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Matter of H. ESTRADA, Respondent
Decided May 27, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In analyzing whether a conviction is for a crime of domestic violence under section
237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i)
(2012), the circumstance-specific approach is properly applied to determine the
domestic nature of the offense.
(2) Where the respondent’s original sentence for his Georgia conviction was ambiguous
as to whether he was sentenced to probation or a probated term of imprisonment, a
clarification order issued by the sentencing judge to correct an obvious discrepancy in
her original order will be given effect in determining whether the respondent was
sentenced to a term of imprisonment of at least 1 year.
FOR RESPONDENT: David S. Kennedy, Jr., Esquire, Gainesville, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Bianca H. Brown, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and MALPHRUS, Board
Members.
PAULEY, Board Member:

In a decision dated September 30, 2015, an Immigration Judge found
the respondent removable under section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as
an alien convicted of a crime of violence aggravated felony, and under
section 237(a)(2)(E)(i), as an alien convicted of a crime of domestic
violence. The Immigration Judge pretermitted the respondent’s application
for cancellation of removal under section 240A(a)(3) of the Act, 8 U.S.C.
§ 1229b(a)(3) (2012), based on his conviction for an aggravated felony.
The respondent has appealed from that decision. The appeal will be
dismissed in part and sustained in part, and the record will be remanded to
the Immigration Judge for further proceedings.
The respondent is a native and citizen of Guatemala who adjusted his
status to that of a lawful permanent resident on May 6, 1991. On May 7,
1999, he was convicted of simple battery in violation of section
16-5-23(a)(2) of the Georgia Code Annotated pursuant to a plea of guilty.
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The Department of Homeland Security (“DHS”) initiated these removal
proceedings on the basis of the respondent’s conviction. 1
On appeal, the respondent argues that under the categorical approach,
his conviction for simple battery is not for a crime of domestic violence
because the Georgia Code does not specify that he was in a domestic
relationship with the victim. He also contends that since his sentence was
not to confinement for 1 year or more, his conviction is not for an
aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C.
§ 1101(a)(43)(F) (2012).

I. CRIME OF DOMESTIC VIOLENCE
We first consider whether the respondent’s conviction was for a crime
of domestic violence. The term “crime of domestic violence” in section
237(a)(2)(E)(i) of the Act means
any crime of violence (as defined in section 16 of title 18, United States Code)
against a person committed by a current or former spouse of the person, by an
individual with whom the person shares a child in common, by an individual who
is cohabiting with or who has cohabited with the person as a spouse, by an
individual similarly situated to a spouse of the person under the domestic or family
violence laws of the jurisdiction where the offense occurs, or by any other
individual against a person who is protected from that individual’s acts under the
domestic or family violence laws of the United States or any State, Indian tribal
government, or unit of local government.

A determination whether a conviction is for a crime of domestic
violence necessarily begins with an elements-based approach, because a
statute that lacks an element corresponding to a “crime of violence,” as
defined in 18 U.S.C. § 16 (2012), cannot be a crime of domestic violence.
See United States v. Castleman, 134 S. Ct. 1405, 1413 (2014). Under the
precedent of the United States Court of Appeals for the Eleventh Circuit, in
whose jurisdiction this case arises, simple battery in violation of section
16-5-23(a)(2) of the Georgia Code Annotated is a categorical crime of
violence, which is defined in § 16(a) as “an offense that has as an element
the use, attempted use, or threatened use of physical force.” Hernandez
v. U.S. Att’y Gen., 513 F.3d 1336, 1339−42 (11th Cir. 2008); see also
United States v. Yanes-Cruz, 634 F. App’x 247 (11th Cir. 2015) (finding
that battery under section 16-5-23.1(a) of the Georgia Code Annotated is a
1

The respondent was also convicted of sexual battery in violation of section 16-6-22.1
of the Georgia Code Annotated on May 7, 1999. The DHS did not rely on that
conviction as a basis for removability and does not argue that it is pertinent on appeal.

