Interim Decision #2207

MATTER OF TIN
Application for Permission to Reapply
A-15977562

Decided by Regional Commissioner June 4,

1973

(1) Absent substantial equities in the instant case where applicant has no family
ties in the United States and there is no indication that denial would result in
hardship to anyone (except for the unsubStantiated allegation of temporary
hardship to the employer who employed applicant while illegally in the United
States), permission to reapply for admission after deportation is denied, as a
matter of discretion, in the light of applicant's disregard for the immigration
laws, particularly his reentry following deportation, having been smuggled
across the Canadian border into this country.
(2) In determining an application for permission to reapply after arrest and
deportation, consideration should be given to all pertinent factors These
factors include, but are not limited to, the basis for deportation; recency of
deportation; length of residence in the United States; applicant's moral
character; his respect for law and order; evidence of reformation and rehabilitation; his faintly responsibilities; any inadmissibility under other sections of
law; hardship involved to himself and others; and the need for his services in
the United States.
(3) Matter of H--R—, 5 I. & N. Dec. 769, is superseded to the extent that that
decision requires the existence of at least one of the four conditions specified
therein before permission to reapply may be granted.
ON BEHALF OF APPLICANT: Jack Wasserman, Esquire
1707 TT Street, N.W.
Washington, D.C. 20006

The applicant is a 36-year-old native and citken of China. He
had been admitted as a crewman on a vessel on May 25, 1966 for
the time the vessel was in port, not to exceed 29 days, and failed to
depart on the vessel or within that time. He was apprehended by
an officer of this Service on December 19, 1966. After a special
inquiry hearing, he was granted the privilege of departing voluntarily from the United States, but he failed to do so and on
December 14, 1967 he was deported. It is because of this deportation that he now requires, and has applied for, permission to
reapply for admission to the United States.
On Lhe date of the filing of the application, January 2, 1972, he

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Interim Decision #2207
was in the United States after having been smuggled into the
country on kiigust 5, 1970 across the Canadian border. He had
arrived in Canada as a crewman on a vessel and had deserted it.
He surrendered voluntarily to this Service at Washington, D.C. on
May 18, 1972. Thereafter, a special inquiry officer granted him the
privilege of departing voluntarily from the United States within a
time to be set by the District Director with a proviso that if he
failed to depart he would be deported. He departed voluntarily on
February 10, 1973.
The applicant has no relatives in the United States. The record
shows him to have a wife and four children in mainland China. His
own foreign address is shown as in Hong Kong. He was not
prosecuted for his illegal entry across the Canadian border, and
there is nothing in the record to show that he is other than a
person of good moral character. While in the United States in an
illegal status, he was employed in Chinese restaurants. His previous employment is shown as a bridge boy, sailor and quartermaster on vessels.
The applicant is the beneficiary of a labor certification dated
June 21, 1972 issued pursuant to section 212(aX14) of the Immigration and Nationality Act, as amended, as a cook, Chinese style
food, requiring a minimum of two years of experience. It is evident
from the record that all of this required experience was gained by
the applicant while he was illegally in the United States.
The offer of employment on which the labor certification is
based is by a restaurant which was the last place of employment
of the applicant. Attorney for the application in oral argument
stated the restaurant is in urgent need of regaining the services of
the applicant. This is because the owner's wife, who normally
helps out, is pregnant and currently unable to assist in the
operation of the restaurant. This is additional information which
was not before the District Director when he made his decision to
deny the application.
However, there was in the record when the District Director
made his decision a copy of the labor certification which had been
submitted by the attorney. The District Director's decision did not
refer to the need for the services of the applicant in the United
States. The attorney argues that the need should have been cited,

since it is one of four categories of eases in which permission to
reapply may be granted according to the precedent decision,
Matter of H—R, 5 I. & N. Dec. 769. The other three categories
mentioned in that decision are eases in which (1) unusual hardship
would result to persons lawfully in the United States if the
application should be denied, or (2) the applicant is a bona fide
crewman who has no means of earning his livelihood other than
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Interim Decision #2207
by pursuing such calling, which necessitates his coming to the
United States, or (3) it is necessary for the applicant to enter the
United States frequently across the international land border to
purchase the necessities of life or in connection with the business
in which he is engaged or for some other urgent reason.
The decision in Matter of II—R --isupra, was made in 1954. It
indicates that permission to reapply for admission may not be

granted unless the alien is within one of the categories of cases
described above. The Service in recent years has not observed that
restriction literally. While the circumstances described in those
four categories are favorable factors to be considered with unfavorable factors in determining whether an application for permission to reapply for admission should be granted as a matter of
discretion, the Service no longer regards them as exclusive factors.
For example, in the absence of significant unfavorable factors, the
Service would not be averse to approving an application for
permission to reapply by a refugee even though denial would
result in unusual hardship only to himself and not persons
lawfully in the United States. As a further example, an alien who
was deported many years ago solely for a minor immigration
violation and who has a bona fide reason for wanting to immigrate
to the United States, may be granted permission to reapply even
though the hardship to the citizen would not be unusual, absent
any adverse factors. The Matter of fl R
is, therefore,
superseded to the extent that it is inconsistent with the decision in
this case.
Consent to reapply for admission is required in the case of an
alien who has been arrested and deported, in order to be removed
from the class of excludable aliens described in section 212(aX17) of
the Immigration and Nationality Act. That section describes as
excludable:
—

—

Aliens who have been arrested and deported, or who have fallen into distress
and have been removed pursuant to this or any prior act, or who have been
removed as alien enemies, or who have been removed at Government expense

in lieu of deportation pursuant to section 242(b), unless prior to their embarkation or reembarkation at a place outside the United States or their attempt to
be admitted from foreign contiguous territory the Attorney General has
consented to their applying or reapplying for admission.

In determining whether the consent required by statute should
be granted, all pertinent circumstances relating to the applicant
which are set forth in the record of proceedings are considered.
These include but are not limited to the basis for deportation,
recency of deportation, length of residence in the United States,
the moral character of the applicant, his respect for law and order.
evidence of reformation and rehabilitation, his family responsibili373

Interim Decision #2207
ties, any inadmissibility to the United States under other sections
of law, hardship involved to himself and others, and the need for
his services in the United States.
In this case the applicant has no family ties in the United
States. His wife and children reside in mainland China. There is no
indication that denial of the application would result in hardship
to anyone, with the possible exception of his intended employer.
The manner of his last entry into the United States after his
deportation evidences a disrespect for law. The experience,
through which he qualified for the labor certification issued to his
intended employer, was acquired while in an illegal status subsequent to that entry. He thus obtained an advantage over aliens
seeking visa issuance abroad or who abide by the terms of their
admission while in this country. Under these circumstances, including the possibility that approval of the application would
appear to be a condonation of his acts and could encourage others
to enter to work in the United States illegally, approval would be
appropriate only if there were substantial equities in the applicant's favor.
We have taken note of the fact that there is no indication that
the applicant is ineligible for visa issuance or admission to the
United States; that he surrended to the Service voluntarily; and
that his recent departure (on February 10, 1973) was accomplished
voluntarily; at his own expense; and counsel's allegation that the
applicant's services are urgently needed by the intended employer
to provide services in the latter's restaurant normally provided by
the employer's wife who is incapacitated because of pregnancy.
On balance, it is concluded that the unfavorable factors outweigh the favorable ones and that approval of the application is
not warranted as a matter of discretion.
ORDER: The decision of the District Director at Washington,
D.C. is affirmed and the appeal of the applicant is hereby dismissed.

374


Interim Decision #1859

Mikri.tat OF Cnntnio

In Visa Petition Proceedings
A-14494353
Decided by Board May 6,196'8
The burden of proof rule set forth in Waziri V. Immigration and NatureMotion
Service, C.A. 9, Zan. 18, 1968, with respect to section 246 rescission proceedings
(i.e., clear, convincing and unequivocal evidence), is inapplicable to revocation
of approval of visa petition. The burden of proof in visa petition proceedings
rests with the petitioner to establish eligibility for the benefits sought and
since such burden has not been met in establishing the claimed relationship in
the instant case, the conditional approval of a visa petition to accord beneficiary
fifth preference classification is revoked.
ON BEILearr Or exasTAONISB

ON BEHALF

David I. Rosin, Esquire
2156 Penobscot Building
Detroit, Michigan 48226
(Briefs Sled)

SEIIVICE:

Irving A. Appleman
Appellate Trial Attorney
(Brief Bled)

The case comes forward on appeal from the order of the District
Director, Detroit District, dated January 17, 1968, revoking the approval of the visa petition on April 29, 1965, to confer fifth preference
status on the beneficiary because the claimed brother-sister relationship of the petitioner and beneficiary had not been satisfactorily established for the reasonsthat at various times up to and including May 28,
1946 and June 1948, the father of the parties, Woo Gay You, claimed
three sons; in a visa application executed by the beneficiary on February 11, 1963, she claimed her parents were Cheung Ding and Wong Sin
Nui, and submitted a marriage certificate showing that she was Cheung
Bo Chu, the daughter of Cheung Tang; the Passport Mae of the
Department of State ruled on December 29, 1966, that the beneficiary
had failed to establish her identity as the daughter of a United States
citizen, Woo Gay You, the father of the petitioner.
The petitioner, a native of China, a citizen of the United States

through parentage, holder of Certificate No. AA5226, born November 22, 1913, seeks fifth preference quota status on behalf of the beneficiary as his sister. The beneficiary is a native and citizen of China,
321-654-69--47

