Interim Decision #2721

MATTER OF WESTMAN
In Deportation Proceedings
A-17113376
Decided by Board July 9, 1979
(1) A conviction for attempted grand larceny by passing bad checks under Revised Code
of Washington section 9.54.010, is for a crime involving moral turpitude because the
statute requires "intent to deprive or defraud" for conviction.
(2) Even though sentencing was deferred pursuant to Revised Code of Washington
section 9.95.240, the respondent is deportable under section 211(a)(1) of the Immigration and Nationality Aut, 8 U.B.C. 1251(n)(1), as excludable at entry under ocetion
212(a)(9) of the Act, 8 U.S.C. 1182(a)(9), for havingbeen convicted of a crime involving
moral turpitude prior to entry. Matter of De La Cruz,15 I&N Dec. 616 (BIA 1976);
Matter of V—,7 I&N Dec. 577 (BIA 1957), distinguished.
(3) A conviction is aufficlently fund for excludability under section 212(a)(8) of the Act
even though sentencing is deferred, when the guilty finding is subject to a res judicata
appeal on the merits, and even if the charges are eventually dismissed pursuant to
ROW 9.95.240, the conviction remains for other state purposes. Matter of Varagianis,
16 I&N Dec. 48 (BIA 1976).
CHARGE:
Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1))—Excludable at entry for having been convicted of a crime involving moral turpitude pursuant to sec. 212(a)(9) [8 U.S.C. 1182(a)(9)]
ON BEHALF OF RESPONDENT: John W. McLaren, Esquire
Suite 100, Colman Building
811 First Avenue
Seattle, Washington 98104
By:

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

The respondent appeals from the July 24, 1978, decision by the
immigration judge finding him deportable as an alien excludable at
entry for having been convicted of a crime involving moral turpitude
pursuant to section 212(a)(9) of the Immigration and Nationality Act,
8 U.S.C. 1182(a)(9). The appeal will be dismissed.
The respondent is a native and citizen of Canada who last entered
the United States at Blaine, Washington, on April 28, 1978. His mother
is a lawful permanent resident of the United States, and his brother is
50

Interim Decision #2721
a United States citizen. During a previous visit to the United States, he
was arrested for presenting a $50 cheek for cash to the Nordstrom
Department Store in Kings County, Washington, on February 19, 1976,
when he had no funds in the bank account. He was charged and pled
guilty on May 26, 1976, to attempted grand larceny in violation of
Revised Code of Washington sections 9.54.010-090' and 9.01.070. Upon
his guilty plea, the trial judge entered an order finding the respondent
guilty and deferring sentencing for 2 years during which time the
respondent was placed on probation. The terms of probation specified
that the respondent make retribution and pay court costs (Ex. 2).
The sole ground of appeal is the respondent's contention that he has
not yet been convicted of a crime involving moral turpitude since his
sentencing has been deferred and that, therefore, he is not deportable
as charged. We disagree with the respondent's contention.
The first issue we must address is whether the charge to which the
respondent pled guilty is a crime involving moral tur pitude. We have
previously held that larceny is a crime involving moral turpitude. See
Matter ofAfandiary,16 I&N Dec. 659 (BIA 1979); Matter of D—,7 I&N
Dec. 476 (BIA 1957); Matter of F 6 I&N Dec. 783 (BIA 1955); Matter
of 1)—. 4 I&N Dec. 252 (BIA 1951; A.G. 1951); of. Giammario v. Harney,
311 F.2d 285 (3 Cir. 1962). Quilodran-Brau v. Holland,132 F. Stipp. 765
(E.D. Pa. 1955), ajf'd, 232 F.2d 183 (3 Cir. 1956). On the other hand, we
have also held that a conviction for passing bad checks does not
necessarily involve moral turpitude because guilty knowledge may not
be inherent in such a charge. See Matter of Colbourne,13 I&N Dec. 319
(BIA 1969); Matter of Stasinski, 11 I&N Dec. 202 (BIA 1965). 'Therefore,
we must look to the Washington statute for the answer to this
question.
RCW 9.54.010 provided in its relevant part:
-7

Every person who, with. intent to deprive

or defraud the owner thereof —

"•

or another the possession of or title to any property,
real or personal, by color or aid of any order for the payment or delivery of property or
(2) Shall obtain from the owner

money or any check or draft, knowing that the maker or drawer of such order, check or
draft was not authorized or entitled to make or draw the same, or by color or aid of any
fraudulent or false representation, personation or pretense or by any false token or
writing or by any trick, device, bunco game or fortune-telling; or
•-•

Steals such property and shall be guilty of larceny. (Emphatie added_)
Effective July 1, 1976, that section has been replaced by Revised Code of Washington
9A.56.100.

51

Interim Decision #2721
RCW 9.54.090 provides in part:
Every person who steals or unlawfully obtains, appropriates, brings in to this state,
buys, sells, receives, conceals, or withholds in any manner specified in RCW 9.54.010.—
(5) Property of the value of more than twenty-five dollars if obtained by color or aid
of any order for the payment or delivery of property or money or any check or draft,
knowing that the maker or drawer of such order, check, or draft was not authorized
or entitled to make or draw the same;...
. . . shall be guilty of grand larceny. . . .

After reviewing the language of the Washington statute, we conclude that the words "intent to deprive or defraud" impose a requirement of guilty knowledge for a grand larceny conviction pursuant to
RCW 9.54.010-90. Our conclusion is supported by the decision of the
Washington Court of Appeals in State v. Wilder, 12 Wash. App. 296,
529 P.2d 1109 (1974). In Wilder, the Court reversed a conviction under
the same grand larceny statute because the trial court did not permit
testimony that a third person had told Wilder that a large amount of
money was being deposited in her bank account. The Court concluded
that guilty knowledge of insufficient funds was the key element in the
prosecution's case. 529 P.2d at 1113. Therefore, a conviction under the
above statute is a conviction for a crime involving moral turpitude.
The next question we must address is whether the respondent has
been convicted of such a crime involving moral turpitude in view of
the fact that upon his pleading guilty, he was placed on probation and
sentencing was deferred for 2 years.
In Matter of Varagianis, 16 I&N Dec. 48 (BIA 1976), we held that a
conviction exists for immigration purposes when (1) there has been a
judicial finding of guilt, (2) the court takes action which removes the
case from the category of those which are (actually or in theory)
pending for consideration by the court—the court orders the
defendant fined, or incarcerated, or the court suspends sentence, (3)

the action of the court is considered a conviction by the state for a
least some purpose. Accord, Matter of Robinson, 16 I&N Dec. 762 (BIA
1979); see also Matter of Pikkarcinew, 10 I&N Dec. 401 (RIA 1963);
Matter of L—R—, 8 I&N Dec. 269 (BIA 1959).
We find the May 26, 1976, order by the trial judge sufficient to
evidence deportability as charged- 2 The trial judge's order specifically
decreed the respondent guilty of attempted grand larceny. Sentencing
Had the charge been deportability under section 241(a)(4) of the Act, 8 U.S.C.
1251(a)(4), the respondent would not be deportable since imposition of the sentence was
deferred. See Matter of De La Cruz,15 I&N Dec. 616 (BIA 1976); Matter of V—, 7 I&N
Dec. 577 MIA 1957).
52

Interim Decision #2721
was deferred pursuant to RCW 9.95200, which permits placing a
criminal defendant on probation following a guilty plea. In State v.
Proctor, 68 Wash. 2d 817, 415 P2d 634 (1966), the Washington Court
held that such a deferred sentence is subject to appeal, and the result
of such an appeal would be res judicata as to any subsequent appeal
on the merits. See generally 2 Gonzaga L. Rev. 91 (1967).
Moreover, RCW 9.95.240 provides that even if the charges against a
criminal defendant are dismissed after probation has been successfully concluded, that prior guilty finding can be used for other state
purposes. That section reads as follows:
Dismissal of information or indictment after probation completed. Every defendant
who has fulfilled the conditions of his probation prior to the termination of the
period thereof, may at any time prior to the expiration of the maximum period of
punishment for the offense for which he has been convicted be permitted in the
discretion of the court to withdraw his plea of guilty and enter a plea of not guilty, or
if he has been convicted after a plea of not guilty, the court may in its discretion set
aside the verdict of guilty; and in either case, the court may thereupon dismiss the
information or indictment against such defendant, who shall thereafter be released
from all penalties and disabilities resulting from the offense or crime of which he has

been convicted. The probationer shall be informed of this right in his probation
papers: Provided, That in any subsequent prosecution, for any other offense, such

prior conviction may be pleaded and proved, and shall have the same effect as #
indictment dismissed. (Em-

probation had not been granted, or the information or

phasis added)

Therefore, we conclude that the respondent has been sufficiently
convicted for deportation as excludable under section 212(a)(9) of the
Act. Matter of Robinson, supro„- Matter of Varagianis, supra. Since the
trial judge's order was subject to appeal on the merits, and, even if
the charge was subsequently dismissed pursuant to RCW 9.95.240, it
would still be considered a conviction for other state purposes, the
respondent is deportable by clear, convincing, and unequivocal
evidence. See Woodby v. INS, 385 U.S. 276 (1966), and 8 C.F.R.
242.14(a). Consequently, the respondent's conviction precludes a finding that the respondent has the requisite good moral character for
voluntary departure in lieu of deportation. See sections 101(f)(3) and
244(e) of the Act, 8 U.S.C. 1101(f)(3) and 1254(e). Accordingly, the
appeal will be dismissed.
ORDER The appeal is dismissed.

