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Matter of Bouchra AGOUR, Respondent
Decided May 18, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Adjustment of status constitutes an “admission” for purposes of determining an alien’s
eligibility to apply for a waiver under section 237(a)(1)(H) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(1)(H) (2012). Matter of Connelly, 19 I&N Dec. 156
(BIA 1984), distinguished.
FOR RESPONDENT: Henry Cruz, Esquire, Seattle, Washington
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Attorney

Eric Bakken, Senior

BEFORE: Board Panel: COLE and GREER, Board Members. Dissenting Opinion:
PAULEY, Board Member.
COLE, Board Member:

In a decision dated June 15, 2010, an Immigration Judge found the
respondent removable on her own admissions and ineligible to apply for a
waiver under section 237(a)(1)(H) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(1)(H) (2006).1 The respondent has appealed from that
decision. The appeal will be sustained and the record will be remanded to
the Immigration Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Morocco who was admitted to
the United States on a nonimmigrant visitor visa in 1999. In July 2001, she
married a United States citizen who then filed a visa petition on her behalf.
1

On August 14, 2014, the respondent filed a motion to remand proceedings based on a
purported change in the position taken by the Department of Homeland Security
(“DHS”). Although the DHS has withdrawn its opposition to the respondent’s statutory
eligibility for relief, it does so without explanation. Given briefed arguments to the
contrary and the need for uniformity, we continue to address and resolve the issue
whether an adjustment of status constitutes an admission for purposes of section
237(a)(1)(H) of the Act.

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In 2002, the respondent was granted conditional permanent resident status
pursuant to section 216(a) of the Act, 8 U.S.C. § 1186a(a) (2000).2 The
conditional basis of respondent’s permanent residence was removed in
2005 by the approval of a jointly filed Form I-751 (Petition to Remove
Conditions on Residence).
The Department of Homeland Security (“DHS”) filed a notice to appear
with the Immigration Court on September 5, 2008, charging the respondent
with being removable under section 237(a)(1)(A) of the Act,3 as an
alien who is inadmissible based on fraud or misrepresentation under
section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2006).4
This charge was based on allegations that the respondent procured her
adjustment of status by fraud or by willfully misrepresenting a material fact
when she married for the sole purpose of obtaining permanent residence
in the United States. The respondent was also charged under sections
237(a)(1)(A) and 212(a)(7)(A)(i)(I) of the Act for lacking a valid visa.5
On June 18, 2009, the DHS filed a Form I-261 (Additional Charges of
Inadmissibility/Deportability), withdrawing the section 212(a)(7)(A)(i)(I)
charge, withdrawing the general allegations related to marriage fraud, and
adding a new allegation that the respondent submitted a fraudulent lease
agreement in support of her Form I-751 petition in order to establish the
bona fides of her marriage. The respondent admitted this allegation,
conceded removability, and as relief from removal, sought a discretionary
waiver for fraud pursuant to section 237(a)(1)(H) of the Act.6 The
The respondent’s adjustment to the status of a lawful permanent resident on a
conditional basis was obtained through her marriage to a United States citizen.
Consequently, she became an alien “lawfully admitted for permanent residence,”
notwithstanding the conditions that remained. See Matter of Paek, 26 I&N Dec. 403
(BIA 2014).
3
Section 237(a)(1)(A) provides that “[a]ny alien who at the time of entry or adjustment
of status was within one or more classes of aliens inadmissible by the law existing at such
time is deportable.”
4
Section 212(a)(6)(C)(i) provides that “[a]ny alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to procure or has
procured) a visa, other documentation, or admission into the United States or other
benefit provided under this Act is inadmissible.”
5
Section 212(a)(7)(A)(i)(I) provides, in pertinent part, that “any immigrant at the time
of application for admission . . . who is not in possession of a valid unexpired immigrant
visa . . . is inadmissible.”
6
Section 237(a)(1)(H) of the Act provides, in pertinent part, as follows:
2

The provisions of this paragraph relating to the removal of aliens within the
United States on the ground that they were inadmissible at the time of admission as
aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the
discretion of the Attorney General, be waived for any alien . . . who—
(continued . . .)

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respondent argued that she was eligible for the waiver because any fraud
committed at the time of her adjustment of status was at the time of her
admission for permanent residence, she was otherwise admissible, and
denial of the waiver would result in hardship to her United States citizen
son.
The Immigration Judge did not consider the nature of the respondent’s
fraud associated with the submission of a fraudulent lease as it relates to
her adjustment to lawful permanent resident status because he concluded
that she was not statutorily eligible for the section 237(a)(1)(H) waiver.7
He found that the statute’s plain language regarding the “time of
admission” refers to the respondent’s initial entry into the United States as a
nonimmigrant in 1999. He relied on decisions issued by the Board in
Matter of Connelly, 19 I&N Dec. 156 (BIA 1984), and the United States
Court of Appeals for the Ninth Circuit in Khadjenouri v. INS, 460 F.2d 461
(9th Cir. 1972), interpreting the predecessor waiver to section 237(a)(1)(H)
and finding that it was limited to waiving fraud and misrepresentation
committed in connection with an alien’s entry into the United States, not
fraud in connection to the alien’s adjustment of status. The Immigration
Judge also relied on the Ninth Circuit’s decision in Shivaraman v. Ashcroft,
360 F.3d 1142 (9th Cir. 2004), which held that for purposes of removability
under section 237(a)(2)(A)(i)(I) of the Act,8 there can be only one “date of
admission,” which is the time of the alien’s original lawful entry.
The Immigration Judge examined the statutory language and other court
and Board cases finding that an adjustment of status constitutes
an admission. However, the Immigration Judge found that adjustment
of status is deemed an admission only to avoid “absurd results.”
_____________________________________

(i)(I) is the spouse, parent, son, or daughter of a citizen of the United States or
of an alien lawfully admitted to the United States for permanent residence; and
(II) was in possession of an immigrant visa or equivalent document and was
otherwise admissible to the United States at the time of such admission except
for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A)
of section 212(a) which were a direct result of that fraud or misrepresentation.
7

Because the respondent conceded the charge of removability and applied for the
waiver under section 237(a)(1)(H) of the Act, there is an issue whether her admission to
the factual allegation that she submitted a fraudulent lease with her Form I-751
adequately reflects that she committed fraud at the time of her adjustment of status.
Although we resolve the legal question of eligibility for the waiver, we leave it to the
Immigration Judge on remand to determine whether the respondent is statutorily eligible
for the waiver.
8
Section 237(a)(2)(A)(i)(I) of the Act provides for the removal of aliens convicted of a
crime involving moral turpitude “within five years . . . after the date of admission.”

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See Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134−35 (9th Cir. 2001)
(expressing disbelief that Congress “would create a loophole in the removal
laws” to benefit unlawful entrants who committed aggravated felonies);
Matter of Rodarte, 23 I&N Dec. 905, 908 (BIA 2006) (finding that the term
“seeks admission” in the recidivist ground of removal under section
212(a)(9)(B)(i)(II) includes adjustment of status because the Board did “not
believe that Congress intends the Immigration and Nationality Act to be
interpreted in a manner that would give aliens an incentive to enter the
United States illegally”); Matter of Rosas, 22 I&N Dec. 616 (BIA 1999)
(holding that adjustment of status was an “admission” for purposes of the
aggravated felony removal ground where the respondent had entered
unlawfully, because to interpret otherwise would render lawful entrants
removable and unlawful entrants not removable). The Immigration Judge
therefore concluded that the respondent was ineligible for a waiver under
section 237(a)(1)(H) of the Act because the fraud in question had no
connection to her 1999 entry with a visitor visa.
On appeal, the respondent does not contest her removability but
contends that the section 237(a)(1)(H) waiver applies to any fraud she
committed in the process of procuring lawful permanent resident status.
She argues that the definition of the term “admission” in section
101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2012), does not
address the scope of the term within the Act. The respondent cites to our
decisions holding that admission to the United States also includes the
process of adjustment of status. Specifically, she argues that the term
“admitted,” as defined in section 101(a)(13)(A), does not adequately cover
an alien who is lawfully admitted for permanent residence by adjustment of
status in the United States. She points to our description of “adjustment of
status” as a “procedural mechanism by which an alien is assimilated to the
position of one seeking to enter the United States.” Matter of Rainford,
20 I&N Dec. 598, 601 (BIA 1992).
Additionally, the respondent argues that section 101(a)(20) of the Act,
which defines the phrase “lawfully admitted for permanent residence,”
includes both an entry into the United States with an immigrant visa and an
adjustment of status in the United States. She finds further statutory
support in sections 245(a) and (b) of the Act, 8 U.S.C. §§ 1255(a) and (b)
(2012), which describe adjustment of status as an “admission” for
permanent residence and for allocation of an immigrant visa. Since the
237(a)(1)(H) waiver requires the alien to be in possession of an immigrant
visa or equivalent document at the time of admission, the respondent asserts
that her adjustment is equivalent to having an immigrant visa. She
therefore concludes that because adjustment of status has been recognized
as serving the same procedural function as an “admission” under the Act, a
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waiver under section 237(a)(1)(H) should be available whenever an alien
commits fraud in the adjustment of status process.