715

Interim Decision #1859
born November 23, 1924, is married to Cheung, Mon Jak, and they
have one child, Cheung, Fung 0i, born December 11, 1948 in China.
The visa petition originally was approved under section 203(a) (4)
(now sec. 203(a (5) ) on March 5, 1965. Reference was made on the face
of the visa petition to an attached memorandum which reflected that
the petitioner swore that his parents and the beneficiary's parents were
the same; attached to the memorandum were two passport type photographs of the petitioner together with two copies of report of his blood
type, photographs alleged to be those of the petitioner and beneficiary
when they were children, and photographs of other members of the
petitioner's family.
The memorandum made reference to the petitioner's File AA5226,
Application for Certificate of Citizenship, in connection with which
the alleged father, Woo Gay You, was interviewed under oath on May
28, 1946 and stated that he had three children, all boys, no mention
being made of a daughter. The petition was approved on condition
that the petitioner's and beneficiary's blood types prove to be compatible and, further, that any investigation conducted does not disclose
that the relationship is not as claimed, particularly in view of the
testimony of the alleged father in 1946 that he had three sons and no
daughters.
The file contains a signed acknowledgment by counsel that the record
of proceedings in this case was reviewed by him on January 17, 1968.
The revocation of the approval of the visa petition is contested on a
number of grounds, such as the decision is not in conformity with the
facts, that the decision is offset by substantial probative evidence favorable to the petitioner, the Service has failed to evaluate all the evidence available, the decision is incorrect in fact, the decision is incorrect in law, and a number of other bases for objection. Neither the
MU-kV Director nor counsel have clarified the issues in the case. A true
picture of the confused situation in this case, which arises as result of
false statements made by the father, Woo Gay You, and by the beneficiary's present husband, Cheung Man Jak, is contained in an evaluation of citizenship claim from the Consulate General of the United
States at Hong Kong, B.C.C., dated November 17, 1966, which follows.
The present beneficiary, Cheung Woo Bo Chu, maiden name Woo Bo
Chu, a passport applicant at the Consulate General, claimed United
States citizenship under provisions of section 1993, Revised Statutes,
by virtue of her birth in China on November 23, 1925 of a United.
States citizen father, Woo Gay You, and an alien mother, Jung Hai.
The applicant's father, Woo Gay You, in an affidavit executed April
20, 1966, stated that he was born in Maiyeville California on December 12, 1886; that he was issued Certificate of 'Identity No. 15557 at
716

Interim Decision #1859
Seattle, Washington, June 2, 1914; and that Jung Shee was his wife
who died about 1941; and that he had three children : (1) Woo Ting
Hong, (also known as Daniel Hong Woo, the present petitioner) born
at Hung Moon Lau Village on November 11, 1913 ; (2) Woo Ten Yee,
born at the same village on May 14, 1927; presently residing at 22181
Ridgedale Avenue, Oak Park, Michigan; (3) Woo Bo Chu, the
present applicant and the instant beneficiary.

The father, Woo Gay You, testified under oath before the Service
at Detroit, Michigan on March .23, 1964 that he had two sons and a
daughter and not three sons as previously claimed; that Woo Ting
Hong and Woo Ting Yee are his true blood sons; that his daughter is
Woo Bo Chu; and that Woo Ting Ping is actually not his son, but is
his son-in-law and his true name is Cheung Nan Jack. (Examination
of the father's affidavit shows that he testified on March 23, 1964 that
his daughter's name was Woo Ball Gee, about 37 or 38 years old; her
married name is the same; her husband's correct name is Jung Moon
Jock whom he claimed was his blood son wider the "paper" name of

Wiliam Ting Wing Poo when he came to the United States.)
The records of the Consulate General show that a visa petition was
received and filed by the applicant's husband in his false identity of
William Ting Ping Woo on January 15, 1963, which was approved by
the Service on February 11, 1963 for nonquota status on behalf of
Cheung Bo Chu. She executed an immigrant visa application on
April 29, 1963 in which she stated that her parents were Cheung Ding
and Wong Sin Nui, and to substantiate her identity she submitted a
Hong Kong marriage certificate showing that she was Cheung Bo Chu,
the daughter of Cheung Tang, plus two statutory declarations.
Further action on the visa application has been suspended.
The records of the Consulate General reveal that another visa petition was received which is the instant visa, petition and was approved
on April 29, 1965 for the beneficiary for fifth preference status as the
sister of Daniel Ting Hong Woo on condition that any investigation
conducted does not disclose his relationship is not as claimed, particularly in. view of the testimony of the alleged father in 1946 that he had
three sons and no daughters. The immigrant visa application filed by
the applicant on March 29, 1966 is being held in abeyance in view of her
prima facie claim to United States citizenship.
In addition to the affidavit of the father executed on April 20, 1966,
there were submitted photographs taken in Hong Kong in 1963, 1959
and 1927; one taken in the United States in 1955; and one taken in

China, in 1931. Also submitted was an affidavit executed by the petitioner identifying himself and his father; and two group photographs
taken in Hong Kong. in 1959. There were also submitted four aero717

Interim Decision

#1859

grammes addressed to the applicant by the applicant's father in
November 1963, January and October 1964, and April 1965 which discussed the beneficiary's documentation to enter the United States and
he mentioned other miscellaneous family matters; also a Hong Kong
identity card issued to the beneficiary on July 9, 1964. Blood tests were
not conducted since the applicant's mother was claimed to have been
deceased.

The evidence submitted is evaluated and it was concluded that the
only photograph which might be given probative value is the 1931
photograph which suggests that the applicant-beneficiary could be a
sister of Woo Ting Yee, but cannot be considered adequate to establish
the claimed father-daughter relationship without other corroborating
evidence. Comment was made that if the relationship existed, correspondence between the applicant and her father and other forms of
documentary evidence covering a reasonable period of time should be
available, inasmuch as the family letters submitted are only four in
number and cover the recent three years, remembering that the applicant is now 40 years of age and that the alleged confession was made
in 1964. It is noted that the applicant's brother, Woo Ting Yee, first
departed for the United States in 1951, and that at least photographic
or documentary evidence associating the applicant with her brother
covering the few years shortly prior to 1951 should be available. It was
concluded that the identity of the applicant as the legitimate daughter
of Woo Gay You, a United States citizen, had not been reasonably
established, inasmuch as the applicant's father failed to report the
applicant as his daughter and the photographic and documentary evidence submitted was inadequate. It was recommended on November 17,
1966 that the application for a passport be disapproved and such
adverse recommendation was concurred in by the- Passport Office of
the Department of State on December 29,1966.

The file contains a sworn statement executed by Cheung Man Jak
on April 22,1964 to a Service Investigator. He testified that he was also
known as Cheung Doon Poo and Willian Woo. He first came to the
United States under the name of Woo Ting Ping and presented a
Certificate of Citizenship No. AA-34927 issued to William Ting Ping
Woo on December 22, 1952. Cheung Man Jak was born on C.R. 12-8-22
(October 2, 1923) at Sun Kew Village, Saa Gong Area, Hoy Ping,
Kwangtung, China, the son of Cheung Thack Fung, whom he thought
was a citizen of the United States, and when last heard from was
living at Sam Lee Laundry, 1018 State Street, Racine, Wisconsin.
His mother's name is Wong Gone San and she is a citizen of China.
Cheung Man Jack identified his wife as Woo Bo Chu also known as
Cheung Bo Chu, who was born November 23, 1925 at Hung Mon Lau
718

-A/ ....0,01,11,413.

tr.

J.,. .1.•

Village, Hoy Ping, Kwangtung, China, and whom he married on
February 18, 1947 in China. He identified his wife, who was the
beneficiary of the affiant's visa, petition and is the beneficiary of the
present visa petition, as a citizen of China. He admitted that he came
to the United States under the name of Woo Ting Ping and was admitted on October 23, 1951 as a citizen under section 1998, Revised Statutes, as the "paper" son of Woo Gay You. He stated that his "paper"
mother was Jung Shee. He identified Daniel Woo as his brother-in-law,
his wife's brother and his own "paper" brother. Cheung Man Jak
stated that the purpose of his appearance for a sworn statement was
to confess his true family composition so he could bring his wife and
daughter, Cheung Song 0i, born December 11, 1948 in China to the
United States.
The burden of proof rests upon the petitioner to establish eligibility

for the benefit he seeks under the immigration laws on behalf of his
alleged sister. The case of TV asiri v. Immigration and Naturalization
Service, No. 21129 (9th Cir., January 16, 1968), cited by counsel, is
not in point. The case involved rescission of a permanent residence
status granted under section 245 of the Immigration and Nationality
Act. The Supreme Court held that the burden of proof in rescission
proceedings under section 246 of the Act required a burden of proof
which was the same as that in deportation proceedings, i.e., clear,
unequivocal and convincing evidence. In the case of Amarante v.
Rosenberg, 326 F.2d 58 (9th Cir., 1964), the Court held that the alien
had not been granted a status when the visa petition is approved but
only after the Consulate Officer acts favorably on the visa. In the
instant case the visa petition was approved, the Consulate Officer

did

not take favorable action, and the visa petition was returned to the
District Director for further action in accordance with 22 CFR 42.43
( a) (1).
The difficulty in the case arises out of the fraud perpetrated by the
father of the petitioner in attempting to pass off the beneficiary as a son
instead of a daughter, which had been compounded by the visa petition
filed by the fraudulent citizen "paper" son on behalf of his wife, who is
now claimed to be a United States citizen as the daughter of a. citizen
father. Under the circumstances, the action of the Consulate Officer in
requesting additional proof of the relationship appears to be
warranted.
The same circumstances of fraud and subsequent confession apply to
the present -visa petition seeking preference status on behalf of the
beneficiary as the sister of the petitioner. Despite the long lapse of time
there has been submitted no correspondence between the alleged father
or the present petitioner and the beneficiary who is now at least 40
719

Interim Decision #1859
years of age, other than comparatively recent communications. It has
been our experience that in this type of Chinese case, correspondence
and money orders covering a substantial period of time are generally
submitted as well as photographic evidence. In addition, nothing has
been submitted. by the youngest brother, Woo Ten Yee. Until such additional evidence is submitted we cannot hold that the petitioner has sustained the burden of proof of establishing the claimed relationship_ The
prohibition against issuing a visa to a national of the United States
contained in 22 CFR 42.3(a) is noted. It is obvious the beneficiary will
be in a better position as a United States citizen, if her claim to citizenship is established, than as a preference quota immigrant.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

720


Cite as 26 I&N Dec. 667 (BIA 2015)

Interim Decision #3849

Matter of Enrique CASTREJON-COLINO, Respondent
Decided October 28, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary
departure or return does not break the alien’s continuous physical presence for
purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration
and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that
he or she was informed of and waived the right to such a hearing. Matter of Avilez,
23 I&N Dec. 799 (BIA 2005), clarified.
(2) Evidence that an alien who had the right to a hearing before an Immigration Judge
was fingerprinted and/or photographed before being allowed to voluntarily depart is
not enough, in itself, to demonstrate a waiver of the right to a hearing or to show
a process of sufficient formality to break continuous physical presence.
FOR RESPONDENT: Rachel Effron Sharma, Esquire, Atlanta, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Assistant Chief Counsel
BEFORE:
Members.

