the State of
Illinois; that he took the beneficiary with him on this trip to Denver,
Colorado; that they were married there; but that they did not go to the
State of Colorado necessarily to avoid the Illinois law but in connection with the business for his employer and that because it was an op-

portune time, they decided to get married. The wife likewise testified
that her husband had told her that his company's office' branch was
going to open in Denver, Colorado and that they might live there and
that they went to Colorado to live there and to get married; and although she had knowledge from her husband of the Illinois law prohibiting first cousin marriages, they did not go there specifically to
evade the law but inasmuch as they were there on business and for possible residence they decided to get married. The petitioner testified
that at the time he was staying with his father and that he had no

lease and if the arrangements about setting up the business in Denver,
Colorado had materialized, he could have arranged to have his father
send his things out to Colorado, where he had previously resided from
1943 to 1947. The petitioner testified that his work at the Illinois
office piled up to such an extent that his employer told him to come
723

Interim Decision #1395
back and take care of his business and to postpone going back to Denver, and that the proposition of opening a new office in Colorado .was
still an open one. The petitioner's employer was interviewed on
August 7, 1964, and stated that he sent the petitioner to Denver, Colorado during the month of July 1963 on business to make a survey to
expand the agency but he failed to follow through because he lost two
of his technical employees and it was more economical to bring the
petitioner back to fill the gap.
The evidence establishes that the petitioner and the beneficiary did
not go to. Colorado with the primary intention of evading the Illinois
statutes prohibiting marriage of cousins of the first degree, thus falling
with the purview of 37 Opinions Attorney General 102. Inasmuch as
the provisions of section 11 11 of Chapter 58, Illinois Revised Statutes
no longer make cohabitation between first cousins a crime, there is no
evidence of a strong public policy in the State of Illinois against such
marriages which are valid in the place where contracted. The order of
the District Director dated August 19, 1961, granting the petition will
be approved.
ORDER: It is ordered that the order of the District Director
dated August 19, 1961, approving the visa petition for nonquota status
on behalf of the beneficiary be and the same is hereby approved.
-

724


Interim Decision #2190

MATTER OF ASHREE, AHMED

AND

AHMED

In Visa Petition Proceedings
A-19357815
A-18943352
A-19759301
Decided by Board March 30, 1973
Legal adoption does not exist in the Arab Republic of Yemen nor in the Peoples'
Republic of Southern Yemen. Both Yemens apply Islamic law in matters
involving family status; adoption, as practiced in most Western societies, is
not recognized by Islamic law. Hence, relationships through claimed adoptions
in Yemen cannot be established by petitioners for visa petition purposes.
ON BEHALF OF PETITIONER& (1) Kenneth L. Cutipei, Esquire

778 Ellicott Square Bldg.
Buffalo, New York 14203
(2)Pro se
(3) Thomas Khederian, Esquire
7655 West Vernor Highway
Detroit, Michigan 48209

These three cases involve a common issue. In each of the first
two cases, there is before us an appeal from the District Director's
denial of a visa petition. In the third case, wherein we upheld the

District Director's denial of a visa petition by our previous decision
dated July 6, 1971, there is before us a motion to reopen to hear
new evidence. The three visa petitions are all on behalf of relatives
whose relationship depends upon an adoption in one of the Ydmens. We shall dismiss both appeals and deny the motion.
In the first case, the record relates to Abdo Yousuf Ashree, an
unmarried native and citizen of the Arab Republic of Yemen, who
was born on February 25, 1952. The second case relates to
Mohamed Salem-Abdallah Ahmed, an unmarried native and citizen of the Arab Republic of Yemen, who was born on March 24,
1932. The third case relates to Sulaiman Obadi Ahmed, an unmarried native and citizen of the Peoples' Republic of Southern
Yemen, who was born on September 15, 1952. All three are claimed
by the petitioners to be relatives by virtue of adoption in one of the
305

Interim Decision #Z199
Yemens. Documents in support of the claims of adoption were
submitted.
The Library of Congress, by a report dated March 9, 1973,
regarding these cases, has advised us that legal adoption does not
exist in the Arab Republic of Yemen or in the Peoples' Republic of
Southern Yemen. The report advises that both Yemens apply
Islamic law in matters involving family status. The report states:
Adoption in the sense in which it is understood by other nations today . . . is
not recognized by Islamic law.
ITlhere is nothing in Islamic law similar to adoption as practiced in most
western societies. It is not only not recognized in n Muslim society, but even if
practiced by Muslims it will not carry with it any rights, especially those of
inheritance.
An adopted son or daughter, of known descent, has no right to inherit from
his, or her, adoptive parents and their relatives. The filiation based on adoption
is neither recommended nor recognized by Islamic law. Such son or daughter is,
however, entitled to what may be given under a valid deed in gift or will.
. Islamic law, accordingly, does not recognize the validity of any mode of
filiation where the parentage of the person adopted is known to belong to a
person other than the adopting father, and an adopted child has no rights in the
estate of his or her adoptive parents.