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Interim Decision #3863

categorical crime of violence). The respondent does not challenge the
Immigration Judge’s determination that he was convicted of a categorical
crime of violence based on the elements necessary for such a conviction.
Although the respondent does argue that the domestic nature of his
offense was not categorically established, the categorical approach does not
necessarily apply to all aspects of the determination whether a conviction is
for a crime of domestic violence. The Supreme Court has found that there
is a distinction between statutes that must be analyzed under the categorical
approach and those that require a different approach because “words such
as ‘crime,’ ‘felony,’ ‘offense’ and the like sometimes refer to a generic
crime . . . and sometimes refer to the specific acts in which an offender
engaged on a specific occasion.” Nijhawan v. Holder, 557 U.S. 29, 33−34
(2009) (citing Chambers v. United States, 555 U.S. 122, 125−26 (2009)). If
the statutory language refers directly to a generic crime, then the categorical
approach applies, but if the statute contains qualifying language that
references the specific circumstances in which a crime was committed, then
a circumstance-specific analysis must be applied. Id. at 37−38.
There is no uniformity among the circuits on the issue of the proper
approach to be employed in analyzing whether an offense is a crime of
domestic violence. To our knowledge, the Eleventh Circuit has not
addressed this matter. However, the more recent and persuasive authority
supports the Immigration Judge’s conclusion that the question whether an
alien has been convicted of a crime of domestic violence should be assessed
pursuant to a circumstance-specific inquiry, which permits recourse to all
probative evidence. See Hernandez-Zavala v. Lynch, 806 F.3d 259, 266
(4th Cir. 2015) (holding that the circumstance-specific approach should
apply in reviewing section 237(a)(2)(E)(i) of the Act); Bianco v. Holder,
624 F.3d 265, 272−73 (5th Cir. 2010) (holding that “a crime of domestic
violence need not have as an element the domestic relation of the victim to
the defendant,” which “can be proven by evidence generally admissible for
proof of facts in administrative proceedings”); see also Matter of E.
Velasquez, 25 I&N Dec. 278, 280−81 n.1 (BIA 2010). But see Tokatly
v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).
The Fourth Circuit’s decision, which was rendered after the
Immigration Judge’s opinion in this case, relied on the Supreme Court’s
interpretation of “nearly identical statutory text” in the criminal context in
United States v. Hayes, 555 U.S. 415 (2009), which it found “to be
instructive.” Hernandez-Zavala, 806 F.3d at 266. In Hayes, the Court held
that the domestic nature of a conviction for a “misdemeanor crime of
domestic violence” need not be an element of the offense and may, instead,
be found by a factual inquiry. Hayes, 555 U.S. at 426. The Fourth Circuit
found it significant that the Ninth Circuit’s contrary conclusion in Tokatly
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was rendered before the Supreme Court decided both Hayes and Nijhawan,
which expressly determined that a circumstance-specific approach was
appropriately applied to various provisions of the immigration
statute.
Consequently, the Fourth Circuit did “not find Tokatly’s
reasoning persuasive given the Supreme Court’s subsequent holdings.”
Hernandez-Zavala, 806 F.3d at 267; accord Bianco, 624 F.3d at 269−70.
A circumstance-specific inquiry into the domestic nature of an offense
is a limited one and “is not an invitation to relitigate the conviction itself.”
Nijhawan, 557 U.S. at 42 (quoting the Government’s brief). It “involves
the inspection of a single threshold fact”—the relationship between the
offender and the victim—which requires only a “straightforward and
objective” determination by the adjudicator. Hernandez-Zavala, 806 F.3d
at 267; see also Hayes, 555 U.S. at 427 n.9. This is an objective fact that
can be readily ascertained by identifying the victim in question and his or
her domestic relationship, if any, to the respondent. Such a limited
assessment of the nature of the crime comports with due process and is
fundamentally fair, because a respondent has two opportunities to contest
the domestic nature of the offense—first during the criminal proceedings
and again at the removal hearing itself. See Nijhawan, 557 U.S. at 42.
The respondent argues that the circumstance-specific approach cannot
be applied to determine whether his conviction for simple battery was for a
“crime of domestic violence” because a separate battery statute, section
16-5-23.1(f) of the Georgia Code Annotated, punishes the more serious
offense of “family violence battery.” We do not agree that the existence of
a State statute expressly prohibiting domestic violence is dispositive as to
whether a conviction is for a crime of domestic violence under section
237(a)(2)(E)(i) of the Act. This contention is based on the flawed
assumption that the domestic nature of the crime must be described as an
element of the underlying offense. Rather, the focus of the circumstance
specific approach is on the factual circumstances in which the crime was
committed. Additionally, there is no indication that domestic violence in
Georgia is prosecuted only under section 16-5-23.1(f). As the Supreme
Court has noted, domestic violence is routinely prosecuted under general
assault and battery statutes, even in States with statutes that specifically
proscribe domestic violence. See Hayes, 555 U.S. at 427; see also
Castleman, 134 S. Ct. at 1411.
Section 237(a)(2)(E)(i) of the Act contemplates a variety of offenses
that may constitute crimes of domestic violence under the appropriate
circumstances. What these crimes have in common, beyond the element of
force, is the domestic relationship between the offender and the victim.
Congress passed the domestic violence provision in 1996 when two-thirds
of the States did not have laws that specifically proscribed domestic
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violence. Hayes, 555 U.S. at 426; see also Castleman, 134 S. Ct. at 1413.
To treat the domestic violence circumstance as requiring a categorical
approach as to the domestic nature of the crime would frustrate the manifest
purpose of the legislation by rendering it inapplicable in the clear majority
of the States. See Hayes, 555 U.S. at 426−27; Hernandez-Zavala, 806 F.3d
at 267; Bianco, 624 F.3d at 272. We are not persuaded that Congress
would have intended this result. See Luna Torres v. Lynch, No. 14-1096,
2016 WL 2903424, at *6 (U.S. May 19, 2016) (reaffirming the principle
from Nijhawan and Hayes that the categorical approach should not be
applied so as to produce the “haphazard” result of preventing the Act from
applying to a significant majority of State offenses). We therefore conclude
that the circumstance-specific approach is properly applied in analyzing the
domestic nature of a conviction to determine if it is for a crime of domestic
violence.
Finally, the respondent argues that even if the circumstance-specific
approach applies, the evidence is insufficient to establish the domestic
nature of his battery conviction. We disagree.
Under the circumstance-specific approach in immigration proceedings,
all reliable evidence may be considered, including documents that comprise
the formal “record of conviction.” See Matter of Garza-Olivares, 26 I&N
Dec. 736, 742 n.4 (BIA 2016); Matter of Babaisakov, 24 I&N Dec. 306,
320−21 (BIA 2007); see also Nijhawan, 557 U.S. at 41−43; Bianco, 624
F.3d at 272−73 (stating that the Government may prove the domestic nature
of an offense by “using the kind of evidence generally admissible before an
immigration judge”). Such evidence may include police reports and
records, provided that the information in the report is reliable. See Matter
of Grijalva, 19 I&N Dec. 713, 721−22 (BIA 1988) (holding that police
reports are admissible in immigration proceedings and that their contents
are properly considered absent a claim that the respondent’s statements
were made involuntarily or that information was obtained as the result of
egregious police misconduct); cf. Garces v. U.S. Att’y Gen., 611 F.3d 1337,
1349−50 (11th Cir. 2010) (finding that, absent corroboration, police reports
were not sufficient evidence to establish removability where the “arrest
reports state the police officers’ conclusions . . . rather than recording their
observations of facts to show guilt”).
Several documents in the record provide reliable evidence that the
respondent and his victim were in a relationship covered by section
237(a)(2)(E)(i) of the Act. Two separate incident reports document the
actions giving rise to the respondent’s simple battery conviction. The first
report names the respondent and his victim, listing the same address for
both. It details a statement the victim gave to the police, in which she
identifies the respondent as her boyfriend. A second report, entitled a
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“Family Violence Incident Report,” was prepared by the police, as required
under Georgia law whenever an incident of family violence is investigated.
See Ga. Code Ann. § 17-4-20.1(c) (West 1998). This report also states that
the respondent and his victim shared the same address. In answer to the
question of the “relationship of primary aggressor to victim(s),” the
response selected is “lives in the same household or formerly lived in
household.” See Ga. Code Ann. § 16-5-23.1(f) (West 1998) (providing that
a battery committed between persons “living or formerly living in the same
household” constitutes the offense of “family violence battery”); see also
Ga. Code Ann. § 16-5-23(f) (West 1998) (employing the same language in
relation to the offense of simple battery). The individual identified as the
victim in these reports is also named on the criminal charging document
that was the basis of the respondent’s guilty plea.
The respondent has offered no evidence to contest either the identity of
the victim or her relationship to him. Furthermore, the evidence in the
record demonstrates that the respondent’s victim is “a person who is
protected from [the respondent’s] acts under the domestic or family
violence laws of . . . any State” within the meaning of section
237(a)(2)(E)(i) of the Act. See Matter of E. Velasquez, 25 I&N Dec. at 280
n.1 (discussing the “broad class of victims” included in section
237(a)(2)(E)(i)). Considering the totality of the evidence, we agree with the
Immigration Judge that the DHS has established the domestic nature of the
respondent’s offense by clear and convincing evidence and that the
respondent is therefore removable under section 237(a)(2)(E)(i) based on
his conviction for a crime of domestic violence.

II. CRIME OF VIOLENCE AGGRAVATED FELONY
We must also decide whether the respondent’s simple battery offense is
an aggravated felony under section 101(a)(43)(F) of the Act, as a “crime of
violence . . . for which the term of imprisonment [was] at least one year.”
Since we have determined that the respondent’s conviction is for a “crime
of violence” under governing circuit law, the remaining issue is whether he
was sentenced to a term of imprisonment of at least 1 year.
The respondent’s conviction record includes a sentencing document on
a preprinted form that provides for only two possible sentences:
imprisonment or imprisonment with some or all of the term being served on
probation. The form order does not allow for the possibility of probation as
a separate punishment without a corresponding probated term of
imprisonment. The distinction between this straight probation and a
probated term of imprisonment is critical in this case because the Eleventh
Circuit has concluded that the phrase “term of imprisonment” encompasses
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any amount of a prison or jail sentence that is “probated” under Georgia
law. See United States v. Ayala-Gomez, 255 F.3d 1314, 1317−19 (11th Cir.
2001).
The sentencing judge filled out the form order by circling
“Misdemeanor Sentence” and writing “12” in the field corresponding to the
total number of “months in the State Penal System” to be served. In the
same section, the judge wrote “On Probation” and crossed out the form
language pertaining to the imposition of a probated sentence. The language
of the form order and the judge’s edits to that language make the meaning
of the order unclear as to whether the respondent was sentenced to straight
probation or a probated term of imprisonment. However, the same judge
that presided over the respondent’s sentencing hearing subsequently issued
an “Order Clarifying Sentence.” That order states in pertinent part:
No portion of the probationary time was subject to any term or period of
confinement whatsoever. This Court clarifies that the entire probationary sentence
was meant to be straight probation, not a probated confinement sentence. The use
of fill-in template sentencing sheets . . . would appear to indicate that Defendant
was sentenced to a period of confinement that was later probated, but this is not the
case.

