Interim Decision #2919

MATTER OF MESIAS
In Visa Petition Proceedings
A-24704'734
Decided by Board August 26, 1982
(1) Under the Civil Code of Haiti, as amended by the 1959 Presidential Decree, children
born out of wedlock prior to January 27, 1959, but acknowledged by their natural
father after that date have the same rights and obligations as legitimate children.
(2) Where the beneficiary, a native and citizen - of Haiti, was born out of wedlock in
1956, and acknowledged by the natural father in 1970, prior to his eighteenth birthday,
he is doomed a legitimated child for immigration purposes under section 101(b)(1)(C)
of the Immigration and Nationality Act, 8 U.S.C. uoubxon.
ON BEHALF OF PETITIONER:

BY:

Laurel D. White, Esquire
1428 Brickell Avenue, Suite 500
Miami, Florida 23131

Milhollan, Chairman, Maniatis, Dunne, Morris, and Vacea, Board Members

The United States citizen petitioner applied for preference status for
the beneficiary as his unmarried son under section 203(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(1). In a decision dated
August 4, 1982, the Associate Commissioner for Examinations granted

the visa petition. The case has been certified for our review pursuant to
8 C.F.R. 3.1(c). The decision of the Associate Commissioner for Examinations is affirmed.
The beneficiary was born out of wedlock in Haiti on May 1, 1956. The
petitioner is a 59-year-old native of Haiti • who was naturalized as a
United States citizen on April 2, 1974. The petitioner filed a visa petition on behalf of the beneficiary on October 16, 1981_
In support of the visa petition, the petitioner submitted a document
issued by a Civil State Officer in Haiti, which states that the petitioner
acknowledged on October 15, 1962, that the beneficiary was his natural
son. We note that the American Embassy in Haiti on July 12, 1982,
verified the authenticity of the official act of recognition, but noted that
it had'been recorded on October 15, 1970. In any event, the beneficiary
was under the age of eighteen at the time of his acknowledgment. The
record reflects further that the petitioner never married the beneficiary's
natural mother
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Interim Decision #2919
The Associate Commissioner for Examinations granted the petition
upon a finding that the beneficiary, who was illegitimate at birth in
1956, was subsequently legitimated in 1970, the dite of his acknowledgment, while he was under the age of eighteen: The Associate Commissioner for Examinations based his decision in large part upon a legal
opinion provided by the Hispanic Law Division of the Library of
Congress. He noted that the question in issue was not resolved in Matter

of Richard, 18 I&N Dec. 208 (BIA 1982), and, therefore, certified his

decision to the Board for review.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefits sought. Matter of Branagan, 11 I&N
Dec. 493 (BIA 1966). To obtain preference status for the beneficiary as
his "son" under section 203(a)(1) of the Act, the petitioner must establish that the beneficiary once qualified as his "child" as that term is
defined by section 101(b)(1) of the Act, 8 U.S.C. 1101(b)(1). Matter of
Coker, 14 I&N Dec. 52 (BIA 1974).
The term "child" means an unmarried person under twenty-one years of age who is—
(A) a legitimate child; or
(C) a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the United States, if
such legitimation takes place before the child reaches the age of eighteen years and
the child is in the legal custody of the legitimating parent or parents at the time of
such legitimation.

At the time of the beneficiary's birth the Civil Code of Haiti classified
children into three groups: legitimate, natural, and illegitimate. The
beneficiary was a natural child and not a legitimate child, and, accordingly, he did not qualify under section 101(b)(1)(A) at the time of his
bah.
However on January 27, 1959, the Civil Code of Haiti was amended
by a Presidential Decree to provide that natural filiation creates the
same sights and obligatioins as those created by legitimate filiation. The

Decree further provided that proof of natural filiation cannot be other
than that arising out of a voluntary act of acknowledgment or out of
judicial acknowledgment in those cases authorized by the law. See Matter of Richard, supra.

In this case, the beneficiary was born out of wedlock in Haiti in 1956,
and acknowledged by his natural father in 1970, prior to his eighteenth
birthday. The Associate Commissioner for Examinations requested a
legal opinion from the Hispanic Law Division of the Library of Congress
regarding the legitimacy of the beneficiary under the law of Haiti in
effect at the time of his birth. In a Library of Congress report dated
Apri120, 1982, (see Appendix), it is stated that the execution of the act
of legal acknowledgment of the beneficiary by his father after January
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Interim Decision #2919
27, 1959, confers the same rights and obligations on the beneficiary as
those created by legitimate filiation. This report further states that the
Presidential Decree of January 27, 1959, "provides for the future and
does not have retroactive effects:" When the acknowledged act does
take effect after January 27, 1959, the acknowledgment does benefit the
beneficiary. Consequently, based on the Library of Congress report,
which is concurred in by the Service, we find that under the law of
Haiti, a, child born out of wedlock prior to January 27, 1959, but who was
subsequently acknowledged by his father after that date and prior to his
eighteenth birthday is deemed the legitimated offspring of his natural
father.
The natural father of a child will be presumed to have had legal
custody of that child at the time of legitimation, in the absence of affirmative evidence indicating otherwise. Matter of Rivers, 17 I&N Dec. 419
(BIA 1980).
Based on the above, we find that the beneficiary has been legitimated
according to the law of his residence, Haiti, and therefore qualifies as
the unmarried son of the petitioner within the meaning of section 203(a)(1)
of the Act. The decision of the Associate Commissioner for Examinations will accordingly be affirmed, and the visa petition will be approved.
ORDER. The decision of the Associate Commissioner for Examinations is affirmed.
APPENDIX
HAITI
Acknowledgment and Legitimation
A child was born out of wedlock in Haiti on May 1, 1956. The father
legally acknowledged paternity of the child through an act of recognition executed before an official of the Civil Registry on October 16,
1962. The parents of the child never married each other. Considering
these facts, the requester wants to determine the civil status of the
child under the laws of Haiti.
A.. Classification of Children
The basic law on the cthssification of children in Haiti is found among
the provisions of the Civil Code of that country, promulgated on March
25, 1825. The Code classifies children into three groups: legitimate,
natural, and illegitimate. Children of married parents are legitimate
children, those born of unmarried parents are natural children, and
those whose conception and birth occurred under adulterous or incestuous circumstances are illegitimate children. '
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Interini Decision #2919
B. Legitimation Under the Civil Code
Under the provisions of Article 302 of the Civil Code, natural children,
(i.e., children born to parents. who were able to contract marriage
between themselves at the time of conception) could be legitimated only
by the marriage of their natural parents and their own acknowledgement.
Children legitimized by the subsequent marriage of thier parents have
the same rights as if they were born in marriage, that is, identical to
those legitimate children•have.
C. Acknowledgment
The law on acknowledgment, a requirement for legitimation according to the Code, basically provides acknowledgment of a natural
child must be made through a special instrument executed before an
official of the Civil Registry if the child was not acknowledged in the
birth registration act.
However, acknowledgment cannot benefit a child born out of an incestuous or adulterous union.
Acknowledgment made during marriage by one spouse for the benefit
of the other spouse's natural child born prior to their marriage (with the
exception of the acknowledgment of their natural child) cannot prejudice any of their other children born out of marriage or any children
born in their marriage. This acknowledgment produces legal effects
after the dissolution of the marriage if no children were born out of it.
Acknowledged natural children cannot claim the same rights as legitimated children. The rights of naturnrchildren are regulated pursuant to
the. provision of Law No. 16 on succession, which was incorporated into
the Civil Code. The pertinent provisions [are] Articles 606, 608, 609,
611, 624 and 742 . .
D. Decree-Law No. 466 of 1944.
The Republic of Haiti enacted Decree-Law No. 466 on December 23,
1944, in the interest of granting natural children better legal protection.
The basic amendments introduced in the Civil Code concerning acknowledged natural children [are] in Articles 302, 305, 308, 608 and 742 . • .
By virtue of these amendments to the provisions of the Code, acknowledged natural children were granted the same rights as legitimate children with the exception of those rights provided for under Articles 308
on acknowledgment and 606 on the inheritance rights of legitimate ascendants of the natural mother or father. In addition, the limitations provided for under Articles 624 and 625 on the inheritance rights of collaterals remained in effect. Finally, it is evident that Decree Law No. 466 or
-

1944 excluded children born of incestuous or adulterous unions from its
benefits, apparently allowing them only the right of support.
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Interim Decision #2919
E. The Decree of 1959
Considering the fact that "discrimination toward children by reason of
birth constitutes a negation of Haitian reality," the Decree of January

27, 1959, was issued. This Decree introduced a major change to the
concept of and legitimation under Haitian law in its Article 1, which
states that natural filiation created the same rights and obligations created by legitimate filiation, provided that an acknowledgment of a child
has been voluntarily executed or declared by virtue of a court judgment.
Again, children born out of incest or adultery were excluded from its
provisions . . . .
F. Enforceability and Retroactivity of the Law
The enforcement of legislation is regulated according to Article 1 of
the Civil Code which directs all laws to become mandatory in the territory of the Republic after their promulgation by the President, which is
considered effective one month from the date of promulgation at the
latest. Furthermore, under the provisions of Article 20 of the Constitution of 1964, currently in force, Article 20 of the Constitution of 1957,
Article 13 of the Constitution of 1950, Article 15 of the Constitution of
1946, and Article 2 of the Civil Code, the law provides for the future and
does not have retroactive effects.