In view of the fact that there is no system for legal adoption in
the two Yemens, the petitioners cannot establish that relationships by adoption arose there. All three petitions, accordingly,
were properly denied.
ORDER: The appeals are dismissed and the motion is denied.

306


Interim Decision #2816

MATTER OF FULGENCIO

In Deportation Proceedings
A-31363623
Decided by Board August 2A 1980

(1) Respondent, born in the Philippines in 1949, initially met the requirements for
acquisition of citizenship set forth in section 201(g) of the Nationality Act of 1940 by
virtue of his father's United. States citizenship and residence in the Philippines for 10
years prior to the respondent's birth.
(2) In the Ninth Circuit, a child is considered legitimated for immigration purposes if,
while the child was under the required age, his father performed acts in a foreign
country which would constitute legitimation under section 230 of the California Code,
and subsequently became domiciled in California. 8 crliski v. District Director, 620 F.2d
214 (9 Cir. 1980).
(3) Section 205 of the Nationality Act of 1940 requires that a child born out of wedlock
must be legitimated during his minority in order to acquire United States citizenship
under section 201(g). Since the respondent was legitimated as a child pursuant to the
laws of California, as a result of his father's acknowledgment of paternity and
domicile in California, the respondent was found to have acquired United States
citizenship.
(4) In order to retain United States citizenship under the provisos to section 201(g) of
the Nationality Act of 1940, a person must reside in the United States or its outlying

possessions for 5 years between the ages of 13 and 21, commencing his residence before
the age of 16. Since the Philippines gained its independence prior to the respondent's
birth and the respondent did not enter the United States before he was 16, he did not
qualify for retention of citizenship under section 201(g).

(5) Section 301(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1401(b),
which was made applicable to all persons born abroad subsequent to May 24, 1934,
provides that a child born abroad to a United States citizen and an alien will lose his
United States citizenship unless he comes to the United States prior to the age of 23
and is continuously present for 5 years between the ages of 14 and 28. Since the
respondent entered the United States at age 22 and resided in this country for more
than 5 years, he retained his United States citizenship pursuant to section 301(b), and
deportation proceedings were terminated for failure to prove alienage.
CHARGE

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under
ceo 212(a)(20) [8 U.S.C. 1182(a)(20)1 — no valid visa

Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under
sec. 203(a) [8 U.S.C. 1153(a)]—not of status specified in immigrant visa

471

Interim Decision #2816
ON BEHALF OF RESPONDENT:

James Michael Hoffman, Esquire
United States Catholic Conference
528 Market Street, Room 518
San Francisco, California 94104

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

In a decision dated January 12, 1979, the immigration judge deterthat the respondent was not a United States citizen and found
him deportable as charged.' He further found that the respondent was
not eligible for relief from deportation pursuant to section 241(f) of the
Immigration and Nationality Act, 8 U.S.C. 1251(f), but granted him the
privilege of voluntary departure in lieu of deportation. The respondent
has appealed from that decision. The appeal will be sustained.
The respondent is a native and citizen of the Philippines who was
born out of wedlock on July 31, 1949. The respondent entered this
country on April 15, 1972, as a' lawful permanent resident based on his
oatua as the unmarried son of a United. States citizen? It appears that
no attempt was made to establish his United States citizenship at that
time. At the deportation proceedings, however, the respondent denied
the allegation that he was an alien, claiming to be a United States
citizen by derivation through his father.
Since the respondent was born in 1949, he is subject to the provisions
of the Nationality Act of 1940.. We believe that the section of that Act
which is applicable in this case is 201(g), 8 U.S.C. 1151(g), which grants
United States citizenship at birth to:
mined