The Immigration Judge found that the most reasonable interpretation of
the sentencing order is that it imposes a 12-month probated term of
imprisonment. He concluded that the clarifying order is not entitled to
deference, citing United States v. Garza-Mendez, 735 F.3d 1284 (11th Cir.
2013). That case involved a clarification order issued by a State judge after
the sentencing judge had ordered the defendant to serve 12 months of
confinement. The Eleventh Circuit rejected the “subjective, interpretive
clarification order,” noting that it was obtained from a different judge, long
after entry of the original State sentence, for the purpose of preventing
enhancement of the defendant’s sentence for unlawful reentry in Federal
court. Id. at 1289. In particular, the court was troubled by the fact that the
original order was clear with respect to the imposition of a 12-month
sentence to confinement. Id. at 1288; see also Herrera v. U.S. Att’y Gen.,
811 F.3d 1298 (11th Cir. 2016) (concluding that an order purporting to
clarify that the original sentence did not include “any confinement
whatsoever” did not affect the initial order’s unambiguous imposition of
house arrest as a condition of probation, which constituted a “term of
imprisonment” under the Act).
We do not read the Eleventh Circuit’s decision in Garza-Mendez as
rejecting all clarification orders, especially where the concerns raised by the
court are not present. In this case, the sentencing judge entered the
clarification order in an attempt to correct an obvious discrepancy that
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exists on the face of her original order. As the judge who imposed the
original sentence, she is in the best position to ascribe meaning to the
otherwise ambiguous alterations she made on the preprinted form order.
We therefore find it appropriate to give effect to the sentencing judge’s
clarification order.
Our interpretation of the clarification order is consistent with section
17-10-1(f) of the Georgia Code Annotated, which imposes strict time limits
with respect to a sentencing court’s ability to change or “modify” a
sentence. See also State v. Mohamed, 416 S.E.2d 358, 358 (Ga. Ct. App.
1992) (holding that once the defendant’s sentence had been served, the
court lost jurisdiction over him and therefore lacked authority to modify the
sentence). However, all courts in Georgia have the authority to correct
defects in their records at any time. See State v. Hart, 587 S.E.2d 164, 166
(Ga. Ct. App. 2003) (stating that the court had the “inherent power to
correct or conform an erroneous recording of [its] intended sentence”).
This inherent power also includes the authority to correct discrepancies that
arise from the use of preprinted sentencing forms, as was the situation here.
See Hopper v. Williams, 234 S.E.2d 525, 526 (Ga. 1977). In this case, the
sentencing judge had the authority to clarify the prior sentencing order to
reflect her original intent. See Rutland v. State, 82 S.E. 293, 295 (Ga. Ct.
App. 1914) (“The power of amending records so as to make them speak the
truth is of course inherent in all courts of record . . . .”).
According to the clarification order, the respondent was sentenced to
probation for a period of 12 months, none of which was the result of a
probated sentence of imprisonment. We therefore conclude that the
respondent’s simple battery conviction is not for an aggravated felony
within the meaning of section 101(a)(43)(F) of the Act because he was not
sentenced to a term of imprisonment of at least 1 year. Consequently, the
conviction does not support a finding that the respondent is removable
under section 237(a)(2)(A)(iii) of the Act or that he is statutorily ineligible
for cancellation of removal pursuant to section 240A(a)(3) of the Act.
Accordingly, the appeal will be sustained with respect to the
Immigration Judge’s finding that the respondent is removable under section
237(a)(2)(A)(iii) of the Act as an alien convicted of an aggravated felony.
The respondent’s appeal will be dismissed with respect to his removability
under section 237(a)(2)(E)(i) as an alien convicted of a crime of domestic
violence. The record will be remanded to give the respondent an
opportunity to seek relief from removal.
ORDER: The appeal is dismissed in part and sustained in part.
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.
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Interim Decision #2363

MATTER OF RUNGRERNG
In Visa Petition Proceedings
A-18622281
Decided by Board March 26, 1975
Under the last of Thailand, an adoption is not effected unless it has been registered in
accordance with law. This registration provision does not have retroactive effect.
Beneficiary was born in 1950 and adopted at birth. However, the adoption was not
registered until 1966, after the beneficiary had passed 14 years of age. Since the
beneficiary was over the age of 14 he could not be classified as the unmarried adopted
son of the petitioner under section 203(a)(2) of the Immigration and Nationality Act.
ON BEHALF OF PETITIONER:

Pro Se

The laved permanent resident petitioner applied for preference classification for the beneficiary as her unmarried adopted son under. section

203(a)(2) of the Immigration and Nationality Act. In a decision dated
December 12, 1974, the district director denied that petition_ The petitioner has appealed from that denial. The appeal will be dismissed.

The beneficiary is a native of Thailand who was born in 1950. The
petitioner claims that she and her husband, both natives of China,
adopted the beneficiary at birth, and that there were no formal requirements for adoption in Thailand at that time. The petitioner alleges
that in 1966 the Thai Government imposed an adoption law requiring
registration.

The adoption of the beneficiary was registered in Thailand in 1966. By
that time, however, the beneficiary was beyond the 14-year age limitation for adoption in accordance with section 101(b)(1)(E) of the Immigration and Nationality Act. Thus the petitioner's adoption of the beneficiary cannot be recognized for immigration purposes unless a valid
adoption occurred under the law of Thailand prior to the beneficiary's
fourteenth birthday and the residency and legal custody requirements
of section 101(b)(1)(E) have also been satisfied.
We have received a memorandum of the adoption law of Thailand
prepared by the Far Eastern Law Division of the Library of Congress in
March 1975. That memorandum states that the only legal system for
adoption in Thailand has been in effect since 1935. This refutes the
petitioner's claim that new requirements for adoption were imposed by
the Thai Government subsequent to the beneficiary's birth in 1950.
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Interim Decision #2363
The provisions relating to adoption are contained in sections 15821593, Chapter IV, Title II, Book V (Book of Family) of the Civil and
Commercial Code of Thailand. In addition to the other requirements for
adoption set forth in the Civil and Commercial Code, section 1585 states

that the validity of an adoption is contingent upon its being registered in
accordance with law. Such registration must be effected in compliance
with the provisions of section 22 of the Family Registration Act.
The memorandum states, however, that registration confers no retroactive validity upon the adoption. Consequently, assuming that the
adoption of the beneficiary complied with other requirements of Thai
law, it became valid only upon its registration in 1966. Since the beneficiary was then over the age of 14, he is not eligible for preference
classification as the adopted son of the petitioner.
The district director's decision was correct. The appeal will be dismissed.
ORDER: The appeal is dismissed.

235


Interim Decision lfr1845

MATTER

or

PETERSON

In Visa Petition Proceedings
A-14706662
Decided by Board March, 8, 1968
Notwithstanding a lack or cohabitation and petitioner's testimony that he
married beneficiary to obtain a housekeeper, a valid marriage exists for
immigration purposes as the parties are elderly, live, in the.samehopealthough
they occupy separate bedrooms for health reasons, knew each other for
about . a year and a half prior to their marriage and the 'evidence shows
' there was intended a. valid and lasting marital relationship Which has continued for over two years.
ON BEJEALS

OS PsSITIONSS

Milton T. Simmons, Esquire

517 Washington Street
San Francisco, California Mil,
(Brief filed)

The case comes forward upon certification from the decision of
the District Director, San Francisco, dated. January 11, 1968 concluding that the petitioner has not met the burden of proof required
to establiA that there exists a bona Me marriage for the purpose
of according the beneficiary immediate relative status as contemplated
by the Tnimigratian and Nationality Ant, and denying the visa
petition.
The petitioner, a native-born-citizen of the 'United States, 60 years
old, seeks immediate relative status on behalf of the beneficiary as
his wife. The beneficiary is a native and citizen of Iran, 53 years old.
The parties were married at Carson City, Nevada on February 27,
1966. Each party was married previously and evidence of the termination of the prior marriages has been submitted.
The case previously was before us on June 22, 1967 on appeal from
the order of the District Director, San Francisco District, dated
March 0, 1967 denying the visa petition for the reason that it was