II. ISSUE
At issue in this case is whether a section 237(a)(1)(H) waiver for certain
fraud or misrepresentation at the time of admission is available to aliens
who commit fraud in the process of adjusting their status within the
United States. The respondent seeks to waive fraud that occurred after her
initial entry into the United States as a nonimmigrant. Therefore, the
question is whether an adjustment of status can be an admission for
purposes of the section 237(a)(1)(H) waiver.
We have not previously published a decision regarding whether a
section 237(a)(1)(H) waiver is available to aliens who adjust their status
within the United States. To our knowledge, nor has any other Federal
court of appeals, including the Ninth Circuit, in whose jurisdiction this case
arises.9 Our prior decisions discussing the section 237(a)(1)(H) waiver
involved aliens admitted to the United States with immigrant visas who
were then charged with being removable for fraud or misrepresentation in
that initial entry. See, e.g., Matter of Federiso, 24 I&N Dec. 661 (BIA
2008), overruled on other grounds, Federiso v. Holder, 605 F.3d 695 (9th
Cir. 2010); Matter of Fu, 23 I&N Dec. 985 (BIA 2006).
We conclude that an alien’s adjustment of status within the
United States constitutes an admission for purposes of the waiver at section
237(a)(1)(H) of the Act. The waiver is not limited only to those aliens who
engage in fraud or misrepresentation at the time of entry into the United
States with an immigrant visa. Therefore, an alien who commits fraud in
the course of adjusting status in the United States may waive removal under
section 237(a)(1)(A) of the Act as an alien who was inadmissible at the
time of adjustment of status based on fraud or misrepresentation.
III. ANALYSIS
With questions of statutory interpretation, we look first to the plain and
sensible meaning of the statute and give effect to that meaning when
possible. See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 340−41
9

The Ninth Circuit has acknowledged other cases in which it found adjustment of status
to be an admission. See Negrete-Ramirez v. Holder, 741 F.3d 1047, 1052 (9th Cir. 2014)
(citing Ocampo-Duran v. Ashcroft, 254 F.3d at 1134−35 (holding that adjustment
of status may serve as an admission for purposes of removability under section
237(a)(2)(A)(iii) of the Act)).

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(1997); Alvarado v. U.S. Att’y Gen., 610 F.3d 1311, 1315−16 (11th Cir.
2010); Matter of A-M-, 25 I&N Dec. 66, 74−75 (BIA 2009); see also Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986
(2005) (stating that in interpreting a statute, the first step is to determine
whether its plain terms address the question at issue); Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842−43 (1984). In
ascertaining the plain meaning of a statute, we consider the particular
statutory language at issue, the provision in the context of the whole statute
and relevant case law, and its legislative purpose and intent.
A. Statutory Framework
1. Section 101(a) of the Act
Because we do not derive statutory meaning in a vacuum, we find that
the language of section 101(a)(13)(A) of the Act alone controls in
ascertaining the meaning of the phrase “at the time of admission” as it is
used in section 237(a)(1)(H). The terms “admitted” and “admission”
appear in different contexts in the Act, including within section 101(a)(13)
itself.
Prior to 1996, section 101(a)(13) defined the term “entry” as the
“coming of an alien into the United States, from a foreign port or place or
from an outlying possession.” In 1996, that term was eliminated, and the
terms “admission” and “admitted” were first defined by section 301 of the
Illegal Immigration Reform and Immigrant Responsibility Act, Division C
of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-575 (“IIRIRA”), which
was entitled “Treating persons present in the United States without
authorization as not admitted.” See IIRIRA § 301(a), 110 Stat. at
3009-575. Aliens who have adjusted status in the United States are not
“persons present in the United States without authorization,” suggesting
that Congress did not intend for section 101(a)(13)(A) of the Act to
preclude a finding that aliens who adjust their status have been admitted.
The new terms were codified with three provisions in a new section
101(a)(13).10 The conference report for the IIRIRA states that in creating

10

Section 101(a)(13) of the Act now provides as follows:
(A) The terms “admission” and “admitted” mean, with respect to an alien, the
lawful entry of the alien into the United States after inspection and authorization by
an immigration officer.
(B) An alien who is paroled under section 212(d)(5) or permitted to land
temporarily as an alien crewman shall not be considered to have been admitted.
(continued . . .)

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section 101(a)(13)(A) of the Act, Congress was “replacing the definition of
‘entry’ with a definition for ‘admission’ and ‘admitted,’” rather than
providing the exclusive definition for those terms. H.R. Rep. No. 104-828,
at 207 (1996) (Conf. Rep.), 1996 WL 563320.11
Moreover, under section 101(a)(13)(B) of the Act, Congress specified
certain alien parolees and crewmen who may not be considered to have
been “admitted.” Because Congress did not include aliens who adjusted
their status while in the United States in section 101(a)(13)(B), this
provision does not preclude them from being deemed “admitted.”
Finally, section 101(a)(13)(C) of the Act states that an alien “lawfully
admitted for permanent residence” (as defined in section 101(a)(20) of the
Act) shall not be regarded as seeking an admission to the United States
unless certain criteria are met. This language also supports a finding that an
adjustment of status is a lawful admission.
Section 101(a)(20) of the Act defines the term “lawfully admitted for
permanent residence” as “the status of having been lawfully accorded the
privilege of residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having changed.”
By definition, this section would include both aliens who entered with
immigrant visas and those who adjusted subsequent to entry. Read together
with sections 101(a)(13)(B) and (C) of the Act, section 101(a)(20)
_____________________________________

(C) An alien lawfully admitted for permanent residence in the United States shall
not be regarded as seeking an admission into the United States for purposes of the
immigration laws unless the alien—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of
180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking
removal of the alien from the United States, including removal proceedings under
this Act and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2), unless since such
offense the alien has been granted relief under section 212(h) or 240A(a), or
(vi) is attempting to enter at a time or place other than as designated by
immigration officers or has not been admitted to the United States after
inspection and authorization by an immigration officer.
The term “admitted” was not defined under the former statutory scheme, but it did
appear in various sections of the Act. See, e.g., former sections 101(a)(20) (defining the
term “lawfully admitted for permanent residence”); 212(a) (describing classes of aliens to
being excluded from “admission”); 214(a)(1) (providing for the “admission” of
nonimmigrants); 245(a) (permitting adjustment of status to that of a person “admitted”
for lawful permanent residence) of the Act, 8 U.S.C. §§ 1101(a)(20); 1182(a); 1184(a)(1);
1255(a) (1994).
11

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necessarily provides that aliens who adjusted their status from within the
United States are not seeking “admission” but, rather, have already been
admitted.
Section 101(a)(16) of the Act defines the term “immigrant visa” as an
“immigrant visa required by this Act and properly issued by a consular
officer at his office outside of the United States to an eligible immigrant.”
An alien who adjusts status in the United States is not issued an immigrant
visa even though he or she must be eligible to receive one and have it
immediately available at the time the application for adjustment of status
is filed. See 8 C.F.R. § 1245.1(a) (2014). Additionally, the section
237(a)(1)(H) waiver is only available to lawful permanent residents who
possessed an “immigrant visa or equivalent document” at the time of the
fraud. Section 237(a)(1)(H)(i)(II) of the Act. We note that although an
immigrant visa is defined in the Act, the term “equivalent document” is not.
2. Section 245 of the Act
Section 245(a) of the Act gives the Attorney General discretion to adjust
the status of certain aliens to that of an alien admitted for lawful permanent
residence, provided that the alien is eligible for a visa and that one is
available. Section 245(b) provides that upon the approval of an application
for adjustment, the Attorney General shall record the alien’s lawful
admission for permanent residence as of the date that the application for
adjustment of status is approved. It further requires the Secretary of State
to reduce the number of available preference visas to correspond to the
number of adjustment of status applications granted by the Attorney
General under section 245(a) of the Act.
We agree with the respondent that section 245(b) treats adjustment of
status as substantially equivalent to an admission pursuant to an immigrant
visa, or a “lawful admission for permanent residence.” See section 245(b)
of the Act; Matter of Alyazji, 25 I&N Dec. 397, 399 (BIA 2011); 8 C.F.R.
§ 1.2 (2014) (defining “lawfully admitted for permanent residence”);
Matter of Rosas, 22 I&N Dec. at 619 (recognizing that other provisions of
the Act governing, for example, adjustment of status for refugees and
special agricultural workers confer the status of an alien “lawfully admitted
for permanent residence”).
3. Sections 237(a)(1)(A) and (H) of the Act
Section 237(a)(1) of the Act applies to an alien who is “[i]nadmissible
at time of entry or of adjustment of status or violates status.” (Emphasis
added.) Section 237(a)(1)(H) provides for a waiver of “[t]he provisions of
this paragraph relating to the removal of aliens within the United States on
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the ground that they were inadmissible at the time of admission,” which
includes the ground of deportability at section 237(a)(1)(A) of the Act.
(Emphasis added.) Clearly, the language of these two statutes is different,
in part because the waiver provision has changed substantially as a result of
various amendments to the Act.12
B. Legislative History of Section 237(a)(1) of the Act
1. Precursor Statutes to the Fraud Deportation Ground and Waiver
Former section 241(a)(1) of the Act, 8 U.S.C. § 1251(a)(1) (1952), was
parallel to the current section 237(a)(1)(A), in that it referred to classes of
aliens excludable by law at the time of entry, as provided in former section
212(a) of the Act, 8 U.S.C. § 1182(a) (1952). See Immigration and
Nationality Act, Pub. L. No. 82-414, § 241(a)(1), 66 Stat. 163, 204
(1952).13 In turn, section 212(a) generally referenced “classes of aliens
ineligible to receive visas and excluded from admission.” See 66 Stat. at
182 (emphasis added). Although the term “admission” was used in section
212(a) and other parts of the 1952 Act, the term was not then defined in the
statute.
In 1957, Congress created an exception from deportation under section
241(a)(1) for aliens who were “excludable at the time of entry” on account
of fraud or misrepresentation, as described in former section 212(a)(19)
of the Act.14 Act of Sept. 11, 1957, Pub. L. No. 85-316, § 7, 71 Stat. 639,
12