A person born outside the.United States and its outlying possessions of parents one of
whom is a citizen of the United States who, prior to the birth of such person, bets had
ten years' residence in the United States or one of its outlying possessions, at least five
of which were after attaining the age of sixteen years, the other being an alien:
Provided, That in order to retain such citizenship, the child must reside in the United
States or its outlying possessions for a period or periods totaling five years between
the ages of thirteen and twenty one.years: Provided further, That, if the child has not
taken up residence in the United States or its outlying possessions by the time he
reaches the age of sixteen years, or if he resides abroad for such a time that it becomes
impossible for him to complete the five years' residence in the United States or its

' We note that the second charge brought against the respondent alleged that he was
deportable under section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1), as an alien who was
excludable at entry because he was not of the status specified in his immigrant visa
according to section 203(a) of the Act, 8 U.S.C. 1153(a). Although a similar ground of
excludability was formerly included in the Act under section 211(a)(4), 8 U.S.C.
1181(a)(4), no such ground now exists. See Matter of C—, 8 I&N Dec. 665 (BIA 1960). In
light of our decision finding that the respondent is a United States citizen, this error in

the charge is inconsequential.
The record reflects that the respondent's father was naturalized as a United States
citizen on August 26, 1946, following his service in the United States military.
472

Interim Decision #2816
outlying possessions before reaching the age of twenty one years, his American
citizenship shall there upon cease....

The record indicates that the respondent's father, who lived in the
Philippines while it was an outlying possession of the United States,
meets the above-stated requirements for a United States citizen
parent whose child may derive United States citizenship. However,
since the respondent was born out of wedlock, section 205 relating to
illegitimate children is also pertinent to a determination regarding the
respondent's acquisition of United States citizenship. That section
provides as follows:
The provisions of section 201, subsections (c), (d), (e), and (g), and section 204,
subsections (a) and (b), hereof apply, as of the date of birth, to a child born out of
wedlock, provided the paternity is established during minority, by legitimation, or
adjudication of a competent court.

The respondent argued at the hearing that he was legitimated in
accordance with the requirements of section 205 by virtue of the fact
that his father acknowledged paternity and took the respondent into
his home in The Philippines, and subsequently moved to California,
which recognizes such extraterritorial acts as constituting legitimation under its laws. The immigration judge rejected this claim, finding
that the respondent was not legitimated during minority as required
by section 205 since his father only became domiciled in California
after the respondent reached the age of 21. Thus, the immigration
judge concluded that the respondent failed to establish that he had
acquired United States citizenship by birth. As authority for his
decision he cited Matter of Varian, 15 I&N Dec. 341 (BIA 1975), in
which we declined to recognize legitimation under the law of
California where that state had no connection with either the father or

the child when the legitimating acts took place. See also Matter of
Buenaventura, 16 I&N Dec. 456 (BIA 1977), overruling Matter of
Garcia, 12 I&N Dec. 628 (BLA, 1968).
The law ill effect in California at the time of the respondent's
claimed legitimation was section 230 of the California Civil Code.' That
statute provides as follows:
The father of an illegitimate child by publicly acknowledging it as his own, receiving it
as such, with the consent of his wife, if he is married, into his family, and otherwise
treating it as if it were a legitimate child, thereby adopts it as such; and the child is
thereupon deemed for all purposes legitimate from the time of its birth....

In a recent decision, the Ninth Circuit examined section 230 and its
interpretation under California law. Kaliski v. District Director, 620
F.2d 214 (9 Cir. 1980). The court discussed In re Lund's Estata, 26 Cal.
' Section 230 as repealed in 1975 when the Uniform Parentage Act was adopted. See
California Civil Code, section 7000.

473

Interim Decision #2816
2d 472, 159 P.2d 643 (1945), where the California Supreme Court
determined that legitimating acts occurring outside the state and
prior to the father's domicile there were sufficient to legitimate a child
under section 230. The Ninth Circuit adopted that viewpoint and held
that a child could be legitimated for immigration purposes if, while the
child was under the required age, his father performed acts in a
foreign country which would constitute legitimation under California
law, and subsequently became domiciled in that state. See Matter of