not the intent of the petitioner and the beneficiary to enter into a
valid state of wedlock and as a result the petitioner had failed to
show that a bona fide marriage existed for immigration purposes.
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Interim Decision #1845
The petitioner has been unmarried since his divorce in 1936. He has
been retired for the past five years due to poor health and is supported by social security and welfare assistance. The petitioner met
the beneficiary about a year and a alf before their marriage through
a mutual friend. He needed a housekeeper and she needed a place
to live. Apparently, it was understood between the petitioner, the
beneficiary and her married daughter before the marriage that there
would be no consummation and that they would reside in separate
rooms. The petitioner does not.pay the beneficiary a salary as a housekeeper, but buys the groceries and his wife obtains spending money
from her daughter and from her own funds. The petitioner denied
that he was paid or promised any money to marry the beneficiary
and that he did not marry her to assist her to adjust her immigration status but he married her for the purpose of obtaining a housekeeper. However, he regards her as his wife but understandably differentiates his present relationship with the beneficiary from the
relationship with his first wife. We disposed of the appeal on June 22,
1967 by remanding the ease for questioning of the beneficiary regarding the relationship, whether it was intended to be a permanent one,
and to examine all other matters which would assist in a determination as to whether this relationship, despite its peculiarities, was a
sufficient one to warrant an exemption from the quota requirements
and constituted a genuine, bona fide husband and wife relationship.
A,sworn statement was taken from the beneficiary on September 14,
1967. She testified that her husband had not had any employment since
their marriage because he becomes. short of breath which she thought
was pneumonia. (Counsel stated this illness was actually emphysema.)
She knew him about a year and a half before they were married, and
while she was not in love with him, she liked him and he liked her;
lie had nobody, he was sick and she felt sorry for him; she derided to
marry him and take care of him (p. 7). The beneficiary agreed that
the first time they used to live together normally but he was sick so he
suggested that she go to her own room because he was coughing and
she would be comfortable; and that since, they have shared the same
house but have lived in separated rooms. She acknowledged that he
was too sick to engage in normal marital relations. The beneficiary
denied that any kind of agreement was entered into in which it was
specified that her marriage would not include normal marital relations
between husband and wife. Her husband asked her to be his wife and
i

take care of him and his house. The beneficiary denied that she entered

in this marriage as a basis for remaining in the United States or to
facilitate her stay in the United States. She stated that when they
became married she decided to stay with him for as long as she lived.
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Interim Decision #1845
The petitioner has the burden of establishing eligibility for the
benefit he seeks under the immigration laws on behalf of the beneficiary as his wife. Where a marriage has been duly solemnized in
accordance with the laws of the place where it is performed, the marriage comes into existence at that moment regardless of whether it is
followed by sexual intercourse'
We believe that the Service has failed to take into account the circumstances of the marriage. The 'parties herein are mature people.
The husband has been unable to work for the past five years due to
illness. He has been unmarried since 1936 and in view of his illness
and age needed a wife who also would be a housekeeper. The wife
agreed to become his wife and housekeeper. The petitioner buys the
food, otherwise the wife spends her own funds. We regard the fact that

the parties sleep in separate rooms and have not had sexual intercourse insignificant in view of the' evidence showing that there was
intended a valid and lasting marital relationship which has continued
for over two years.
The reasons for the marriage appear to be far sounder than exist for
most marriages. There is not a single iota of evidence that this was a
sham marriage. Where it is found that there does exist a lama fide
marriage, that the marriage relationship is intended to be a valid and
lasting one, and the parties have continued to reside together for a
number of years, the motive or purpose in entering into the marriage
is not a primary concern. Under the facts in this case, it was proper to
conduct an investigation to establish whether or not a bona fide marital
relationship existed. However, once it has been established that the
marital relationship was bona. Me, that a valid and lasting husband
and wife relationship was intended and was in existence, the marriage
will be recognized for immigration purposes. On the basis of the
record, we conclude that the bona fides of the ina,rital relationship are
fully established. The visa petition will be approved.
ORDER: It is ordered, that the visa petition be approved for immediate relative status.
'Matter of M, 7 I. & N. Dec. 601; United States v. Rubenstein, 151

(2d Cir., 1945).

665

F. 2d 015


trierfin Decision- #1538

Marna or LeRooltzum
In Deportation Proceedings
A-7128195
-

•

Decided by Board December 1,1165

•

(1) Existence of a pattern of homosexual activity over en extended. period of
time Derore and after respondent's entry In 1949 establishes that he 'was a
homosexual at the time of that entry and since a homosexual comes within
the meaning of the term "constitutional psychopathic inferiority" of section
3, Immigration Act of February 5, 1917, as amended, as it was interpreted
at time of the above entry, respondent is deportable as an alien who was ley - •

eludable at time of entry in 1949.
(2) In view of the favorable factors in respondent's case: his 20 years of residence in the United States, his war service, his steady employment, and his
efforts to gain self-control; the unavailability of alternative relief; and the
possibility he may be eligible for naturalization, action on the motion for
termination of the proceedings to enable respondent to apply for naturalize.tion will be held in abeyance pending a preliminary determination by the
Service of his eligibility for naturalisation_
OHABOE43 :

Order: Act of 1952--Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable
at entry--section 212(a) (4) (8 U.S.O. 118200(4)3
—afflicted with psychopathic personality.
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Section 3,
Act of February 5, 1917—afflicted with constitutional psychopathic inferiority.

This is an appeal from the special inquiry officer finding responddeportable on the lodged charge and granting voluntary departure; we find the charge sustained. The Service chaiges that respondent, a. 41-year-old single male
alien, a native and citizen of Canada, admitted to the United States
on Febr
uary 7, 1949 with a permanent resident visa, was a person
of constitutional psychopathic inferiority at the time of his entry.
Respondent contends he was not excludable under the laws and
regulations existing at the time of his entry. In the event he is
ent

436

Interim Decision #1538
found deportable, he requests that proceedings be terminated to
enabled him to apply for naturalization.
The history and facts are fully stated in.previous orders. Briefly,
after respondent's original admission for permanent residence, he
visited. Canada for short periods about every eighth week. Shortly
after...his last return on January.1, 1960, he was arrested in Michigan
for soliciting for an immoral act;' he was convicted, but upon a. new
trial was found not guilty. Following the arrest, respondent was
questioned by the Service and examined by a United States Public
Health Service psychiatric consultant. The Service instituted deportation proceedings on the ground that the respondent was a
homosexual and had been excludable as a psychopathic personality
at the time of his return in 1960. • Ordered deported by a special
inquiry officer, his appeal to this Board dismissed, respondent sought
judicial review. Oh July 12, 1961, the court found respondent had
been properly ordered deported (LaRochelle v. Baba, E.D. Mich.,
Civ. No. 20135). Review was again sought; the court vacated the
order of deportation .and remanded the ease to the Service for a

determination under Rosenberg v. Fleuti, 374 U.S. 449 (1983), as
to whether the respondent's return on January 1, 1960 constituted
an "entry" for immigration purposes (LaRocheRe v. Sahli, E.D.
Dfich., Civ. No. 20435 (November 13, 1963) ). (If there were no •
"entry," respondent would not have been subject to the qualitative
provisions of the law upon his return from Canada.)
At the reopened deportation hearing the special inquiry officer did
not sustain the charge in the order to show cause : he found that
the respondent's return to the United States had followed a casual
visit to Canada and did not therefore constitute an "entry" for
immigration purposes under Flouti. A new charge was lodged
which alleged that respondent was deportable because he had been
excludable as a person of constitutional psychopathic inferiority at
the time of his entry as an immigrant on February 7, 1949; the
special inquiry officer sustained this charge: he found that respondent was a homosexual and that it was the purpose of the law to
exclude homosexuals and sexual perverts as persons who were in the
constitutional psychopathic inferior category.
We shall now consider issues raised by the lodged charge. Counsel
contends the Service is estopped from considering whether the respondent was medically admissible in 1948 because his admission
for permanent residence in 1949 after he had passed a Government
medical examination prevented the Government from any medical
attack on his eligibility to have entered then. It is pointed out thit
had the medical groimd been pressed in exclusion proceedings, re437

Interim Decision #1538
spondent could have had a medical board act as the one to decide
his application and that this right is lost in deportation proceedings.
The contention is rejected. Congress indicated its intention to make
deportable those who were medically inadmissible at the time of
entry but who nevertheless succeeded in entering the United States;
moreover, the deportation proceeding is the recognized forum for
trying the issue (S. Rep. No. 1137, 82d Cong., 2d Sees. 21 (1952);
see Quires v. Neelly, 291 F.2d 906 (5th Cir., 1961); US. ew rel.
Leon v. Murff, 250 F.2d 436 (2d Cir., 1957) ; United States v. Holland-American Line, 231 F.2d 373 (2d Cir., 1956) ; Canciamilla v.
Hoff, 64 F.0d 876 (0th Cir., 1933) ; U4'. ex rel. Pozoloweo v Day,