CONCLUSION
In the present case, it should be noted that the execution of the act of

legal acknowledgment of the natural child by his or her father took place
on October 15, 1962, when the provisions of Article 1 of the Decree of
January 27, 1959, were already in force. Consequently, the child benefits from these provisions and he or she has the same rights and obligations as those created by legitimate filiation.
[Footnotes and appendixes deleted.]

302


Interim Decision #2841

MATTER OF BALLESTER-GARCIA.

In Exclusion Proceedings
A-24452248

Decided by Board December 17, 1980
(1) Under section 243(h)(2)(C) of the Immigration and Nationality Act, 8 U.S.C.
1253(h)(2)(C), as amended by the Refugee Act of 1980, it is not always necessary to
determine whether an applicant for this relief has actually committed a serious,
nonpolitical crime: it is enough, by the very terms of the statute, to find that there are
"serious reasons for considering" that he has committed such a crime.
(2) Where a crime is not obviously heinous, such factors as the alien's description of the
crime, the turpitudinous nature of the crime according to our precedents, the value of
any property involved, the length of the sentence imposed and served, and the usual
punishments imposed for comparable offenses in the United States, are all proper
considerations in attempting to decide whether or not that crime may have been

serious within the meaning of section 243(h)(2)(C).
(3) Where respondent's crime involved the late night entry into a building, and the theft
of over 12,000 pesos, where the crime had been plotted several weeks in advance, and
where the applicant was sentenced, in Cuba, to 15 years imprisonment, of which he
had served 8 when released to come to the United States, there are serious reasons to
believe the respondent's crime was a serious one, and he is thus ineligible for section
243(h) relief.
EXCLUDABLE:

Order: Act of 1952—See. 212(a)(9) [8 U.S.C. 1182(a)(9)J—Admitted to conviction of a
crime involving moral turpitude
Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)1—Not in possession of a
valid immigrant visa
ON BEHALF OF APPLICANT:

BY:

Pro se

Millidlitn, Chairman; Maniatis, Appleman, and Maguire, Board Members

In a decision dated August 5, 1980, an immigration judge found the
applicant excludable as charged, denied his application for asylum,
and ordered him excluded and deported. The applicant appealed. The
appeal will be dismissed.
The applicant is a 82 year old native and citizen of Cuba. He was
-

-

part of the recent exodus from Cuba, arriving in the United States at
Key West, Florida, on May 9, 1980. Shortly after his arrival in this
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Interim Decision #2841

country, the applicant executed a sworn statement and a request for
asylum. These documents reflect that the applicant admitted that he
had been convicted in Cuba in 1972 for what he called "robbery," in
that he, along with three other men, took 12,230 pesos from a cabaret.
The applicant was sentenced to 15 years imprisonment for this crime,
and was in prison up until the time he was put on a boat to come to this
country. Based on these facts, the applicant was charged with excludability under section 212(a)(9) of the Immigration and Nationality
Act, 8 U.S.C. 1182(a)(9), as an alien who had been convicted of a crime
involving moral turpitude, to wit, robbery, as well as under section
212(a)(20). On July 8, 1980, the Department of State informed the
Immigration and Naturalization Service that it believed the applicant
had committed a serious nonpolitical crime prior to his arrival in the
United States, and that he was therefore not eligible for asylum under
the United Nations Convention and Protocol. On July 15, 1980, the
District Director denied asylum based on the applicant's admission of
an arrest and sentence for the commission of a serious nonpolitical
crime.
At an exclusion hearing held on August 5, 1980, at which the applicant elected to proceed without counsel, the applicant admitted that he
had taken money from the cabaret, and stated that he and his friends
had planned the crime 15 to 20 days in advance of committing it. Tr. at
21. Although the applicant referred to his crime as "robbery" in both
his sworn statement and his asylum application, and this is the crime
mentioned in the 1-122 "Notice to Applicant for Admission Detained
for Hearing Before Immigration Judge," the crime as described at the
hearing appears to have been larceny or burglary. The applicant stated
that he and his friends entered the cabaret after 1:00 a.m. in the
morning of May 21, 1972, that the door had been left open by one of the
criminals, who apparently worked at the cabaret, and that no other
persons were in the cabaret at that time. Tr. at 19. The applicant
testified that no one carried any weapon, as none was needed, and that
they simply entered the building and took the money, which they had
information was under some boxes under a table. Tr. at 19-20. The four
men involved in the crime were to have divided the money the next day,
but were apprehended before they were able to do so. The applicant
claimed that he committed the crime in order to pay a smuggler to
bring him to the United States. Tr. at 22. Following the applicant's
testimony, the immigration judge rendered his decision in which he
found the applicant excludable as charged, and ineligible for asylum
because of his commission of a serious nonpolitical crime. He found the
applicant's testimony with regard to his reasons for stealing the
money to be a "self-serving statement" and "unlikely and highly
incredible," and he found the applicant in general not to be a credible
CAO

Interim Decision #2841
witness. Based on the respondent's admissions regarding the commission of his crime, we affirm the immigration judge's finding of
excludability.
Section 243(h) of the Act, 8 U.S.C. 1243(h),1 regarding withholding of
deportation, provides that an alien may not obtain this relief, despite a

valid persecution claim, if it is determined that, inter alia, "there are
serious reasons for considering that the alien has committed a serious
nonpolitical crime outside the United States prior to the arrival of the

alien in the United States." Section 243(h)(2)(C). See also 8 C.F.R.
208.7(1)(1)(v); Matter of Rodriguez-Palma, Interim Decision 2815 (BIA
1980). In the present case, the applicant has freely admitted the details
of his conviction for the crime of stealing a considerable amount of
money, although he now claims that he committed the crime only to
enable him to escape the political situation in Cuba, and he states that
he would never have committed such a crime in this country. The issue
facing us, then, is whether, under these facts, it can be said that there
are serious reasons for considering that the applicant's crime was a
serious one.
Finding the answer to this question is made much more difficult by
the poor state of the record. Unfortunately, inadequate records are, the
norm in the many cases we have recently seen dealing with the sudden
influx of aliens from Cuba who have admitted to criminal records in
that country. It is not surprising that there are no actual conviction
records relating to these aliens, but that fact makes it at times extremely difficult to apply the provisions of section 243(h)(2)(C). We
must- rely in these cases almost entirely on the alien's statements
regarding the nature of his offense. This raises additional problems
because often the alien's testimony by the time he appears at his
exclusion hearing is very different from the statements he made when
initially interviewed by Service officers. The immigration judge, and
later this Board, must therefore attempt to determine which version of
events is most truthful, a troublesome task at best. Then, too, the
terms used by these aliens to describe their crimes often appear to be
technically in accurate, especially in those many cases where robbery,
burglary, theft, and/or larceny are involved; those terms are bandied
about by the aliens (and sometimes by immigration officials as well)
with little or no regard for or knowledge of their real meaning. Again,
it is left to the immigration judge, and later to this Board, to decipher
exactly what crime was involved in a given case. Finally, we are not
' Technically, the applicant applied for asylum, and no mention was made at the
hearing of section 243(h) relief. However, the regulations provide that asylum requests
in deportation or exclusion proceedings "shall also be considered as requests for
withholding exclusion or deportation pursuant to section 243(h) of the Act." 8 C.F.R.
208.3(h) (effective June 1, 1980).
594

Interim Decision

#2841

provided with any Cuban law which could shed light on an alien's
crime, or on how the present Cuban government views given crimes,

i.e., whether the regime in general treats the same crimes in the same
whether the sentences meted out reflect
the government's views on the seriousness of the crimes.'
There is no scapegoat on whom to pin the blame for the sorry state of
these records. Circumstances beyond anyone's control are in the main
responsible. Our task is simply to sift through the records in an
attempt to ascertain, as far as possible, the accurate facts, and then to
determine whether, under those facts, the alien is eligible for
withholding of deportation and/or asylum. Under the statute, we need
not necessarily determine whether an alien has actually committed a
serious nonpolitical crime: it is enough to find that there are "serious
reasons for considering" that he has committed such a crime. In a case
such as the present one, where there is no doubt that a crime has been
committed, we look to the facts, as we have found them to be accurate,
to determine whether there are serious reasons to consider that the
crime committed was a "serious" one. Where a crime such as murder
or armed robbery is at issue, we are unlikely to have much trouble in
making this determination. Most of the cases, however, are not so easy.
way vis a vis sentencing, and
-

-

Where the crime Is not obviously heinous, perhaps involving an offense

against property only, determining the seriousness of the crime
becomes a difficult task. In these situations, such factors as the alien's
description of the crime, the turpitudinous nature of the crime according to our precedents, the value of any property involved, the length of
sentence imposed and served, and the usual punishments imposed for
comparable offenses in the United States, are all proper considerations
in attempting to decide whether or not a crime may have been serious.
In the present case, we have concluded that there are in fact sufficient facts to show that the applicant's crime may have been a serious
nonpolitical one within the meaning of section 243(h)(2)(C). Although
the applicant's crime does not appear to have been what is generally
considered robbery (as he called it), since no force or threat of force
against any person was used (see, e.g., Matter of Rodriguez Palma, id.,

77 C.J.S. Robbery, section 2 (1952)), it did involve the late night entry
into a building, and it did involve a very large sum of money. Moreover,
although we are not certain of the usual terms of sentence for such
crimes in Cuba, we consider significant the facts that the applicant was
sentenced to 15 years imprisonment for this crime, and that he had
served 8 years when he was, released to come to the United States. The
We note, for example, that in many of these cases, long sentences, 10 years and more,
are given for crimes that, front the aliens' descriptions, appear to be only simple
larcenies.
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Interim Decision #2841
carefully plotted manner in which the crime was planned, several
weeks in advance, is also a consideration which indicates the seriousness of the crime here. These factors combine to convince us that there
are serious reasons to believe that the applicant's crime in. Cuba was a
serious one. We reach this conclusion whether the traditional view or
the balancing test referred to in Matter of Rodriguez Palma, id., is
applied.3
In deciding this case, we have not relied on the advisory opinion from
the Department of State.
As the applicant is ineligible for the relief he seeks, his appeal must
be dismissed.
ORDERa The appeal is dismissed.