In comparing these sections, we do not suggest that section 237(a)(1)(A) of the Act is
the sole ground of deportability that may be waived under section 237(a)(1)(H) or that the
deportability charge under section 237(a)(1)(A) must be based on section 212(a)(6)(C)(i),
as the respondent’s was. See Matter of Fu, 23 I&N Dec. 985 (interpreting section
237(a)(1)(H) of the Act to authorize a waiver of deportability under section 237(a)(1)(A)
based on charges of inadmissibility at the time of entry under section 212(a)(7)(A)(i)(I)).
Compare Gourche v. Holder, 663 F.3d 882, 886−87 (7th Cir. 2011) (finding that the key
phrase in section 237(a)(1)(H) of the Act is “provisions of this paragraph,” which refers
only to grounds of deportability under section 237(a)(1)), with Vasquez v. Holder, 602
F.3d 1003, 1011 (9th Cir. 2010) (stating that “the fraud waiver provision does not limit its
coverage to the ground of removal contained in subparagraph 237(a)(1)(A)” of the Act).
13
Former section 241(a)(1) of the Act provided as follows:
Any alien in the United States (including an alien crewman) shall, upon the order
of the Attorney General, be deported who―
(1) at the time of entry was within one or more of the classes of aliens
excludable by the law existing at the time of such entry . . . .
14

Similar to current section 212(a)(6)(C)(i) of the Act, former section 212(a)(19)
provided for the exclusion of “[a]ny alien who seeks to procure, or has sought to procure,
(continued . . .)

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640−41.15 This “section 7” waiver was available to a qualifying alien who
was the spouse, parent, or child of a United States citizen or lawful
permanent resident. Id. Congress provided that such an alien would be
granted a visa and “admitted to the United States for permanent residence,”
if otherwise admissible, so long as the Attorney General consented to his
applying or reapplying for a visa and admission to the United States as a
matter of discretion. Id. The Supreme Court noted that the purpose of
section 7 was to unite families and preserve family ties in INS v. Errico,
385 U.S. 214, 219−20 (1966) (citing H.R. Rep. No. 85-1199, at 7 (1957),
reprinted in 1957 U.S.C.C.A.N. 2016, 2020, and S. Rep. No. 85-1057
(1957)).
In comparing the language of the deportability ground at former section
241(a)(1) of the Act and the section 7 exception, we note that the provisions
contained corresponding language providing that an alien was deportable if
he was “excludable . . . at the time of . . . entry” and that this deportation
ground was waivable for aliens who were “excludable at the time of entry”
on account of fraud or misrepresentation.
In 1961, Congress codified the fraud waiver provisions of section 7 at
former section 241(f) of the Act, 8 U.S.C. § 1251(f) (1964), but it did not
include the language regarding the Attorney General’s discretion. See Act
of Sept. 26, 1961, Pub. L. No. 87-301, § 16, 75 Stat. 650, 655−56.
Consequently, the fraud waiver was interpreted to be available to any
qualifying alien who used fraud to gain admission. In 1981, Congress
made clarifying amendments to former section 241(f) to address confusion
in Board and circuit court case law. These amendments (1) reinstated the
discretionary nature of the waiver; (2) provided that it related to fraud or
misrepresentation, “whether willful or innocent”; and (3) clarified that it
was only intended to apply to immigrants. See Immigration and Nationality
_____________________________________

or has procured a visa or other documentation, or seeks to enter the United States, by
fraud, or by willfully misrepresenting a material fact.”
15
The legislative history of the exception actually begins with the Displaced Persons Act
of 1948, Pub. L. No. 80-774, 62 Stat. 1009, which allowed for the admission of war
refugees from Communist countries. The Supreme Court noted that some of these
refugees misrepresented their nationality to avoid repatriation and in doing so became
inadmissible to the United States under section 10 of the Displaced Persons Act based on
their willful misrepresentations for the purpose of gaining admission. See 62 Stat. at
1013; INS v. Errico, 385 U.S. 214, 218 (1966). As a result, when the Act was enacted in
1952, committee conferees stated that it should not be interpreted to exclude or deport
bona fide refugees who made misrepresentations to gain admission. H.R. Rep. No.
82-1365, at 18, reprinted in 1952 U.S.C.C.A.N. 1653; see also INS v. Errico, 385 U.S. at
218−19. However, because section 10 was not so applied in practice, Congress created
the “section 7” waiver.

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Act Amendments of 1981, Pub. L. No. 97-116, § 8, 95 Stat. 1611, 1616; see
also H.R. Rep. No. 97-264, at 24−25 (1981), reprinted in 1981
U.S.C.C.A.N. 2577, 2593−94, 1981 WL 21317.
2. 1990 Amendments
In 1990, Congress amended the language of both the deportation ground
at former section 241(a)(1) of the Act and the waiver at former section
241(f). Immigration Act of 1990, § 602(a), Pub. L. No. 101-649, 104 Stat.
4978, 5077−79. First, Congress created new headings, including the
following for section 241(a)(1)(A): “(a) Classes of deportable aliens,”
“(1) Excludable at the time of entry or of adjustment of status or violates
status,” and “(A) Excludable aliens.” (Emphasis added.) In addition, the
text of section 241(a)(1)(A) provided for the deportability of an alien who
“at the time of entry or adjustment of status was within one or more of the
classes of aliens excludable by the law existing at such time.” (Emphasis
added.)
The waiver at former section 241(f) was repealed, and a new section
241(a)(1)(H) was added, entitled “Waiver authorized for certain
misrepresentations.” §§ 602(a), (b), 104 Stat. at 5079, 5081. The waiver
applied to “the deportation of aliens within the United States on the ground
that they were excludable at the time of entry as aliens described in section
212(a)(6)(C)(i)” of the Act. Furthermore, the text of the waiver was
amended to include eligibility for the sons and daughters of United States
citizens and lawful permanent residents, not just those who qualified as
their “children” under the Act. See section 101(b)(1) of the Act (defining
the term “child”).
Although the amendments expanded the ground of deportability for
aliens excludable based on fraud at the time of entry to include those who
were excludable at the time of their adjustment of status, the related fraud
waiver remained limited to aliens excludable “at the time of entry.” As a
result, after the Immigration Act of 1990, certain aliens found deportable
for being excludable at the time of entry as a result of fraud or
misrepresentation could seek a waiver under former section 241(a)(1)(H),
but similarly situated aliens whose fraud or misrepresentation at the time of
adjustment of status rendered them excludable could not.
3. 1996 IIRIRA Amendments
In 1996, Congress replaced the definition of the term “entry” at section
101(a)(13)(A) of the Act with the terms “admission” and “admitted.”
IIRIRA § 301(a), 110 Stat. at 3009-575. Congress also redesignated
section 241 as section 237 of the Act and amended the language of the
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removal grounds to apply to any alien “in and admitted to” the United
States who fell within one or more of the classes of deportable aliens.
IIRIRA § 301(d)(1), 110 Stat. at 3009-579. Consequently, the classes of
deportable aliens “in and admitted to” the United States under section
237(a) of the Act now includes those described at section 237(a)(1)(A), or
“inadmissible aliens” who “at the time of entry or adjustment of status”
were inadmissible by the law existing at such time. As a result, the plain
language of the Act explicitly recognizes that an alien who was
inadmissible at the time of adjustment is “in and admitted” to the
United States and removable for purposes of section 237(a) of the Act, just
like an alien “in and admitted” to the United States through entry on an
immigrant visa. See Matter of Rosas, 22 I&N Dec. at 621−23.
With regard to the section 237(a)(1)(H) waiver, its language was
modified through conforming amendments that struck the words
“excludable” and “entry” and replaced them with “inadmissible” and
“admission.” IIRIRA § 308(d)(2)(A), (f)(1)(M), 110 Stat. at 3009-617,
3009-621. Congress left the waiver provision within section 237(a)(1) of
the Act but did not modify the language of section 237(a)(1)(H) to conform
to the language of section 237(a)(1)(A), which included adjustment of
status. A tension therefore exists between these two provisions because an
alien remains removable for being inadmissible at the time of entry or
adjustment of status pursuant to section 237(a)(1) of the Act, but the waiver
covers only an alien’s inadmissibility at the time of admission. Given our
overall statutory interpretation and case law, however, this tension does not
preclude us from finding that aliens deportable for inadmissibility at the
time of adjustment of status are among the aliens who are “in and admitted”
to the United States and are therefore eligible for a section 237(a)(1)(H)
waiver.
C. Statutory Language and Relevant Case Law
The statutory language and relevant case law also support our
conclusion that section 237(a)(1)(H) of the Act waives the ground of
removal for misrepresentation at the time of adjustment of status, just as it
serves to waive the same grounds of removal linked to inadmissibility
arising at the time of entry on an immigrant visa.
1. Language of Section 237(a)(1)(H) of the Act
In 1984, we held that the former section 241(f) waiver was limited and
could only be used where fraud was committed at the time of entry.
Matter of Connelly, 19 I&N Dec. at 156. However, that waiver provision
specifically applied to fraud at the time of “entry.” Congress has since
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amended the language of section 237(a)(1) of the Act to cover those aliens
“in and admitted to” the United States, rather than those who have only
entered, and it thereby shifted the focus of the waiver to apply to
misrepresentation and fraud at the time of “admission.”16
The legislative history of the IIRIRA is not specific as to why Congress
replaced the word “entry” with “admission” at section 237(a)(1)(H) of the
Act. However, it is clear that it amended the removal provisions as a whole
to focus on “admissions” rather than “entries” and that the plain language
of section 237(a) contemplates that aliens who were inadmissible at the
time of adjustment of status are “in and admitted” to the United States and
are therefore subject to removal under section 237(a)(1)(A) of the Act.
Additionally, Congress’ purpose in enacting the waiver was to keep
families united, as evidenced by the expansion of the class of aliens
qualifying for the waiver to include the sons and daughters of United States
citizens and lawful permanent residents. See, e.g., Matter of Federiso,
24 I&N Dec. at 663−64. Therefore, by construing the amended language of
section 237(a)(1)(H) of the Act regarding inadmissibility “at the time of
admission” to include adjustment of status, we interpret the statute in
keeping with Congress’ humanitarian goal of preventing the separation of
families. Cf. Judulang v. Holder, 132 S. Ct. 476, 485 (2011) (stating that
agency action must be based on “relevant factors,” meaning that the
Board’s approach must be tied to the purposes of the immigration laws or
appropriate operation of the immigration system and that a method for
disfavoring deportable aliens that bears no relation to an alien’s fitness to
remain in the country is arbitrary and capricious).
Limiting the waiver to the time of an alien’s entry with an immigrant
visa would lead to an incongruous application of section 237(a) of the Act.
Aliens who are inadmissible at the time of entry or adjustment of status
would be subject to removal as aliens “in and admitted” to the United
States, but the waiver for fraud or misrepresentation at the time of
admission would only apply to the alien’s initial entry, when the statutory
language no longer explicitly states as much. As noted, the definition of
the terms “admission” and “admitted” in section 101(a)(13)(A) of the Act is
not exclusive and does not adequately address the scope of the section
237(a)(1)(H) waiver within the whole of section 237(a).
16