33 Fad 267 (2d Cir., 1929), cert. den. 280 U.S. 594, followed U.S.
es rel. Kressberg v. Day, 37 F.2d 1014 (2d Cir., 1930) ; Gee Skew
Hong v. Nagle, 18 F.2d 248, 249 (9th Cir., 1927) (dictum); U.S.
ex rel. Haft v. Ted, 300 F. 017, S.D. N.Y., 1923, ard 300 F. 918
(24 Cir., 1924) ; United States v. Schwairz, 82 F. Supp. 933, S.D.
N.Y., 1949; Matter of R—, 8 I. & N. Dec. 616; Matter of A—, 8 L
& N. Dec. 12; Matter of P —, 7 L & N. Dec. 258; section 241(a),
(d) and section. 242(b) of the Act; cf. Mammerfrid T. Brownell, 238
F.2d 82 (D.C. Cir., 1956), affirming 145 F. Supp. 55 (D.C., 1956),
cert. den. 352 U.S. 1017; Lasaresaa v. United States, 199 F.2d 898
(4th Cir., 1952) ; Matter of If—, 4 I. &. N. Dec. 532).
Counsel's attack on the court cases on the ground that the jurisdiction of the Service to review medical eligibility of one admitted
for permanent residence was not raised must be dismissed. A review
of the law and cases reveals that Congress provided for the deportation of medically excludable aliens who had succeeded in entering
the United. States. Such deportation was the consistent akhniztistraLive practice, and a, court could have raised the question of jurisdiction on its own. (a similar issue was discussed in Matter of A—,

No persuasive reason for abandoning the administrative
practice has been advanced. Indeed, counsel recognized the fact
that this practice was properly followed at the deportation hearing
(pp. 137, 140).
The Service theory is that when respondent entered in 1949 the
law required the exclusion of constitutional psychopathic inferiors,
that a homosexual was in that category, and that the respondent
having then been a homosexual was excludable as a constitutional
psychopathic inferior. Counsel contends the record does not establish that the respondent was a homosexual. We find to the contrary.
In 1960, when questioned under oath by a Service'investigator, the
respondent who was then 26 stated he had the homosexual habit
for some ten or fifteen years, that driptang brought it out, that he
supra).

438 .

Interim. Decision 4t1538
had engaged in both active and passive sex acts with men, that he

had not engaged in such acts in Canada with anyone for the past
ten years and, somewhat inconsistently and without explanation,
that he had not engaged in such acts ten years' ago. He admitted
having committed a homosexual act within three Dr four weeks of
the questioning (Ex. 4). The summary of, a United States Public
Health Service psychiatric consultant who examined the respondent
in 1960 reveals that respondent stated to him that he became acquainted with homosexuality -while serving in the Canadian Army
during World War II, that his sexual experiences between 1942
and 190 were largely with men, that his homosexual contacts since
his army experience had become more frequent, that In the past five
or six years previous to the questioning the respondent had accepted
the fact that he was a homosexual and dependent upon homosexual
acts for his sexual outlet, that in the same period his male partners
had been found through contacts made in the public, that he had
had sexual relations with women but preferred them with men
(Ex. 2). Respondent reviewed the information in the summary
at the reopened hearing and stated that he found nu factual inaccuracies but that "they are vague" (p. 204). At the reopened
hearing the Government expert witness testified that in his opinion
based upon a review of his record of the respondent's examination
in 1960 and the statement respondent made in 1960 (Ex. 4), respondent was a homosexual (pp. 135-175). The expert witness
who appeared on respondent's behalf testified that respondent had
gone to him for the three years from 1960 to 1068 for treatment
of a homosexual condition, that he had reexamined respondent about
two weeks before the hearing, and that he considered respondent
was cured since he had engaged in no homosexual act since his
treatment (pp.180-202). The witness pointed to respondent's good
record with the Royal Air Force, -his record of 15 years' responsible '
employment at one job, the fact that he supports his parents, and
the facts that the sex incidents took place when respondent was
under the influence of liquor and he was the passive partner. Respondent's answer as to why he had gone to his psychiatrist was
"to get at the basic cause of the homosexuality, which was my
problem; to see what could be done about it, if I could be remedied"
(p. 205). The existence of a pattern of homosexual activity over
an extended period of time before and after respondent's entry in
1949 establishes that he was a, homosexual at the time of this entry.

Counsel contends that a homosexual is not a constitutional psychopathic inferior merely because he is a homosexual but that to establish that a homosexual is a constitutional psychopathic inferior, it
49

Interim Decision #1538
must also be proven that the condition is *Institutional and had
brought the person in repeated conflict with society and authority.
The congressional history of the 1917 Act reveals that the term
"constitutional psychopathic inferiority" was added to the law to "make
the list of excluded classes complete, especially with regard to the
mentally deficient", that the change had "been made only after consultation with person of knowledge and experience", and that the
object of the change. was "to prevent the introduction into the
country of strains of mental defectives that may continue and multiply through succeeding generation." (S. Rep. No. 355, 63rd Cong.,
2d Sess. 5 (1914) ; S. Rep. No. 352, 64th Cong., 1st Sess. 4-5 (1916).)
The Public Health regulations are of tisistsuce. The "Manuel

of the Mental Examination of Aliens" issued by the United States
Public Health Service in 1918 (Washington Government Printing
Office, Miscellaneous Publication No. 18, Treasury Department,
United States Public Health Service) coning the following explanation under the heading "Constitutional Psychopathic Inferiority":
But aside from those showing defective intelligence, there is an hiportent
group in the borderland between sanity and insanity who are "failures of
mental adaptation" and have a tendency to become actively disordered. In
this class are the constitutional psychopaths and inferiors, the moral imbeciles, the pathological liar& and swindlers, the defective delinquents, many of
the vagrants and cranks, and persons with abnormal sexual instincts. The
dividing line between these various types is not well defined, and for purposes of simplicity in classifying the mentally abnormal immigrant they may
all be included in we general class and certified as cases of constitutional

psychopathic inferiority.

A revision of the regulations defined persons of constitutional
pvelopothin inferiority as follows:
There shall be certified as cases of constitutional psychopathic inferiority
all psychopathic characters such as "chronic litigants," "sexual perverts,"
"pathological liars," "dipsomaniacs," "moral imbeciles," and mentally peculiar
persons who because of eccentric behavior, defective judgment, or abnormal
impulses are in repeated conflict with social customs and constituted authorities. Well-marked cases of psychasthenia and hysteria that have developed
on an unstable nervous constitution shall also be certified for constitutional
psychopathic inferiority.

Supplementary instructions in the revision contained the following
statement:
Constitutional Psychopathic Inferiority—The concept constitutional psychopathic inferiority embraces a variety of people of unusual temperament and
uncontrolled antisocial impulses. These people may have subnormal, normal, or
superior intelligence; they may appear to have a pleasing personality, but many
of them have paranoid trends. (Regulations Governing the Afedical Examine-

440

Interim Decision #1538
Lion of Aliens, Itemised August, 1930. Miscellaneous Publication No. 5, United
. States Treasury Department, Public Health Seritice, pp. 13, 45)