Garcia, supra. In doing so, the court rejected our conclusion in Matter
of Varian, supra.
Inasmuch as this case arises in the Ninth Circuit, we shall recognize
the respondent's legitimation under section 230 by virtue of his
father's acknowledgment of paternity while in the Philippines and his
domicile in California thereafter. Thus, we hold that the respondent
acquired United States citizenship under section 201(g) of the Nationality Act of 1940.
We must next determine whether the respondent has retained his
United States citizenship in accordance with the proviso of section
201(g) of the 1940 Act. That proviso sets forth the mandate that a child
must reside in the United States or its outlying possessions for 5 years
between the ages of 13 and 21 years in order to retain his citizenship,
which is forfeited if he does not take up residence in the United States
by the time he reaches the age of 16.
Inasmuch as the Philippines obtained independence from the United
States on July 4, 1946, it was no longer an outlying possession as of that
date. See 22 U.S.C. 1394. Therefore, since the respondent was born in
1949, his years of residence in that country will not satisfy the requirement of section 201(g). Furthermore, the respondent did not enter the
United States until 1972, when he was 22 years old. Thus, he cannot
qualify under the provisions of the 1940 Act for retention of
citizenship.
On June 27, 1952, however, a new law was enacted, effective
December 24, 1952, which changed the requirements for retention of
citizenship.' Under section 301(b) of the 1952 Act, a child born abroad
to a United States citizen and an alien would lose his citizenship unless
he came to the United States prior to the age of 23 and was continuously physically present in this country for 5 years between the ages of
14 and 28. Section 301(c) of that Act made the provisions of section
301(b) applicable to persons born abroad subsequent to May 24, 1934,

That provision was later amended by the Act of October 27, 1972, Pub. L. 92-584, 86
Slat. 1289, and again by the Act of October 10, 1978, Pub. L. 95432, 92 Stet. 1046, both of
which further liberalized the retention requirements. However, since the respondent
qualifies under the provisions of the 1952 Act, we need not discuss these amendments.
See section 301(d) of the 1972 Act.
474

Interim Decision If 2816
who were previously subject to the retention requirements of earlier
acts. See Lee You Fee v. Dulles, 236 F.2d 885 (7 Cir. 1956), reed on
confession of error, 355 U.S. 61 (1957); Matter of Navarrete, 12 I&N
nee. 138 (BIA 1967); Matter of S—, 8 I&N Dec. 221 (BIA 1958). Inasmuch as the respondent came to the United States at the age of 22 and
has remained here for more than 5 years, we conclude that his United
States citizenship was retained by virtue of his compliance with section 301(b) of the 1952 Act.
Accordingly, deportation proceedings against the respondent will be
terminated.
ORDER, The appeal is sustained, and the deportation proceedings
are terminated.

475


Interim Decision #1847

MAI lax OF Lm
In. Deportation Proceedings
A-11422036
Decided by Board December 13,1967 and March 7 ,1968
Respondent, who is deportable as one excludable at entry because not a nonquota immigrant as specified in her visa' as her petitioning spouse was not
then and has never been a citizen of the United States, does not come within
the purview of section 241(f) of the Immigration and Nationality Act, as
amended, since her entry was without fraud or misrepresentation on her part.*
011ARGE

Order: Act of 1952—Section 241 (a) (1) [8 U.S.O. 1251(a) (1)]—Excludable
at entry—not nonquota immigrant as specified in
visa—section 211(a) (3).
ON BEHALF OF SERVICE: Charles Gordon
General Counsel

Pursuant to section 3.1(c) of Title 8 U.S.C. the District Director
has certified to us the decision of the special inquiry officer dated
September 27, 1967, terminating the deportation proceedings against
respondent.
Respondent, a native and citizen of China, entered the United States
on June 26, 1958 at Honolulu, Hawaii, in possession of a noriquota
immigrant visa issued to her as the spouse of Lim Hong Fon, an

alleged citizen of the United States. It was later established that respondent's spouse was not then, and had never been, a citizen of the
United States, and that she, therefore, was never eligible for the nonquota status accorded her. The Government makes no claim that respondent was aware of this fact before 1966, or that she employed
fraud or misrepresentation in obtaining her visa. Respondent conceded the allegations in the order to show cause, and that she is deportable as charged.
Respondent's husband is also the subject of deportation proceedings.
He fast came to the United States in 1908, at the age of eight, claiming to be the son of Lim Heung, an alleged citizen of the United States

(the record shows the paper father's correct name to be Lew Foot Yin,
*See: Petition of Yuen. Lan Horn, 2:' P. Supp. 201 (II.S.D.C., N.Y., 1968), involving same issue.