' We note that the applicant's application for asylum reflects that he would be jailed if
returned to Cuba only, "To finish out my sentence," that he fears persecution because,
"Since lam an ex convict, I am a danger to the state," that he has not been active in any
-

organizations hostile to the Cuban government, nor spoken out against the government,

and that none of his family members have suffered due to his actions.

596


Interim Decision #1233

MATTER OF CHANG

In DEPORTATION Proceedings
A-8227986

Decideclby the Board July 41962
A special inquiry officer's order directing deportation if the alien failed to depart
voluntarily within the time allowed became final when respondent did not
appeal within the time allowed. (8 CFR 243.1) Upon failure to depart as
notified, sespondent was served with a final order of deportation issued
pursuant to the 1952 Act at a time when he was ineligible for suspension of deportation under section 244(a) of that Act. He is, therefore, precluded from
qualifying for suspension of deportation under any of the subsections now
in effect.
CHARGES

Warrant: Act of 1924--no immigration visa
Lodged: Sec. 241 (a) (9) of the I. & N. Act (8 U.S.C. 1251(a) (9) )—Failed to
comply with conditions of admission—seaman.

The case comes forward on appeal from the order of the special
inquiry officer dated May 14, 1962, denying respondent's motion to.

reopen the deportation proceedings to permit application for suspension of deportation under sexton 244 of the Immigration and Nationality Act..
The record relates to a native and citizen of China, 49 years old, male,.
who last entered the United States at the port of New York on May 5,
1951, and was admitted as a seaman under section 3 (5) of the Immigration Act of May 26, 1924, for the amount of time the ship remained in
port, not to exceed 29 days. A warrant of arrest was served on the
respondent on February 18, 1952. He was accorded a deportation
hearing during the course of which he was represented by counsel
and at the conclusion of the hearing on May 11, 1953, the special inquiry officer entered an order finding the respondent to be subject to
deportation solely on the lodged charge set forth above and granted
him the privilege of voluntary departure in lieu of deportation, with
the further order that if he failed to depart as required, the privilege
of voluntary departure should be withdrawn without further notice
14

Interim Decision #1233
or proceedings and the alien deported from the United States in the
manner provided by law on the lodged charge. By letter dated June 9,
1953, counsel for the respondent was supplied with a copy of the hearing record, decision and order of the hearing officer and was informed
that the order was final unless an appeal was taken to the Board of
Immigration Appeals within five days. No appeal was taken. On
July 17, 1953, the respondent and his counsel were notified by mail
that the respondent should arrange to depart from the United States
on or before August 19, 1953, and that if he did not avail himself of
the voluntary departure privilege extended to him, he would be deported from the United States forthwith pursuant to law. Apparently the respondent failed to depart voluntarily and on August 20,

1053, a warrant of deportation was issued. The warrant of deportation however was erroneously based upon the warrant charge instead
of the lodged charge upon which respondent had been ordered
deported.
It does not appear that the deportation of the respondent was ever
effected. On April 5, 1962, counsel for the respondent filed a motion
to reopen the proceedings in order that the respondent might be permitted to make an application for suspension of deportation under
section 244 of the Immigration and Nationality Act, as a,mended,
supporting the motion with an affidavit of the respondent to the effect
that on February 1, 1962, he married a naturalized citizen of the
United States, that he has resided in the United States since 1951,
and alleging that if he were deported to Hong Kong, he would suffer.
unusual hardship.
All the subsections of section 211(a) of the Immigration and Nationality Act which relate to suspension of deportation, except subsection (1) which is no longer applicable, contain, as a condition precedent to eligibility, the clause that the alien "has not been served with
a final order of deportation issued pursuant to this Act in deportation
proceedings up to the time of applying to the Attorney General for
suspension of deportation." In the instant case the respondent was
given voluntary departure with an alternate order of deportation by
the special inquiry officer on May 11, 1953, and on June 9, 1953, was
informed by the District Director of the order of the special inquiry
officer and was given five days after receipt within which to appeal.
No appeal was taken.
By regulations, 8 CFR 243.1, an order of deportation, including an
alternate order of deportation coupled with an order of voluntary departure, made by the special inquiry officer in proceedings under part
242, shall become final upon (1) dismissal of an appeal by the Board
of Immigration Appeals, (2) upon waiver of appeal, or (3) upon
expiration of the time alloted for an appeal when no appeal is taken..
15

Interim Decision #1233
The respondent herein failed to appeal and the order of the special
inquiry officer became final. Upon his failure to depart us notified
by August 19, 1953, a final order of deportation pursuant to the Immigration and Nationality Act had been served upon the respondent
prior to the time of the application for suspension of deportation us
provided by sections 244(a) (2), (3), (4) and (5) of the Act. The
purpose of the requirement therein that the alien shall not have been
served with a final order of deportation precludes suspension of deportation where the alien, . is not eligible for such relief at the time of
such final order.In the instant case the respondent, who last entered the United
States on May 5, 1951, was, at the time of his deportation hearing on
May 11, 1953, nui, eligible for suspension of deportation. A final order
of deportation under the Act has been entered? Under the circumstances the respondent is precluded from now applying for suspension
of deportation. The appeal 'front the order of the special inquiry
officer denying the motion to reopen will be dismissed.
ORDER: It is ordered that-the appeal from the order of the special
inquiry officer dated May 14, 1962, denying the motion to reopen the
proceedings' e and the same is 'hereby dismissed.
Matter of C—L--, 7 I. & N. Dec. 137; Matter of 0—, 7 I. & N. Dee. 457.
Notice is taken of the fact that the warrant of deportation was based upon
an erroneous ground, to wit, the warrant charge instead of the lodged charge.
However, 8 ME 243.1 and 8 CPR 2432 illustrate the distinction between a final
order of deportation and a warrant of deportation. The error in the warrant
of deportation may be corrected administratively.
1

16


Interim Decision #2701

MATTER OF GRANADOS
In Deportation Proceedings
A-14103418

Decided by Board April 26, 1979
(1) Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), is ineffective
to remove deportability under section 241(a)(14) of the Act, 8 U.S.C. 1251(a)(14), for
conviction of possession of an unregistered sawed-off shotgun.
(2) Section 212(c) of the Act is not a general form of discretionary relief. It is confined to
the grounds of inadmissibility enumerated therein.
(3) Francis v. INS, 532 F.2d 268 (2 Cir. 1976) expanded the class of aliens to whom section
212(e) relief is available but did not increase the statutory grounds to which section
212(c) relief may be applied.
<4) If a ground of deportation is also a ground of inadmissibility. section 212(c) can be
invoked in a deportation hearing.
(5) Conviction for possession of a concealed sawed-off shotgun is not a specified section
212(a) ground of excludability.
<6) Conviction for possession of a concealed sawed - off shotgun is not a crime involving
moral turpitude that would render the respondent excludable under section 212(a)(9) of
the Act.
CHARGE:
Order: Act of 1952—Section 241(a)(14) t8 U.S.C. 1251(a)(14)]—Convicted of possessing a sawed-off shotgun
(Xi BEHALF OF RESPONDENT:
Jack Wassermv, Esquire
1707 H Street, N.W.
Washington, D.C. 20006

UN BEHALF OF SERVICE:

George Indelicato
Appellate Trial Attorney
Kendall Warren
Trial Attorney

Attorney of record:
Dan F. Darnley, Esquire

3828 Seattle-First National
Bank Building
Seattle, Washington 98154
Milhollan, Chairman; Maniatis, Applernan, Maguire, and Farb, Board Member's

The respondent appeals from the June 12, 1978, decision by the immigration judge denying his motion to reopen the deportation proceedings