The history of the 1952 Act, an Act which incorporated section 3
of the 1917 Act, reveals that Congress desired the continued exclusion
of the homosexual and considered. this accomplished when it replaced
the term "constitutional.psychopathic inferiority" with the term
"psychopathic personality"—a replacement made to permit use of
current medical terminology; that the replacement was without other
importance is shown by the fact that no one excludable as a psychopathic personality was mentioned in die discussion relating to
modifications of or additions to.the classes of excludable aliens. (See
Matter of P—, 7 I. & N. Dee. 258; S. Rep. NO. 1137, 82d Cong.,
2d Sees. 8,12 (1952).) It thus appears that consistently from its
inception the term "constitutional psychopathic inferiority" has been
interpreted as applying to one with abnormal sexual instincts. Respondent by his own admission engaged in abnormal sexual acts
over 'an extended period of time; such conduct was in conflict with
social custom; he comes .within the meaning of the term "constitutional psychopathic inferiority" as it was interpreted at the time
of his entry, and he was then excludable.
It is no bar to our finding that the Government expert witness
stated he could not certify that the respondent was a person of
constitutional psychopathic inferiority in 1919. (The witness did
state that respondent, on the basis of his social history, was a
homosexual and a psychopathic personality.) First,. in deportation
proceedings we are not bound by the medical certificate and there .
is in this record adequate support for the conclusion that respondent
was a person of constituitonal psychopathic inferiority at the time
of entry. Second, the witness' inability to certify respondent as
a person of constitutional psychopathic inferiority must be viewed
in light of his explanation. The witness testified that he could not
certify that anyone was a person of constitutional psychopathic
inferiority, -because this term was no longer used, it having been
replaced by the term "psychopathic personality." He explained that
the term- "constitutional psychopathic inferiority" was abandoned
because it carried with it the assumption that heredity was the
factor giving rise to the abberrant behaviors whereas medical opinion cannot now say on the basis of the present level of medical
knowledge that such behaviors are caused by hereditary (constit!il -: .
factors rather than by environmental. Therefore, one ex- tional)
hibiting certain abberrant behavior is described as a "psychopathic'
personality," the term describing behavior without in the propes'S ■of
naming it, attempting to state the reason for theZehatrior.
411

Interim Deci;ion 4 1538
The considerations which control the medical expert do not control us. In determining whether an alien is deportable we are not
permitted to become involved with issues concerning the wisdom
or correctness of congressional action! our task is to see if the
respondent involved is in the class that Congress had in mind-as
the subject of its law; it appears to us on this record that respondent
is such a. person.
Counsel contends the term "constitutional psychopathic inferiority" is void for vagueness. We have no jurisdiction to consider the
validity of an Act of Congress.
When the Service lodged the new charge alleging that respiondent

was excludable at the time of his original entry, counsel moved for
termination of proceedings. The motion was -denied. Counsel contends this denial was error. We find no error. Although the Service was apparently abandoning its original charge, it could in the
same proceeding explore any charge it deemed applicable (8 OFR
216.16(d) ; see Crane v. Boyd, 237 F.2d 927 (9th Gir., 1956)). The
alien cannot dictate to the Government the charge which will be
used in his case (Ntovas v. Ahrens, 276 F.2d 483 (7th Ck., 1960),
cert. den. 364 U.S. 826).
Counsel contends it was error to deny his motion to terminate
proceedings for the purpose of allowing respondent to apply for
naturalization. Counsel points to the fact that the case has been
Pending for five years, that it was not reopened until about a year
after the court had remanded the case for further administrative
proceedings, that respondent has twice undergone the expense of
judicial review of the original charge which has now been abanfinned, that during the pendency of deportation proceedings the
respondent has been unable to visit close relatives in Canada and
engage in family celebrations, that he has lived under the tension
of legal insecurity during this time, that he is now compelled to
await the outcome and expense of further administrative proceedings, and that the morals charge against him was dismissed after
trial. He points to respondent's war service, his steady employment,

his efforts to gain self-control, his 20 years of residence in•the United
States, and the effect his deportation could have on the United
States citizen employer for whom he manages a pattern and model
works. The Service stating that termination of proceedings to
permit naturalization is an extraordinary relief opposes such termination on the ground that the legality of his entry is in issue,
and the respondent's record as a homosexual raises a question as
to whether the court would naturalize him.
4-12

Interim Decision 40538
Further exploration of the request for termination of proceedings
to enable respondent to apply for naturalization is indicated by
the existence of the favorable factors, the lack of alternative relief,
and the possibility that respondent is not ineligible for naturalization (see United States v. Schwan, 82 F. Supp. 933, S.D. N.Y.
(1949)).
So that we may rule upon the request for termination on the basis

of a record which is more adequate than the one before us, we
shall reopen proceedings to enable respondent to submit to the
Service an application to file a petition for naturalization, and to
enable the Service to process the application and make such recommendation as to matters of law and discretion as is deemed appropriate; the. case shall then be returned to the Board with such
briefs as the partiesi may desire to file. We shall then pass upon
the motion for termination of proceedings (see Pignatello V. Attorney General of United States, 850 FM 719 (2d Cir. 1965) ; Natter
of Hroneich, Int. Dec. No. 1473). Our action here should not be

construed as an expression of opinion as to respondent's eligibility

for naturalization or the desirability of granting his application.
ORDER: It is ordered that action -.on the motion be held in
abeyance pending the outcome of the preliminary proceedings on
the alien's application to file petition for naturalization.

443


Interim Decision #2872

MATTER OF MARTINEZ-ROMERO

In Deportation Proceedings
A 23039950
-

. Decided by Board June 30, 1981
(1) A statement in a motion to reopen that further proof of eligibility for asylum and
withholding of deportation will be forthcoming at the reopened hearing does not constitute a prima fade basis of eligibility for relief.
(2) Failure to assert an asylum claim prior to the completion of a deportation proceeding
must be reasonably explained.
(3) A motion to reopen deportation proceedings, for the purpose of applying for asylum
and withholding of deportation will not be granted where a prima fade case of eligibility has not been established.
(4) Evidence consisting of conclusory assertions, generalized statements, and generalized
newspaper articles did not tend to establish that the respondent would be subject
to persecution for her political opinions or that she, as a former student, or that
students as a class would be subject to persecution for membership in a particular
social grouP.
CHARGE:

Order: Act of 1952—Sec. 241(a)(2) U.S.C. 1251(a)(2))—Nonimmigrant student—
remained longer than permitted
ON BEHALF OF RESPONDENT:
Jerry Kaplan, Esquire
8447 Wilshire Boulevard
- Suite 400
Beverly Hills, California 90211

ON BEHALF OF SERVICE:

Thomas Fong
Trial Attorney

Br: Milhollan, Chairman; Menials, Maguire, and Morris; Board Members

The respondent appeals from a November 6, 1980, decision of an
immigration judge, denying her motion to reopen deportation proceedings for the purpose of applying for asylum and denying a request for a
stay of deportation. The appeal will be dismissed.
The respondent is a 24-year-old single female alien, a native and
citizen of El' Salvador. She was admitted to the United States on or
about January 14, 1975, as a nonimmigrant student and was authorized
to remain in the United States for a temporary period, not to exceed 1
year.
75

Interim Decision #2872
An Order to Show Cause was issued on March 26, 1980, charging the
respondent with deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S. C. 1251(a)(2), as a nonimmigrant under
section 101(a)(15) who remained in the United States for a longer time
than permitted. A hearing was held on April 2, 1980, in which the
respondent admitted the factual allegations in the Order to Show Cause

and conceded deportability. The immigration judge, in a summary decision on the same day, found the respondent deportable as charged. The
respondent, who was represented by counsel, waived appeal. The immigration judge granted the respondent voluntary departure until October 2, 1980, a period of 6 months, which was subsequently extended
until October 27, 1980, by the District Director.' The respondent failed
to depart.
In a motion dated October 28, 1980, and received by the government
on October 31, 1980, 2 the respondent, through counsel, sought to reopen
her deportation proceedings so that she could apply for asylum. The
respondent also requested a stay of deportation pending adjudication of

the motion to reopen. 3c In support of her motion, the respondent submitted her owai affidavit, Form G.325 (Biographic Information), and Form
1-589 (Request for Asylum in the United States). In her application for
asylum, the respondent stated that students in El Salvador were prime
targets for persecution, that schools have been shut down, and that
students have been killed or have disappeared. She added that while in
the United States, she has openly criticized the killings and oppression
that is being caused by the military of El Salvador. She believes that
because she has been absent from El Salvador, she would be in a worse
podition than the people who have remained. The respondent also submitted nine newspaper articles published in June, July, and August
1980. Each of these articles described general conditions in El Salvador.
In his decision of - November 6, 1980, .the immigration judge considered the respondent's basis for asylum, the civil unrest in El Salvador,
and the government's opposition.' He stated that in order to be eligible
In a letter to the respondent, dated November 3, 1980, the District Director stated:

[AA the time of your deportation hearing, the privilege of nqueating Political
kWh= waa discussed through your attorney, Emma Castro. You requested vohm.

tary departure, for a period of six months in lieu of filing that application and
designated El Salvador as the country to which you wished to be deported in the
event that you failed to depart.
2 According to the District Director, a notice to surrender for deportation (Form 1466)
was mailed to the respondent, on October 28, 1980, ordering her to report to the district
office in Los Angeles on November 7, 1980, completely ready for deportation.
mis District Director denied the inapondent's application for a stay of deportation in
his letter of November 3, 1980, to the respondent. See 8 C.F.R. 103.5.
The government's opposition was stated orally because the respondent was scheduled
to be deported on the following day.