An entry under former section 101(a)(13) of the Act did not necessarily require an
admission. For example, former section 241(a)(1)(B) made an alien deportable for
“entry” without inspection. However, that provision of the Act was removed from the
deportability grounds, included in the inadmissibility grounds at section 212(a)(6)(A)(i),
and amended to state that an alien present in the United States without being admitted or
paroled is inadmissible. See IIRIRA § 301(c)(1), 110 Stat. at 3009-578.

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In decisions issued both before and after the IIRIRA, we have described
an “adjustment of status [as] merely a procedural mechanism by which an
alien is assimilated to the position of one seeking to enter the United
States.” Matter of Rainford, 20 I&N Dec. at 601 (citing Matter of
Connelly, 19 I&N Dec. at 159, and Matter of Smith, 11 I&N Dec. 325,
326−27 (BIA 1965)); see also Matter of Alyazji, 25 I&N Dec. at 399. As
we held in Matter of Rosas, 22 I&N Dec. at 619, aliens who are lawfully
admitted for permanent residence through the adjustment of status process
are considered to have made an “admission” to the United States. We
therefore construe the phrase “at the time of admission” in section
237(a)(1)(H) of the Act to include adjustment of status from within the
United States.
2. Adjustment of Status as an Admission in Other Contexts
Our holding comports with the well-established understanding that
adjustment of status constitutes an admission, as the term is used in certain
other parts of the Act. Additionally, we have recognized in certain
instances that an alien who has adjusted status to that of a lawful permanent
resident has been admitted to the United States. Specifically, we rely on
our prior decisions as underscoring the fact that an admission may include
adjustment of status in the United States depending on the context in which
the term is used, because many of our cases have found that section
101(a)(13)(A) of the Act does not provide the exclusive definition for an
admission.
An example is Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014),
in which we reaffirmed Matter of Rosas, 22 I&N Dec. 616. In each case,
the alien initially entered the United States without inspection and later
adjusted status to that of a lawful permanent resident. And in both we held
that an alien who was convicted of an aggravated felony after he adjusted to
lawful permanent resident status was subject to removal under section
237(a)(2)(A)(iii) of the Act as having been convicted of an aggravated
felony “at any time after admission.”17
In Rosas, we noted that adjustment of status does not meet the literal
definition of “admission” or “admitted” under section 101(a)(13)(A) of the
Act because it is unclear that a change in status can be characterized as an
“entry” into the United States. Matter of Rosas, 22 I&N Dec. at 617−18;
accord Matter of Chavez-Alvarez, 26 I&N Dec. at 276. However, we found
that section 101(a)(13)(A) does not adequately address the intended scope
of the term “admitted” as it is used at section 237(a)(2)(A)(iii) and that the
Section 237(a)(2)(A)(iii) of the Act provides that “[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable.”
17

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respondent had accomplished an admission after entry as an alien lawfully
admitted for permanent residence under section 101(a)(20). Matter of
Rosas, 22 I&N Dec. at 619, 623.
In reaching this conclusion, we relied on the language in the adjustment
provisions and section 101(a)(13)(C), which states the circumstances under
which a lawful permanent resident is regarded as seeking admission to the
United States.18 Id. at 618−20. The Ninth Circuit has also held that
adjustment of status is an admission in the context of the removability
provision at section 237(a)(2)(A)(iii) of the Act. See Ocampo-Duran
v. Ashcroft, 254 F.3d 1133.19
With regard to deportability for a conviction of a crime involving moral
turpitude within 5 year after the date of “admission” under section
237(a)(2)(A)(i) of the Act,20 we stated in Matter of Alyazji, 25 I&N Dec. at
399, that there are two groups of aliens “in and admitted” to the United
States under section 237(a) of the Act: (1) those who entered the United
States with permission after inspection and (2) those who entered the
United States without inspection or were paroled, but who subsequently
became lawful permanent residents. See also Matter of Paek, 26 I&N Dec.
403 (BIA 2014). We acknowledged that members of the second group may
never have been admitted within the plain language of section
101(a)(13)(A) of the Act but that an alien who obtains permanent resident
We also observed that if we did not read the term “admitted” more broadly to include
aliens who adjusted status after having entered without inspection, they would be
inadmissible under section 212(a)(6)(A)(i) of the Act, which the IIRIRA does not appear
to have intended because it would render them ineligible for certain forms of relief that
are generally available to lawful permanent residents. Matter of Rosas, 22 I&N Dec. at
621, 623. However, Rosas does not stand for the proposition that adjustment of status
should only be considered an admission when the results would otherwise be absurd.
The potential for absurd results was noted in support of our interpretation of the statute in
that case.
19
Ocampo-Duran did not address Matter of Rosas, but the Ninth Circuit has cited our
decision favorably in other cases. See, e.g., Guevara v. Holder, 649 F.3d 1086, 1090
(9th Cir. 2011); Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1101 (9th Cir. 2011).
20
Section 237(a)(2)(A)(i) of the Act provides as follows:
18

Any alien who—
(I) is convicted of a crime involving moral turpitude committed within five years
(or 10 years in the case of an alien provided lawful permanent resident status under
section 245(j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be
imposed,
is deportable.