Board Panel:

Morris I. Onyewuchi,

GRANT, MILLER, and GUENDELSBERGER, Board

GUENDELSBERGER, Board Member:

In a decision dated January 25, 2012, an Immigration Judge pretermitted
the respondent’s application for cancellation of removal under section
240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)
(2012), finding that his continuous physical presence was terminated by his
January 2001 voluntary return to Mexico. 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 Mexico who first entered the
United States in 1992. In December 2000, he departed to visit family in
Mexico. After a 6-week absence, he reentered the United States unlawfully
in January 2001.
He was apprehended by Border Patrol agents,
fingerprinted and photographed, and asked to sign the screen of a small
667

Cite as 26 I&N Dec. 667 (BIA 2015)

Interim Decision #3849

electronic device that displayed unknown content. The respondent
voluntarily returned to Mexico and, within days of his departure, reentered
the United States. His next encounter with immigration officials in May
2009 resulted in the preparation of a Record of Deportable/Inadmissible
Alien (Form I-213) and service of the notice to appear commencing these
removal proceedings.
In proceedings before the Immigration Judge, the respondent conceded
removability and submitted an application for cancellation of removal. The
Department of Homeland Security (“DHS”) moved to pretermit the
application, arguing that the respondent’s voluntary return in January 2001
broke his continuous physical presence before he had accrued the necessary
10-year period to establish eligibility for that relief.
The respondent contends that the abbreviated process associated with
his January 2001 voluntary return, which he claims took approximately
2 minutes, was not sufficiently formal to break his physical presence. He
states that he was not threatened with removal proceedings or provided any
explanation of rights or warnings. The respondent therefore asserts that his
voluntary return was not made with any agreement that his departure was in
lieu of being placed in removal proceedings.

II. ISSUE
The issue in this case is whether the evidence in the record establishes
that the respondent’s voluntary return to Mexico was a formal, documented
process sufficient to break his continuous physical presence for purposes of
establishing eligibility for cancellation of removal.

III. ANALYSIS
An alien seeking cancellation of removal must demonstrate physical
presence in the United States “for a continuous period of not less than
10 years immediately preceding the date of such application.” Section
240A(b)(1)(A) of the Act. The continuity of physical presence is broken by
a departure from the United States “for any period in excess of 90 days or
for any periods in the aggregate exceeding 180 days.” Section 240A(d)(2)
of the Act.
The presence-breaking rule described in section 240A(d)(2) is not the
exclusive measure of what departures may terminate a period of physical
presence. In Matter of Romalez, 23 I&N Dec. 423 (BIA 2002), we
concluded that a departure with the knowledge that a voluntary return is in
lieu of being placed in deportation or removal proceedings is an enforced
departure that likewise ends continuous physical presence. In that regard,
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Interim Decision #3849

we stated that such circumstances create “no legitimate expectation . . . that
an alien could illegally reenter and resume a period of continuous physical
presence.” Id. at 429. The courts in nine circuits have agreed with our
conclusion in Romalez that continuous physical presence can be terminated
by a departure or departures of shorter duration than those specified in
section 240A(d)(2) of the Act.1
In Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), we addressed the
situation of an alien who was permitted to return to Mexico after being
refused admission during an undocumented encounter with an immigration
official at a land border port of entry. We held that such a voluntary return
will not break an alien’s continuous physical presence unless there is
evidence that the alien (1) was formally excluded or made subject to an
order of expedited removal; (2) was offered and accepted the opportunity to
withdraw an application for admission; or (3) was “subjected to any other
formal, documented process pursuant to which the alien was determined to
be inadmissible to the United States.” Id. at 805−06.
At the time of her departure, the alien in Avilez had a right to a hearing
before an Immigration Judge in formal exclusion proceedings.2 However,
the evidence in that case did not show that she was aware of the opportunity
1

See Garcia v. Holder, 732 F.3d 308 (4th Cir. 2013); Barrera-Quintero v. Holder, 699
F.3d 1239 (10th Cir. 2012); Vasquez v. Holder, 635 F.3d 563 (1st Cir. 2011);
Ascencio-Rodriguez v. Holder, 595 F.3d 105 (2d Cir. 2010); Mendez-Reyes v. Att’y Gen.
of U.S., 428 F.3d 187 (3d Cir. 2005); Morales-Morales v. Ashcroft, 384 F.3d 418
(7th Cir. 2004); Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. 2004); Mireles-Valdez
v. Ashcroft, 349 F.3d 213 (5th Cir. 2003); Vasquez-Lopez v. Ashcroft, 343 F.3d 961
(9th Cir. 2003) (per curiam). The United States Courts of Appeals for the Sixth and
Eleventh Circuits have yet to rule on this issue in published decisions.
2
Depending on the date and location of the relevant encounter with immigration
officials, an alien may or may not have a right to a hearing before an Immigration Judge
in formal exclusion, deportation, or removal proceedings. Aliens who are subject to
being placed in expedited removal proceedings generally do not have a right to a hearing
before an Immigration Judge. See 8 C.F.R. §§ 235.3(b)(2)(ii), 1235.3(b)(2)(ii) (2015).
The record reflects that the respondent was returned to Mexico in 2001. At that time,
the expedited removal provisions in section 235(b)(1) of the Act, 8 U.S.C. § 1225(b)(1)
(2000), which were enacted in 1996, were being applied to aliens arriving at ports of
entry, but not to those apprehended within the United States. See 8 C.F.R.
§ 235.3(b)(1)(i). Although the DHS had the authority to expand the use of expedited
removal proceedings, it did not exercise that authority until 2004, when it included
certain aliens who are encountered in the 100-mile border zone within 14 days of entry.
See section 235(b)(1)(A)(iii) of the Act; 8 C.F.R. §§ 235.3(b)(1)(ii), 1235.3(b)(1)(ii);
Designating Aliens For Expedited Removal, 69 Fed. Reg. 48,877, 48,880 (Aug. 11, 2004)
(providing notice of the DHS’s exercise of its authority). Thus, the respondent was not
subject to expedited removal proceedings and would have had a right to a hearing before
an Immigration Judge.

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Cite as 26 I&N Dec. 667 (BIA 2015)

Interim Decision #3849

for exclusion proceedings; was offered and accepted the opportunity to
withdraw her application for admission; or was otherwise subjected to
another formal, documented process where she was determined to be
inadmissible. Id. at 803, 805, 807. We therefore concluded that her
acquiescence to the immigration officer’s instruction to return to Mexico
did not break her physical presence. Id. at 807.
The salient point to be taken from Avilez is that a voluntary departure
will not break the alien’s continuous physical presence unless there is
evidence that he or she knowingly accepted its terms.3 Id. at 805. An
“acceptance of the terms” of a voluntary departure or return requires
knowledge that the alternative is the initiation of proceedings to remove the
alien from the United States. Id.; see also Matter of Romalez, 23 I&N Dec.
at 429 (finding that an enforced voluntary return breaks continuous physical
presence because “[t]he alien leaves with the knowledge that he does so in
lieu of being placed in proceedings”).
Simply put, there must be evidence that the alien was made aware of the
possibility of appearing at a hearing before an Immigration Judge and
affirmatively agreed to depart in lieu of being subjected to removal
proceedings.4 See Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 908 (8th Cir.
2005) (stating that “before it may be found that a presence-breaking
voluntary departure occurred, the record must contain some evidence that
the alien was informed of and accepted its terms”); Morales-Morales
v. Ashcroft, 384 F.3d 418, 427−28 (7th Cir. 2004) (stating that a voluntary
return following an arrest for reentry without inspection will not break
continuous physical presence where the record lacks evidence of any threat
that the alternative was a hearing in removal proceedings).
In case law addressing the presence-breaking character of a voluntary
departure or return, the Board and the courts have considered whether the
evidence shows a process of sufficient formality that the alien was made
aware of the choice between returning voluntarily or being subjected to
more formal procedures to expel him or her from the United States.
See, e.g., Reyes-Sanchez v. Holder, 646 F.3d 493, 498 (7th Cir. 2011)
(stating that in determining whether continuous physical presence is broken
by a voluntary return, the court examines whether the alien “faced a formal,
This is true regardless of whether it is referred to as a “departure,” “return,” “turn
back,” or “turnaround.”
4
The alternative option to have a hearing before an Immigration Judge is variously
described in case law as an “opportunity” or a “threat.” See, e.g., Matter of Avilez,
23 I&N Dec. at 805. Which term is more accurate from a particular alien’s perspective
depends on whether the likely result of such a hearing would be the entry of a removal
order if the alien does not have a colorable defense to the charge or a realistic possibility
of obtaining relief.
3

670

Cite as 26 I&N Dec. 667 (BIA 2015)

Interim Decision #3849

documented process at the border, and chose to depart under threat of
removal”). In Avilez, we included fingerprints and photographs as
examples of evidence that might be associated with a “formal, documented
process.” Matter of Avilez, 23 I&N Dec. at 805−06. Also included as
possible evidence of a legally enforced refusal of admission and return were
a Form I-213, a Notice of Action-Voluntary Departure (Form I-210),
IDENT documents, statements or testimony from the alien or immigration
officials, and other appropriate immigration forms or official records. Id. at
806. However, since none of that evidence was present in Avilez, we did
not reach the question whether the listed evidence might individually, or in
any specific combination, suffice to establish a presence-breaking
departure.
The evidence required to show a process of sufficient formality to break
continuous physical presence will depend on the circumstances of each
case. It has been determined that “merely fingerprinting or photographing
the alien would not constitute sufficient formality to break his continuous
physical presence.” Valadez-Munoz v. Holder, 623 F.3d 1304, 1311
(9th Cir. 2010) (citing Tapia v. Gonzales, 430 F.3d 997, 1003 (9th Cir.
2005)). We agree that evidence that an alien was fingerprinted and/or
photographed before being allowed to voluntarily depart is not enough, in
itself, to show a process of sufficient formality to break continuous physical
presence. See Garcia v. Holder, 732 F.3d 308, 312−13 (4th Cir. 2013)
(finding that the alien’s presence was broken where his encounter was not
only documented with a form indicating that he had been fingerprinted and
photographed, but the formality of the process was also established by his
own testimony that he was informed of his inadmissibility and was given
a choice between returning to Mexico or having a hearing before an
Immigration Judge).
Most of the circuit courts that have addressed this question have looked
to whether there is evidence that the alien was advised of and waived
the right to have a hearing before an Immigration Judge. See, e.g.,
Rosario-Mijangos v. Holder, 717 F.3d 269, 279−80 (2d Cir. 2013) (finding
that the alien’s continuous physical presence was terminated where he was
informed of his right to appear before an Immigration Judge and chose to
return to Mexico voluntarily in lieu of being placed in proceedings);
Reyes-Sanchez v. Holder, 646 F.3d at 497−99 (finding a break in the alien’s
continuous physical presence where she received a form notifying her of
her right to request a hearing before an Immigration Judge). Consistent
with this jurisprudence, we conclude that where an alien has a right to
a hearing before an Immigration Judge, there must be reliable testimonial
and/or documentary evidence in the record to establish that the alien was
informed of that right and waived it before a voluntary departure will be
671