•

3

76

Interim Decision #2872
for asylum, an alien must establish that his life or freedom would be
threatened in a country on account of race, religion, nationality, membership in a particular social group, or political opinion. 5 He was unpersuaded that, the respondent faced a danger greater than any other citizen of II Salvador and found that the respondent had not met her
burden of coining forward with a prima fade showing that she would be
singled out for some specific reason. The immigration judge further

noted that, at the deportation hearing, the respondent did not file an
asylum claim or claim withholding of deportation under section 243(h) of
the Act.' He also found that the respondent's motion was deficient
because she did not justify her failure to apply for asylum at the time of
the hearing.
The inmngration judge denied the respondent's request for a stay of
deportation. He' concluded that inasmuch as he denied the motion to
reopen, there would be no purpose in granting a stay pending a decision
on the motion to reopen.
The respondent appeals through counsel. Her entire argument is as
follows:
Review is sought of the refusal to stay deportation proceedings and the refusal to
re-open (sic) deportation proceedings. The reasons for this appeal are abuse of discretion and refusal to exercise discretion. The alien's request for asylum in the United
States was not allowed to be filed. New evidence bag been discovered by alien's new
counsel that justifies the filing and granting of a prima facie claim for persecution.

Motions to reopen deportation proceedings, while•not provided for
under the Act itself, are permitted by regulations promulgated thereunder. The regulations provide that a motion to reopen "shall not be
granted unless it appears to the Board that evidence sought to be offered
Technically, the immigration judge used the language pertaining to withholding of
deportation in section 243(2X1) of the Immigration and Nationality Act, 8 U.S.C. 1253(hX1),
in that he referred to "life or freedom" rather than to the language pertaining to asylum,
i.e., "persecution or a well-founded fear of persecution." However, the five grounds upon
.which applications for asylum and withholding of deportation are based are identical.
Section 208(a) of the Act provides that an alien may be granted asylum in the discretion of
the Attorney General if the Attorney General determines that such alien is a refugee
within the meaning of section 101(aX42XA) of the Act. Section 101(a)(42)(A) defines a

refugee as:
[Ainy person who is outside any country of such person's nationality or, in the caae of
a person-having no nationality, is outside any country in which such peison lash
habitually resided, and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.
The regulations implementing this section can be found in 8 C.F.R. 208.5.
Anylum aequesta made after the institution of deportation proceedings shall also be
considered as requests for withholding of deportation pursuant to section 243(h) of the
Act. 8 C.F.R.208.3(b).
77

Interim Decision #2872
is material and was not available and could not have been discovered or
presented at the former hearing. . . ." 8 C.F.R. 3.2. The motion "shall
state the new facts to be proved at the reopened hearing and shall be
supported by affidavits or other evidentiary material." (Emphasis
supplied.) 8 C.F.E. 3.8.' The motion will not be granted "when a prima
facie case of eligibility for the relief sought has not been established."
INS v. Wang,.101 S. Ct. 1027 (1981); Matter of Rodriguez, 17 I&N Dee.
105 (BIA 1979); Matter of Lam, 14 I&N Dec. 98 (BIA 19722. See Matter
of Sipus, 14 I&N Dec. 229 (BIA 1972).
An applicant for asylum or withholding of deportation must show
that, if deported, he would be subject to persecution based on his race,
religion, nationality, membership in a particular social group, or political opinion. To meet this burden of proof, an alien must demonstrate a
clear probability that he will be persecuted if returned to his country. 8
C.F.R. 208.5; Matter of McMullen, 17 I&N Dec. 542 (BIA 1980); cf.
Cheng Kai Fu v. INS, 386 F.2d 750 (2 Cir. 1967), cert. denied, 390 U.S.
1003 (1968) (race, religion, or political opinion); Matter of Dunar, 14
I&N Dec. 310 (BIA 1973) (race, religion, or political opinion). Persecution under section 243(h) has been defined as the infliction of suffering or
harm upon those who differ (in race, religion, or political opinion) in a
way regarded as offensive. A t aghnnimn v_ United States, 577 F.2d 141 (9
Cir. 1978); Kovac v. INS, 407 F.2d 102 (9 Cir. 1969). See Pereira-Diaz v.
INS, 551 F.2d 1149 (9 Cir. 1977).
We recognize the difficulty a person may face in establishing that he
or she will be persecuted. We also are aware of the political upheaval in
EI Salvador. However, generalized undocumented assertions regarding
claims of persecution ordinarily will not be sufficient to support a motion
to reopen. See generally Matter of Chumpitazi, 16 I&N Dec. 629 (BIA
1978). Similarly, general allegations of political upheaval which affect
the populace as a whole are insufficient to warrant reopening. See generally Fleurinor v. INS, 585 F.2d 129 (5 Cir. 1978); Matter of Diaz, 10
I&N Dec. 199 (BIA 1963); see also Matter of McMullen, supra. Evidence presented in support of a claim of persecution must demonstrate a
clear probability of persecution directed at the individual respondent or
a class to which the individual respondent belongs. Cheng Kai Fu v.
INS, supra; Matter ofChumpitazi,. supra. Evidence such as newspaper
articles will be considered in evaluating a claim of persecution. However,
this type of evidence normally is not significantly probative on the issue
of whether a particular alien would be subject to persecution if deported.
See Matter of McMullen, supra.
7 8 C.F.R. 3.2 and 8 C.F.R 3.8 pertain re mntinns to reopen before the Board: 8 C.F.R.
103.5 pertains to motions to reopen before the District Director; and 8 C.F.R. 242.22
pertains to motions to reopen before an immigration judge.

78

Interim Decision #2872
Reopening is not warranted in this case because the respondent has
not established prima facie eligibility, either for withholding of deportation or for asylum. Her motion is insufficient because the evidence sought
to be offered does not tend to establish that she would be persecuted or
that she has a well-founded fear of persecution.
The respondent contends that she will be persecuted because of her
political opinions. She'also contends that she will be persecuted because
she is a former student and students are persecuted: The statements in
her affidavit and application for asylum are conclusory. The nine newspaper articles regarding conditions in El Salvador are generalized articles
which do not single out the respondent or students in general for disparate treatment. None of the evidence indicates that the respondent
would be persecuted for her political beliefs or for her former student
classification. Further, the respondent has not offered any evidence
which would tend to establish either that students in general are persecuted or that she as an individual would be persecuted. She has not
alleged that she or any member of her family 8 has ever been detained,
interrogated, arrested, convicted and sentenced, imprisoned, or persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. Even when .we consider the evidence' individually and collectively, we find that the respondent has not
established a prima fade case of eligibility for relief.
Furthermore, the respondent has not reasonably explained her failure to assert her asylum claim prior to the completion of her deportation
hearing. See 8 C.F.R. 108.3(b); 8 C.F.R. 208.11. The respondent alleges
that, prior to and during the hearing, she was not aware that she could
seek political asylum. The respondent claims that because she has no
relatives in the United States, she thought her remedies were limited to
voluntary departure or to a visa petition based on a labor certification.
We note that the respondent was represented by counsel at her deportation hearing' and that, according to the District Director, she requested 6
months of voluntary departure time in lieu of filing an application for
At the time she submitted her application for asylum, the respondent's mother, father,
nine sisters, and brothers were living in El Salvador.
" The respondent's motion states that further proof of eligibility for asylum will be
provided at the reopened heating. On appeal, the respondent states that new evidence has
been discovered that justifies the filing and granting of a prima facie claim for persecution.
No evidence was submitted. As we stated in Matter of Sipus, 14 I&N Dec. 229 (BIA
1972), the immigration judge cannot be expected to act on conjecture. Counsel's unsupported and conclusory assertion in the motion that he "is prepared to present the necessary evidence at the time of hearing" does not tell us or the immigration judge what
evidence he is prepared to presort and flops not satisfy us that the additional delay
entailed in a reopening would likely be worthwhile.
1 " The respondent retained three attorneys who represented her, respectively, at the