726

Interim Decision #2701
in order to apply for relief from deportation under section 212(c) of the
Immigration and Nationality Act, 8 U.S.C. 1182(c). The appeal will be
dismissed because we agree with the immigration judge's conclusicin
that section 212(c) of the Act is ineffective to remove the basis for the
respondent's deportability.
The respondent is a native and citizen of Mexico who was admitted as
a lawful permanent resident of the United States on August 28, 1965.
On October 18, 1976, he was convicted in the United States District
Court for the Eastern District of Washington for possession of an
unregistered sawed - off shotgun in violation of 26 U.S.C. 5861(d), 5871.
Consequently, he was found deportable on January 12, 1978, under
section 241(a)(14) of the Act, 8 U. S. C. 1251(a)(14). On May 5, 1978, we
dismissed an appeal from the deportability decision as untimely. He
then submitted on May 20, 1978, a motion to reopen the deportation
proceedings and a request for a stay of deportation which the immigration judge denied on June 12, 1978. We agree with the immigration
judge that he had jUrisdiction to entertain the motion to reopen. Matter
of Mladineo, 14 L & N. Dec. 591 (BIA 1974).
Section 212(c) of the Act provides that aliens lawfully admitted for
permanent residence whu temporarily Trooccd abroad voluntarily and
not under an order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may be admitted in
the discretion of the Attorney General without regard to the provisions
of paragraphs (1) through (25) and paragraphs (30) and (31) of subsection
(a) of section 212. That section was enacted in 1952 1 to replace the
seventh proviso to section 3 of the Inuraigration Act of 1917. 2 Twice we
examined the newly enacted section and concluded that section 212(c),
unlike the seventh proviso it replaced, was not a general form of discretionary relief but instead was confined to the grounds of inadmissibility
enumerated therein. See Matter of M—,. 5 I. & N. Dec. 642 (BIA 1954);
Matter of T—, 5 I. & N. Dee. 389 (BIA 1953).
The scope of permissible discretion under section 212(c) was expanded
by the decision of the United States Court of Appeals for the Second
Circuit in Francis v. INS, 532 F.2d 268 (2 Cir. 1976). In Francis, the
Second Circuit Court of Appeals held that the provisions of section
212(c) are applicable not only to permanent resident aliens who temporarily proceed abroad voluntarily and not under an order of deportation, and who are returning to a lawful -unrelinquished domicile of seven
consecutive years, but that such provisions are also applicable to nondeparting permanent resident aliens. The rationale for the Francis
decision was that to provide for section. 212(c) relief to deportable aliens
,

2

Act of June 27, 1952, 66 Sta. 163; 8 U.S.C_ 1189(0
Act of February 5, 1917, 39 Stat. 878; ch. 29, §3.

727

Interim Decision #2701
returning from abroad but not for aliens similarly situated who had not
departed from the United States would constitute an unconstitutional
classification inconsistent with due process. 532 F.2d at 272-273. Frarecis expanded the class of aliens to whom section 212(e) relief is available
but did not increase the statutory grounds to which section 212(c) relief
may be applied.
In Matter of Silva, Interim Decision 2532 (BIA 1976), we adopted the
holding of the Francis court and concluded that section 212(e) permits a
waiver of a ground of inadmissibility to a permanent resident alien in a
deportation proceeding regardless of whether he departs the United
States following the act or acts which render him deportable. Therefore,
if a ground of deportation is also a ground of inadmissibility, section
212(c) can be invoked in a deportation hearing. Cf. Matter of Horn-,
Interim Decision 2557 (BIA 1977); Matter of Tanori, Interim Decision
2467 (BIA 1976). 3

In the present case, however, the respondent seeks the expansion of
section 212(c) relief to a ground of deportation which is not a ground of
excludability listed under section 212(a) of the Act. Conviction for
possession of a concealed sawed-off shotgun is not a specified section
212(a) ground of excludability, nor a crime involving moral turpitude

that would render the respondent excludable under section 212(a)(9) of
the Act. See U.S. ex. rel. Andreacchi v. Curran, 38 F.2d 498 (S.D.N.Y1926); Ex part.? Saraceno, 182 F. 955 (S.D.N.Y. 1910).

We do not reach the respondent's contention that his conviction constitutes a ground of excludability because if deported he would thereafter be immediately excludable.' He would be excludable under section
212(a)(17) of the Act because of his deportation, not because of the
underlying conviction. However, assuming for the purpose of discussion
that the conviction for shotgun possession constitutes some sort Of
exclusion ground per se, under section 212(a) generally, it is not within
the ambit of section 212(c). To adopt the respondent's reasoning would
Make section 212(c) relief available for all grounds of deportability
including the subversive grounds, section 212(a)(27) to (29) of the Act,.

Which were specifically precluded from section 212(c) relief. We see
nothing in the plain language or the legislative history of section 212(c)
3 We reject the respondent's contenticon that the concurring opinion's reference to
setion 212(c) as a full deportation relief meant that the section was available as relief for
deportation grounds. We read that sentence as stating that as a result of the Francis
and Silva cases section 212(c) is a full deportation relief as to the grounds set forth in

section 212(c).
We are aware that the law prior to the 1952 Immigration and Nationality Act was
construed as containing implied exclusion grounds derived from express deportations
oloot.inds. See Matter of V—, 1 I. & N. Dec. 20 (DIA 1942). However, no such jittery]. etati.on has been applied under the 1952 Act.

728

Interim Decision #2701
justifying extending such administrative relief beyond the grounds
listed under that section. See S. Rep. No. 1137, 82d Cong., 2d Sess.
(1952); H.R. Rep. No. 1365, 82d Cong., 2d Sess. (1952); U.S. Code
Cong. & Adm. News 1952, pp. 1652, 1705.
Therefore, we conclude that the respondent's conviction for possession of an unregistered sawed - off shotgun does not come within the
grounds of excludability which are subject to a section 212(c) waiver.
Since the respondent's counsel has conceded at oral argument that his
other contentions, unrelated to section 212(c), are without merit, there
are no other issues left before us and the appeal will be dismissed.
ORDER: The appeal is dismissed.

729


Interim Decision

#24titi

MATTER OF MARTINEZ
In Exclusion Proceedings
A44145584
Decided by Board February, 4,, 1976
Since the only adverse factor against applicant, an alien commuter, is his failure to
indicate in his immigrant visa application whether or not he had previously been
deported and it appears from the record such failure may have been unintentional, he is
granted, in exclusion proceedings, 7124714 pro tune permission to reapply prior to receipt
of his immigrant visa, where it has been in excess of 25 years since he was deported in
1950; it does not appear that he entered the United States at all from 1950 until he
obtained his border crossing card in 1969; he did not work in the United States from
1950 until he was granted an immigrant visa in 1972; the continuation of his employment
in this country depends upon aproval of his application; and, although he lives in Mexico
with his immediate family, his mother and four brothers and sisters reside in the United
States.
EXCLUDABLE: Act of 1952—Section 212(a)(17) 18 U.S.C. 1162(axr -DI—Previously arrested and deported, no permission to apply or reapply
for admission.
Art of 1952—Section 212(0(20) [8 U.S.C. 1182(a)(20))—No valid immigrant visa.
ON BEHALF OF APPLICANT:

Jerald Abrams, Esquire
P.O. Drawer 989
Eagle Pass, Texas 78852

This is an appeal from a decision of an immigration judge dated
August 14, 1975, finding the applicant inadmissible to the United States
under sections 212(a)(17) and 212(a)(20) of the Immigration and Nationality Act, and denying the applicant's request for permission to
reapply for admission to the United States as provided in section
212(a)(17) of the Aet. The appeal will be sustained.
The applicant is a 52-year-old married male alien who is a native and
citizen of Mexico. He is the parent of five children, the oldest of whom is
a United States citizen.
In 1947, and again in 1950, the applicant was deported from the
United States as an alien who lacked a valid immigrant visa. In March,
1954, the applicant applied to the district director for permission to
reapply for admission after deportation. The application was denied and
this decision was affirmed on December 27, 1955 on appeal to the act
Regional Commissioner.
563

Interim Decision #2466
On November 19, 1959, the applicant applied for a nonresident alien's
Mexican border crossing card, which was issued. On the back of the
application, Form 1-190, it is indicated that the applicant revealed his
1950 deportation, although no-mention appears to have been made of the
1947 deportation.
In August, 1972, the applicant applied for and was granted, an immigrant visa. He was exempted from the labor certification requirements
of section 212(a)(14) as the parent of a United States citizen child. On the
application for the visa, Form FS-510, the applicant failed to complete
one page of the form: This page included the questions found in block
41(b) concerning prior deportations. The applicant testified, and the
form indicates, that the applicant was assisted by another individual in
,

executing this application.
On November 14, 1973, , the applicant executed a commuter question-

naire. The applicant's Alien Registration fteeeipl Card, Form 1-151,
bears an inct.cation a grommet in the upper corner—that the applicant
was administratively given commuter status. However, the applicant's
testimony at the hearing establishes that from the time his visa was
issued until he executed the commuter questionnaire, he worked in the
United States while residing in Mexico with his wife and children, and
thus has been a commuter since August, 1972. See Matter of Silva,
Interim Decision No. 2457, (BIA December 4, 1975).
On April 8, 1974, the applicant was served with a notice that he was
being detained fur an exclusion hearing because he did nut clearly

appear to be entitled to enter the United States. The Service contends
that the applicant's name had been posted on a "lookout" list and the
applicant was stopped at the border. However, the applicant contends
that at the time he was served with the notice, he had already made an
entry into the United States and that he should, therefore, be in deportation proceedings.
The applicant claims that he received a "call-in" letter and that in
response to this letter, he went to Eagle Pass on April 8, 1974. He
claims that he went first to his sister's house in Eagle Pass for lunch, and
then returned to the Service office. His sister and his niece both gave

corroborating testimony.
The Service introduced a certificate of non-existence of the "call-in"
letter as well as an affidavit from the immigration officer who issued the
notice to the applicant. We note that the record does contain a "call-in"
letter which was issued in October, 1973. Additionally, a Service officer
was called as a witness and testified as to the procedures employed at
the Border...
The immigration judge concluded that, taken as a whole, the evidence
established that the applicant had not made an entry and was, therefore, properly in exclusion proceedings. We agree with that conclusion.
564