671

Interim Decision #1847
but does not show whether he was ever a United States citizen), and
was admitted as the citizen son of a United States citizen. It is clear
that the husband knew, at all times, that he was not the blood son of
this man, whom he continued to claim as his father until the whole
family was involved in a confession in 1966. The husband made several
departures from and entries into the United States, on all such occasions travelling as a United States citizen, and is charged with
being deportable at the time of his last entry on May 1, 1956, for having
been excludable under section 212 (a) (20) as an immigrant not in
posesession of a visa. He, too, has conceded the truth of the allegations
in the order to show cause and that he is deportable as charged. There
are four blood children of the marriage between respondent and her
husband, all of whom entered the United States as the children of a
United States citizen; at the time of the special- inquiry officer's decision, at least one of them had succeeded in having his status adjusted
to that of a lawful permanent resident.
The hearings of respondent and her husband were joined_ At the
first, on September 27, 1966, both applied for suspension of deportation, and the hearing was closed without decision. A few days later,
the special inquiry officer, on his own motion, ordered the hearing reopened to permit the husband to apply for registry under section 249,
for which it appeared he might be eligible. There were two reopened
hearings, the last held on April 18, 1967, and on April 28, 1961 the
special inquiry officer rendered a decision finding the husband ineligible for registry, because of several breaks in the continuity of his residence (he first returned to China in 1914 and remained until 1911;
he resided in China for 12 years from 1926 to 1088, having sold all of
his belongings in the United States before his departure; he departed
for China again in 1946, after disposing of all his property here, and
remained away from the United States until 1950; there was a fourth
absence from October 1955 to May 1956). However, considering their
ages, their ties here, the difficulties that would result if they were deported, etc., he found both respondents eligible for suspension of
deportation under section 244(a) (1) and deserving of this remedy,
and granted it to both in the exercise of discretion. On May 8, 1967, the
trial attorney filed a notice of appeal on behalf of the Service.
On September 5, 1967, the Service withdrew its appeal, and on
September 27, 1967, the special inquiry officer rendered the instant
decision, terming it a "Decision * * * Upon Reconsideration." After
setting forth the factual background, the special inquiry officer summarized the provisions and applicability of section 241(f), citing
Immigration and Naturalization Service v. Errico, 385 U.S. 214, and
utter of Cordero-Santana, Int. Dec, No. 1694. He pointed out that
672

interim "mason 4p its4
the evidence established that respondent did not discover her husband's
alienage until some eight years after his entry. He nevertheless found
respondent to come within section 211 ( f) , stating :
• • • It would be absurd to ascribe to Congress an intent in enacting section
241(f) to save from deportation on alien who engaged in fraud in obtaining
an immigrant visa and entry to the United States and maintain the unity of
the family here in that case, but deny the same benefit to an alien who is innocent of any fraud in the procurement of documentation and entry and insist
on deportation and separation of the family in the latter case. No such preposterous interpretation can be permitted to defeat the plainly humanitarian purpose of furthering the well established Congressional policy of maintaining the
unity of American families. It must be and is concluded that the Innocent as
well as the fraudulent are entitled to the benefits of section 241(f).
Finding her to have been otherwise admissable at entry and to be the
parent of a lawful permanent resident alien, the special inquiry officer terminated deportation proceedings as to respondent.
As to respondent's husband, who four times entered the United
States under a false claim to United States citizenship, it was the
special inquiry officer's opinion that he too came within the forgiveness of section 241(f), citing a case similar on its facts and decided
by the Board in favor of the alien, Lee Fook Clvuey, file A-11409328,
June 2, 1967, but held decision in abeyance awaiting the outcome of
the Board's decision on a Government motion for reconsideration in
the Lee case.
On October 26, 1967, the District Director certified the matter to
the Board, "because this is a case of first impression." No position, by
brief or memorandum, is taken by .the Service, although it may be

noted that the memorandum of the trial attorney, dated September 5,
1967, withdrawing the Service appeal, shows agreement, in advance,
with the course taken by the special inquiry officer.
While we are in sympathy with the result sought by the special
inquiry officer, we must disagree with his interpretation of the law.
Anomalous as it may seem, section 241(f) is not available to the innocent, and by its specific terms applies only to those deportable under
the provisions of section 241,
• • • on the ground that they were excludable at the time of entry as aliens
who have sought to procure, or have procured visas or other documentation, or

entry into the United States by fraud or misrepresentation • • •.