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status from within the United States is assimilated to the same status as an
alien admitted at the border with an immigrant visa. Matter of Alyazji,
25 I&N Dec. at 399; see also Matter of Espinosa Guillot, 25 I&N Dec. 653,
654−56 (BIA 2011).
As for which date of “admission” should be applied in calculating
whether the conviction occurred within the relevant 5-year period, we
concluded that the date comes from the admission “by virtue of which the
alien was present in the United States” when the offense was committed.
Matter of Alyazji, 25 I&N Dec. at 406. In so finding, we overruled, in part,
Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), vacated sub nom. Aremu
v. Department of Homeland Security, 450 F.3d 578 (4th Cir. 2006), which
held that the date resets each time an alien is admitted to the United States.
We determined that Shanu focused too much on historical practice and that
the grammatical structure of section 237(a)(2)(A)(i) of the Act had
changed. Matter of Alyazji, 25 I&N Dec. at 404−05.
Specifically, we found that the phrase “within five years after the date of
admission” was one specific time “after entry,” such that the current text
had been narrowed to connote a single date tethered to a pertinent offense.
Id. at 405. Consequently, we reasoned that the date the 5-year period
begins depends on whether the alien was already admitted and had not left
the country prior to adjustment before commission of the crime. Id. at
406−08. We therefore concluded that although the respondent adjusted
status in 2006 and committed his offense in 2007, he was not deportable
because he was “admitted” to the United States as a nonimmigrant in 2001
without leaving. Id. at 408.
In Matter of Alyazji, we found that there was one relevant date of
admission for purposes of section 237(a)(2)(A)(i)(I) of the Act. However,
we have not altered our holding in Matter of Rosas to the extent that we
found that aliens who adjust status from within the United States after
entering without inspection are “admitted” for purposes of section 237(a) of
the Act. Cf. Matter of Chavez-Alvarez, 26 I&N Dec. at 278 (stating that if
adjustment of status is not treated as an admission, aliens convicted of an
aggravated felony would not be subject to removal because they could not
be alternatively charged under section 212(a) of the Act since lawful
permanent resident aliens are not seeking admission).
D. Other Eligibility Considerations
Generally, to qualify for a section 237(a)(1)(H) waiver, an alien must
not only be inadmissible to the United States at the time of admission but
must also demonstrate that the inadmissibility is linked to fraud or
misrepresentation, whether willful or innocent. In addition, the applicant
must be the spouse, parent, son, or daughter of a United States citizen or
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lawful permanent resident. Section 237(a)(1)(H)(i)(I) of the Act. The
applicant must also have been in possession of an immigrant visa
or equivalent document at the time the inadmissibility arose and, but
for the fraud or misrepresentation, be otherwise admissible. Section
237(a)(1)(H)(i)(II) of the Act. Finally, the applicant must demonstrate that
he or she merits relief in the exercise of discretion.
We have determined that a respondent’s adjustment of status can be an
admission for purposes of the 237(a)(1)(H) waiver. Where an alien adjusts
status from within the United States under section 245 of the Act, no
immigrant visa is issued or required. However, the alien must be eligible to
receive an immigrant visa and have one immediately available at the time
the adjustment application is filed. See 8 C.F.R. § 1245.1(a) (stating the
eligibility requirements for adjustment of aliens physically present within
the United States). In 2002, the respondent adjusted her status as the
wife of a United States citizen and was issued a Permanent Resident Card
(Form I-551) reflecting that she was eligible to receive an immigrant visa
and had one immediately available to her when she filed for this benefit.
Accordingly, she was in possession of a document that is equivalent to an
immigrant visa.
However, because the Immigration Judge found that a waiver under
section 237(a)(1)(H) was unavailable to the respondent, he did not
determine whether she was otherwise eligible for the waiver. He did not
make factual and other findings necessary to determine the nature of the
fraud or misrepresentation. For example, given the fact that the DHS
withdrew its factual allegation that the respondent committed fraud in the
course of obtaining her initial adjustment to permanent resident status, what
is the effect of her concession to the charge that she was inadmissible at the
time of her adjustment? Was the respondent’s admission to the submission
of a fraudulent lease intended to acknowledge fraud at the time of
adjustment of status? Further proceedings with regard to this issue and the
question whether the respondent is otherwise admissible may be required
on remand.
We note in particular that since the DHS no longer opposes the
respondent’s position that she is statutorily eligible to seek to waive the
consequences of fraud at the time of procuring adjustment of status, the
Immigration Judge should require the DHS to clarify its allegations with
regard to the respondent’s removability on remand. If the Immigration
Judge concludes that the record indicates that the respondent has committed
fraud in the course of securing her adjustment of status, and that she is
otherwise admissible, the Immigration Judge should render factual and
other findings necessary to decide whether she merits relief in the exercise
of discretion. Making a discretionary determination requires a balancing of
the respondent’s undesirability as a permanent resident with social and
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humane considerations to assess whether a grant of relief is in the best
interests of the country. Matter of Tijam, 22 I&N Dec. 408, 412−13
(BIA 1998) (discussing the adverse and favorable factors to be balanced in
evaluating discretion under section 237(a)(1)(H) of the Act); see also Virk
v. INS, 295 F.3d 1055, 1060 (9th Cir. 2002) (assessing factors weighed in
regard to a waiver under former section 241(f) of the Act).
We will therefore remand the record for the Immigration Judge to make
the necessary findings and to determine whether the respondent’s
application for a waiver of inadmissibility should be granted in the exercise
of discretion. Accordingly, the respondent’s appeal will be sustained and
the record will be remanded.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

DISSENTING OPINION: Roger A. Pauley, Board Member
I would affirm the Immigration Judge. As the majority opinion
observes, it was settled law, both under Federal court of appeals decisions
(including in the United States Court of Appeals for the Ninth Circuit, in
which this case arises) and Board precedent, that the predecessor statute to
section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(1)(H) (2012), namely, former section 241(f) of the Act, 8 U.S.C.
§ 1251(f) (1964), did not allow a waiver for fraud committed during
adjustment of status but only applied to waive fraud at the time of entry.
E.g., Khadjenouri v. INS, 460 F.2d 461 (9th Cir. 1972); Pereira-Barbeira
v. U.S. Dep’t of Justice, INS, 523 F.2d 503 (2d Cir. 1975); Matter of
Connelly, 19 I&N Dec. 156 (BIA 1984). Nothing in the 1981 and 1990
amendments to the Act discussed in Matter of Fu, 23 I&N Dec. 985,
987−88 (BIA 2006), which recodified section 241(f) as section
237(a)(1)(H) with certain changes, reflects an intent by Congress to
broaden the scope of the waiver so as to apply to fraud occurring in the
adjustment of status context.1
The majority seize upon the change in language from “entry” to
“admission” in the introductory language in section 237(a)(1), which
1

Indeed, in Matter of Fu we reviewed the legislative history attendant to the 1981
amendments to former section 241(f) of the Act. There, we stated that “section
237(a)(1)(H) is best interpreted as authorizing a waiver of removability under section
237(a)(1)(A) based on charges of inadmissibility at the time of entry.” Matter of Fu,
23 I&N Dec. at 988 (emphasis added).

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applies to all the subparagraphs thereof, and then rely on some of our recent
precedent decisions to find that an adjustment of status is an “admission.”
They therefore conclude that the section 237(a)(1)(H) waiver has been
transformed and broadened to embrace, not only fraud at the time of entry,
but also fraud at the time of adjustment.
I cannot agree. Whatever the policy arguments for such an expansion,
the change in language from “entry” to “admission” appears to be merely a
conforming amendment, not one intended by Congress to have the
substantive effect found by the majority. See Illegal Immigration Reform
and Immigrant Responsibility Act (“IIRIRA”), Div. C of Pub. L. No.
104-208, § 308(f)(1)(M), 110 Stat. 3009-546, 3009-614, 3009-621
(inserting “admission” in place of “entry” in former section 241(a)(1)(H)
under a section entitled, in part, “additional conforming amendments”); see
also Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010) (similarly rejecting
a claim that changes wrought by the IIRIRA were intended to, or had the
effect of, altering the Board’s longstanding view that “admission” required
only procedural, not substantive, regularity).
The majority’s reading of the language in section 237(a)(1)(H)
permitting a fraud waiver “on the ground that [an alien was] inadmissible at
the time of admission” is supportable only if the phrase “the time of
admission” is construed to include adjustment of status. We have
determined that there are instances where not deeming adjustment of status
to be an admission leads to absurd or bizarre consequences, and we have
accordingly found an adjustment of status to be such. E.g., Matter of
Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014). But there is clearly no
absurdity that results from giving the definition of “admission” its plain and
natural meaning (that is, requiring an entry after inspection) if section
237(a)(1)(H) is still interpreted to permit a fraud waiver only for fraud
committed at the time of entry rather than adjustment of status. Such a
limitation was indeed the law under Matter of Connelly and like cases for
many years and was never found to result in bizarre or absurd consequences
or to produce results so inequitable as to violate due process.
It is true that the Board has sometimes treated an adjustment of status as
an “admission.” But we have never declared that an adjustment of status is
always to be so construed. And there is good reason not do so here because
there is no indication that Congress intended to overturn our prior
construction of the waiver, and that of the courts of appeals, as limited to
fraud at the time of entry. Congress could easily have included a reference
to adjustment of status in the definition of an “admission” in section
101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2012). The absence
of any such reference, together with the absence of any absurdity resulting
from application of the actual definition Congress did employ in the
context of section 237(a)(1)(H), should dictate an affirmance of the
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Immigration Judge’s decision. In fact, another instance where Congress
has noted that admission and adjustment of status are not the same can be
found in section 212(h)(2) of the Act, 8 U.S.C. § 1182(h)(2) (2012), where
Congress provided for a waiver where the Attorney General has “consented
to the alien’s applying or reapplying . . . for admission to the United States,
or adjustment of status.”
Moreover, even assuming that the respondent’s adjustment of status in
1988 following her admission as a nonimmigrant in 1986 was a further
“admission,” the majority’s holding is at odds with Matter of Alyazji,
25 I&N Dec. 397 (BIA 2011). In that decision, we construed the language
in section 237(a)(2)(A)(i) of the Act, relating to crimes of moral turpitude
committed within 5 years after “the date of admission,” to refer to only one
date, namely the date pursuant to which the alien was in the United States.
The language in section 237(a)(1)(H) is comparable, referring to waivers of
certain grounds of inadmissibility for aliens who “were inadmissible at the
time of admission.” The majority’s decision fails to explain, in light of
Alyazji, why it is appropriate to treat this language as encompassing
multiple dates of admission where, prior to her adjustment of status, the
respondent was already admitted and remained in the country pursuant
thereto.2 I therefore respectfully dissent.

2

There is no occasion to opine on the proper result in a case where an alien had never
been admitted prior to obtaining adjustment of status within the United States.

585


Interim Decision #2608

MATTER OF AMESQUITA

In Deportation Proceedings
A-11783610
Decided by Board Altai, Ri 25, 1977
(1) Deportation proceedings were instituted against respondent, a lawful permanent
resident, under § 241(a)(4) of the Immigration and Nationality Act, based on conviction
of two crimes involving moral turpitude not arising out of a single scheme of criminal
misconduct, namely, assault with a deadly weapon, to which he pleaded guilty in 1973,
and second degree burglary, to which he pleaded guilty in 1975. The question presented
is whether the second conviction subjects respondent to deportability under section
241(a)(4) of the Act.
(2) On June 6, 1975, following the second conviction, the trial judge deferred the entry of
judgment of conviction, and the imposition of sentence and placed the respondent on five
years probation pursuant to section 1203 of the California Penal Code. On January 12,
1976, the judge executed a judicial recommendation against deportation.