Interim Decision #24155
The immigration judge found the applicant's witnesses to be truthful.
Nonetheless, they were not able to recall with sufficient specificity
whether the events with respect to which they testified occurred on
April. 8, 1974 or some other date near in time. This is of particular
significance when it is borne in mind that the applicant was a commuter
and crossed the border daily. The Service evidence, on the other hand,
tends to establish that the applicant was detained at the border and is
properly in exclusion proceedings.
An immigration judge may grant an applicant permission to reapply
for admission after deportation in an exclusion proceedings, Matter of
S—N—, 6 I. & N. Dec. 73 (BIA 1954; Atty. Gen. 1954). The immigration judge denied the application essentially on the ground that the
applicant had few ties in the United States and had failed. to establish
that he would experience hardship if the waiver were not granted.
Although the immigration judge noted the failure of the applicant to
indicate his prior deportation, he did not rely on this in denying the
application for permission to reapply. There is some ,indieStion in the
record that the applicant claims that he told the person completing the
form of his prior deportation. On the basis of this record, it appears that
the applicant may not have intentionally failed to indicate his prior
deportations.
Although the applicant lives in Mexico with his immediate family, his
mother and four brothers and sisters reside in the United States. The
applicant was employed in the United States until the exclusion proceeding was begun.
There appear to be no adverse factors against the appliCant, other
than the failure to indicate whether or not he. had previously been
deported. He did not work in the United States from 1950 until he was
afforded an immigrant visa. It does not appear that he entered the
United States at all from 1950 until he obtained his border crossing card
in 1959. It has now been in excess of 25 years, since the,applicant was
previously deported. •
The applicant's continuation of his employment in the United States
depends upon approval pf his application.
On review of all these factors, we believe the applicant should be
granted nunc pro tune permission to reapply for admission to the
United States prior to the receipt of his. visa, This./Voic pro tune grant
accordingly renders the applicant's visa yalid and hp therefore, is not
inadmissible under section 212(a)(20) of the Act.
ORDER: The appeal is sustained.
Further order: The applicant is grinted permission to reapply for
admission to the United States nuns pro tune prior to the receipt of his
visa.
Further order: The exclusion proceedings are terminated
565


Interim Decision 4t1689

MAI

'EtC

or Pimmyrnr.

In Deportation Proceedings
A-14997703
Decided by Board January 80, 1967
Notwithstanding statutory eligibility for voluntary departure, in the absence of
other annealing factors such relief is denied, as a matter of discretion, in the
case of respondent, a 24-year-old single Male, whose first anti only entry into
the United States was made as a stowaway, in knowing and intentional violation of the immigration laws ; who has been here only abotit one year ; and who
has no close family ties in this country.
CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Excludable
at entry—Stowaway.
ON BEHALF OF RESPONDENT:
Peter 3. Needham, Esquire
53 State Street
Boston, Massachusetts 02109
(Brief filed)

ON BEHALF or SERVICE:
R. A. Vielhaber
Appellate Trial Attorney

Respondent appeals from the decision of the special inquiry officer
finding' im depoi4table as charged and denying voluntary departure in
the exercise of discretion.
Respondent is a 24-year-old single male alien, a native and citizen of
Portugal, who entered the Tjnitecl States at Baltimore, Maryland on or
about October 13, 1965 as a stowaway on 'a ship which he had boarded
surreptitiously in Lisbon, Portugal. The record shows that he knew
the ship was coming to the United States and stowed away on it for
that reason. Deportability as charged in the order to show cause was
conceded at the hearing.
It has been established that respondent worked as a fisherman for
seven years and thereafter served in the Portuguese navy, receiving
his honorable discharge therefrom on August 3, 1965. Respondent
testified that for some time it had been his hope to come to the United
States so that he could obtain employment and remain hare (Tr. pp.
12,13). He learned of the particular ship he boarded by reading the
maritime papers to see which ships were coming to the United States.
He hoarded the ship late on the day it sailed, hid himself below until
it sailed, and then transferred to a lifeboat. He remained hidden in
50

Interim Decision #1689
the lifeboat during the entire passage from Portugal to the United
States, using the food and supplies with which the lifeboat was normally stocked. He left the ship very early in the morning after its
arrival in the United States and simply walked out unobserved. He
then travelled to Newark, New Jersey where he had relatives and apparently began to work ashore immediately after his arrival (Tr. pp.
18-15) .
The record shows that respondent has no criminal record either in
the United States or in Portugal and there is nothing to indicate that
he has ever engaged in subversive activities. He has testified that he
has sufficient passage money to effect his departure from the United
States if permitted to leave voluntarily, and that he would be willing
and able to depart within the time set by the Government. Although
the majority of his family including his mother, father and sisters
are in Portugal, he has some cousins and friends in the United States
and it is indiVated 'that he has a fiancee, a Miss Susan Gomez, who lives
in New Bedford, Massachusetts, and whom he hopes to marry in the
near future.
Respondent was apprehended at a bus station in Philadelphia. When
he was first spoken to by an officer of the Immigration Service there,

he did not tell the officer that he was Portuguese but said instead that
he was Spanish and testified that his reason for this was the following: "I thought since there are so many Spanish speaking and
Puerto Ricans here, he would let me go." (Tr. la, 15). He apparently
also advised the immigrant inspector that he had immigrant papers
in another bag on another' us, as part of his effort "to see if they would
let me go." (Tr. p. 16).
The special inquiry officer rendered an oral decision at the hearing,
finding respondent deportable, and in effect finding him statutorily
eligible for voluntary departure. He summarized the factors in the
case which he took into consideration in deciding whether there should
be a favorable exercise of discretion. The record shows there are few,
if any, equities respondent can claim. He is single, and his parents and
sisters all live in Portugal. His closest relatives in the United States
are cousins. His first, and only entry into the United States, was made
as a stowaway, in knowing and intentional violation of the immigration laws, and as part of a design to live and work here without
complying with the immigration laws. He was in the United States
for barely a year when he was apprehended. He lied to the apprehending immigration officers, both about his nationality and his immigrant status, in an effort to continue his illegal stay here. Respondent's
claim that he is engaged to be married to a native ,born citizen of the
United States was characterized by the special inquiry officer as a
51

Interim Decision #1689
neutral factor, weighing neither for nor against him. In respondent's
favor are his lack of a criminal record, absence of subversive political
activities, availability of funds to effect his own departure, honorable
discharge after completion of Portuguese naval service and seven years
of work as a fisherman. Balancing these factors, the special inquiry
officer concluded that the favorable were not strong enough to overcome the unfavorable, and denied voluntary departure in the exercise
of discretion.
On appeal, counsel argues that inasmuch a s respondent established
eligibility for voluntary departure, and in view of his past record and
background, the denial of voluntary departure was arbitrary, unreasonable and a clear failure of the special inquiry officer to exercise any
discretion in the matter.

Counsel's argument notwithstanding, the showing of good moral
character, without more, does not justify a grant of voluntary departure. Such a showing is a preliminary factor, going to the establishment of statutory eligibility, which must be satisfied before discretion
can be exercised. The granting of discretionary relief is an act of
administrative grace, and to warrant it there must be a showing of
equities over and above the factors going into statutory eligibility.
We do not find them here.
Counsel contends in effect that the stowing away was the impulsive
act of a young boy. The record shows that it was not a spur of the
moment 'seeking of adventure . by an adolescent; it was done by a
23-year-old, who testified that ever since he had a little knowledge of
life it had been his hope to come to the United States and obtain
employment and remain here, and who knew of the ship's destination
before boarding it because he had read it in the maritime papers (Tr.
pp. 12-13). That respondent comes of a good family and is the son
of a member of the Portuguese merchant marine who allegedly comes
to the United States frequently as a crewman hardly lessens the nature
of his offense (stowing away, it may be noted, is a criminal offense
defined by 18 U.S.C. 2199, punishable by a fine of up • to $1,000 or
imprisonment of up to a year, or both). Rather, it makes it all the more
likely that respondent knew he would be violating the immigration
laws of this country by stowing away and entering the United States
surreptitiously.
That this is respondent's first violation of the immigration laws
likewise does not weigh heavily in his favor, since this is his first and
Only coming to the United States, and every facet of it, from the
moment of his entry into the territorial limits of the United States,
has been in violation of our laws. When discovered by Immigration
Service officers in a bus station in Philadelphia, he admittedly lied
52

Interim Decision 401689
to them about his nationality and immigration status in an effort to
prolong his illegal stay here.
Stowaways are, and have been for many years, treated separately
in our immigration laws, because of the problems they create in the
enforcement of those laws. They were first made excludable by the
Act of 1917, with the possibility that they might be admitted in the
discretion of the Attorney General if they were otherwise admissible
(e.g., had valid visas and/or other necessary documentation). In 1940,
stowing away was made a criminal offense. In 1952, upon the enactment of the Immigration and Nationality Act, excludability was made
absolute for alien stowaways caught before they had made an entry,
with no discretion in the Attorney General to admit them, whether
they were otherwise admissible or not. They are not entitled to be

landed in the United States other than temporarily for medical treatment or in connection with arrangements for their departure or removal from the United States, and are not entitled to any sort of
hearing to determine whether they are eligible to enter the United
States (Section 278(d) of the Immigration and Nationality Act). It
has, as a corollary, become a matter of policy not to grant voluntary departure to.an alien who enters the -United States as a stowaway unless
there are• appealing factors in his case over and above statutory eligibility (Cf. Matter of P—, 5 I. & N. Dec. 307) .
It is within the discretion of the special inquiry officer to determine
whether such factors exist. Frequently used as guidelines are the
length of time the alien has been in the United States,•whether he has
elms family ties here, and whether there are any exceptional factors
in his case which would warrant special consideration. Here, after rendition of his decision, the special inquiry officer declared:
•I irfoh to state that under. section 244(e) of the Immigration and Nationality
Act voluntary departure is discretionary even though the respondent establishes
that •e has been a person of good moral character for the past five years. I did
not 'deny his request for voluntary departure on the ground that he was statutorily ineligible therefor. I denied it as a matter of discretion. In my opinion
this respondent has absolutely nothing working for him in this case. • • •
(Tr. p. 19.)