Additionally, ineligibility for a quota status or for the status of the
visa, actually obtained, when bottomed upon the knowing misrepresentation or fraud, is forgiven by section 241(f) (cf. Imnigration and

Natteralization Service v. Enrico, Scott v. Immigration and Naturalcation Service, 385 U.S. 214). The same ineligibility, when based upon
innocent error or lack of knowledge, is not forgiven by any existing
673

Interim Decision #1847
provision of law. Admission of such persons, in the discretion of the
Attorney General, after it had been established that such inadmissibility was not known to, and could not have been ascertained by, them
in the exercise of due diligence prior to application for admission,
was formerly possible under section 211(c) and (d). Those provisions
were repealed to toto by Public Law 89-236, the Act of October 3,
1965.

Granting the strong Congressional intent, present throughout immigration and nationality legislation, of reuniting families and preventing their separation, we nevertheless find that the scope given to
section 241(f) by the special inquiry officer goes beyond the limits of
the statute as enacted. Extension to the innocent but ineligiible, cannot be accomplished by interpretation alone; it would require additional authorizing legislation.
For the reasons set forth above, the special inquiry officer's decision terminating proceedings cannot be sustained. The more feasible
and appropriate solution to the problem. presented is that reached
by the special inquiry officer in his decision of April 28, 1967, granting relief to the respondent through suspension of deportation. We
will, therefore, remand these proceedings to the special inquiry officer
for reinstatement of the earlier order, or for such other and/or further relief as the special inquiry officer may deem appropriate herein.
In view of the character of this case, and its interconnection with the
case of respondent's spouse we believe it advisable that they should
be presented to the Congress as a unit.
ORDER: It - is ordered that the decision of the special inquiry
officer, dated September 27, 1967 be and the same is hereby set aside.
If is further ordered that these proceedings be remanded to the
special inquiry officer for the puropses set forth above.
BEFORE THE BOARD

The question here presented is whether respondent, who is clearly
deportable as charged because the spouse who petitioned for her is
not and has never been a citizen of the United States, can come within
the provisions of section 241(f) although she has been guilty of no
fraud of any sort.
In our decision of December 13, 1967, we held that the specific
language of section 241(f) clearly setting forth that it is applicable
to persons deportable under the provisions& section 241,
• • • on the ground that they were excludable at the time of entry as aliens
who have sought to procure, or have procured visas or other documentation, or
entry into the United States by fraud or misrepresentation • • •

674

Interim Decision #1847
prevents its extension, by interpretation, to a situation such as respondent's, without amendatory legislation. We held that the scope
given to section 241(f) by the special inquiry officer, in terminating the
deportation proceedings against respondent (one of whose children
had achieved lawful permanent resident status), was broader than
authorized by the statute, and we reversed his order and remanded
the proceedings for reinstatement of the previous grant of suspension of deportation, or for such other and further relief as the special

inquiry officer might deem appropriate.
The Service now moves that the "Board order of December 13, 1967,
be withdrawn * * * and that the alien be granted an adjustment of
status under § 241(f)" It points out that while it has urged, and
will continue to urge, that Immigration and Naturalization Service
v. Errico, 385 U.S. 214, must be given a limited reading, in the instant
case respondent's entry was so permeated by the fraud of the husband
that it comes within the spirit of the statute. No case authority or
legislative history is cited in support of this position.

Despite numerous arguments before us to the contrary, we cannot
regard section 241(f) as a blanket mandatory waiver of deportability,
on whatever ground, for any alien who has the familial relationship
specified therein. Regardless of the equities in this case, respondent
does not come within its purview; the immigration laws do not permit
a finding against her of derivative deportability for fraud, such as is
advanced in the instant motion' Her case is of the type that was
formerly covered by section 211(e) and (d), permitting waiver
of excludability based on innocent mistake as to status or quota
chargeability, committeed by either the alien or a consular officer.
Those sections were repealed by the Act of October 3, 1965 (Public
Law 89-236). In the absence of such provisions, the relief of suspension of deportation, originally granted by the special inquiry officer,
was the appropriate, and so far as appears from the file, the only relief
from deportation available to respondent.
ORDER : It is ordered that the motion be denied.
'Pending decision by the Attorney General in the case of Lee Pock Oluttey,
File No. A-1140932S, it is not clear whether respondent's husband's own deportability for fraud in obtaining documents and admissions as a 'United States citizen
will bring him within the provisions of section 241 (f ).

675