Cite as 26 I&N Dec. 667 (BIA 2015)

Interim Decision #3849

considered a sufficiently formal process to break his or her physical
presence.
As time continues to pass since the 1996 enactment of section
235(b)(1)(A)(iii) of the Act and the 2004 expansion of the DHS’s expedited
removal authority, cases will, with increasing frequency, involve departures
by aliens who would otherwise be subject to expedited removal
proceedings, in which there is generally no right to a hearing before an
Immigration Judge. See supra note 2. We therefore emphasize that in
cases where the presence-breaking character of a voluntary departure is at
issue, Immigration Judges and the parties should ensure that the record is
fully developed regarding (1) the date and place of the encounter
underlying the purported presence-breaking departure; (2) the possibility
that the alien was alternatively subject to exclusion, deportation, or removal
proceedings in which there was a right to a hearing before an Immigration
Judge; and (3) the formality of the process used, including how the threat of
proceedings was communicated to the alien, what advisals were given, and
whether the alien had knowledge that the agreement to depart was in lieu of
being placed in proceedings.5
The record in this case lacks sufficient evidence to show that the
respondent was informed that he had a right to a hearing before an
Immigration Judge and understood that his departure was in lieu of being
placed in removal proceedings.6 The fact that he was fingerprinted and
photographed is not alone enough to show a sufficiently formal process to
interrupt his physical presence. The only Form I-213 in the record relates
to the May 2009 encounter that triggered the initiation of these proceedings,
rather than his January 2001 departure. Moreover, its contents offer no
5

In many cases, the relevant events will have occurred in the distant past, and the alien
may be able to offer only general testimony describing an imperfect recollection of what
transpired during the encounter. Although the alien ultimately bears the burden of
proving the required continuous physical presence, the DHS is in a better position to fill
gaps in the evidence and resolve any disputes by presenting documentation in its own
records to show the formality of the process. In Matter of Avilez, 23 I&N Dec. at 806, we
suggested several forms that could be used to provide such evidence. The Notice of
Rights and Request for Disposition (Form I-826) is another possibility. Unless the
regulations expressly require the DHS to use a specific form, no particular one is
mandated. We recognize in this regard that the DHS frequently modifies its forms
and that various districts use forms specific to their jurisdiction to document encounters
and departures.
6
We note that a document bearing the respondent’s photograph indicates that his
January 2001 apprehension occurred in Pine Valley, California. However, based on the
undisputed facts in this case, we find that he is not a member of the class that will benefit
from the class action settlement agreement approved in Lopez-Venegas v. Johnson, No.
CV 13-03972-JAK (PLAx) (C.D. Cal. Mar. 11, 2015).

672

Cite as 26 I&N Dec. 667 (BIA 2015)

Interim Decision #3849

insight into the formality of the process used when the respondent made
that departure. The only document submitted by the DHS that was created
contemporaneously with the respondent’s voluntary return is captioned
“EARM Encounter Details.” That document bears the respondent’s
photograph, but it was not signed and did not inform him of the alternative
of removal proceedings, including his right to a hearing before an
Immigration Judge.
Under these circumstances, we conclude that the evidence does not
show a process of sufficient formality to break the respondent’s continuous
physical presence. Accordingly, the respondent’s appeal will be sustained.
Since the Immigration Judge did not make findings of fact or conclusions
of law regarding the respondent’s eligibility for cancellation of removal, the
record will be remanded to allow him to apply for that relief and any other
for which he may be eligible.

IV. CONCLUSION
We clarify Matter of Avilez and hold that where an alien had the right to
appear before an Immigration Judge, evidence that photographs and
fingerprints were taken in conjunction with a voluntary departure or return
is insufficient to break the alien’s continuous physical presence in the
absence of evidence that he or she was informed of and waived the right to
a hearing.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and
entry of a new decision.

673


Interim Decision *1543

MaTTER

or

QUADAnk:

In Deportation Proceedings • ,
A-11593423
• Decided by Board January 11, 1966
(1) conviction of assault, second degree, with intent to commit the crime of
robbery is conviction of a crime involving moral turpitude.
(2) Where an alien, following conviction in New York of a crime involving
moral turpitude committed within 5 years after entry, was sentenced to not
less than one year nor more than two years in the State pilson, a final judgknent of conviction exists on which to predicate a ground of deportation
under section 241(a) (4), Immigration and•Nationality Act, notwithstanding
execution of sentence was suspended and be was placed on probation on
condition of restitution.
Ozzazot:
Order:. Act of 1952—Section 241(a) (4) i8 U.S.C. 1251(a) (4)1—Convicted
of a crime involving 'Moral turpitude committed
within five years of entry and sentenced to a .year
or more, to wit, assault, second degree.

The case comes forward on appeal from the order- of the special
inquiry officer dated June 14, 1965 finding the respondent deportable
on the charge stated in the order to show cause and ordering that
he be deported to Italy.
The record relates to a native and citizen of Italy, 21 years old,
male, who last entered the United States at the port of New York
on April 29, 1959. He was admitted for permanent residence as a
nonquota immigrant, the. unmarried minor son of a citizen of the
United. States.
The respondent's mother was a native-born citizen of the United
States by birth on March 27, 1915 in this country. She left the
United States at. the age of.eeven and did not return to this country
until 1958; again left in 1959 and returned to the United States in
April 1964. She is presently a resident of this United States. The
respondent's father was born in Italy and is not a United States
citizen. He came to the United States on April 29, 1959, stayed for
457

Interim Decision

#1543

only four or five months and returned to Italy. The respondent

testified that his parents were married but he does not know the
date. It is concluded that the respondent did not acquire United
States citizenship at birth because his mother did not have the requisite residence in the United States prior to such birth as set forth
in section 301(a) (7) of the Immigration and Nationality Act or by
virtue of any prior statute.
On April 30, 1964 the respondent was charged with committing
a .crime on April 17, 1984, which was a period within five years of
his last entry. He was indicted on seven counts and during his trial
on November 30, 1964 he pleaded - guilty to the crime of assault sec-and degree under count three of the indictment. The third count of
the indictment alleged that the respondent was guilty of the crime
of assault in the second degree committed as follows:
The said defendant, in the County of Now Tot44'on or about odd Aladi 17,

1964 with intent to commit the crime or robbery, alionited said Merino Tones.

Inasmuch as the intent to commit robbery wilhtwhich the crime was
committed obviously involves moral turpitude, the conviction of
assault in the second degree with intent to commit robbery likewise
involves moral turpitude. The respondent was sentenced to not lea
than one year and not more than two years in the State Prison, execution of the sentence was suspended and the respondent was placed
on probation on condition of restitution of $2000 at a rate of $50 per
month to be .paid to the probation department. At oral argument
counsel filed a brief arguing that the respondent is not deportable
on the basis of the suspended sentence, setting out portions of the
New York Code of Criminal Procedure. 'Although this belated service of brief was contrary to regulations, we shall dispose of the issue
raised.
Counsel contends that

the sentence to a. term,of not less than one
year and no more than two years, execution of sentence suspended,
probation, does not constitute a ground of deportation under the first
clause of section 241(a) (4) of the Immigration and Nationality Act
which provides for deportation of an alien who is convicted of a
crime involving moral turpitude committed within five years after
entry and sentenced to confinement or confined therefor in a prison
or corrective institution for a year or more. In support of this contention he relies principally upon sections 470-a and 483 of the New
York Code of Criminal Procedure which allegedly has the net effect
that no definite period of confinement has resulted
Counsel also relies upon the case of Holzapfel v:TVyrach, 259 F.2d
890 (3rd Cir., 1958). This case involved an -alien who was convicted
of the offense of open lewdness and pursu a
- nt to the New Jersey Sex
458

Interim Decision #154
Offenders Act was committed to a diagnostic center for a - complete :
after consid- physicalndmetxio.-,ThcuntyCr
eration the report and, reCommenclation of the diagnostic. center,
ordered:and adjudged that the Alien be confined in the, New Jersey, ,

State Reformatory,, sentence he suspended, and defeidant placed in,
the custody of the,Probatjun Officer for a period of three years, one
of the conditions of-probation being that:the defendant takes psychiatric treatment. > The,, court; commented ; egaxding the New Jersey
Sex Offenders Act, that it appears clear that this Act is directed
primarily .at rehabilitation and cure of persons 'found to :require med- •
teal treatment; its penal asp9cts are decidedly secondary. The appellee had to be given a suspended sentence in order for the court to be
able to enforce its probationary order that he undergo psychiatric
treatment. Although the sentence was penal in form, in substance it
merely•provided for a series of psychiatric treatments. The coercive

effect of the suspended sentence was intended to insure the participation of the -appellee in the out-patient medical care. The penal element in this legislation was so unquestionably secondary that the
humanitarian:nature of the Act should not be subverted by any formalistic interpretation of its provisions. The court concluded that
the suspended sentence was merely a technical means of enforcing
the prbb4tion order and therefore was-not within the purview of section 241(a)(4) of the Immignition and Nationality Act of 1952
authoriiing depoitition. The facts of the Holzapfel case are clearly
inapposite-to the present case.
The sections referred to by counsel in the New York Code of
Criminal Procedure: Were' considered in People Weinberger, 251
A.D.; 1964). • The court there stated that
N.Y.S.2d 790
the term "convicted" or "conviction" is of equivocal meaning. It
may mean verdict. The use of the term may vary with the particular
statute involved and' ita .mewning presents a question of legislative
intent. The court then pointed out that in civil matters, under certain laws, a plea or verdict of guilty followed by 'suspension of sentence is a conviction while under other laws, it is not. It stated however that in criminal cases the sentence is the judgment, and there
can be no judgment until sentence has been imposed. Thus, a plea
of guilty followed by. suspension of sentence is not a conviction for
fourth' offender purposes under section 1942 of the Pehal Law. Although Su.tension of sentence is not a rendition of judgment, section
4704) of the Code of Criminal Procedure specifically provides that a
Plea or :verdict of guilty and suspension of sentence or suspension of
execution of the whole or a part of the judgment shall be regarded