(3) Section 241(b) of the Act provides that a judicial recommendation against deportation
must issue at the time of or within 30 days of the imposition of judgment or sentence.
While it is true that there is no 'judgment of conviction" where the trial judge suspends
or refrains from pronouncing judgment and plates the respondent un probation, such a
dispositional order following ascertainment of guilt does have sufficient finality to
support a finding of deportability under section 241(a)(4) of the Act.
(4)Although section 241(b) of the Act refers to a "judgment" rather than a "conviction,"
the 30-day time limit must begin to run at the time the court makes an order with
sufficient finality to support a finding of deportability. Therefore, the 30-day period
during which the judicial recommendation against deportation could have been issued
expired on July 6, 1975, and that recommendation made subsequently was ineffective.
(5)Notwithstanding the fact that respondent has never departed the United States, he is
statutorily eligible for discretionary relief under section 212(e) of the Act. See Matter of
Silva, Interim Decision 2532 (BIA 1976). The record will be remanded so respondent may
apply for that relief.
CHARGE:
Order:

Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)1 — Convicted of two crimes
involving moral turpitude not arising out of a single scheme of
criminal misconduct, to wit, assault with a deadly weapon in
violation of section 245, California Penal Code; burglary, second
degree in violation of section 459, California Penal Code

ON BEHALF OF RESPONDENT: Ira Bank, Esquire
Raymond Campos, Esquire
One Stop Immigration Center, Inc.
1443 Wright Street
Loa Angeloo, California 90015
BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

218

Interim Decision #2608
In a decision dated August 2, 1976, the immigration judge found the
respondent deportable under section 241(a)(4) of the Immigration and

Nationality Act as an alien who had been convicted of two crimes
involving moral turpitude. The respondent's request for relief from
deportation under section 212(c) was denied on statutory grounds. The
respondent appeals from the finding of deportability, arguing that his
deportation is precluded by a judicial recommendation against deportation rendered with respect to his second conviction. Alternatively, he
argues that he is not ineligible for relief pursuant to section 212(c). The
appeal from the finding of deportability will be dismissed. The appeal
from the immigration judge's denial of section 212(c) relief will be
sustained, and the record will be remanded to the immigration judge for
further proceedings.
I
The respondent, a native and citizen of Mexico, entered the United
States in 1958 as a lawful permanent resident. On August 1, 1973, he
entered a plea of guilty to a charge of assault with a deadly weapon, in
violation of Section 246 of the California Penal Code_ Imposition of

sentence was deferred, and the respondent was placed on three years
probation, upon the condition that he serve three months in the Los
Angeles County Jail.
On May 2, 1975, the respondent entered a plea of guilty to a charge of
second degree burglary, in violation of Section 459 of the California
Penal Code. Under the probation procedure set forth in C.P.C. §1203, et
seq, the Superior Court Judge on June 6, 1975, deferred the entry of a
judgment of conviction, deferred the imposition of sentence, and placed
the respondent on five years probation. On January 12, 1976, after
notice to the District Director of the Immigration and Naturalization
Service, the Superior Court Judge executed a judicial recommendation
against deportation. See section 241(b) of the Immigration and Nationality Act. The respondent argues 'that this recommendation precludes the use of his second conviction as a basis of deportability under
section 241(a)(4).
Under section 241(b) of the Act, the provisions of section 241(a)(4) do
not apply to an alien "(2) if the court sentencing such alien ... shall
make, at the time of first imposing judgment or passing sentence, or
within thirty days thereafter, a recommendation to the Attorney General that such alien shall not be deported . . . "
The respondent contends that since the trial court suspended the
pronouncement of judgment and the imposition of sentence, the 30-day
period during which a judicial recommendation against deportation
must be made did not begin to run on June 6, 1975, the date of his
conviction.

319

Interim Decision #2608
The respondent's argument, at first glance, seems plausible. Whereas
section 241(a)(4) predicates deportability upon a "conviction," section
241(b) explicitly states that a judicial recommendation must issue at the
time of, or within 30 days of, the first imposition of "judgment" or
"sentence." Under California law, when a verdict of guilty is rendered
or a plea is made, the trial court may, if it eliouseb to retain jurisdiction
under the probation statutes (California Penal Code §§l203-1203.4)
either (1) pronounce judgment and suspend its execution; that is, refrain
from issuing a commitment of the defendant to the priscai authority
pending administration of the probation plan, or (2) suspend, or refrain
from, the pronouncement of judgment, subject to the administration of
the probation laws. See People v. Banks, 53 Cal. 2d 370 (1959) at 384.'
When, as in the respondent's case, the court has followed the latter
course, there exists no "judgment of conviction" entered against the
defendant. Similarly, there has been no imposition of sentence, since
probation, even if conditioned upon a period of incarceration, is not a
sentence. Petersen v. Dunbar, 344 F.2d 800 (9 Cir. 1966).
However, it is clear that such a dispositional order following an
ascertainment of guilt has sufficient finality to support a finding of
deportability under section 241(a)(4). Gutierrez v. INS, 323 F.2d 593 (9

Cir. 1963). If section 241(b) is going to serve its purpose as a method
whereby an otherwise deportable alien may avoid deportation through a
judicial recommendation that he not be deported, the availability of such
a recommendation must arise at the same time the court makes an order
sufficient to allow deportation. 2 We therefore conclude that, although
Under both procedures, described in People v. Banks, supra, as "integral and important part[s] of the penological plan of California," supra at 383, the trial court retains
jurisdiction over the defendant. The effect of the former procedure, though appears to be
a loss of civil rights in the same manner as suffered by all convicts. Under the latter
procedure, however, the defendant is put under only such restrictions as the trial court
deems appropriate. The purpose behind this option is the desire not to "unnecessarily
hamper Ethel defendant's efforts to rehabilitate himself (by stigmatizing him even temporarily as one against whom a judgment of conviction of felony and sentence to prison had
been entered.)"People v. Banks, supra, at 387-389. See also, Stephens v. Toomey, 51 Cal.
2d 864 (1958).
2 A contrary conclusion, far from sustaining the respondent's argument in this case,
would effectively preclude the availability of a judicial recommendation against deportation for an alien convicted under this procedure. Section 241(b) requires that a valid
recommendation be given ". . . at the time of first imposing judgment or passing sentence,
or within thirty days thereafter . . . . " (Emphasis supplied.) Thus, if we were to accept
the respondent's contention that a "judgment" has not been rendered in this case, the
respondent's recommendation, obtained during his term of probation, is untimely and
premature. The proper time for a recommendation would then be only at such time as the
court revoked probation, or at the completion of the probationary term. However, it is
settled that a conviction followed by a deferral of judgment and sentence may validly from
the basis of a charge of deportability under section 241(a)(4). Gutierrez v. INS, supra.
320

Interim Decision #2608
section 241(b) refers to a "judgment" rather than a "conviction," the
30-day time limit must begin to run at the time the court makes an order
with sufficient finality to support a finding of deportability.
The respondent, citing Sawkow v. INS, 314 F.2d 34 (3 Cir. 1963),
argues that in determining whether a "judgment" has been entered
against the respondent for the purposes of section 241(b), the State
definition must control. In U.S. ex rel. Piperkoff v. Esperdy, 267 F.2d
72 (2 Cir. 1959), the United States Court of Appeals for the Second
Circuit held that a Federal standard should govern, although the Federal
standard would in most situations incorporate the State standard.
Under the approach we take in this case, it is the State standard which
determines whether or not there has been a "conviction" for the purposes of section 241(a)(4). However, for the purposes of section 241(b),
the term "judgment" must be interpreted according to a Federal standard to refer to a conviction sufficient to give rise to deportability.
Moreover, even under California law, it becomes apparent upon close
analysis that the respondent's argument must fail. While for many
purposes, the order of the trial court suspending proceedings during the
probationary period will not constitute a "judgment of conviction." such
a dispositional order following the ascertainment of guilt will in fact
constitute a "judgment" for some purposes under California law. For
example, under section 1237 of the California Penal Code, a defendant
may only appeal from a "final judgment of conviction." However, for the
purpose of taking an appeal, "an order granting probation . . . shall be
deemed to be a final judgment . . ." Similarly, an ascertainment of
guilt followed by a formal order granting probation is considered sufficiently final to constitute a "conviction" under California law, when
another criminal charge contains as an element of the offense the requirement that the accused be a person previously convicted of a felony.
People v. Banks, supra. 3 Therefore, even if we were to be governed by
the definition of "judgment" under State law, the order issued by the
court in the respondent's case constitutes a "final judgment of conviction" for at least some purposes under California law.
We find, therefore, that the 30-day period during which a valid
judicial recommendation against deportation could have been issued
expired on July 6, 1975, 20 days after the respondent's conviction

Thus, if the respondent's argument were followed to its logical conclusion, an alien in the
respondent's position would find himself in the anomalous position of being deportable
without any opportunity to apply for judicial recommendation against deportation.
See also In re Morehead, 107 Cal. App. 2d 346 (1951); People v. Sherman, 17 C,A.3d
550 (1951). It becomes apparent that this procedure is akin to an expungement process.
Under section 1203.4(a), C.P. C., a successful completion of the probationary term qualifies the defendant to apply to the trial court for dismissal of the charges against him, or
reduction of the convicted offense to a misdeameanor.
221