53


MATTER OF G—

In EXCLUSION Proceedings
A-8250353
Decided by Board January 21, 1959
Waivers of excludability—Section 211(b), Immigration and Nationality Act, may
be exercised in conjunction with sections 5 and 7 of the Act of September 11,
1957.
Waiver of visa requirement under section 211(b) of the Immigration and
Nationality Act may be granted concurrently with waivers under sections 5
and S of the Act of September 11, 1957, to authorize admission of returning
resident alien.
KNCLUDABLE

:

Act of 1952—Section 212(a) (9)—Convicted of crime involving
moral turpitude. to wit : Forzery in violation of section 207. German Criminal Code,
•

BEFORE THE BOARD

Discussion: This case comes before us by certification. The
applicant, a 39-year-old married male, is a native of Poland and
is now allegedly stateless. He was admitted for permanent residence on March 2, 1952. Shortly thereafter he went to Germany
where his affairs detained him for several years. In Germany he
was convicted on February 12, 1954, for forgery. He served a short
prioon term. Whon it came time to return to the United Statee he

applied for a visa and was found qualified to receive one as a returning resident. He did not reveal that he had been convicted or
arrested. The visa was issued on November 1, 1955, and the applicant applied for admission on December 7, 1955. After a series of
hearings he was found excludable on the ground contained in the
caption.
The special inquiry officer granted a waiver of the ground of inadmissibility resulting from the conviction of crime under section
5 of the Act of September 11, 1957, and ordered the applicant's
admission. Ave believe that this action is proper. However, because of the wording of section 5, it cannot be used to make valid

a visa issued prior to September 11, 1957. The action of the special
inquiry officer, therefore, does not eliminate the inadmissibility resulting from the applicant's lack of a valid visa.. This lack of a
valid document will be waived under section 211(b) of the Immi-

249
962713-61-18

gration and Nationality Act (8 U.S.C. 1181(b)). We shall also
waive any grounds of inadmissibility which may have arisen out of
the obtaining of the visa on November I, 1955, without revealing

the facts concerning his arrest and conviction for forgery.
Order: It is ordered that the applicant's readmission be authorized as a returning resident without his being required to obtain
documents, under the authority of section 211(b) of the Immigration and Nationality Act.
it do further ordered that any grounds of inadmissibility arising
out of the applicant's failure to reveal his arrest and conviction for
forgery when he applied for the visa issued on November 1, 1955,
be and the same is hereby waived under sections 5 and 7 of Public
Law 85-316.
It is further ordered that the order of the special inquiry officer
permitting the applicant's admission to the United States as a returning resident be and the same is hereby approved.

250


Interim Decision #1414

IN.V.rtaC OF HADDAD
In SECTION 248 Proceedings

A-13752622

Decided by Regional Commissioner November 9, 1964
Application of a temporary visitor for a change of nonimmigrant classification
under section 248, Immigration and Nationality Act, to that of a student is
denied since it has not been satisfactorily established that his father, whose
net income combined with that of his children approximates $336 per month, can
provide adequate support to maintain the applicant in his studies. Furthermore, applicant, who initially indicated an interest in studying the English
language and eleetronito and who subsequently begun to pursue n course in
dental technology, which he discontinued after a brief period of attendance,
has not established he is a bona fide nonimmigrant student.

This matter is before the Regional Commissioner on appeal from the
denial of the application for change of nonimmigrant status on the
ground that satisfactory evidence of support has not been furnished in
accordance with the requests of this Service.
The applicant is a married Chilean citizen, born in 1934 at Horns,
Syria. He was admitted to the United States at New York, New York
on January 5, 1964 as a temporary visitor for pleasure until March 5,

1964. On February 19, 1964 he applied for change of nonimmigrant
status to that of a student for the stated purpose of studying English
and electronics. Accompanying the application was a Certificate of
Eligibility from the New School for Social Research in New York City
reflecting that the alien has been accepted for a course in the English
language. The cost of such schooling has been estimated at $2,604 for
the academic year.
On March 10, 1964 and again on July 29, 1964, the applicant was requested to furnish evidence that his relatives in Chile would provide
the support necessary to maintain him as a student in the United States.
In the interim, the alien started attending the New York School of
Mechanical Dentistry to pursue a course in dental technology. A
Certificate of Eligibility dated May 11, 1961 has been submitted from
this school which reflects that the cost of such studies has been estimated
at $1,500 per academic year. The certificate further notes that the
7GS-456-65-51

785

Interim Decision #1414
course is given in Spanish although the applicant speaks -very good
English. On September 28, 1964 the Registrar of the New York
School of Mechanical Dentistry informed this Service that the alien
last attended classes on June 29, 1964 and did not return for the fall
term.
In connection with the appeal from the denial of this application
there has been submitted an affidavit by the alien's father executed on
September 2, 1964 before the United States Vice Consul at Damascus,
Syrian Arab Republic in which he states that he is Director of the Post,
Telegraph and Telephone Bureau in llama, Syrian Arab Republic;
that he and his children have a net monthly income of 1,200 Syrian
pounds; that he is sending the applicant $150 to $200 a month to continue his education in the United States.
The record in this case has been very carefully considered. We do
not find it has been satisfactorily established that the alien's father,
whose net income combined with that of his children amounts to approximately $336 a month in American money, can adequately support
the applicant in his studies. Further, it is noted that the latter initially
indicated an interest in studying the English language and electronics.

He subsequently began to pursue a course in dental technology and
later discontinued these studies after a brief period of attendance. In
view of the foregoing, it is concluded that the alien is not a bona fide
nonimmigrant student but is merely attempting to prolong his stay in
the United. States. Accordingly, the appeal will be dismissed.
It is ordered that the appeal be and same is hereby dismissed.

786


C

Interim Decision #1498

MATTER OF SPARNAliN
Application for Extension. of Nonimmigrant Stay
A-14444036
Decided by Acting District Director August 19, 196'5
A six-month,extension of stay in order to .complete - his visits to Westinghouse
facilities on technical and administrative matters is granted a nonimmigrant
visitor for business who is employed as a thermodynamics engineer in West
Germany by a firm associated with Westinghouse Metric Corporation, whose
means of support while in the United States is his salary from his employer, and who has maintained his nonimmigrant status since entry and is
holder of a passport valid to a date more than one year hence.
,

The subject is a thirty-two-year-old native and citizen of Germany.
He is employed as a thermodynamics engineer by Siemens-Schuckertwerke A. G., Muelheim, West Germany. He was admitted to the
United States on February 20, 1965, as a. nonimmigrant -visitor for
business. His authorized period of stay will expire on August 20,
1965.

The subject has requested a six-month extension of temporary stay
in order that he may continue visiting the offices, shops, and laboratories of the Westinghouse Electric Corporation. this means of support while in the United States is his salary from his employer in
Germany. A letter in support of the application from the Westinghouse Electric Corporation confirms that the applicant is an emPloyee
of Siemens-Schuckertwerke A.G.; that he has been visiting WestinghOuse facilities on technical and administrative matters; and that he
does not receive any remuneration from the Westinghouse Electric
Corporation. The letter further shows that the applicant's employer
is associated with Westinghouse, and is licensed to buildoquipment in
Germany to Westinghouse designs and patents; and that the applicant will require approximately six more months to - complete his visits to the Westinghouse facilities.
The applicant is the holder of a German passport valid to July 31,
1967. He ryas admitted as a. nonimmigrant visitor for business, and
has .continued to maintain his noninunigrant status. He requires
285

Interim Decision *1498
approximately six additional months to accomplish the purpose for

which he came to this country. All requirements having been met,
the application will be granted.
ORDER: It is ordered that the applicant be granted an extension
of temporary stay as a nonimmigrant visitor for business to February
19, 1966.