459

Interim Decision #1548
as a conviction for second offender purposes. The court concluded
that it viewed this section as a clear expression of legislative intent
that "a plea of guilty, standing alone and not followed by suspension
of sentence or by imposition of sentence and suspension of its execution does not constitute a conviction within the meaning of section
1941 of the Penal Law as applied. to a second offender." By clear
implication, a plea of guilty, followed by suspension of sentence or
by imposition of sentence.and suspension of its execution, does consti•
tute a conviction.1
The 1952 Immigration and. Nationality Act made a change in
-

prior language and- under section 241(a) (4) made subject to deportation an alien who was convicted of a. crime involving moral

turpitude committed within five years after entry and either sentenced to confinemen't or confined therefoi in a prison for a year or
more. This change eliminated the necessity for actual confinement
or imprisonment and made sentences to a, year or more which were
suspended a ground, for deportation. 2 We conclude that the record
of conviction and sentence to two years suspended„ constitutes a

final judgment of conviction and sentence and establishes deportability.
Counsel alternitively requests that the case be remanded for consideration of an application for adjustinent of status inasmuch as
it is now alleged that the respondent has since June 27, .1965 been
married to a lawful permanent resident of the United States who
is now pregnant and a visa petition submitted by the wife on his
behalf was approved on -September 20, 1965. However adjustment
of status pursuant to section'245 is a matter of discretion. In view
1 See also People ez rei Troiani v. Pap, 201 N.Y.S. 2d 394 (8.0t., Al). 19014
cert. den. 368 .U.S. 1003, where it was held that for certain purposes, a sus-.
waded sentence is not valid or the equivalent of a judgment of conviction
for other purposes, the imposition of a suspended sentence is valid and the
.equivalent of a judgment of conviction (see, e.g., Penal Law, •Sec. 2188; Code
Crim. Proc., Secs. 700, 470:a, 470-b). •
Matter of M—, 6 1. & N. Dec. 346; Burr v. Immigration and Naturalization
Service, 350 F.2d 87 (9th Cir. 1965) ; reaffirming Burr v. Edgar, 292 FM
593 (9th, Cir. 19ti1); Kelly v. Immigration and Naturalization Service, 349
F24 473 (9th Olt, 1965) ; Arreliano-Flores v. isto, 262 P.24 637 (9th Cir.,
1958), cert. den..382 U.S. 921; Garcia-Gonzalest v. Immigration and NaturaSzalion Service, 244 P.24 804 (9th On, 1985), eert. den. 34 14.3d. 319; Gutierrez v.
• Immigration and Naturalization Service, 323 Fad 593 (902 Cir. 1903), cert.
den. 12( L.Ed. 179; Zabanazad v. Rosenberg, 306 F.26 861 (9th Cir., 1962);
Adams v. -United States, 299 F.2d 327 (9th Cir., 1962) ; Wood v. Hem 266 F.
2d 825 (9th Cir., 1959) ; United States ex rei Pella v. Garfinkel, 158 F. Sapp.
524 (W.D. Pa., 1937), air& 251 P.25 846 (8rd ay., 1958).

460

Interim Decision #1543
of the recency of the respondent's conviction and inasmuch as it appears that the respondent is still on probation and is still making
restitution under the terms of the court order, it does not appear
that discretionary relief is warranted. The appeal will be dismissed.
ORDER: It is ordered that -the appeal be and the same is hereby

„civatiea.

•••

461


Interim Decision #2364

MATTER OF CRUZ

In Deportation Proceedings
A-19908881

Decided by Board April 3,1975
Deportation proceedings will not be terminated pursuant to 8 CFR 242.7 to 'permit
respondent to proceed in naturalization proceedings, tulles's -the alien establishes prima
fade eligibility for naturalization. Such eligibility may be established by a communication from the Service or a court declaring the alien eligible for naturalization but for the
pendency of the deportation proceedings. [Matter ofHroneich 111. & N. Dec. 193 (BIA
1961 & 1962), and Matter of LaRochella, 11 I. & N. Dec. 436 (BIA 1965), overruled
insofar as they indicate deportation proceedings will be held in abeyance pending
Service rev.ew of a claim to eligibility for naturalization.]

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant-remained longer.
ON

BEHALF

us- RbsrODIDENT: Marshall E. Kidder, Esquire
P. 0. Box 4197
Irvine, California 92664

The alier respondent has appealed from the June 19, 1974 decision of
the immigration judge in which the respondent's motion to reopen and
terminate these deportation proceedings was denied. The appeal will be
dismissed.
The respondent is a native and citizen of the Philippines. Deportability is not in issue and the only question on appeal concerns the requested
termination of these proceedings under 8 CFR 242.7.
The pertinent portion of 8 CFR 242.7 provides:
. A special inquiry officer [immigration judge] may, in his discretion, terminate
deportation proceedings to permit respondent to proceed to a anal hearing on a pending
application or petition for naturalization when the respondent has established prima
fade eligibility for naturalization and the case involves exceptionally appealing or
humanitarian factors; in every other case, the deportation hearing shall be completed as
promptly as possible notwithstanding the pendency of an application for naturalization
during any itage of the proceedings.

The respondent's claim to eligibility for

naturalization is based on

section 701 of the Nationality Act of 1940. Counsel states that the

236

Interim Decision #2364
respondent submitted an Application to File Petition for Naturalization
(Form N-400) in September of 1972. The Service evidently scheduled an
interview for January 11, 1974 in connection with the respondent's
application. Counsel states that the respondent attended the interview,
but that the case was deferred because one of the respondent's witnesses failed to attend. Shortly thereafter the Service notified the
respondent that it deemed him ineligible for naturalization because the
underlying basis for his claim had been rejected by the Supreme Court
in INS v. Hibi, 414 U.S. 5 (1973). The Service then issued an order to
show cause commencing these deportation proceedings, and in a decision dated February 22, 1974, the respondent was found deportable but
was accorded the privilege of voluntary departure.
Counsel for the respondent argues that the decision in Hibi leaves
unresolved several "due process' and "equal protection" questions with
respect to naturalization claims under section 701 of the Nationality Act
of 1940. He seeks to raise these issues in the respondent's case; however, he fears that the outstanding order of deportation would be a bar
to the litigation of the section 701 claim by virtue of the terms of section
318 of the Immigration and Nationality Act. He accordingly requests
termination of the present deportation proceedings.

Prior to the promulgation of 8 CFR 242.7, our power to terminate
deportation proceedings in order to permit an alien to proceed with an
application or petition for naturalization was based solely on the broad
grant of authority in what is now 8 CFR 3.1(d)(1). See Matter of B—, 6
I. & N. Dec. 713 BIA 1955; A.G. 1955). Past Board precedent in this
area, however, established no clear guidelines with respect to the exercise of this power. The prerequisites to termination set forth in 8 CFR
242.7 establish reasonable criteria which we shall employ in resolving
this type of request for termination of proceedings.
The regulation requires that the alien establish prima facie eligibility
for naturalization before a motion to terminate may be granted, Although we adjudicate claims to citizenship and to eligibility for citizenship, if germane to a proceeding within our jurisdiction, neither we nor
immigration judges have authority with respect to the naturalization of
aliens. We will therefore decline to entertain the question of whether an
alien is eligible for naturalization for purposes of termination under 8
Clelt 242.7. We hold that prima facie eligibility may be established by
an affirmative communication from the Service or by a declaration of a
court that the alien would be eligibible for naturalization but for the
pendency of the deportation proceedings or the existence of an outstanding order of deportation.
Matter of Hroncich, 11 I. & N. Dec. 193 (BIA 1961 & 1962), and
Matter of LaRochelle, 11 I. & N. Dec. 436 (BIA 1965), are overruled to
the extent that they indicate -that we will hold proceedings in abeyance
237

Interim Decision #2264
or order proceedings reopened pending Service review of a claim to
eligibility for naturalization. Continuation of the procedures employed
those cases would require that we make some preliminary determination with respect to an alien's eligibility for naturalization, unless we are
automatically to hold in abeyance or to reopen any case in which termination for naturalization is sought.'
This respondent has not established prima facie eligibility for naturalization as set forth above. The immigration judge's denial of the
motion to terminate was therefore correct. See Matter of Wong, 13 I. &
N. Dec. 701 (BIA 1971).

In his brief on appeal,. counsel appears to consider termination of
these proceedings a prerequisite to raising a court challenge to the
Service's evaluation of the respondent's naturalization claim. However,
we can perceive nothing to prevent counsel from pursuing his case in a
naturalization setting or via an appropriate court action.
ORDER: The appeal is dismissed.

1 See alsoifaffer of Javier, 12 I. & N. Dec. 782 (BIA 1968), to the effect that section 318
will not be invoked as a bar to naturalization proceedings in certain cases, where deportation is predicted solely upon a ground which Congress has decided should pot be a bar to
citizenship for the particular category of aliens involved. In such cases termination of
deportation proceedings is not needed, since the alien can proceed simultaneously with his
petition for naturalization.