Interim Decision #2608
The recommendation made on January 12, 1976, therefore, is ineffective
to preclude the use of the respondent's second. conviction as the basis of
a charge under section 241(a)(4). We thus find that the respondent is
deportable as charged.
II

The immigration judge denied the respondent's request for relief
from deportation under section 212(c) of the Act on the ground that the
respondent's second conviction had occurred after his last departure
from and reentry into the United States. Since the immigration judge's
decision in this ease, we have adopted the holding of the United States
Court of Appeals for the Second Circuit in Fra-ncis v. INS, 532 F.2d 268
(2 Cir. 1976), in which the court held that section 212(c) is available as a
relief from deportation notwithstanding the fact that the alien respondent had not effected a departure from the United States. See Matter of
Silva, Interim Decision 2532 (BIA 1976). The respondent has been a
lawful permanent resident of the United States for 19 years. He is
therefore statutorily eligible for discretionary relief from deportation
under section 212(c). Since the immigration judge's decision in this case
preceded our decision in Matter of Silva, supra, we shall remand the
record so that the respondent may have the opportunity to make application for relief under that section.
ORDER: The appeal from the finding of deportability is dismissed.
FURTHER ORDER: The appeal from the denial of section 212(e)
relief is sustained, and the record is remanded to the immigration judge
for further proceedings.

322


Interim De4iiibn . #1459

MATTER or Sturnmexo
:./11r.f!ecticin 212 (e)- Proceedings
A-13184458

Decided by District Director March 10,

1965

Since- compliance with the .2-year-foreign-residence requirement of section
212(e), Immigration and Nationality Act, as amended, would result in exceptional hardship to his United States citizen wife and 4 citizen children, a
waiver thereof is granted an exchange visitor who has been unable to support his family in the Philippines; who are living with his relatives under
unsatisfactory and virtually destitute conditions; whose wife has baon
unable to 'obtain employment in the Philippines and has no relative able to
render financial assistance; whose oldest child requires corrective surgery
for which applicant is without funds and facilities are unavailable in the
area of his residence in the Philippines; and who has been offered a position in the United States and his salary therefrom and available medical
facilities would enable his child to have the corrective surgery without further extensive• delay.

The applicant, Dr Antonio Borromeo Santillano, a physician, is
a 32-year-old citizen of the Philippines. He entered the United
States no an exchange alien on December 3, 1957, for an internship
and residency, in medicine. He interned at Deaconess Hospital, St.
Louis, Missouri. His internship was followed by residencies at St.
John's Mercy Hospital in St. Louis from July 1959 to June 1961, and
at Bronx Municipal Hospital Center in New York City from that
time until June 1963. He departed from the United States on May
7, 1964, and is now in the Philippines.
Dr. Santillano .filed an application for a waiver of .the foreignresidence requirement of section 212(e) of the Immigration and Nationality:Act on August 3, 1964. He is married to a citizen of the
United States and has four United States citizen children, ranging
In age from one to five years. His wife and children reside with

him in the Philippines.
Dr. Santillano has been unable to support his family in the Philippines. They are living with his relatives under unsatisfactory conditions and lire virtually destitute. Mrs. Santillano has been unable
146

Interim Decision #1459
to obtain employment- in the Philippines and has no relative in the
United States who is able to give financial help.
X-rays of the •oldest child shortly before the child's departure
from the'United States dieblosed a congenital defast which permits
the intestines to . protrude into the chest •cavitY. This condition has
resulted in curvature of the spine, which will become progressively
worse without thoracic surgery. There ark no facilities in the Philippines in the area where the applicant and his family reside to do
this type of surgery, and the applicant is without funds to pay for
such surgery. • . •
Dr. Santillano has been offered a position as a pathologist at SA:
John's Mercy Hospital. in St. Louis. His salary and the medical
facilities available would enable his oldest child to .have .the core
restive surgery required without further extensive delay.
In view of the foregoing, it has.been determined tha it compliance
with the foreign-residence requirement of sectiok212(e) of the Imi
migration and Nationality Act would impose exceptional hardship
upon. theipplicant's United States citizen wife. andohildren. The
Secretary of State recommends that a waiver of this requirement be
granted. Therefore, the following order is entered.
ORDER: It is ordered that the application of Dr. Antonio Borromeo Santillano for a waiver of the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act
be and is hereby granted pursuant to the authority contained in AO
statute.

147


Interim Decision #2092

MATTER OF QUIJADA-COTO

In Deportation Proceedings
A-20008233
Decided by Board August 30, 1971
Adjustment of status to that of permanent resident pursuant to the provisions of the Act of November 2, 1966, is not available to the spouse of an
alien described in section 1 of the Act, where the alien himself has been
denied adjustment of status under the Act.

CHARGE :
Order: Act of 1952—Section 241 (a) (9) [8 U.S.C. 1251 (a) (9)]—Failed to
comply with nonimmigrant status.
ON BEHALF OF RESPONDENT: Gary H. Manulkin, Esquire
5228 East Whittier Boulevard
Los Angeles, California 90022

This is an appeal from an order of the special inquiry officer,
dated February 11, 1971, denying the respondent's motion to reopen the deportation proceedings to afford the respondent the opportunity to apply for adjustment of status to that of a permaient resident pursuant to the Act of November 2, 1966 (Public
law 89-732). The appeal will be dismissed.
The record indicates that the respondent, a native of El Salvalor, claims the benefit of the provisions of the Act of November
1966 by virtue of her status as the spouse of an alien described
section 1 of the Act.
The record indicates that the respondent's spouse is a native
nd citizen of Cuba, who was originally paroled into the United
tates on October 6, 1962. However, the record contains a special
iquiry officer's order rendered in connection with the spouse, Raid Portela Suarez, A-12854487, Los Angeles, dated March 26,
)69, denying his application for adjustment of status under Pub: Law 89-732 because of a narcotics conviction under 21 U.S.C.
6(a).
740

Interim Decision #2092
Section 1 of the Act of November 2, 1966 (Public Law 89-732)
provides that the provisions of the Act shall be applicable to the
spouse and child of any alien described in the Act, regardless of
their citizenship and place of birth, who are residing with such
alien in the United States.
After careful consideration, we conclude that Congress did not
intend to apply the benefits of the Act of November 2, 1966 to the
spouse of an alien described in the Act, when the alien himself
has been denied adjustment of status under the Act.
We agree with the decision of the special inquiry officer that
adjustment of status under the Act of November 2, 1966 is not
available to the respondent.
Hence, we agree with the special inquiry officer that reopening
the proceedings can serve no purpose. Accordingly, we will dismiss the appeal from the order denying the respondent's motion
to reopen. The following order will be entered.
ORDER: The appeal is dismissed.

741


Interim Decision #1409

MATTER OF

Roma.

In DEPORTATION Proceedings
A-12732967

Decided by Board September 24 1964
Notwithstanding that respondent acted in good faith and made a full disclosure
of all the facts at the time of her application for a United States passport, the
erroneous issuance to her of such a passport by an official of the U.S. Government does not bestow citizenship on her when she did not acquire U.S. citizenship at birth abroad under any statute, and she is deportable as an alien who
was excludable at the time of entry.
eITABGE

Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable at
time of entry—immigrant—no visa.

Respondent is 33 years old, married, female, a native and citizen of
Portugal. She was admitted to the United States on June 29, 1961, as
a United States citizen in possession of a United States passport issued
to her at Lisbon, Portugal on May 16, 196L The special inquiry
officer found that respondent is not a United States citizen, that she
was not entitled to a United States passport, that she was not in possession of a valid, unexpired immigrant visa, and that she is deportable. He found that she is not eligible for any form of discretionary
relief except voluntary departure, that she declined to apply for voluntary departure, and he ordered her deported from the United States
to Portugal on the Charge set forth above. She appeals from this
order. The appeal will be dismissed.
Respondent claims United States citizenship through her mother
who was Maria dos Anjos Morris. This woman was born in New Bedford, Massachusetts on September 3, 1901. Maria Morris (or Maurlobo) was married on November 20, 1916, in New Bedford, Massachusetts to Paulo Amado, a native of Portugal, who never became a
United States citizen. Shortly after their marriage Maria Morris and
Paulo Amado went to Brazil to live. After seven years Paulo Amado
returned to Portugal, and Maria Morris joined him in Portugal a
year later. Paulo Amado divorced Maria in March 1932.
770

Interim Decision #1409
Respondent was born in Portugal on May 6, 1931. Her father was
Luiz Amado, who was no relation to her mother's husband. Respondent testified that her parents were never married. Maria Morris
Amado married again in. Portugal around 1942 and was divorced
from her second husband two years later. The record establishes that
Maria (respondent's mother) never returned to the United States to
live and never made any effort or took any steps to resume her United
States citizenship. She returned once to the United States for a visit,
for perhaps "a couple of months", following which she returned to