286


Interim Decision #2740

MATTER OF GUIRAGOSSIAN

In Deportation Proceedings
A-14921306

Decided by Board October 31, 1979
(1) Notwithstanding the requirement of 8 C.F.R. 245.4 that an application for classification as a refugee pursuant to the proviso of section 203(a)(7) of the Immigration and
Nationality Act, 8 U.S.C. I153(a)(7), be submitted concurrently with an application for
adjustment of status under section 245 of the Act, 8 U.S.C. 1255, applications for
refugee classification lie within the exclusive jurisdiction of the District Director (8
C F R 245 4) while adjustment applications may only be entertained by an immigration judge or the Board once deportation proceedings have been instituted (8 C.F.R.
245.2(a)(1)).
(2) Where an alien submits an application for seventh preference classification as a
refugee in conjunction with an application for adjustment of status upon a motion to
reopen the deportation proceedings and the District Director does not act upon the
application for refugee status prior to its transmittal with the adjustment application
to the immigration judge or the Board, the Board shall not consider the lack of
approval of the application for refugee status to be a ground for denial of the motion
unless clear ineligibility for the status claimed is apparent in the record; the "clear
ineligibility" rule set forth in Matter of arcia,16 I&N Dec. 653 (BIA. 1978), applies by
analogy.
(3) Unless an applicant for adjustment of status appears clearly Ineligible for the
preference claimed in the underlying visa petition or application for classification as a
refugee, the Board shall treat the pending petition or application as though it were
already approved for the purpose of reopening. Matter of Garcia, supra, clarified.
(4) Where the respondent had resided and worked in West Germany for more than 12
years following his flight from Bulgaria and had returned to West Germany after a
visit to the United States during that period, he had firmly resettled in West Germany
and accordingly may not qualify for preference status under section 203(a)(1) as a
refugee from Bulgaria.
(5) Where Bulgaria was not designated either as the principal or an alternate country of
deportation, the likelihood that the respondent would be persecuted within the meaning of section 243(h) of the Act, 8 U.S.C. 1253(h), if required to return to Bulgaria is
irrelevant.
(6) Notification of the right to apply for relief under section 243(h) is not required with
respect to a country designated by the alien. 8 C.F.R. 242.17(c).
CHARGE:
Orden Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained
longer

161

Interim Decision #2740
ON BEHALF OF

BY:

RESPONDENT: Eric Avazian, Esquire
33 South Hope St., Suite 3710
Los Angeles, California 90071

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

This case is before us on appeal from the October 31, 1977, decision of
an immigration Judge which denied the respondent's motion to reopen

the deportation proceedings for consideration of his application for
adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, based upon his claim of entitlement to seventh
preference status as a refugee pursuant to the proviso to section203(a)(7) of the Act, 8 U.S.C. 1153(a)(7). The appeal will be dismissed.
The respondent, a 52-year-old native of Bulgaria, claims to have fled
his native country in September of 1960 following two incidents, the
latest in 1960, of having been arrested and jailed for his anti-communist beliefs. The record reflects that the respondent resettled in
West Germany where he resided until September 26, NM when he
was admitted to the United States as a nonimmigrant visitor for
pleasure authorized to remain until May 1, 1974. He failed to depart
within the authorized period or thereafter.
On April 6, 1977, an Order to Show Cause was issued charging the
respondent with deportability as an overstay under section 241(a)(2) of
the Act, 8 U.S.C. 1251(a)(2). At a deportation hearing conducted on
May 26, 1977, an immigration judge found the respondent deportable
as charged on the basis of his concessions at the hearing, granted him
the privilege of voluntary departure in lieu of deportation, but ordered
the respondent deported to West Germany, the country of deportation
designated by him, in the event of his failure to depart voluntarily
within the time specified. No appeal was taken from that decision.
On September 23, 1977, the respondent filed the present motion to
reopen by submitting a Form 1-485, Application for Status as a
Permanent Resident,2 accompanied by a Form I-590A, Application for
Classification as a Refugee (under the proviso to Section 203(a)(7),
Immigration and Nationality Act as amended). The immigration judge
denied the motion, concluding that the respondent could not establish
eligibility for a visa, and hence for adjustment of status, 3 since his
' According to information provided by the respondent, he was employed by a firm in
Munich, West Germany, from March of 1961 until September of 1973. See Form G-325A.
= The filing of an application for adjustment of status (Form 1-485) may be considered
a motion to reopen. 8 C.F.R. 242.22.
' In order to qualify for adjustment of status under section 245, an alien must apply for
adjustment, establish that he is eligible to receive an immigrant visa and is admissible
to the United States for permanent residence, and that an immigrant visa is immedi

162

Interim Decision #2740
application for classification as a refugee had not been approved. We
concur with the result reached by the immigration judge for reasons
other than that cited by him
The Code of Federal Regulations, 8 C.F.R. 245.4, directs an applicant
for adjustment of status based upon a claim to refugee status under
the proviso to section 203(a)(7) of the Act to execute and attach to his
adjustment application (Form 1-485) an application for classification
as a refugee (Form I-590A).4 The foregoing regulation further provides
that the determination as to whether an alien is entitled to the claimed
refugee status shall be made by the District Director and that no
appeal shall lie from his decision. The immigration judge and the
Board are without authority to consider applications for classification

as a refugee either initially or upon review. Matter of Garcia Meijides,
has
been issued, an application for adjustment of status may not be entertained by the District Director but can only be considered by an
immigration judge in the course of the deportation hearing or by the
Board on appeal. See 8 C.F.R. 245.2(a)(1). A motion to reopen for
consideration of an adjustment application must likewise be addressed
to the immigration judge or the Board.
-

12 I&N Dec. 75 (BIA 1967). However, once an Order to Show Cause

The requirement of 8 C.F.R. 245.4 that the application for preference
status as a refugee be filed simultaneously with the adjustment appli-

cation presents no problem when both applications are submitted to
the Service prior to the issuance of an Order to Show Cause because the
District Director has authority in that instance to adjudicate both
applications. Where the application for adjustment of status, accompanied by the application for seventh preference status, is presented to
an immigration judge at a deportation hearing, we have held that the
deportation proceedings should be held in abeyance pending adjudication by the District Director of the Form I-590A. See Matter of Young,
16 I&N Dec. 370 (BIA 1977); Immigration and Naturalization Service

Operations Instructions 245.8(b)(2) and (5).
The difficulty arises when an alien seeks to assert his claim

to
adjustment of status under the proviso to section 203(a)(7) upon a
motion to reopen. It is by no means clear that the regulations and

Service Operations Instructions permit an alien under an order of
deportation to secure an adjudication of his Form I-590A by the
District Director before the immigration judge rules upon his motion
to reopen (Form 1-485). In the instant case, the respondent simultaately available to him at the time his application is ailed.
' The instructions to Form 1-485 and Form 1-590A likewise require that the application
for classification as a refugee be submitted with the adjustment application. See also
Immigration and Naturalization Service Operations Instruction 245.8(b)(1).
163

Interim Decision # 2740
neously filed his adjustment application and application for refugee
classification with the Service as directed by the regulations and the
instructions on the application forms. The Service, treating the adjustment application as, a motion to reopen, transmitted the I-485/I-590A
package to the immigration judge who thereupon denied the motion on
the ground that the respondent's application for classification as a
refugee had not been adjudicated and he was therefore unable to
establish eligibility for an immigrant visa.
Assuming Service procedures do not in fact provide an alien an
opportunity to obtain an adjudication of his claim to refugee status
before the immigration judge or the Board acts upon his motion to
reopen, the motions of all applicants seeking adjustment of status as
refugees after an order of deportation has been entered must necessarily be denied as premature under the rationale adopted by the
immigration judge. We are concerned lest those procedures have the
effect of categorically precluding aliens whose claim to relief arises
subsequent to their deportation hearings from establishing eligibility
for adjustment of status as seventh preference refugees, thus depriving qualified aliens, albeit deportable aliens, of a substantive right
accorded them by the statute. Compare Luen Kwan Fu v. INS, 431 F.2d
73 (2 Cir. 1970).
In Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), we announced that
we will generally reopen the deportation proceedings for consideration
of an application for adjustment of status filed concurrently with a
visa petition pursuant to the simultaneous filing provisions of 8 C.F.R.
245.2(a)(2), notwithstanding the fact that the visa petition has not yet
been approved, unless clear ineligibility is apparent in the record.
Although the regulation at issue in Garcia by its terms authorizes the
simultaneous filing of adjustment applications with visa petitions, not
with applications for seventh preference classification, we believe that
the policy considerations underlying our decision in Garcia apply with
equal force in the present case. In each instance, the alien would be
able to establish present eligibility for adjustment of status but not
the fact that his underlying claim to preference status has not yet been
reached for adjudication and, his application or petition approved.