238


Interim Decision #1929

MATTER OF CONLIFFE

In Deportation Proceedings
A-13419457
Decided by Board December 3, 1968
(1) Evidence obtained during the preliminary investigation in the form of
affidavits and question-and-answer statements are admissible in evidence
in deportittion proceedings to establish respondent was not the legal
spouse of a U.S. citizen at entry and, hence, is deportable under section
241(a) (1) of the Immigration and Nationality Act, as one not nonquota
as specified in his visa and whose visa was procured by fraud or misrepresentation.
(2) There was no denial of due process where the Service refused to grant
assurances for respondent's reentry to the United States to go abroad to
personally confront Government witnesses and counsel for respondent refused to cross-examine Government witnesses through inquiries and interrogatories by mail.
CHARGES :
Order:

Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)3—Excludable at entry, to wit: not nonquota immigrant as
specified in visa.
Act of 1952—Section 241 (a) (1)
U.S.C. 1251 (a) (1)3—Excludable at entry, to wits visa procured by fraud or
willful misrepresentation.

ON BEHALF OF RESPONDENT:
James J. Orlow, Esquire
824 Bankers Securities Bldg.
Philadelphia, Pa. 19107

ON BEHALF OF SERVICE:

R. A. Vielhaber
Appellate Trial Attorney

The respondent, a native and citizen of St. Vincent Isle in the
West Indies and a subject of Great Britain, appeals from an
order entered by the special inquiry officer on April 18, 1968 directing his deportation to St. Vincent Isle on the charges stated
in the order to show cause. Counsel on appeal excepts to the finding of deportability on the ground that the respondent has been
denied due process in the conduct of the proceedings by the spe95

Interim Decision #1929
cial inquiry officer. He requests a remand of the case for further
hearing.
The respondent, a married male alien, 42 years of age, concedes
that he is a citizen of St. Vincent Isle and a subject of Great
Britain, that he last entered the United States on or about November 1, 1964, and that he was admitted at that time as a nonquota immigrant upon presentation of a nonquota immigration
visa issued to him as the husband of Ophelia Conliffe, formerly
Ophelia Glass, a citizen of the United States. The respondent does
not admit that at the time he obtained his immigration visa and
his entry into the United States he was then and still is the husband of Doris Conliffe, nee Noel, an alien, to whom he was married on June 1, 1952, and that in obtaining his immigration visa
he willfully and falsely claimed to be the husband of Ophelia Conliffe and willfully and falsely claimed that he had never been
married before his marriage to Ophelia Conliffe on January 6,
1964. During the proceeding the respondent stood mute and put
the Government on proof as to the charges contained in the order
to show cause
The evidence introduced by the Government is entirely documentary. The documentary evidence relied upon by the special in-

quiry officer has been fully discussed in his opinion. Briefly, it
consists of an immigration form (I-94B) which shows that the
respondent, born in Trinidad, West Indies on July 17, 1927, was
admitted to the United States as a temporary agricultural worker
on November 21, 1958. This document was stipulated in evidence,
and there is a photograph attached to the reverse side.
The Service also introduced the following documents in evidence: Exhibit 3 is an identity card issued by the government of
Trinidad and Tobago to Eli Conliffe born in Trinidad, West Indies, on July 17, 1927 and signed by the bearer, Eli Conliffe. The
identity card has attached thereto the same photograph found on
the reverse side of Exhibit 2 and bears the same number
"T-589531" found on Exhibit 2 and on both photographs. Counsel refused to identify this document as relating to the respondent
notwithstanding the fact that it has an identical photograph and
the same identity number as found on Exhibit 2 (p. 4).
Attached to Exhibit 6 are two documents relating to one "Eli
Conliffe" and bearing his signature. The first attachment is an agricultural worker information sheet relating to Eli Conliffe in
which he names "Doris Conliffe" as his nearest relative, identifying her as his wife. The second attachment is directed to the
Labor Commissioner at Kingstown, St. Vincent Island, West In-

96

Interim Decision * 1929
dies, dated April 20, 1959, signed by Eli Conliffe and directs the
Labor Commissioner to pay $10 a month to his wife, Mrs. Doris
Conliffe. Counsel objected to the introduction of the attachments
on the ground that they have not been validated or identified except by the trial attorney, and he also expressed a desire to
cross-examine the signatories of the attached documents (p. 9).
Exhibit 9 is the immigrant visa presented by the respondent
when he was admitted to the United States on November 1, 1964.
The application for the visa bears the signature of "Eli Conliffe"
which appears to be similar to the signatures found in the prior
exhibits. The special inquiry officer observed that the photograph
on the visa is a good likeness of the respondent and closely resembles the picture attached to Exhibit 2 which counsel stipulated in
evidence without objection.
Attached to the visa is an application executed by one Eli Conlife on October 27, 1964. It states among other things that the
applicant was born on July 17, 1926, in Belair, St. Vincent; that
his present occupation is a carpenter; that he is "going to the
United States" to join his wife who is named as "Ophelia Conliffe," residing at 5813 Larchwood Street in Philadelphia, Pennsylvania and that her maiden name was "Glass." The application
names as the applicant's next of kin Clementina Conliffe, his
mother, and states that his father, James Conliffe, died on June 1,
1958. The application further states that the applicant's claim for
nonquota classification is based on the fact that he is •"the husband of a 'United States citizen and the beneficiary of a petition
filed July 6, 1964 and approved July 22, 1964 at Philadelphia."
The application for a visa is supported by a birth certificate issued by the Registrar of General Births and Deaths of the Colony
of St. Vincent showing the birth of Eli Sylvena Conliffe at Belair,
St. Vincent Island, on July 17, 1926, the son of James and Olementiana Conliffe whose maiden name was Soso.
Exhibit 12 is a sworn statement executed by Clethentina Conliffe before a Justice of the Peace. of the Island of St. Vincent,
West Indies, on August 16, 1966. The affiant states in substance

that she is the mother of Eli Conliffe born on July 17, 1926, and
that she is "certain that my son Eli got married to Doris Noel"
and that she "heard that (her) daughter-in-law, Doris Conliffe
nee Noel, is in Trinidad but I do not know her address."
Exhibit 18 is a question-and-answer statement taken from one
Priscilla Conliffe by the American Consul at Bridgetown, Barbados on August 9, 1966. The affiant, Priscilla Conliffe, stated that
she is the sister-in-law of Eli Conliffe whose photograph she iden97

Interim Decision #1929
tified. She further stated that she witnessed the marriage of Eli
Conliffe to Doris Noel in 1952; that Eli Conliffe is the son of Clementina Conliffe, and he is the father of five children, three girls
and two boys, and to the best of her knowledge her brother-inlaw has never been divorced.
Exhibit 14 is a certified true copy of a marriage certificate issued to Eli Conliffe and Doris Noel showing their marriage on
June 1, 1952; that the groom is a carpenter and the bride a seamstress; that the groom was 26 years of age and the bride 24 years
of age; that both the bride and groom were born in St. John Parish at Belair, and that the father of the groom was James Conliffe and the father of the bride Robert Noel. The certificate is
duly signed by Eli Conliffe and Doris Noel in the presence of William Wyllie and Priscilla Conliffe. According to the certificate, the
marriage was celebrated at the Cathedral Church in St. George.
It is noted that the age of the respondent on the marriage certificate is consistent with the age indicated on the birth certificate
attached to the visa. Furthermore, he gave as his occupation that
of a carpenter when he applied for his visa, and the occupation of
carpenter is also shown on the marriage certificate_

Exhibit 15 is a question-and-answer statement executed by
Doris Conliffe and forwarded 'to the Embassy of the United
States of America at Bridgetown, Barbados, West Indies, on May
18, 1967, by the Chief of Police of the Royal St. Vincent Police
Force at Kingstown. The maker of the statement identifies a copy
of the photograph of the respondent which was attached to his
visa as a photograph of the person that she married on the first
of June 1952 in the Kingstown Anglican Church. The maker of
the statement also stated that she was the mother of five children
born between March 7, 1950, and March 14, 1958; that she resided with her husband from 1950 until January 10, 1958, at
Fountain, St. Vincent Island; nd that her husband has "four artificial teeth to the front of the top row." The statement is not
under oath.
During the presentation of the Government's case counsel for
the respondent was assured that he would be afforded an opportunity to cross-examine by interrogatories the makers of the documents introduced by the Government as evidence in support of
the charges against the respondent. Counsel was advised by the
special inquiry officer that he would be given one month in which
to determine whether he wished to cross-examine the witnesses
by way of written interrogatories or whether he would travel to
St. Vincent Island for a confrontation (p. 21). Counsel by letter
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Interim Decision #1929
dated November 28, 1967, informed the District Director at Philadelphia, Pennsylvania, that it would be necessary for the respondent to accompany him to St. Vincent to prepare a defense
since he (counsel) is "not only an outsider and alien to the population, but also visibly different"; that he (counsel) does not propose to submit the respondent to an exclusion proceeding in lieu
of a deportation proceeding; and that he (counsel) requests an
"assurance" on the part of the District Director that the respondent would not be made the subject of exclusion proceedings "because of the facts underlying the present pending deportation
proceedings" (Ex. 16).
The District Director in his reply conceded that "the Government should give him (respondent) all possible access to the evidence which he (respondent) must obtain and present on his own
behalf in the deportation proceeding now pending" but that he
(District Director) could "see no way out of what appears to be
an impasse in view of (counsel's) insistence that inquiries, interrogatories and investigation through the use of mail would be ineffective in the circumstances of this case" (Ex. 17). The District
Director informed counsel that he could give no assurance that
respondent would not be subject to exclusion proceedings, "for
the law is clear and I have no discretion car authority to impugn
it in any manner" (Ex. 17).
Counsel in a letter to the special inquiry officer dated January
26, 1968, stated that under the Government's theory of the case
the denial of an assurance that the respondent would not be subjected to exclusion proceedings amounted to a denial of a presentation of cross-examination as well as the respondent's defense.
He stated that if the respondent were "free to prepare his case"
he could prove that :
(1) The key witness, Doris Noel, sometimes also known as
Doris Conliffe, is unworthy of belief.
(2) This same Doris Noel was not lawfully able to contract a
valid marriage with respondent as alleged, notwithstanding what
appears to be the creation of such a status.
(3) The other witnesses in favor of (the) Government's theory
are mistaken as to the legal conclusions which they draw from
certain facts.
Counsel declined to proceed further until the respondent has been
given a fair opportunity to investigate and prepare a cross-examination and his defense (Ex. 18).
The special inquiry officer concludes on the basis of the documentary evidence submitted by the Government that "deportabil99