From our own reading of the record," we consider that the special
inquiry officer's evaluation of respondent's situation is a valid one, and
that the equities upon which to base a discretionary grant of voluntary
departure to a stowaway, with no ties in this country, who has been
here for only a year, are absent. The respondent has shown no convincing reason why he should be permitted to escape the legal conse-

quences of his unlawful entry and stay in the United States.
ORDER: It, is ordered that the appeal herein be and

hereby dismissed.
53

the same is


Cite as 27 I&N Dec. 168 (BIA 2017)

Interim Decision #3908

Matter of J-A-B- & I-J-V-A-, Respondents
Decided November 2, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An Immigration Judge does not have authority to terminate removal proceedings to give
an arriving alien an opportunity to present an asylum claim to the Department of Homeland
Security in the first instance.
FOR RESPONDENTS: Alexander A. Kannan, Esquire, Spring Valley, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kathryn E. Stuever, Senior
Attorney
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MALPHRUS, Board Member:

In a decision dated June 2, 2016, an Immigration Judge granted the
respondents’ motion to terminate their removal proceedings without
prejudice. The Department of Homeland Security (“DHS”) has appealed
from that decision. The appeal will be sustained, the proceedings will be
reinstated, and the record will be remanded to the Immigration Judge. 1
The respondents are natives and citizens of Mexico who applied for
admission to the United States on September 17, 2015, at the San Ysidro,
California, port of entry. During the inspection process, the respondents
expressed a fear of being returned to Mexico and requested asylum. Rather
than placing the respondents in expedited removal proceedings pursuant to
section 235(b)(1)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1225(b)(1)(A)(ii) (2012), the DHS released them from custody and paroled
them into the United States on September 19, 2015.
The DHS served the respondents with notices to appear, charging them
with inadmissibility as aliens without valid entry documents under section
212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2012). By
filing the notices to appear with the Immigration Court, the DHS initiated

1

Subsequent to filing a brief on appeal, the respondents’ attorney moved to withdraw as
counsel of record. No adequate basis has been shown to permit withdrawal of counsel at
this late stage of the appeal. Therefore, the motion is denied.

168

Cite as 27 I&N Dec. 168 (BIA 2017)

Interim Decision #3908

removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2012),
and vested jurisdiction with the Immigration Judge.
In a hearing before the Immigration Judge, the respondents filed a motion
requesting that their removal proceedings be terminated without prejudice.
They argued that because they were paroled into the United States without
first being placed in expedited removal proceedings, they should be allowed
to present their persecution claim to an asylum officer prior to filing an
asylum application in removal proceedings before the Immigration Judge.
The DHS opposed the respondents’ motion to terminate the proceedings.
The Immigration Judge granted the respondents’ motion, reasoning that
arriving aliens who have been paroled into the United States, rather than
placed in expedited removal proceedings, should be given an opportunity to
file an application for asylum with the DHS in the first instance. He found
that the respondents received “unequal treatment” because aliens who
unlawfully entered the United States or who remained in violation of the law
have two opportunities to have an asylum claim considered. 2 In the
Immigration Judge’s view, terminating proceedings to permit the
respondents to file an asylum application with the DHS would promote
fairness because a DHS asylum interview is a nonadversarial and less formal
process than removal proceedings. See 8 C.F.R. §§ 208.9(b) 1208.9(b)
(2017). He also noted that termination would preserve the Immigration
Court’s limited resources, given that if asylum were granted by the DHS,
there would be no need for the respondents to appear in Immigration Court.
We agree with the DHS that the Immigration Judge erred in terminating
these proceedings because there was no legal basis for doing so. It is well
settled that an Immigration Judge may only “terminate proceedings when
the DHS cannot sustain the charges [of removability] or in other specific
circumstances consistent with the law and applicable regulations.” Matter of
Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012). Neither the Act nor the
regulations dictate that arriving and paroled aliens should be given two
opportunities to have an asylum application considered—first, before a DHS
asylum officer and later, before an Immigration Judge.
The regulations provide that the DHS has initial jurisdiction over an
asylum application filed by an alien who is physically present in the
United States or seeking admission at a port of entry. 8 C.F.R. §§ 208.2(a),
1208.2(a) (2017). However, once the DHS commences removal proceedings
2
We note that the Immigration Judge’s underlying premise in this regard is inaccurate
because the DHS may commence removal proceedings against aliens who are in the
country illegally before they file an affirmative asylum application. Only unaccompanied
alien children have a statutory right to initial consideration of an asylum application by the
DHS, and it is undisputed that the respondents do not fall within this class. See section
208(b)(3)(C) of the Act, 8 U.S.C. § 1158(b)(3)(C) (2012).

169

Cite as 27 I&N Dec. 168 (BIA 2017)

Interim Decision #3908

by filing a notice to appear with the Immigration Court, an Immigration
Judge has exclusive jurisdiction over any asylum application an alien files,
see 8 C.F.R. §§ 208.2(b), 1208.2(b), and it is the Immigration Judge’s
responsibility to adjudicate that application, see 8 C.F.R. § 1240.11(c)(3)
(2017).
In Matter of P-L-P-, 21 I&N Dec. 887 (BIA 1997), we addressed a similar
issue, finding that an Immigration Judge improperly terminated deportation
proceedings to allow an alien to pursue the asylum application he had
previously filed with the former Immigration and Naturalization Service
(“INS”). In this regard, we noted that “according to 8 C.F.R. § 208.2(b),
Immigration Judges have exclusive jurisdiction over asylum applications
filed by aliens” once a charging document has been served and filed with the
Immigration Court. Id. at 888. For the same reasons, once removal
proceedings commenced in this case, it was improper for the Immigration
Judge to terminate proceedings in order for the respondents to pursue asylum
before the DHS.
Moreover, the Immigration Judge’s decision to terminate proceedings
was inconsistent with his role in our adjudicative process. As we stated
in Matter of W-Y-U-, 27 I&N Dec. 17, 19 (BIA 2017), “The role of the
Immigration Courts and the Board is to adjudicate whether an alien is
removable and eligible for relief from removal in cases brought by the DHS.”
Therefore, although we recognize the Immigration Judge’s efforts to
conserve the Immigration Court’s limited resources, he had a duty to
adjudicate the respondents’ case once the removal proceedings were
initiated. Id.
The DHS’s decision to commence removal proceedings involves the
exercise of prosecutorial discretion, and neither the Immigration Judges nor
the Board may review a decision by the DHS to forgo expedited removal
proceedings or initiate removal proceedings in a particular case. 3 See Matter
of E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011) (holding that “the
DHS has discretion to put aliens in section 240 removal proceedings even
though they may also be subject to expedited removal under section
235(b)(1)(A)(i) of the Act”); see also Matter of G-N-C-, 22 I&N Dec. 281,
284 (BIA 1998) (recognizing that “the decision to institute deportation
proceedings involves the exercise of prosecutorial discretion and is not
a decision which the Immigration Judge or the Board may review”).
Terminating removal proceedings to require the DHS to initiate expedited
removal proceedings, or to refrain from commencing removal proceedings
altogether, in order to give the respondents an opportunity to file an asylum
3

Likewise, the DHS’s determination that an alien falls within its enforcement priorities
is a matter within its exercise of prosecutorial discretion, and an Immigration Judge may
not review, revisit, or reconsider that decision. Matter of W-Y-U-, 27 I&N Dec. at 19.

170

Cite as 27 I&N Dec. 168 (BIA 2017)

Interim Decision #3908

application with the DHS “impinges upon the [DHS’s] exclusive authority to
control the prosecution of [removable] aliens.” Matter of Roussis, 18 I&N
Dec. 256, 258 (BIA 1982) (holding that an Immigration Judge’s sua sponte
decision to remand an alien’s application for adjustment of status to the INS
impinged on the INS’s exclusive authority to initiate and prosecute
proceedings to a conclusion). 4
The respondents also claim that the DHS improperly bypassed the
credible fear interview process under section 235(b)(1)(A)(ii) of the Act
when it chose not to place them in expedited removal proceedings but,
instead, paroled them into the United States and commenced section 240
removal proceedings. This argument is foreclosed by Matter of E-R-M& L-R-M-, 25 I&N Dec. at 523−24, where we held that the DHS has
discretion to place an arriving alien in section 240 removal proceedings,
regardless of whether the alien expresses a fear of persecution. Therefore,
the DHS was well within its authority to serve the respondents with notices
to appear in Immigration Court, where they can pursue their asylum claim
before the Immigration Judge, in lieu of initiating expedited removal
proceedings.
We are also unpersuaded by the respondents’ assertion that they were
deprived of certain fundamental rights when the DHS initiated removal
proceedings, thereby circumventing the credible fear provisions of the
regulations. The respondents have no due process right to initial
consideration of their asylum claim by the DHS because they will receive a
full and fair hearing on their application by the Immigration Judge. See
Matter of G-D-, 22 I&N Dec. 1132, 1137 (BIA 1999) (holding that an alien’s
right to “a full and fair hearing on his asylum claim” was not compromised
where he had “availed himself of his statutory and regulatory rights, which
resulted in a full hearing” in removal proceedings).
Moreover, even if the DHS places an alien in expedited removal
proceedings and, following an interview, finds that the alien has a credible
fear, such a finding would not necessarily result in a grant of asylum. See
sections 235(b)(1)(A), (B) of the Act; 8 C.F.R. §§ 235.3(b)(4), 1235.3(b)(4)
(2017). Instead, the alien would be placed in section 240 removal
proceedings for an Immigration Judge to consider his or her claim to
4

We note that the DHS paroled the respondents into the United States under section
212(d)(5)(A) of the Act for the purpose of placing them in removal proceedings under
section 240 of the Act. In this respect, the Immigration Judge’s decision to terminate the
proceedings so the respondents could pursue an asylum application before the DHS also
impinges on the DHS’s parole authority. See Matter of Arrabally & Yerrabelly, 25 I&N
Dec. 771, 777 n.5 (BIA 2012) (“[P]arole authority is . . . exercised exclusively by the
DHS.”).