We shall accordingly extend the "clear ineligibility" standard for
reopening of Garcia' to cases involving applications for adjustment of
status based upon a claim to refugee status and shall not consider the
s A note of clarification regarding the "clear eligibility" rule of Garciamay be in order.
That rule is concerned exclusively with questions regarding the ultimate approval or
denial of the visa netition which is filed simultaneously with the application for adjustment of status. In Garcia we concluded that unless the applicant for adjustment appears
clearly ineligible for the preference status claimed in the underlying visa petition, we
would treat a pending visa petition as though it were already approved for the purpose of

164

Interim Decision #2740
lack of approval of the Form I-590A to be a ground for denial of the
motion unless clear ineligibility for the status claimed is apparent in
the record. Applying that standard, we affirm the immigration judge's
denial of tho respondent's motion to reopen_

The Supreme Court in Rosenberg v. Yee Chien Woo, 402 U.S. 49
(1971), observing that Congress "never intended to open the United
States to refugees who had found shelter in another nation and had
begun to build new lives," (id. at 56) held that a refugee from his

homeland who had firmly resettled in a third country where he is not
subject to persecution may not qualify for refugee status under section
203(a)(7). The Coo -A approved the legal standard set forth by the
District Director for determining whether such resettlement had
taken place, to wit:
... that "physical presence in the United States [be] a consequence of an alien's flight
in search of refuge," and further that "the physical presence must be one which is
reasonably proximate to the flight and not one following a flight remote in point of
time or interrupted by intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge." Id. at 57.

The respondent in the instant case resided in West Germany for
more than 12 years following his flight from Bulgaria. He was steadily
employed throughout his period of residence in West Germany. Ho

returned to West Germany following a previous visit to this country.'
We are satisfied on these facts that the respondent had firmly resettled
in West Germany and, hence, is not eligible for the benefits of section
203(a)(7) of the Act.
Finally, we find no merit in the respondent's argument that the
immigration judge erred in refusing to reopen the deportation
proceedings to permit him to assert a claim for withholding of deportation pursuant to section 243(h) of the Act, 8 U.S.C. 1253(h). The
likelihood that the respondent would be persecuted within the meaning of section 248(h) if required to return to Bulgaria is irrelevant since
Bulgaria was not designated either as the principal or an alternate
reopening. We would thus give what we consider to be appropriate effect to the
simultaneous filing provisions of the regulations and at the same time avoid the unnecessary intrusion into the District Director's jurisdiction over the adjudication of visa
petitions which would be occasioned by an in-depth examination into the merits of a
particular petition. However, at the second level of inquiry, to wit, whether the applicant
otherwise qualifies for a grant of adjustment of status, the ordinary standard for
reopening applies; it is incumbent upon the applicant to make a prima facie showing that
he is entitled to the relief sought under section 245. See Matter of Rodriguez, Interim
Decision 2727 (BIA 1979). It was not our intention in Garcia to place beneficiaries of visa
petitions which have not yet been reached for adjudication in a better position with
respect to their motions to reopen than beneficiaries of approved visa petitions.
The respondent paid a four-month visit to the United States from late 1967 through
early 1968.
1 Ac

Interim Decision #2740
country of deportation. The respondent does not contend that he would
be subject to persecution by the government of West Germany, the
place of deportation specified by him; in any event, notification of the
right to apply for relief under section 242(h) is not required with

respect to a country designated by the alien. 8 C.F.R. 242.17(c); Matter
of Sagasti, 13 I&N Dec. 771 (BIA 1971).
The respondent appears clearly ineligible for the preference claimed
under the proviso to section 203(a)(7); he has failed to make a prima
fade showing that he qualifies for the discretionary relief sought
under the Act. The respondent's appeal from the denial of his motion
to reopen will accordingly be dismissed.
ORDER: The appeal is dismissed.

166


Interim Decision #2038

MATTER OF HARRISON

In Section 249 Proceedings
A-18356268
Decided by District Director March 11, 1970
Applicant, who has resided continuously in the United States since entry in
1915 except for an absence of 3 years and 5 months while serving in the
Canadian Armed Forces during World Wsr II, did not by such absence
break the continuity of residence for the purpose of section 249, Immigration and Nationality Act, as amended, since there is no evidence he ever
intended to abandon his residence in the United States, not having established a residence in another country during such absence, having maintained a mailing address in this country where he resided prior and subsequent to service in the Canadian Army, and having returned to the United
States immediately upon discharge from the Canadian Army.
ON BEHALF OF AFFLICANT:

Ben C. Shapero, Esquire

Dr. Simon Harrison was born in Canada on October 5, 1912.
He claims that he first entered the United States on August 16,
1915, in the company of his father, mother, two brothers and sister. (This is verified by form 1-404 on file, which also reflects
that the children, including subject, were admitted as United
States citizens.) The applicant claims that he has traveled to Canada on numerous occasions since entry, but has stayed no more
than a few days on each visit, except for an extended absence
while serving in the Canadian Armed Forces during the Second
World War. He has apparently gained readmission on each occasion through claim to United States citizenship.
He advised that until recently he had presumed that he was a
citizen of the United States through his father's naturalization on
June 27, 1927. The file indicates that he would have derived citizenship through this act had he been lawfully admitted to the
United States for permanent residence in 1915, rather than erroneously admitted as a United States citizen.
The applicant claims that at the start of United States involvement in the Second World War he applied for a commission in
the United States Army based on his profession as a dentist. He
540

Interim Decision #2038
allegedly was unsuccessful since in order for a dentist to qualify
for a commission he had to first be approved by a three man Dental Association Board. At that time the association was active in
supporting proposed legislation to outlaw the practices of persons
known as "Advertising Dentists." Dr. Harrison claims that he
had worked for such a dentist for a short period of time and was,
therefore, looked on with disfavor by the board. He was advised
by the Selective Service that lacking the board's approval he
could not be accepted for a commission but instead likely would
be drafted as a private at a later date. (He was classified A-3 at
that time.)
Dr. Harrison stated that a short time later, while on a visit to
London, Ontario, Canada, he decided to check on the possibility of
securing a commission in the Canadian Army. After some consultation the Canadian authorities agreed to accept him as an officer. He claims that prior to receiving his commission he inquired of the Canadian officials if there was any chance of losing
his United States citizenship through service in their army. He
allegedly was assured that so long as he did not take an oath of
allegiance to the British Crown he would retain his citizenship.
His claim concerning this matter is supported by a letter from
the Department of Veterans Affairs stating that they have no
record of his taking the oath and a letter from the Canadian Department of National Defence certifying that he did not take the
oath. A certified copy of Statement of Service in the Canadian
Armed Forces on file reflects that Dr. Harrison was inducted into
the Canadian Army at London, Ontario, Canada, on September
29, 1942. He served in the theatres of Canada, Britain, Central
Mediterranean and Northwest Europe, and was honorably discharged with the rank of captain on February 23, 1946.
Since the applicant was not in fact a citizen of the United
States at the time of his service in the Canadian Army, the above
claims concerning the oath of allegiance were presented for whatever consideration warranted in support of his contention that he
has had a continuous residence in the United States since prior to
July 1, 1924, notwithstanding his absence of three years and five
months during World War II.
The record reflects that the applicant has resided continuously

in the United States since entry in 1915 except for the abovementioned period of time. There is no evidence that he established any residence in another country during this period. By
contrast there is ample evidence that he intended to, and in fact
did, return to the United States immediately upon discharge from

541

Interim Decision #2038
the Canadian Army. While in the army he maintained a United
States mailing address at the home of his father and brother,
where he resided both prior and subsequent to his service in the
army.
There is no evidence that the applicant ever intended to abandon his residence in the United States and since it appears that
he is otherwise eligible, it is concluded that his absence during
service in the Armed Forces of Canada should be considered temporary and the application approved as requested.
ORDER: It is ordered that the application for creation of record of lawful admission for permanent residence under the provisions of section 249 of the Immigration and Nationality Act, as
amended, be granted.