Interim Decision *1929
ity has been established by even a greater degree of evidence
than that which is clear, convincing and unequivocal" (p. 11, special inquiry officer's opinion). Counsel on the other hand urges
error in that the respondent has been denied due process of law,
since the Government has effectively prevented respondent from
preparing his defense by refusing to assure him that he would
not be held in exclusion proceedings upon his return to the
United States. A similar argument was made in the case of Hyun
v. Landon, 219 F.2d 404 (9th Cir. 1955). The court held that deportation proceedings are civil in nature, and the fact that an
alien is unable to travel to a place where he could cross-examine
the witnesses is not a denial of the right of cross-examination
(ibid, at page 406).
Counsel argues that the special inquiry officer has accepted certain documents as evidence supporting the charges which on their
face are affidavits and not depositions, and do not conform to the
rule on depositions. This fact, it is urged, denies the respondent
his statutory rights under section 242 (b) of the Act in the sense
that if the affidavits are to be considered as depositions they are
proceedings of which the respondent never had notice or opportunity to participate in the cross-examination of the makers of the

oral depositions.
The documents referred to by counsel are statements in both
affidavit and question-and-answer form which were taken from
the respondent's mother, his sister-in-law, his first wife and a
person who witnessed the respondent's first marriage. This evidence was secured during the preliminary investigation of the
case pursuant to the authority contained in section 287 (b) of the
Act (8 U.S.C. 1357). It was admitted in evidence over objections
by counsel pursuant to authority given the special inquiry officer
in section 242 (b) of the Act. Contrary to the argument of counsel, section 242(b) (1) of the Act does not require the Service to
reveal the nature of the evidence it proposes to introduce during
the hearing. It provides that "the alien shall be given notice, reasonable under all circumstances, of the nature of the charges
against him and the time and place at which the proceedings will
be held." The order to show cause served upon the respondent on
November 6, 1967, fully satisfies this requirement of the statute.
There is no merit to counsel's claim that the introduction of the
affidavits and question-and-answer statements violates section
242 (b) (2) in the sense that if this evidence is regarded as depostitions, the respondent was not represented by counsel. Section
242(b) (2) makes no provision for an alien's representation by

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Interim Decision *1929
counsel during the preliminary investigation prior to the issue of
an order to show cause. Furthermore, there is no validity to counsel's allegation that the evidence obtained by the Service prior to
the issue of the order to show cause violates section 242 (b) (3)
which requires that an alien be permitted "a reasonable opportunity to examine the evidence against him, to present evidence in
his own behalf and to cross-examine witnesses presented by the
Government." There is ample evidence in the record that the respondent was given an opportunity to examine the evidence
against him and to prepare his defense in accordance with the
regulation providing for interrogatories (8 CFR 242.14 (e) ).
Concerning the issue of discretionary relief counsel maintains
that to proceed with an application would necessarily waive the

Government's errors of proof. There is no substance to this claim
because 8 CFR 242.17 (d) specifically provides that an application
for discretionary relief "shall not be held to constitute a concession of alienage or deportability in any case in which the respondent does not admit his alienage or deportability."
We are here concerned with an adminsistrative proceeding
which is not bound by the strict rules of evidence applicable to
judicial proceedings. Schoeps v. Carmichael, 177 F.2d 891 (9th
Cir., 1949). The respondent was afforded ample opportunity to
prepare his defense and cannot now complain of his failure to
take advantage of the offer permitting him to proceed with the
taking of depositions and the cross-examination of the Government witnesses. There is no requirement in the statute or the regulations that an alien be confronted by witnesses when taking a
deposition or cross-examining a witness. Cf. Singh v. McGrath,
104 F.2d 122, 123 (9th Cir., 1939) ; matter of McNeil, 11 I. & N.
Dec. 378 (A.G. 1965).
The evidence in the instant case is clear, convincing and unequivocal that the respondent married Doris Noel at the Cathedral
Church of St. George on St. Vincent Isle on June 1, 1952. There
is no evidence before us that the respondent was free to marry
Ophelia Glass, a citizen of the United States, at Elkton, Maryland, on January 6, 1964. The Government established a prima
facie case of deportability and the burden was upon the alien to
go forward with the evidence to establish that his first marriage
was a nullity. Cf. Ah. Chiu Pang v. Immigration. and Naturaza-

368 F.2d 637 (3d Cir., 1966), cert. den. 386 U.S.
1037, 18 L.ed. 601 (1967). This he refused to do unless concessions were made which were not permissible under the immigration laws. Under the circumstances, he has not been denied due
lion Service,

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Interim Decision #1929
process of law. We affirm the decision of the special inquiry
officer and conclude that there is clear, convincing and unequivocal evidence that the respondent is deportable as charged in the
order to show cause. An appropriate order will be entered dismissing the appeal and denying a remand of the proceeding to
the special inquiry officer.
ORDER: It is directed that the appeal be and the same is
hereby dismissed and the request for a remand of the proceeding
to the special inquiry officer is hereby denied,

102


MATTER OF

C—N—J-

In SECTION 245 Proceedings
A-6826124

Decided by District Director December 15, 1960
Approved by Assistant Commissioner
Adjustment of status—Section 245—Effect of admission as immigrant.
The benefits of section 245 of the Immigration and Nationality Act, for which
rmly nonimmigrants were eligible prior to the amendment of July 14, 1960, are
extended to otherwise eligible aliens who were inspected and admitted as immigrants and who did not participate in fraud or deceit in gaining admission.

BEFORE THE DISTRICT DIRECTOR

DISCUSSION: The applicant, a 31-year-old married female, native and citizen of China, last entered the United States at San
Francisco, California, on December 17, 1947. She was admitted as
a nonquota immigrant under section 1, Act of December 28, 1945,
upon the basis of her marriage to a United States citizen,
who was a member of the armed services. Since entry, she has given
birth to four children, all of whom were born in Providence,
Louisiana.
Her spouse, C—C--J—, voluntarily confessed to the Immigration
and Naturalization Service on February 11, 1959, that he was not a
citizen of the United States as he had prevously claimed, and that
he entered the United States on a false claim to citizenship. This
confession revealed his wife's illegal immigration status. The applicant has testified that at the time of her entry into the United
States she did not know that her husband was not a United States
citizen.
Applicant's spouse acquired United States citizenship by naturalization at Shreveport, Louisiana, on December 11, 1959. He submitted a petition to accord the applicant nonquota status under
section 101(a) (27) (A) of the Immigration and Nationality Act,
which petition was approved on October 31, 1960. The applicant
has submitted an application on Form 1-485 for adjustment of her
status to that of a permanent, resident pursuant to section 245 of
the.Immigration and Nationality Act.

141

Prior to amendment by the Act of July 14, 1960, section 245 by
its terms was available only to nonimr.qigrants. Since that date,
any alien "other than an alien crewman, who was inspected and admitted or paroled into the United States" is eligible to apply for the
benefits of section 245.
The record discloses that the applicant was "inspected and ad-

as an immigrant and did not participate in any fraud or
deceit in gaining admission as such. Since she has been accorded
nonquota status, an immigrant visa is immediately available to her.
She has resided in the United States for a period of thirteen years,
is married to a United States citizen and has four minor United
States citizen children. She has established that she is a person of
mitted"

good moral character. The requirements of the statute have been
met. It is concluded that the facts and circumstances in this case

merit favorable exercise of the Attorney General's discretionary
authority.

ORDER: It is ordered that the application for status as a permanent resident under section 245 of the Immigration and Nationality
Act be and the same is hereby granted.

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Interim Decision #3857

Matter of Elvis GUZMAN-POLANCO, Respondent
Decided February 24, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) For a State offense to qualify as a crime of violence under 18 U.S.C. § 16(a) (2012),
the State statute must require as an element the use, attempted use, or threatened use
of violent physical force. Matter of Martin, 23 I&N Dec. 491 (BIA 2002), withdrawn.
(2) The crime of aggravated battery under the Puerto Rico Penal Code, which may be
committed by means that do not require the use of violent physical force, is not
categorically a crime of violence under 18 U.S.C. § 16(a).
FOR RESPONDENT: Maria del Rosario Garcia Miranda, Esquire, San Juan, Puerto Rico
FOR THE DEPARTMENT OF HOMELAND SECURITY: Magdalena Ramos, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and GREER, Board Members.
PAULEY, Board Member:

In a decision dated May 19, 2015, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien
convicted of an aggravated felony crime of violence under section
101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2012), and ordered
him removed from the United States. 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.
The respondent is a native and citizen of the Dominican Republic who
entered the United States on November 2, 1997, as a lawful permanent
resident. On November 15, 2012, he was convicted of aggravated battery
in the third degree in violation of Article 122 of the Puerto Rico Penal
Code, which is codified at title 33, section 4750 of the Laws of Puerto Rico

1

The Immigration Judge also noted that the question of the respondent’s removability
was previously determined in an order dated May 13, 2015, which was incorporated by
reference, and that the respondent had requested no relief from removal.

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Annotated. 2 His sentence to 3 years and 1 day of imprisonment was
suspended. The Department of Homeland Security (“DHS”) initiated
removal proceedings against the respondent on March 3, 2015.
The Immigration Judge determined that the respondent is removable
because his aggravated battery offense is a crime of violence under
18 U.S.C. § 16(a) (2012). 3 Specifically, she ruled that the Puerto Rico
statute is divisible because it criminalizes both conduct that qualifies as a
crime of violence and conduct that does not. In this regard, the
Immigration Judge focused on the elements of aggravated battery in section
4750, noting that the offense includes injuries that require emotional and
psychological treatment, as well as those that require physical treatment.
She determined that injuries requiring physical treatment involve the use of
physical force, which is necessary for an offense to be a crime of violence
under § 16(a), but that injuries involving emotional and psychological
treatment do not. Finding that the statute is divisible, the Immigration
Judge applied the modified categorical approach to hold that the
respondent’s conviction is for an aggravated felony crime of violence.
The respondent argues that the Immigration Judge should have applied
the categorical approach to find that he was not convicted of a crime of
2

Article 122 of the Puerto Rico Penal Code, states the following in regard to aggravated
battery:
If the battery described in § 4749 of this title causes an injury that does not leave
permanent harm, but requires medical attention, specialized professional outpatient
treatment, shall incur a fourth degree felony.
If the battery causes an injury that requires hospitalization or extended treatment, or
causes permanent harm, the perpetrator shall incur a third degree felony. This
modality also includes mayhem, those that transmit an illness, syndrome or
condition requiring prolonged physical treatment, or those that require prolonged
psycho-emotional treatment.
33 L.P.R.A. § 4750 (2011) (emphases added). The predicate offense of simple battery,
referenced in Article 122 as section 4749 of the Laws of Puerto Rico Annotated, is at
Article 121 of the Puerto Rico Penal Code, which provides:
Any person who illegally through any means or form inflicts injury to the bodily
integrity of another shall incur a misdemeanor.
(Emphasis added.) For ease of reference in this decision, we will refer to these
provisions as codified at sections 4749 and 4750.
3
A crime of violence is defined in 18 U.S.C. § 16(a) as “an offense that has as an
element the use, attempted use, or threatened use of physical force against the person or
property of another.” (Emphasis added.)