171

Cite as 27 I&N Dec. 168 (BIA 2017)

Interim Decision #3908

asylum or withholding of removal de novo. 8 C.F.R. § 208.30(f) (2017). 5
Consequently, there is no merit to the respondents’ assertion that by not
having a credible fear interview, they were deprived of an opportunity to
establish the reasons for their fear of returning to Mexico.
For the above reasons, we conclude that the Immigration Judge erred in
terminating the respondents’ removal proceedings to allow them to present
their asylum claim to the DHS in the first instance. An Immigration Judge
cannot require the DHS to exercise its prosecutorial discretion to initiate
expedited removal proceedings. And an Immigration Judge does not have
authority to terminate removal proceedings so that an alien can have an
asylum claim considered first by an asylum officer and, if it is not granted,
then by an Immigration Judge. Instead, once section 240 removal
proceedings are commenced, the Immigration Judge has a duty to adjudicate
the respondents’ case, regardless of how the DHS elected to prosecute it.
Accordingly, the DHS’s appeal will be sustained, the removal proceedings
will be reinstated, and the record will be remanded to the Immigration Judge.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
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.

5
While we recognize that there are procedural differences between presenting an asylum
claim to the DHS and filing an asylum application with an Immigration Judge in removal
proceedings, the respondents “have more rights available to them in proceedings under
section 240 than in expedited removal proceedings [before a DHS asylum officer], where
aliens may only raise persecution-related relief.” Matter of E-R-M- & L-R-M-, 25 I&N Dec.
at 521 n.1.

172


MATTER OF A-

In DEPORTATION Proceedings
A-8027281

Decided by Board January 94, 1958
V.vidance--lleportation charge under section 211(a)(1) of the 1952 not based on

excludability at entry because of prior attack of insanity need not be supported by U.S.P.H.S. medical certificate.
•
United States Public Health Service medical certificate, prescribed by statute
to sustain exclusion order against alien applying for admission, is not required in a deportation proceeding to establish alien's inadmissibility at
time of entry because of prior attack of insanity.
CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at time of entry under section 212(a) (3)—One or more attacks of
insanity
BEFORE THE BOARD

Discussion: Tim case is before us by certification. The special
inquiry officer ordered the respondent deported on the charge stated
above and certified the ease to this Board for review. Respondent,
a 29-year-old married female, a native and national of Cuba, was
admitted to the United States for permanent residence on March 1,
1954. From April 24, 1956, until October 5, 1956, she was a patient

in the Creedmore State Hospital in New York where her condition
was diagnosed as dementia praecox, catatonic. She received electric
shock treatments and chemical therapy. After discharge from the
hospital she went to Cuba to visit her parents. She returned from
that visit on March 24, 1957, and was readmitted as a returning lawful resident.. The issue is whether at the time of her reentry, respondent was a person who had had an attack of insanity.
To establish deportability, the Service relies upon a clinical summary which was made in connection with the respondent's hospitalization at the Creedanore State Hospital. Counsel had no objection
to the admission of this record. Counsel argues that the clinical
summary is not sufficient. It is his belief that respondent cannot he
found to have been a person excludable at the time of her entry
unless the rules of law and evidence applicable to an exclusion
proceeding are applied.

12

An alien applying for admission who is thought to be excludable because she has had an attack of insanity must be examined
by a medical officer of the United States Public Health Service from
whose certification, if unfavorable, an appeal may be taken to a
Board of Medical Officers of the United States Public Health Service
at which time an alien may introduce an expert witness (sections
234-236, Immigration and Nationality Act; 8 U.S.C. 1224-1226).
Counsel believes that this procedure must be followed. It is argued
that because of the refusal of the Government to follow the procedures which would have applied had the alien applied for admission, eha is being deprived of due process of law. Counsel has submitted a certificate from Dr. C— who examined the respondent on
August 21, 1957. This physician, termed by counsel as a "psychiatrist," states that it is his opinion that the respondent did not suffer
an attack of insanity. It appears that his opinion is based upon
an examination of the clinical summary and a personal interview
with the respondent.
Congress has set up an exclusion procedure and a deportation
procedure (sections 234-286, 242, Immigration and Nationality Act;
8 U.S.C. 1224-1226, 1252). As to each procedure, Congress has
furllielaid separate detailed instructions. These instructions differ

sharply in several ways. In an exclusion case where the cause of
exclusion is one of certain grounds relating to mental condition, no
appeal ,an he taken from the order of the special inquiry officer
requiring exclusion. In the deportation proceeding, on the other
hand, even though the identical ground is used to order the alien's
deportation, there is an appeal. Another example, in exclusion proceedings the burden of establishing admissibility is upon the alien;
in deportation proceedings the burden of establishing deportability
is upon the Government (section 291, Immigration and Nationality
Act; 8 U.S.C. 1301). Neither administrative nor judicial authorities have ever acted as if it were necessary in deportation proceedings to do all those things which are required to exclude an alien
when it is merely a question as to whether he had been excludable
at the time he applied for admission. For example, to exclude a person on the ground that his entry was prejudicial to the United States,
a certain procedure had to be followed. If, however, the alien succeeded in entering the United States, he could be deported on the
ground that he had been excludable at the time of entry as one whose
entry was prejudicial without following that procedure (United
States ea rel. V ajta v. Watkins, 179 F.2d 187 (C.A. 2, 1910) ).
Caneiain.illa v. Haff, 64 F.2d 875 (C.A. 9, 1933), involved the deportation of an alien who was charged with having been an epileptic
at the time of entry and who claimed that the evidence did not support the charge. In support of the charge proof was made of the
13

fact of the respondent's admission to a hospital as an epileptic about
a year-and-a-half after his last entry and the report of the hospital
made in connection with that matter was submitted. The court
held that it was proper to find that Canciamilla had been epileptic

at the time of entry.
In United States v. Flores-Rodrigues, 237 F.2d 405, C:A. 2, a deportation proceeding, the court accepted a Government contention
that an alien had been excludable at time of entry as a person of
constitutional psychopathic inferiority, even though no certification
of such condition had been made by the United States Public Health
Service.
In Matter of P—, A-8312899, 7 I. & N. Dec. 258, we held contention such as that advanced by counsel was "unresponsive."
It is, therefore, proper to determine in this deportation proceeding whether the respondent suffered an attack of insanity prior to
her last entry, and it is not mandatory that the alien be interviewed by the doctors of the United States Public Health Service
although in many cases this may be a helpful course (United States
ea rel. Leon v. Shaughnessy, 143 F. Supp. 270, S.D.N.Y., affd. sub.
mom. United States ea , rel. Loan v. hturlf, 250 F. 2.1.06, C.A. 2, 1957).

The doctors who observed the respondent for the period of about
5 months during which she was confined diagnosed the respondent
as suffering from insanity. They have set forth in detail their
reasons for their diagnosis. The physician who approved the certification and forwarded it under his name to the Immigration Service stated that he had 10 years of experience in eases such as concerned the respondent and that his experience had been with the Department of Mental Hygiene in New York State. Seven different
doctors were involved in the care and treatment of the respondent
at the hospital. None questioned the £1.1.1ding that she was insane.

Opposed to this we have the statement of a physician whose qualifications are not shown and whose opinion it is that the respondent
suffered from disassociative reaction, a neurotic illness rather than
a psychosis. (Disassociative reaction is regarded by the Public
Health Service as a noncertifiable condition unless it is of such
severity as to be certified as a mental defect.) The respondent's
physician has not given a definition of "disassociative reaction"
other than to indicate that a brief episode of confusion and memory
loss following a series of psychologically important stresses would
fall under that category. He states that the respondent would display residual symptoms if she had been through a psychosis. How-

ever, he has failed to point out the diagnostic differences between
the psychosis which it is claimed the respondent suffered and the
neurosis which he believes she endured. We do not believe that
under these circumstances the certificate of Dr. C— raises a serious
14

question as to the correctness of the diagnosis made by the physicians
of the mental institution where the respondent was confined.
Respondent was represented by counsel of her own choosing. She
had opportunity to testify, to call witnesses and present evidence
in her own behalf and to cross - examine toitnosgas sgainst her We
find the procedure followed was adequate. Deportation was properly
found.
Order: It is ordered that no change be made in the order of the
special inquiry officer requiring respondent's deportation.