542


Interim Decision #2329

MATTER

OF

PiCAOTT

In Deportation Proceedings,
A-14872513

A-14343531
Pecided by Board October'30; 1974
Respondents are natives of Antigua and citizens of the United Kingdoni and Colonies, as
such they come within the purview of section 101(b)(5) of the Immigration and Nationality Act. Under section 244(0(3) of the Act they are not eligible for suspension of
deportation unless they can establish that they are ineligthle to obtain special immigrant
yips. Such aliens are, by definition in section 101(a)(27) of the Act, not eligible for
special immigrant visas, therethre they are eligible for the suspension they seek upon
the establishing of the requisite physiCal presence and extreme hardship requirements.
CHARGE:
Order: Act of 1952 — Section 241(a)(2) [8 U.S.C. 1251(a)(2)3 —Nonhumigrants remained
longer. ,

ON BEHALF OF RESPONDENTS:
Clara Binder, Esquire
401 Broadway
New York, New York 10013

ON BEHALF OF SERVICE:
, Allan A. Shader
Trial Attorney

In decisions dated August 12, 1971, the immigration judge found both
respondents deportable as charged and granted them the privilege of
voluntary departure. The proceedings were subsequently reopened to
allow the respondents to apply for suspension of ,deportation under
section 244(a)(1) of the Immigration and Nationality Act. In a decision
dated May 3, 1974, the, immigration judge granted suspension of deportation to both respondents:The Service has appealed from that decision.
The appeal will be dismissed.
DISCUSSION AS TO DEPORTABILITY: At their original hearing,
the respondents conceded deportability. The only issue on this appeal
involves the immigration judge's grant of suspension of deportation.
DISCUSSION AS TO ELIGIBILITY FOR SUSPENSION OF DEPORTATION: The respondents are both natives of Antigua and citizens
of the United Kingdom and Colonies. The trial attornfix argues that the
respondents are ineligible for suspension of deportation under the pro129

Interim Decision #2329
visions of section 244(0(3) of the Act because they are natives of an
"adjacent island." Section 244(0(3) provides that suspension shall not be
available to an alien who:
is a native of any country contiguous to the United States or of any adjacent island
named in seztion 101(b)(5): Provided, That the Attorney General may in his discretion
agree to the granting of suspension of deportation to an alien specified in clause (3) of
this subsecton if such alien establishes to the satisfaction of the Attorney General that
he is ineligi5le to obtain a special immigrant visa. (Emphasis supplied.) '
The trial attorney has cited Matter of Longsworth, 13 I. & N. Dec. 225
(BIA 1969), in support of his position. In Longsworth we held that
British Honduras was an "adjacent island" within the meaning of section
101(b)(5) of the Act, and that therefore a native of British Honduras was
ineligible for suspension of deportation under section 244(0(3). We also
denied counsel's request that the case be remanded to the immigration
judge for a determination of whether the respondent was unable to
obtain an immigration visa because he lacked the labor clearance required by section 212(a)(14) of the Act. We did not specifically address
the issue of whether a native of a colony of a foreign state is a person
who is "ineligible to obtain a special immigrant visa," and therefore
eligible for suspension of deportation under the proviso to section 244

(f)(3).
The General Counsel of the Service has submitted a memorandum
setting forth the current Service view regarding the eligibility for
suspension of deportation of aliens such as the respondents. We agree
with the General Counsel's statement that a native of an "adjacent
island" which is a colony of a foreign state is eligible for suspension of
deportation under the proviso to section 244(0(3) for the reason that
such an alien, by definition, is not eligible for a special immigrant visa.
Section 101(a)(27) of the Immigration and Nationality Act.
We recede from the result reached in Matter of Longswarth, supra,
which indicates that a native of an "adjacent island" which is a colony of
a foreign state is ineligible for suspension of -deportation. Accordingly,
we conclude thit the respondents are not ineligible for suspension of
deportation by reason of section 244(0(3).
Both respondents have met the seven-year physical presence requirement of section 244(a)(1), and both are persons of good moral
character. The remaining questions are whether the respondents' deportation would result in "extreme hardship" to themselves or their

The 1969 Committee Print of the Immigration and Nationality Act for the use of the
Committee on the Judiciary of the House of Representatives used the term "nonquota"
immigrant visa instead of "special" immigrant visa. However, analysis of various changes
Made in the Act shows that within the meaning of section 244(f)(3) the terms "nonquota"
and "special" are synonymous, and we have so held. Mutter of Dzamti, 15 I. & N. Dec.
116 (BIA 1974).

130

Interim Decision #2329

United States citizen children, and whether discretion should be exercised in their favor.
The immigration judge found that the male respondent would be
unable to obtain employment in Antigua, that neither of the respondents would be able to provide for their own necessities in Antigua, that
the respondents' minor United States citizen children would suffer
because of the respondents' lack of ability to provide them with proper
food and living facilities in Antigua, and that the school system in
Antigua is fax inferior to that in the United States. The immigration
judge also found that the respondents' younger citizen daughter is
afflicted with rheumatic fever and is under a physician's care, and that
equal medical care is not available in Antigua.
We agree with the immigration judge's conclusion that the respondents have demonstrated that their deportation would result in
"extreme hardship" to themselves and to their United States citizen
children. We also agree with the immigration judge's conclusion that the
respondents merit a favorable exercise of discretion.
The immigration judge's decision was correct. The Service appeal will
be dismissed.
ORDER: The appeal is dismissed.
Further order: The deportation of both respondents is suspended
under the provisions of section 244(a)(1) of the Immigration and Nationality Act, as amended.
Further order: If Congress takes no action adverse to the order
granting suspension of deportation, the proceedings shall be cancelled,
and appropriate action shall be taken pursuant to section 244(d) of the
Immigration and Nationality Act.
Further order: In the event Congress takes action adverse to the
order granting suspension of deportation, these proceedings shall be
reopened upon notice to the respondents.
Warren IL Torrington, Board Member, dissenting:

I respectfully dissent.
It appears that any hardship which the respondents or their children
might suffer by reason of the family's return to Antigua would be purely
economic. Economic hardship is, of course, not the "extreme hardship"
contemplated by Congress when it enacted the present section 244 of
the Immigration and Nationality Act.
Congress has never accepted the theory that minor American-born
children of deportable aliens must, or even should, remain in the United
States, and that living with their deportable parents in their home
country would result in "extreme hardship" to thorn. Any Americanborn child was born in what we believe to be the greatest country on
131

Interim Decision #2329
earth. Thus, such a child may indeed be considered to suffer some
hardship of one kind or another the moment it leaves with its parents for
their home• coimtry, in which, by definition, conditions cannot be equal to

those in the United States. That kind of hardship, however, has never
been considered by Congress, the courts, or otherwise, to be the "extreme hardship" required for eligibility for,relief under section 244(a)(1)
of the Act.
One of the respondents' young children was treated for rheumatic
fever. Except for the female-respondent's assertion, there is nothing in
this record to warrant a conclusion that effective treatment for that
disease, if it still exists, will not be available in Antigua.
The respondents are ineligible for the relief of suspension of deportation under Section 244(a)(1) of the Immigration and Nationality Act, as
Amended.
The Service appeal should have been sustained.

•

.f,

132


Interim Decision #1992

MATTER OF NAND
In Deportation Proceedings
A-17955476
Decided by Board July 24, 1.969
A foreign record of respondent's conviction in Fiji, signed and attested to by
the clerk of court as a certified true copy, accompanied by a cerLifickilion
of signature and position of the clerk of court made by an American
vice-consul, is properly authenticated under Rule 44(a) (2) of the Federal
Rules of Civil Procedure, as amended December 31, 1967, so as to support
an order of deportation based on such criminal conviction.
CHARGE:
Order: Ac

of 1052—Section 241 (a) (1) [8 U.S_C. 1251(a) (1)1—Excludable at time of entry—crime conviction: breaking,
entering and larceny in violation of sections
327 (a) and 288 (1) of the Penal Code of Fiji.