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violence under § 16(a). The DHS does not dispute that the categorical
approach is applicable, but it contends that the respondent’s offense
categorically is a crime of violence. Neither party asserts that we should
apply the modified categorical approach.
In determining whether a State crime qualifies as a removable offense
under the Federal definition, we must compare the State offense to the
generic Federal offense and determine if it is a categorical match. See
United States v. Fish, 758 F.3d 1, 5 (1st Cir. 2014). In making this
comparison, we do not consider the respondent’s conduct in committing the
offense but look, instead, to whether “the state offense ‘“necessarily”
involved . . . facts equating to [the] generic [federal offense].’” Moncrieffe
v. Holder, 133 S. Ct. 1678, 1684 (2013) (quoting Shepard v. United States,
544 U.S. 13, 24 (2005)) (alterations in original). Because we do not
examine the facts underlying the respondent’s particular case, “we must
presume that the conviction ‘rested upon [nothing] more than th[e] least of
the acts’ criminalized, and then determine whether even those acts are
encompassed by the generic federal offense.” Id. (quoting Johnson
v. United States, 559 U.S. 133, 137 (2010)) (alterations in original).
According to the DHS, because the predicate offense for aggravated
battery in section 4750 is simple battery under section 4749, which requires
the intentional infliction of “injury to the bodily integrity” of the victim,
every battery offense necessarily involves the use of “physical force”
required for a crime of violence under § 16(a). 4 See 33 L.P.R.A. § 4650
(2011) (providing that any act sanctioned by the Puerto Rico criminal code
requires intent, unless it expressly states that negligence is sufficient). In
this regard, the DHS relies on our decision in Matter of Martin, 23 I&N
Dec. 491, 494 (BIA 2002), where we stated that the “legislative history of
the ‘crime of violence’ definition provides explicit support for the
conclusion that an assault involving the intentional infliction of physical
injury has as an element the use of physical force within the meaning of
18 U.S.C. § 16(a).” (Emphasis added.)
Subsequent to our decision in Martin, the Supreme Court held that “the
phrase ‘physical force’ means violent force—that is, force capable of
causing physical pain or injury to another person.” Johnson v. United
States, 559 U.S. at 140; see also Leocal v. United States, 543 U.S. 1, 11
4

Although the term “bodily integrity” in section 4749 does not appear to be a statutorily
defined term, the Supreme Court of Puerto Rico has described “the integrity of the
person” in a case regarding the offense of mayhem as the “natural sufficiency and good
appearance of the limbs and organs of the human body, and the preservation of its
functions.” People v. Castañón Pérez, 14 P.R. Offic. Trans. 688, 695 n.4, 1983
WL 204175 (P.R. 1983).

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(2004) (stating that the ordinary meaning of the term “crime of violence” in
§ 16(a), combined with its emphasis on the use of physical force against
another person, “suggests a category of violent, active crimes” (emphasis
added)). We have previously held that Johnson controls our interpretation
of a crime of violence under § 16(a). Matter of Velasquez, 25 I&N Dec.
278, 282 (BIA 2010).
Furthermore, during the pendency of this appeal the United States Court
of Appeals for the First Circuit, in whose jurisdiction this case arises,
rejected our decision in Martin, recognizing that for purposes of § 16(a),
“physical force” is understood to mean violent force. Whyte v. Lynch, 807
F.3d 463, 468 (1st Cir. 2015) (finding that the third degree assault offense
under the same Connecticut statute addressed in Matter of Martin is not a
crime of violence). 5 Based on these decisions, we now withdraw from our
holding in Matter of Martin to the extent that it is inconsistent with the
Supreme Court’s decisions in Johnson and Leocal.
In Whyte, the First Circuit found that in order for a State offense to
qualify as a categorical crime of violence under § 16(a), the statute must
require, by its actual terms or by interpretive State case law, the “use,
attempted use, or threatened use of ‘violent force’ as a necessary element of
conviction.” Whyte v. Lynch, 807 F.3d at 468 (stating that the “elements of
a crime may be defined by statute or by case law” (citations omitted)). In
reaching its conclusion that the term “physical force” in § 16(a) means
violent force, the court addressed the Government’s contention, also raised
by the DHS in this case, that a statute that requires the element of physical
injury to the victim necessarily “implies an added element that physical
force be used to cause the injury.” Id. at 470. The Government based this
argument on the reasoning in United States v. Nason, 269 F.3d 10, 20 (1st
Cir. 2001), where the court stated that “to cause physical injury, force
necessarily must be physical in nature.”
The First Circuit pointed out that the flaw in the Government’s
argument was its assumption that the term “physical force” in § 16(a) has
the same meaning that it has in 18 U.S.C. § 921(a)(33)(A)(ii) (2012), where
it is used to define a misdemeanor crime of domestic violence for purposes
of the Domestic Violence Offender Gun Ban at 18 U.S.C. § 922(g)(9)
(2012), the offense at issue in Nason. Whyte v. Lynch, 807 F.3d at 470. In
that regard, the court emphasized that “physical force” can “mean different
things depending on the context in which it appears.” Id. (citing Johnson
5

Several other circuit courts have also rejected Matter of Martin. Singh v. Ashcroft,
386 F.3d 1228, 1233 (9th Cir. 2004); Flores v. Ashcroft, 350 F.3d 666, 671 (7th Cir.
2003); Chrzanoski v. Ashcroft, 327 F.3d 188, 196 (2d Cir. 2003).

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Interim Decision #3857

v. United States, 559 U.S. at 139 (“Ultimately, context determines
meaning.”)).
Explaining how the statutory context matters, the First Circuit discussed
the Supreme Court’s decisions in Johnson and United States v. Castleman,
134 S. Ct. 1405 (2014). Id. at 471. In Johnson, the Court held that that the
phrase “physical force” in 18 U.S.C. § 924(e)(2)(B)(i) (2006), which
defines the term “violent felony” for purposes of the Armed Career
Criminal Act at § 924(e)(1), means “violent force.” Johnson v. United
States, 559 U.S. at 140. By contrast, the Court in Castleman distinguished
its holding in Johnson, determining that when “physical force” is used in
the context of the domestic violence offense in § 922(g)(9), it should be
defined differently to incorporate the common-law meaning, which is
satisfied by a “mere offensive touching.” United States v. Castleman, 134
S. Ct. at 1411−13. 6
As the First Circuit noted, it has extended the reasoning in Johnson
regarding the phrase “physical force” in § 924(e)(2)(B)(i) to the definition
of “physical force” in the context of determining whether a State statute
defines a crime of violence under § 16(a). Whyte v. Lynch, 807 F.3d at 468
(citing United States v. Fish, 758 F.3d at 9); accord Johnson v. United
States, 559 U.S. at 140 (relying on the interpretation of “physical force” in
Leocal because the statutory definition of a crime of violence in § 16 is
“very similar” to the language of § 924(e)(2)(B)(i)). Consequently, the
court rejected the Government’s argument that physical injury to the victim
is sufficient to establish the use of physical force for § 16(a) and held that a
State offense must “require as an element the use, attempted use, or
threatened use of violent force” to qualify as a crime of violence aggravated
felony for immigration purposes. Whyte v. Lynch, 807 F.3d at 471−72
(contrasting the approach in Nason, which, like Castleman, was in the
context of the domestic violence offense in § 922(g)(9)). We agree. See
Matter of Velasquez, 25 I&N Dec. at 282.
The simple battery statute at section 4749 of the laws of Puerto Rico, by
its terms, provides that every battery requires the infliction of bodily injury
“through any means or form.” Therefore, the offense of third degree
aggravated battery under section 4750 could be committed by means that
do not require the use of violent physical force. For example, an offender
could commit aggravated battery by injuring another person through the use

6

The Supreme Court did not reach the question whether the forms of injury involved in
the statute at issue in Castleman “necessitate violent force, under Johnson’s definition of
that phrase.” United States v. Castleman, 134 S. Ct. at 1414.

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of poison. 7 Consequently, the use of violent force is not a required element
of the crime of battery under the Puerto Rico statutes. Moreover, the DHS
has not pointed to any case law of Puerto Rico that suggests that the battery
statutes have been interpreted to require the use of violent force as an
element. We therefore conclude that the conduct criminalized under the
Puerto Rico aggravated battery statute is not categorically a crime of
violence under § 16(a). See Whyte v. Lynch, 807 F.3d at 471−72.
The DHS has not established that the respondent is removable as an
alien convicted of a crime of violence under § 16(a). However, given that
there appear to be unresolved issues regarding the respondent’s
removability, in particular whether his conviction is for a crime of violence
under § 16(b), we will remand the record to the Immigration Judge for
further proceedings, as warranted. 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.

7

The First Circuit noted that a person could also intentionally cause physical injury
without “violent force” by “telling the victim he can safely back his car out while
knowing an approaching car driven by an independently acting third party will hit the
victim.” Whyte v. Lynch, 807 F.3d at 469 (quoting United States v. Villegas-Hernandez,
468 F.3d 874, 879 (5th Cir. 2006)). Both that scenario and the use of poison illustrate
actions that do not require the use of “violent force” but that could nonetheless result in
bodily injury to the victim. See also Rummel v. Estelle, 445 U.S. 263, 282 n.27 (1980)
(“Caesar’s death at the hands of Brutus and his fellow conspirators was undoubtedly
violent; the death of Hamlet’s father at the hands of his brother, Claudius, by poison, was
not.”).

718