I5


Interim Decision #1304

MATralt

1.111Z

In DEPORTATION Proceedings
A-13212870

Decided by Board October 23,193
(1) Neither the Board of Immigration Appeals nor the special inquiry officer
has authority to adjudicate an application for a waiver of the foreign residence
requirement of section 212(e), Immigration and Nationality Act, as amended.
(Reaffirms Metter of Rosenblatt, Int. Dec. No. 1260.)
(2) Jurisdiction to fix voluntary departure date lies with the district director.
If an alien fails to effect voluntary departure within the time accorded him,
the district director is vested with the power to deport him expeditiously notwithstanding that an application for relief may be pending, if the district
director, after consideration of the bona fides of the application, the length of
time adjudication will take, the ability of the alien to depart and return, the
probability of the success of the application, and other pertinent factors, decides
that the polioy of the law will be defeated unless the alien promptly departs.
CHARGE •
Order: Act of 1952 Section 241(a) (2) [8 U.S.C. 1251(a) (2)1
longer—exchange visitor.
—

Remained

—

This is an appeal from the order of the special inquiry officer requiring respondent's deportation upon the ground stated above, denying his application for adjustment of status to that of a permanent
resident, and granting voluntary departure. Appeal will be dismissed.
Respondent, a 43-year-old married male, an alien, a native and citizen of Japan entered the United States on June 24, 1958 as an exchange
visitor for a period ending June 30, 1963. He has remained without
authorization. Deportability is conceded. The respondent's application for adjustment of status to that of a permanent resident under
section 245 of the Act was denied on the ground that he had not established that an immigrant visa is immediately available to him. A
visa is not available because, respondent having been admitted as au
exchange visitor is not eligible for the issuance of an immigrant visa
until he has been absent from the United States for two years.
The requirement as to absence may be waived; in fact, respondent
filed an application for such a waiver with the District Director prior
-

372

Interim Decision #1304
to the deportation proceeding, but the application had not been ruled
upon to the time oral argument was heard before the Board. At the
deportation hearing, counsel asked the special inquiry officer to rule
upon the application for the waiver; the special inquiry officer held
that he had no jurisdiction to do this. This is the first issue we shall
discuss.
Counsel contends that the special inquiry officer, having the power
to grant the greater relief (adjustment of status to permanent residence) must also have the power to grant the lesser relief (waiver of
the requirement that there be an absence of two years) and therefore
should have acted upon the application for the waiver. Counsel is
aware of the fact that in Matter of Rosenblatt, Mt, Dec. No. 1260, and
other decisions, the Board held that a special Inquiry officer has no
authority to pass upon an application for a waiver of the absence re-

quirement ; however, counsel believes the precedents are distinguishable because either dicta is involved or the cases would have required
review of a prior determination made by the District Director on the

application for a waiver. In the instant case, counsel points out that
no decision by the District Director had been made upon the application for the waiver at the time the deportation hearing was held.
We do not find the contention persuasive. In Matter of Rosenblatt,
supra. the alien in deportation proceedings, requested that the special
inquiry officer rule upon an application for a waiver under section
•12(e) of the let. The alien contended, as in the instant case, that
the special inquiry officer could draw authority to make such a ruling
from his power to examine an alien's eligibility for adjustment of
status.

An application for the waiver had been denied 'by the District

Director prior to the deportation proceeding.. The Board held that
neither the special inquiry officer nor the Board had jurisdiction to
consider the application or to review a decision made by the District
Director upon such an application. The Board's decision was bottomed, not upon the fact that an application for the waiver had been
previously denied by the District Director, but upon the fact that an
examination of the law and regulations revealed there was no authority for the special inquiry officer or the Board to take jurisdiction in
the matter, such authority having been specifically delegated elsewhere. We see no reason to change the decision we made in Matter
of Rosenblatt, supra. Counsel's first contention must be rejected.
The second issue raised by counsel arises from the fact that the special inquiry officer having granted respondent voluntary departure,
refused, on the ground that he lacked jurisdiction, to comply with
counsel's request that he couple the grant of voluntary departure with
a provision that the respondent must be permitted to stay in the United
States until there had been a ruling upon his application for an adjust373

Interim Decision #1304
ment of status. This contention is more troublesome for it points out
that despite the fact that a special inquiry officer may have given a
respondent in deportation proceedings. voluntary departure, the District Director may nevertheless order the respondent deported before
a decision is made on the merits of a pending application. Counsel
suggests that justice can be done only if a limitation is placed upon
the District Director's power to deport an. alien until the alien's pending application for adjustment of status is decided. Counsel suggests
that the possibility of abuse stemming from deportation of an alien

before a ruling had been made upon an application which would have
permitted him to become a lawful resident of the United States, requires that deportation proceedings be held in abeyance until a decision is made upon a pending application for relief. If, however,
deportation proceedings must be held, counsel contends that either the
decision of the special inquiry officer should be deferred until a ruling
is received upon the application, or the order of the special inquiry
officer finding an alien deportable and granting voluntary departure

should contain a provision preventing deportation before a ruling is
handed down by the District Director upon the application.
The Service representative states that administrative reasons require

that deportation proceedings be processed to a final conclusion giving
the authorities the right to deport the alien, but that the Service has
pursued a lenient policy with respect to the forcible removal of aliens
who have applications pending. He points out that often there is a
long delay which occurs in ruling upon applications for a waiver
because agencies other than the Service are involved. Finally, the
Service representative contends that the Board has no jurisdiction to
consider the issue arising out of the length of time which an alien
shall be permitted to remain in the United States after the special
inquiry officer has found him deportable, when the only issue involved

is the failure of the District Director to pass upon a pending application for relief. . Although counsel has presented a few situations, some real, some

hypothetical, which in his opinion involved or could involve abuse of
the District Director's power to deport, we do not believe he has
demonstrated that a real problem exists. If there should be an abuse
of discretion, the courts, and this Board (we need not enter into a
question as to our authority to do so at this time) have the power to
see that justice is done. Furthermore, it appears to us that if an alien,
having been found deportable for violation of the immigration laws,

fails to depart in accordance with the provisions of the privilege of
voluntary departure which has been given to him, there should be a
power in the District Director to deport him expeditiously even
though an application for relief may be pending, if the District Di874

Interim Decision #1304
rector, after consideration of the bona fides of the application, the
length of time adjudication will take, the ability of the alien to depart
and return, the probability of the success of the application, and other
pertinent factors, decides that the policy of law will be defeated
unless the alien promptly departs. Such power, like all power is
subject to abuse; however, as we have stated, we have not been shown
that it is the policy to abuse this power and it is uncalled for to assume
-

that a government official would deliberately abuse this power as a
matter of policy. Furthermore, the Service representative has assured us that the power is leniently used.. We believe the appeal
should be dismissed without prejudice to reconsideration if the application for the waiver is favorably acted upon.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed without prejudice to reconsideration if the application for
the waiver is favorably acted upon.

375


Interim Decision #1652

MATFER OF SHAO

In Visa Petition Proceedings
A-13743889
Decided by District Director August 29, 1966
Since an economist is a member of the professions within the meaning of
neaten 101(a) (1)2), Immigration and IfttimeWlit,

Act, ne amended by

P.L. 89236, and since beneficiary, who has a master's degree in economics,
is a qualified economist, a visa petition is approved to accord him preference
classification under section 203(a) (8) of the Act, as amended.

The petition was filed to classify the beneficiary as a preference
immigrant under section 203(a) (3) of the Immigration and Nationality Act, as amended, as a member of the professimis bakd upon
his qualifications as an economist.
The beneficiary is a 26-year-old male, citizen of China, who is
presently residing in Wilmette, Illinois. He completed a two-year
course in accounting - at Chengbmg University, Taiwan, Taiwan m
1962. He then. completed a one-year course in economics at Tak
Ming College, Kowloon, Hong Kong in 1968. He received a bachelor'd degree in business administration from Ohio University in 1964
and his Master's degree in economics from the University of Kansas
in 1965. Since August 24, 1965, the beneficiary has been employed
as a management trainee in the controller department of the General
Finance Corporation in Evanston, Illinois, completing practical
training.
Economists are listed among professional occupations under code
0-36.11 in the Dictionary of Occupational Titles, Whims II, second
edition, prepared by the United States Department of Labor. In
the third edition of publication, economists are listed under professional,. technical, and managerial occupations, code 050.088.
Economists conduct research, prepare reports, and formulate plans
to aid in the solution of economic problems arising from production
and distribution of goods and services. They devise methods of collecting and processing economic and statistical data and compile, or845

Interim Decision #1652
ganize and interpret snub • data. They also advise industrial concerns
and government agencies on matters such as operating efficiency, marketing methods and fiscal problems. The Occupational Outlook
Handbook, 1966-67 edition, of the United States Department of
Labor, states that a •achelor's degree in economics is sufficient for
many beginning research jobs in government and private industry,
although persons employed in such jobs are not always regarded as
professional economists. The master's degree in economics is 'generally required. for appointment as a college instructor. In government or private industry, economists with the master's degree can
usually qualify for more responsible positions than are open to those
with only the bachelor's degree.

In Matter of Shia, Interim Decision #1606, it was determined
that a financial economist who had earned a, master's degree in economies was qual;fipfl for classification as a member of the professions. For the reasons discussed in that decision it is concluded that
persons with advanced degrees in economics, as well as persons with
bachelor's degrees in economics supplemented by further study or
training in that field, may be considered as members of a profession.
The beneficiary in the instant case with a master's degree in economics is qualified as a professional economist. Therefore, the petion will be approved.
It is ordered that the petition be and the same is hereby approved.

846