Brazil. Respondent testified that her mother never resumed residence
in the United States after her marriage in 1916. (Statement, August
27, 1962, p. 3.)
Respondent's natural father, Luiz Amado, was never in the United
States and was not a United States citizen. The Vice Consul at the
United States Consulate at Lisbon, Portugal granted respondent's
application for a United States passport on the ground that she
acquired citizenship at birth as the illegitimate child of an American
mother under section 205 of the Nationality Act of 1940. 1 The District Director at Boston, the Regional Commissioner at Burlington,
Vermont, and the special inquiry officer in the instant proceedings, all
have found as follows : Under section 3 of the Act of March 2, 1907, 2
Maria Morris Amado, respondent's mother, lost her citizenship when
she married in 1916. The Act of 1907 was repealed by section 7 of
the Act of September 22, 1922, 2 but Maria Morris Amado took no step
toward resuming her citizenship under the Act of September 22, 1922.
Sec. 205 of the Nationality Act of 1940 provides :
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.
In the absence of such legitimation or adjudication, the child, whether born before or after the effective date of this Act, if the mother had the nationality of the
United States at the time of the child's birth, and bad previously resided in the

United States or one of its outlying possessions, shall be held to have acquired at
birth her nationality status. 54 Stat. 1139-1140 ; 8 U.S.C. 605.
2 See. 3 of the Aet of March 2, 1907 provides: That any American woman who
marries a foreigner shall take the nationality of her husband. At the termination
of the marital relation she may resume her American citizenship, if abroad, by
registering as an American citizen within one year with a Consul of the United
States, or by returning to reside in the United States, or, if residing in the united
States at the termination of the marital relation, by continuing to reside therein.
Sec. 7 of the Act of September 22, 1922: That Section 3 of the Expatriation
Act of 1907 is repealed. Such repeal shall not restore citizenship lost under
such section nor terminate citizenship resumed under such section. A woman
who has resumed under such section citizenship lost by marriage shall, upon
passage of this Act, have for all purposes the same citizenship status as im-

mediately preceding her marriage.

771

Interim Decision #1409
She was still married to an alien and was still living abroad. However, she recovered her citizenship at the time of the passage of the
Act of June 25,1936,' because by that time her marital status had terminated; even though she maintained her residence abroad the Act of
June 25, 1936 automatically restored her United States citizenship.
Matter of P—,1 I. & N. Dec. 127 (BIA, June 26, 1941 ; November
22, 1911). However, restoration of United States citizenship to Maria
Amado was of no benefit to respondent, born in 1931, because the Act

of June 25, 1936 is prospective and not retrospective. It does not
change the fact that respondent's mother was an alien at the time of
respondent's birth in 1931. We find no ground to disagree with this
conclusion.
The Act of May 24, 1931 5 was the first statute to extend Vnited States
citizenship to children born out of wedlock to 'United States citizen
mothers abroad. 39 Op. Atty. Gen. 397 (1939) stated there was no
objection to the issuance of instructions to consular officers that illegitimate children born . abroad of American mothers before the amendment of May 24, 1934, became effective, could not possibly be regarded
as citizens of the United States under R.S. 1993. The Court points out
in illontufnu v. Kennedy, 366 U.S. 308 (U.S. 1961), that when Congress
amended R.S. 1993 by the Act of May 24, 1934, to grant citizenship
rights to the foreign born children of citizen mothers, Congress "made
clear its view that this was a reversal of prior law". This enactment,
of course, is of no help to respondent, because she did not begin to reside
permanently in the United States during her minority (see
Respondent's only plea is that she made a full disclosure of all facts
at the time she applied for her passport and was not guilty of any
fraud. She was granted an American passport by a representative of
the State Department, and she acted in good faith. She testified that
she sold three houses she owned in Portugal in order to get the money
to come to the United States and had suffered substantial loss by liqui4 Ant of June 25, 1925 * * * That hereafter a woman, being a native-born
citizen, who has or is believed to have lost her United States citizenship solely
by reason of her marriage prior to September 22, 1922, to an alien, and whose
marital status with such alien has or shall hare terminated shall be deemed to be
a citizen of the United States to the same extent as though her marriage to said
alien had taken place on or after September 22, 1922 * * *.
`Act of March 2, 1907, as amended by the Act of May 24, 1934 provides: Sec. 5.
That a child born without the United States of alien parents shall be deemed a
citizen of the United States by virtue of the naturalization of or resumption of
American citizenship by the father or the mother: Provided, That such naturalization or resumption shall take place during the minority of such child ; and
provided farther, That the citizenship of such minor child shall begin lire years
after the time such minor AIM begins to reside permanently in the United States.
(48 Stat. 797; 8 USC 8)

772

Interim Decision #1409
dation of these assets. She states further that she is suffering from a
heart condition and has been hospitalized recently.
The board recognizes the harshness of the decision and the hardship
of deportation under these circumstances. However, the error of an
employee in, the State Department in erroneously issuing a United
States passport does not bestow United States citizenship on an alien
who is not entitled to it. We do not find that the government was
guilty of such misconduct as to be estopped from now denying the effect
of the passport. In M ontanav_ Kennedy, supra, the Court recognized

the harshness of the result where the petitioner was born in Italy of
a United States citizen mother in 1906 and returned to the United
States the same year. He resided in the United States for 55 years,
but the court held that he derived no United States citizenship from his
mother under any statute. That decision is controlling here. There
have been cases which held the United States estopped from denying
citizenship because of the conduct of its officials, but the conduct of the
State Department here does not reach that degree of error. The appeal must be dismissed.
ORDER: It is ordered that the appeal be and is hereby dismissed.

773


Interim Decision #2512

MATTER OF GUTIERREZ

In Section 248 Proceedings
A-11877448

Decided by Regional Commissioner August 3, 1976
(1) Operations instruction 214.2(h)(1) provides that "the fact that an applicant for an H-1
visa may be registered for immigration or may file an application for a labor certification
is not, of itealf, sufficient to sustain a finding that he does not have a residence abroad".
This operations instruction pertains only to those cases in which the applicant has
established that he is a bona fide nonimmigrant and in which registration for immigration or application for labor certification has been accomplished in the absence of further
indications of intent.
(2) Applicant herein had obtained a visa preference and labor certification. However,
there was an indication in his record that he was in fact an intending immigrant in that
he failed to establish that he intended to return to his foreign residence abroad. Under
these circumstances OT 214.2(h)(1) was not applicable, and application filed under
section 248 of the Immigration and Nationality Act to change nonimmigrant status from
that of student to that of temporary worker as defined by section 101(a)(15)(10(i) of the
Act was denied.
ON BEHALF OF APPLICANT. Edwin R. Rubin, Beguile

Wasserman, Orlew, Kaye & Rubin
636 Public Ledger Building
Sixth and Chestnut Street
Philadelphia, Pennsylvania 19106

This matter is before the regional commissioner on appeal from the
denial of a request to change nonimmigrant status from student to
temporary worker (H-1). The application was denied by the district
director on the grounds that the applicant is really an intending immigrant, and that applicant was, not maintaining his nonimmigrant student
status at the time of filing.
The untimely filing has been explained, and the application will be
considered as having been timely filed_ The issue raised on appeal,
therefore, is whether the applicant can qualify as a nonimmigrant. After
careful examination of this record, we hold he ,cannot.
The applicant in this case`is a twenty-eight year old citizen of Venezuela who originally entered this , country as an elementary school
student. He was a lawful permanent resident of the United States in the
early 1960's, and has received his education here since the age of ten,
with an interim leave of absence from the University of Pennsylvania
for practical training. Subsequent to his graduation in 1972, he was
727

Interim Decision #2512
allowed eighteen additional months practical training on his nonimmigrant student visa. He last entered the United States as a student on
December 31, 1973, with an authorized stay until May 30, 1974. Sometimes during this period he obtained an immigrant visa preference and
labor certification. On June 19, 1974, the applicant submitted his papers
for classification as a nonimmigrant temporary worker. His 11-1 classification was eventually issued in May, 1975, valid until July 31, 1975.
However, the requested change of status was denied by the district
director on June 20, 1975. Although the denial was vacated by the
regional commissioner in September, the district director then reviewed
the case and denied it again on other grounds November 18, 1975. It is
the appeal from the denial which comes before us now.
The attorney bases his primary argument on operating instruction
214.2(h)(1), which states in pertinent part:
The Department of State and the Service have agreed that the fact that an applicant
for an 11-1 visa may be registered for immigration or may file an application for labor
certification is not, of itself, sufficient to sustain finding that he doe's not have a
residence abroad."
A comparison between this instruction and the language of section
101(a)(15)(H) of the Immigration and Nationality Act reveals that the
phrase of the instruction quoted is only half of the requirement. The
language used is "a residence in a foreign country which he has no
intention of abandoning." The concession in OI 214.2(h)(1) is designed
to enable aliens to come as temporary workers in either of these cases:
(a) if the record demonstrates that the alien is a bona fide nonimmigrant
entering the United States temporarily, or (b) the record is silent on this
point except for the possession of visa preference or a labor certificate.
The record in this case does not fall in either category.
Applicant in this ease is a former permanent resident alien of the
United States, citizen of Venezuela, who has been educated in the
United States and has been working steadily in this country since he
graduated from the University of Pennsylvania. He has not indicated an
intent to return to Venezuela, and in fact, although members of his
family are still in Venezuela, applicant over the last eighteen' years has
been linked more closely to the United States than to his own country.
The finding that 'applicant is an intending immigrant is not solely based
upon his petition for an immigration visa, and is, therefore, valid.
Additionally, the reqtfest for the change of status is for the period
ending June 30, 1976. AccOidingly, the purpose for the request has been
accomplished: Since the applicant is not a bona Me nonimmigrant, and
since his purpose in any event has been accomplished, this appeal will be
dismissed.
It is ordered that the appeal be and same is hereby dismissed.
728