ON BEHALF OF RESPONDENT:
Emanuel P. Razeto, Esquire
1414 Central Building
Oakland, California 04617
(Brief filed)

ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney
Stephen M. Suffin
Trial Attorney
(Brief filed)

The case comes forward on appeal from the order of the special inquiry officer entered January 8, 1969 finding the respondent
deportable on the charge stated in the order to show cause, denying the respondent's application for permanent resident status
under section 245 of the Immigration and Nationality Act, granting voluntary departure in lieu of deportation on or before February 8, 1969 with the further order that if the respondent failed
to depart when and as required, he be deported to Canada, alternatively, to Fiji.
The record relates to a native of Fiji, a subject of Great
Britain, 33 years old, male, married, who last entered the United
States at Blaine, Washington on March 24, 1967 as a temporary
visitor. On January 14, 1958 the respondent was convicted by , the

Interim Decision #1992
Magistrate Court of the First Class at Suva, Fiji, of breaking,
entering and larceny committed January 12, 1958 and was sentenced to 12 months imprisonment. His appeal on the ground that
the sentence was too severe for the crime committed was dismissed on February 10, 1958 (Ex. 4).
The crime of breaking, entering and larceny is a crime involving moral turpitude. Inasmuch as the punishment actually
imposed was more than six months, the crime is not classifiable
as a petty offense under the provisions of section 1.3 of Title 18
of the United States Code.' The respondent is deportable as
charged in the order to show cause. The respondent has been convicted of a crime involving moral turpitude not classifiable as a
petty offense, and since he is not eligible for a waiver thereof
under section 212 (h) because of the lack of the required familial
tics in the United States, he is ineligible for adjustment of status

to that of a permanent resident. His application for that relief
was properly denied. However, the special inquiry officer has
granted the respondent voluntary departure in lieu of deporta
tion. The Service is not opposed to that grant. The grant of voluntary departure will be approved.
Counsel in his brief and at oral argument contends that the
proof of conviction adduced at the hearing (Ex. 4) is insufficient
to support an order for deportation inasmuch as it is not accompanied by a certificate showing that the attesting officer had custody of the record as required by Rule 44 of the Federal Rules of
Civil Procedure. In support of this contention he cites Chew v.
Boyd, 309 F.2d 857 (9 Cir., 1962), and McNeil v. Kennedy, 289
F.2d 323 (D.C. Cir., 1962).

Rule 44 of the Federal Rules of Civil Procedure as amended
December 31, 1967 (Title 28, Appendix, Fed. R. Civ. P., 1964 ed.
Supp. III 1965-1967) deals with authentication of two types of
official records. Rule 44(a) (2) made a change in the requirement
for authentication of foreign official records as contrasted with
authentication of domestic records, governed by Rule 44(a) (1).
which adhered to the rule previously set forth in Chew v. Boyd,
309 F.2d 857. The requirement relating to authentication of foreign
official records now merely requires an official publication thereof,
or a copy thereof, attested to by a person authorized to make the
attestation, and accompanied by a final cerification as to the genuineness of the signature and official position (i) of the attesting ,
person, or (ii) of any foreign official whose certificate of genuine1 Matter of G----A—, 7
Dee. 453, 455.

I. & N. Dec. 274, 375; Matter of M—, 8 I. & N.

337

Interim Decision # 1992
Magistrate Court of the First Class at Suva, Fiji, of breaking,
entering and larceny committed January 12, 1958 and was sentenced to 12 months imprisonment. His appeal on the ground that
the sentence was too severe for the crime committed was dismissed on February 10, 1958 (Ex. 4).
The crime of breaking, entering and larceny is a crime involving moral turpitude. Inasmuch as the punishment actually
imposed was more than six months, the crime is not classifiable
as a petty offense under the provisions of section 1.3 of Title 18
of the United States Code.' The respondent is deportable as
charged in the order to show cause. The respondent has been convicted of a crime involving moral turpitude not classifiable as a
petty offense, and since he is not eligible for a waiver thereof
under section 212 (h) because of the lack of the required familial
ties in the United States, he is ineligible for adjustment of status
to that of a permanent resident. His application for that relief
was properly denied. However, the special inquiry officer has
granted the respondent voluntary departure in lieu of deportation. The Service is not opposed to that grant. The grant of voluntary departure will be approved.
Counsel in his brief and at oral argument contends that the

proof of conviction adduced at the hearing (Ex. 4) is insufficient
to support an order for deportation inasmuch as it is not accompanied by a certificate showing that the attesting officer had custody of the record as required by Rule 44 of the Federal Rules of
Civil Procedure. In support of this contention he cites Chew v.
Boyd, 309 F.2d 857 (9 Cir., 1962), and McNeil v. Kennedy, 289
F.2d 323 (D.C. Cir., 1962).
Rule 44 of the Federal Rules of Civil Procedure as amended
December 31, 1967 (Title 28, Appendix, Fed. R. Civ. P., 1964 ed.
Supp. III 1965-1967) deals with authentication of two types of
official records. Rule 44(a) (2) made a change in the requirement
for authentication of foreign official records as contrasted with
authentication of domestic records, governed by Rule 44(a) (1),
which adhered to the rule previously set forth in Chew v. Boyd,
309 F.2d 857. The requirement relating to authentication of foreign
official records now merely requires an official publication thereof,
or a copy thereof, attested to by a person authorized to make the
attestation, and accompanied by a final cerification as to the genuineness of the signature and official position (i) of the attesting
person, or (ii) of any foreign official whose certificate of genuine-:
1 Matter of G—A—, 7 1. &
Dec. 453, 455.

N. Dec. 274, 375; Matter of M—, 8 I. & N.

337

Interim Decision #1992
ness of signature and official position relates to the attestation or
is in a chain of certificates of genuineness of signature and official
position relating to the attestation. A final certificaion may be
made by a secretary of embassy or legation, consul general, vice
consul or consular agent of the United States or a diplomatic or
consular officer of the foreign country assigned or accredited to the
United States.
The Notes of the Advisory Committee on Rules states that the
reference to authentication by "the officer having legal custody of
the record," hitherto appearing in Rule 44, has been found inappropriate for official records kept in foreign countries where the
assumed relationship between custody and the authority to attest
does not obtain. Accordingly it is provided that an attested copy
may be obtained from any person authorized by the law of the
foreign country to make the attestation regardless of whether he
is charged with responsibility for maintaining the record or keeping it in his custody. The Notes of the Advisory Committee go on
to state that the difficulties are met under the amended rule by
eliminating' the element of the authority of the attesting foreign
official from the scope of the certifying process, and by specifically permitting the usage of the chain-certificate method. Under
this method, it is sufficient if the original attestation purports to
have been issued by an authorized person and is accompanied by
a certificate of another foreign official whose certificate may in
turn be followed by that of a foreign official of higher rank. The
process continues until a foreign official is reached as to whom
the United States foreign service official has adequate information on which to base a "final certification."
In she instant_ case, the conviction record (Ex. 4) is signed by
the clerk of the court as a certified true copy, followed by the seal
of the magistrate's court, followed by a certification of an American vice consul that Ilaisa Seru Tulele, whose true signature and
official seal are subscribed and affixed to the annexed document
was, on the 24th day of May 1968, the date thereof, the Clerk of
the Court, duly commissioned and qualified, to whose official acts
faith and credit are due. Thus the authentication of the foreign
document conforms fully with the Rule 44 (a) (2) as amended
February 28, 19.66, effective July 1, 1966. 2
ORDERED: It is ordered that the appeal be and the same is
hereby dismissed.
2 The provisions of 8 CFR 287.6 as amended November 29, 1967, embody
the same distinction as amended Rule 44 as to uornestic records and foreign
records.

338

Interim Decision #1992

It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the specialinquiry officer's order. •


Cite as 27 I&N Dec. 575 (BIA 2019)

Interim Decision #3958

Matter of D-A-C-, Respondent
Decided July 26, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Immigration Judges have the authority to deny an application for temporary protected
status in the exercise of discretion.
FOR RESPONDENT: Mary Sameera Van Houten Harper, Esquire, Brooklyn, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Joshua Lee, Assistant Chief
Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MALPHRUS, Board Member:

In a decision dated October 10, 2018, an Immigration Judge found the
respondent removable under section 212(a)(6)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as an alien who is in the
United States without permission, and denied his application for temporary
protected status (“TPS”). The respondent has appealed from that decision. 1
The appeal will be dismissed.
The respondent is a native and citizen of El Salvador, who entered the
United States in April 1997. On January 30, 2018, he pled guilty to attempted
endangering the welfare of a child, a class B misdemeanor under sections
110.00 and 260.10(01) of the New York Penal Law, for which he was
sentenced to 90 days in prison. An order of protection was also issued against
the respondent.
The Immigration Judge found that the respondent is statutorily eligible
for TPS under section 244 of the Act, 8 U.S.C. § 1254a (2012). However,
he denied the application because the respondent did not establish that a
favorable exercise of discretion was warranted. The respondent challenges
the denial of his application, arguing that an Immigration Judge does not have
1
The Immigration Judge also denied the respondent’s applications regarding his claim
that he will be persecuted in El Salvador if he is deported because, as a criminal deportee,
he would be harmed by gangs or tortured by the Government. However, the respondent
states on appeal that he does not contest the denial of these applications, so we deem any
issues in that regard waived. See Matter of Zhang, 27 I&N Dec. 569, 569 n.2 (BIA 2019).

575

Cite as 27 I&N Dec. 575 (BIA 2019)

Interim Decision #3958

the authority to deny TPS in discretion and, alternatively, that he merits a
discretionary grant of TPS. We disagree.
The respondent primarily argues that discretionary determinations should
be limited to forms of relief, such as waivers of inadmissibility or
cancellation of removal, where the terms “discretion” or “good moral
character” have been explicitly incorporated into the framework of the
statute. 2 However, it is not necessary for a statute to include this language
if it otherwise indicates that it has a discretionary component, as it does here.
The plain language of section 244(a)(1)(A) of the Act provides that the
Attorney General “may grant an alien” TPS if the alien meets the statutory
eligibility requirements in section 244(c). “The word ‘may’ customarily
connotes discretion.” 3 Jama v. ICE, 543 U.S. 335, 346 (2005). Moreover,
in other parts of the TPS statute, Congress used the word “shall,” which
“generally imposes a nondiscretionary duty.” SAS Inst., Inc. v. Iancu, 138
S. Ct. 1348, 1354 (2018); see also, e.g., sections 244(a)(1)(A), (B) of the Act
(stating that the Attorney General “shall not remove the alien” while TPS
status is in effect and “shall authorize the alien to engage in employment”).
The fact that both words are in the same statute further reinforces that a
grant of TPS is intended to be discretionary. See Jama, 543 U.S. at 346
(emphasizing the “inappropriateness of reading ‘may’ to mean ‘shall,’”
particularly where “‘may’ is used in contraposition to the word ‘shall’”).
The applicable regulations also provide that an applicant “may in the
discretion of the director be granted Temporary Protected Status.” 8 C.F.R.
§§ 244.2, 1244.2 (2019). Although these regulations refer to “the director,”
we have held that an alien may renew an application for TPS in removal
proceedings before an Immigration Judge, who has de novo review over such
applications. See Matter of Figueroa, 25 I&N Dec. 596, 598 (BIA 2011).
The respondent notes that section 242(a)(2)(B)(i) of the Act, 8 U.S.C.
§ 1252(a)(2)(B)(i) (2012), divests the Federal courts of jurisdiction to review
“any judgment regarding the granting of relief under section 212(h), 212(i),
240A, 240B, or 245” of the Act and argues that if Congress had intended
TPS to be discretionary, it would have included section 244 in this provision.
Section 242(a)(2)(B)(i)’s limitation on the scope of the courts’ review
2

Although the respondent implies that good moral character is a matter of discretion, it
is clear that an applicant for cancellation of removal or voluntary departure must establish
good moral character to be statutorily eligible for relief. See sections 240A(b)(1)(B),
240B(b)(1)(B) of the Act, 8 U.S.C. § 1229b(b)(1)(B), 1229c(b)(1)(B) (2012); Matter of
Gomez-Beltran, 26 I&N Dec. 765, 770 (BIA 2019). Good moral character and discretion
are distinct issues that should be evaluated separately.
3
Significantly, provisions for other forms of discretionary relief in the Act, including
certain waivers of inadmissibility, cancellation of removal, and voluntary departure, state
that relief “may” be granted, without including the word “discretion.” See, e.g., sections
212(e), 240A(a)–(b)(1), 240B(b)(1) of the Act.

576

Cite as 27 I&N Dec. 575 (BIA 2019)

Interim Decision #3958

authority does not determine whether TPS can be denied as a matter of
discretion. The fact that this ancillary jurisdictional statute lists several other
provisions for discretionary forms of relief in the Act does not override the
plain language of section 244(a)(1)(A).
The United States Court of Appeals for the Eleventh Circuit has
specifically stated that “[t]he ultimate decision of whether to grant TPS to an
alien is undisputedly within the discretion of the Secretary” of Homeland
Security pursuant to section 244(a)(1)(A) of the Act. Mejia Rodriguez v. U.S.
Dep’t of Homeland Sec., 562 F.3d 1137, 1143 (11th Cir. 2009) (per curiam).
We are unpersuaded that there are any valid reasons to read section
244(a)(1)(A) differently. We therefore conclude that TPS is a discretionary
form of relief and that Immigration Judges have the authority to deny TPS in
the exercise of discretion. See Matter of Figueroa, 25 I&N Dec. at 598.
We must next examine the Immigration Judge’s denial of TPS in this
case. To be statutorily eligible for TPS, the respondent must prove that he is
admissible to the United States and meets certain other requirements,
including timely registration and continuous physical presence. Section
244(c)(1)(A) of the Act. In addition, he must establish that he is not barred
from relief because he has been convicted of a felony or two or more
misdemeanors in the United States or has engaged in other serious conduct
specified in the Act. Section 244(c)(2)(B) of the Act.
The Immigration Judge determined that the respondent is statutorily
eligible for TPS, finding that his conviction for a single misdemeanor did not
bar him from establishing eligibility. The respondent argues that this alone
warrants a grant of relief and that the Immigration Judge erred in considering
the factual circumstances underlying his conviction. The Supreme Court has
made clear, however, that an alien’s statutory eligibility for discretionary
relief “in no way limits the considerations that may guide [the exercise of]
discretion to determine who, among those eligible, will be accorded grace.”
INS v. Yueh-Shaio Yang, 519 U.S. 26, 31 (1996).
It is well established that “there is no inflexible standard for determining
who should be granted discretionary relief, and each case must be judged on
its own merits.” Matter of C-V-T-, 22 I&N Dec. 7, 11 (BIA 1998). Although
we have not previously decided what factors should be considered in the TPS
context, we deem it appropriate to balance the favorable and adverse factors
in a manner similar to that which we have long employed in analyzing other
forms of discretionary relief.
For example, favorable considerations include such factors as family ties within the
United States, residence of long duration in this country (particularly when the
inception of residence occurred while at a young age), evidence of hardship to the
respondent and his family if deportation occurs, service in this country’s armed
forces, a history of employment, the existence of property or business ties, evidence

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Interim Decision #3958

of value and service to the community, proof of genuine rehabilitation if a criminal
record exists, and other evidence attesting to a respondent’s good character. Among
the factors deemed adverse to an alien are the nature and underlying circumstances
of the grounds of [removal] that are at issue, the presence of additional significant
violations of this country’s immigration laws, the existence of a criminal record and,
if so, its nature, recency, and seriousness, and the presence of other evidence
indicative of a respondent’s bad character or undesirability as a permanent resident
of this country.

Id. (citing Matter of Marin, 16 I&N Dec. 581 (BIA 1978)) (setting forth the
factors to be applied in exercising discretion under section 240A of the Act).
In addition, since the purpose of TPS is to provide protection based on
adverse conditions in an alien’s home country, it is important to also
consider how those conditions might affect the alien’s potential safety if he
is removed there. See Matter of Sosa Ventura, 25 I&N Dec. 391, 394–95
(BIA 2010). The ultimate consideration when balancing factors in the
exercise of discretion is to determine whether a grant of relief, or in this case
protection, appears to be in the best interest of the United States. See Matter
of C-V-T-, 22 I&N Dec. at 11; see also Matter of Mendez, 21 I&N Dec. 296,
305 (BIA 1996) (considering the welfare and safety of others in this country
in making a discretionary determination).
In some circumstances, meeting the minimum eligibility requirements for
relief may be sufficient to warrant a favorable exercise of discretion,
especially where, as here, there are restrictive statutory bars to eligibility for
criminal conduct and the relief itself is temporary. See Matter of C-V-T-,
22 I&N Dec. at 11. However, any adverse factors, including recent criminal
activity, must be offset by significant additional equities. Id.
The respondent was convicted of attempting to endanger the welfare of a
child. The charging document in his case alleged that he grabbed a young
girl by the arm and that he forcibly attempted to kiss her on the lips and touch
her in an inappropriate manner. However, he testified that he never touched
the girl inappropriately and that he inadvertently kissed her lips, instead of
her cheek, in an attempt to console her after he pushed her away from a
machine he was operating while he was working in the family home.
The Immigration Judge found that the charging document was reliable as
to the key facts that formed the basis for the respondent’s conviction and
persuasive as to his actual conduct. He also determined that the respondent
was evasive and withheld important details and that his testimony was
not consistent in all respects with a statement he gave to the police. The
Immigration Judge considered implausible the respondent’s claim that the
prosecutor added untrue facts to the charging document to convince him
to plead guilty. Stating that he was not satisfied by the respondent’s

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Interim Decision #3958

explanations, the Immigration Judge found that his testimony regarding his
conviction was not credible, which the respondent claims was erroneous.
An Immigration Judge “is not required to accept a respondent’s
assertions, even if plausible, where there are other permissible views of the
evidence based on the record.” Matter of D-R-, 25 I&N Dec. 445, 455 (BIA
2011), remanded on other grounds, Radojkovic v. Holder, 599 F. App’x 646,
648 (9th Cir. 2015). The Immigration Judge’s findings as to the respondent’s
conduct represent a permissible view of the evidence. There is no clear error
in these findings. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
574 (1985) (“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”).
The respondent argues that he was not required to admit all the allegations
in the charging document and only pled guilty to the broad language of
section 260.10(01), that is, to attempting to act “in a manner likely to be
injurious to the physical, mental or moral welfare of a child.” In particular,
he asserts that he did not admit guilt to the inappropriate physical conduct
alleged in the charging document and that the Immigration Judge should not
have considered the allegations as true. 4
In support of his claim, the respondent cites Padmore v. Holder, 609 F.3d
62 (2d Cir. 2010) (per curiam), where the Second Circuit found that we
impermissibly engaged in fact-finding when we relied on information in an
arrest report and a prosecutor’s affidavit that was based on a statement by a
police officer. The alien disputed factual statements in both documents, and
the Immigration Judge made no findings in that regard. The court held that
we exceeded our authority by reversing the Immigration Judge’s grant of
discretionary relief, “not on the basis of having found clear error, but instead
based on disputed material facts with respect to which the [Immigration
Judge] reached no resolution, and which [were] analyzed in such a way as to
constitute independent factfinding.” Id. at 68 (citation omitted).
The respondent’s reliance on that case is misplaced. Unlike in Padmore,
the Immigration Judge here found the charging document to be reliable, and
he made an adverse credibility finding regarding the respondent’s testimony,
which we have determined is not clearly erroneous. Padmore is
distinguishable and, consequently, not controlling in the respondent’s case. 5
4

In analyzing a conviction under the categorical approach, we must assume that the
respondent committed the least of the acts criminalized by his statute of conviction. See
Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). However, the categorical approach is not
applicable in a discretionary determination, where it is proper to consider all probative
evidence regarding the factual circumstances surrounding a conviction.
5
Two other cases cited by the respondent are also distinguishable. Rojas v. Att’y Gen. of
U.S., 728 F.3d 203, 220 (3d Cir. 2013) (en banc) (rejecting the use of a police criminal
complaint to establish the fact of a conviction, except “to the extent it serves as a charging

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Significantly, the Second Circuit recognized that the Board has “authority to
review ‘police reports and complaints, even if containing hearsay and not a
part of the formal record of conviction’ because such documents ‘are
appropriately admitted for the purposes of considering an application for
discretionary relief.’” Id. at 69 (quoting Carcamo v. U.S. Dep’t of Justice,
498 F.3d 94, 98 (2d Cir. 2007)).
Thus, it was proper for the Immigration Judge to consider any reliable
and probative evidence regarding the respondent’s actual conduct, including
the information in the charging document, to determine the factual
circumstances underlying his conviction. See Matter of Mendez, 21 I&N
Dec. at 303 n.1 (noting that “it is proper to look to probative evidence outside
the record of conviction in inquiring as to the circumstances surrounding the
commission of the crime in order to determine whether a favorable exercise
of discretion is warranted” (citation omitted)); Matter of Grijalva, 19 I&N
Dec. 713, 722 (BIA 1988) (finding the admission of police reports
“especially appropriate in cases involving discretionary relief from
deportation, where all relevant factors concerning an arrest and conviction
should be considered”); see also Matter of D-R-, 25 I&N Dec. at 458
(“Immigration Judges have broad discretion to admit and consider relevant
and probative evidence.”).
In balancing the various factors in the respondent’s case, the Immigration
Judge recognized the equities reflected in the record, including the
respondent’s residence in the United States for many years, his history of
gainful employment, and his strong ties to the community. The Immigration
Judge also noted the current country conditions in El Salvador in view of the
respondent’s claimed fear of persecution. However, the respondent has not
pursued the persecution claim on appeal or otherwise argued that a grant of
TPS is warranted because of adverse country conditions in El Salvador.
Concluding that the serious nature of the respondent’s crime and his lack
of candor outweighed his equities, the Immigration Judge denied his
application for TPS in the exercise of discretion. Based on our consideration
of the Immigration Judge’s factual findings and our de novo review of his
discretionary determination, we agree with the Immigration Judge that denial
of the respondent’s application for TPS was appropriate. Accordingly, the
respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

instrument with certain indicia of reliability”); United States v. Juwa, 508 F.3d 694, 700
(2d Cir. 2007) (finding that the district court impermissibly enhanced a criminal
defendant’s sentence “based solely on unproven charges in an indictment”).

580


Interim Decision .#1547

Krrima or

141mM

In Visa Petition Proceedings
A-14389539
Decided by Regional Commissioner /away 17 1966
Petition to classify alien as eligible orphan as defined in section 101(b) (1) (F),
Immigration and Nationality Act, as amended by P. L. 89 238, is denied
since adoption of the beneficiary by her widowed aunt does not meet the
statutory requirement of adoption by a United States citizen and spouse.
-

This matter is before the Regional Commissioner on appeal from
the denial of the petition to classify the alien as an eligible orphan
under section 101(b) (6) of the Immigration and Nationality Act.
This section has since been repealed by P.L. 89-236, effective December 1 1965, and the definition of the term "child" in section 101
(b) (1) (F) of the Act has 'been amended to read as follows:
{Bs) a child, under the age of fourteen at the time a petition is filed in his
behalf to accord a Aseeliication as an immediate reiative under section 201(b),
who is an orphan because, of the death or disappearance of, abandonment or desertion by, or separation- or loss from, both parents, or for whom the sole
er surviving parent is incapable of providing the proper care which will be
provided tne ctuid if admitted to the 'United Staten and who has in writing
irrevocably released the child for emigration and adoption; who has been
adopted abroad by a United States citizen and his spouse who personally saw
and observed the child prior to or during the adoption proceedings; or who is
coming to the United States for adoption by a United gtates citizen and spouse
who have complied with the preadoption requirements, if any, of the child's
proposed residence: Provided, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this act. (Emphasis supplied.)

The instant petition discloses that the beneficiary was born December 13, 1954 at Barbados, West Indies; that she presently resides
with her mother at Belleplaine, St. Andrew, Barbados; that she has
only one parent; that the latter is unable to provide for her support.
It is further reflected that the child's aunt, a 49-year-old United
States citizen whose husband is deceased, intends to adopt the beneficiary in this country.
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Interim Decision #1547
It hai been held in utter pf D , 8 I. & N. Dec. 628, that the
adoption of a child by an aunt who is divorced does not meet the
statutory requirement under section 4 of the Act of September 11,
1957 that the adoption of en eligible orphan be by a United States
citizen and spouse. Similar language is contained in. section 101(b)
(1) (F) of the Immigration and Nationality Act, as amended, as
previously noted above. The adoptive ' parents must be a married
couple and, therefore, the instant petition by the alien's widowed
aunt cannot be approved. Accordingly, this appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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