deportation. hearing, on her motion, and on appeal.
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asylum. Further, her motion was not submitted until her voluntary
departure time of 6 months had expired, and the evidence presented
therein was general and conclusory in nature.
Based upon the record before us, we conclude that the immigration
judge did not abuse his discretion when he denied the respondent's
motion to reopen so that she could apply for asylum. We also conclude
that the immigration judge's denial of a stay pending a decision on the
motion was proper. Accordingly, the appeal will be dismissed.
ORDER.. The appeal is dismissed.

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MATTER OF POLIDORO

In Visa Petition Proceedings
A-13858069

Decided by Board August 11, 1967
Sines petitioner, a naturalised U.S. eitisan, was 26 years of age at the time of

her adoption in 1960, she has not been adopted id' accordance with the proviaions of section 101(b) (1):(L1) of the Immigration and Nationality Act, as
amended, and consequently, is ineligible to confer immediate relative status
on her adoptive father, the beneficiary.

OR BEHALF or Prrriowaa:
Quirinus A. Ricelardelli, Esq..
26 Journal Square
Jersey City, N.J. 07806
(Oral argument)

OF BEHALF OF SEavzor :
Irving A. Appleman
Apellate Trial Attorney
(Oral argument)

The case comes forward on appeal froM the order of the District
Director, New York District, dated April 20, 1967, denying the visa
petition for the reason that since the adoption of the petitioner did
not take place until May 20, 1960 at which time the petitioner was 36
years of age, the petitioner had not been adopted in accordance with
the provisions of section 101(b) (1) (E) of the Immigration and Nationality Act, and the beneficiary is not eligible for any benefits under

the Act.
The petitioner, a native of Italy, a naturalized citizen of the United
States, 41 years old, female, seeks immediate relative status on behalf
of the beneficiary as her adoptive father. The beneficiary is a native
and citizen of Italy, 66 years old.
In support of the visa. petition there has been submitted a decree of •
the Court of Appeals of Rome, Italy establishing that the beneficiary
and his wife, Anna, adopted the petitioner on May 20, 1960.
The citizen petitioner is seeking to bring in the beneficiary as her
adoptive father. Section 101(b) (2) defines the term "father" to mean

a father only where the relationship exists by reason of any of the
circumstances set forth in section 101(b) (1). Subparagraph (E) of
section 101(b) (1) defines the term "child" to include a child. adopted

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while under the age of 14 years if the child has thereafter been in the
legal custody of, and has resided with, the adopting parent or parents
for at least two years.
In the instant case the adoption took place on May 20, 1960. The
adopted person, the petitioner, was at that time 35 years old. It is
concluded that the adoption is invalid for immigration purposes and
that the petitioner is not eligible to seek immediate relative status on
behalf of the beneficiary as her adoptive parent.
The argument of counsel has been noted. The issue in visa petition
proceedings is not one of discretion but of eligibility. The appeal will
be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

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Matter of Mavis Nyarko MENSAH, Respondent
Decided April 14, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An Immigration Judge may rely on fraud or a willful misrepresentation of a material fact
made by an alien during an interview before the United States Citizenship and Immigration
Services to remove the conditional basis of an alien’s permanent resident status in assessing
whether the alien has demonstrated, for purposes of adjustment of status in removal
proceedings, that she is not inadmissible under section 212(a)(6)(C)(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018).
FOR RESPONDENT: Mayra A. Velez, Esquire, Maspeth, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Scott Swanburg, Assistant
Chief Counsel
BEFORE: Board Panel: GREER, Appellate Immigration Judge; PEPPER and MONSKY,
Temporary Appellate Immigration Judges.
GREER, Appellate Immigration Judge:

In a decision dated June 15, 2018, an Immigration Judge denied the
respondent’s application for adjustment of status under section 245(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018), concluding that
she had failed to establish she was not inadmissible under section
212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018), as an alien
who had made a willful misrepresentation of a material fact to procure an
immigration benefit. The respondent has appealed from this decision,
arguing that the Immigration Judge improperly based his conclusion
regarding her inadmissibility on a misrepresentation she had made in an
interview before the United States Citizenship and Immigration Services
(“USCIS”). The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Ghana who was admitted to the
United States as a nonimmigrant B-2 visa holder with authorization to remain
in this country until May 8, 2005. In 2010, the respondent married her first
husband, a United States citizen. Based on this marriage, the USCIS granted
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her application for conditional permanent resident status under section
216(a)(1) of the Act, 8 U.S.C. § 1186a(a)(1) (2006).
In 2013, the respondent and her first husband filed a joint Petition to
Remove Conditions on Residence (Form I-751) with the USCIS pursuant to
section 216(c)(1)(A) of the Act. The respondent and her first husband
appeared for an interview on September 8, 2014.
On September 10, 2014, the District Director (“Director”) concluded that
the testimony of the respondent and her first husband during the interview,
and the documentary evidence submitted, failed to establish that the marriage
was entered into in good faith. The Director found that the documentary
evidence did not support the respondent’s claim that she had resided with her
first husband in the same household during their marriage. In particular, the
respondent’s 2013 tax returns listed an address different from the claimed
marital address.
The Director also noted other concerns regarding the validity of the first
marriage, including the respondent’s acknowledgement that she had had a
child with her second husband in October 2013, while she was still married
to her first husband, and that the respondent was unaware her first husband
had been convicted of a criminal offense and sentenced to 2 years of
probation in February 2014. The Director afforded limited weight to
affidavits from the respondent’s friends and pastor, which were each
composed in the same format, with the same font, and the same wording. For
these reasons, the Director denied the joint petition to remove the conditional
basis of the respondent’s permanent residence, concluding that the
respondent failed to show she entered into her marriage with her first
husband in good faith and not solely to evade the immigration laws of the
United States. 1 The Department of Homeland Security (“DHS”) then placed
the respondent in removal proceedings and charged her with removability
under section 237(a)(1)(D)(i) of the Act, 8 U.S.C. § 1227(a)(1)(D)(i) (2012),
as an alien whose conditional permanent resident status was terminated.
After she was placed in removal proceedings, the respondent divorced
her first husband in December 2014, and she married her second husband,
who is also a United States citizen, in March 2015. The respondent’s second
husband filed a Petition for Alien Relative (Form I-130) on the respondent’s
behalf to accord her immediate relative status under section 201(b)(2)(A)(i)
of the Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2012). In 2016, the USCIS approved
this petition.
Based on this approved petition, the respondent sought to adjust her status
pursuant to section 245(a) of the Act during her removal proceedings.
8 C.F.R. § 1245.2(a)(1) (2018). The Immigration Judge denied the
1
Pursuant to section 216(c)(3)(C) of the Act, the denial of the Form I-751 terminated the
respondent’s conditional permanent resident status.

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respondent’s application for adjustment of status after he determined she had
failed to demonstrate that she is not inadmissible under section
212(a)(6)(C)(i) of the Act, because she willfully misrepresented the bona
fides of her first marriage at her September 2014 interview before the USCIS.
The respondent argues on appeal that the Immigration Judge erred in
concluding she failed to demonstrate she was not inadmissible under section
212(a)(6)(C)(i) of the Act based on her statements during her September
2014 interview with the USCIS. She maintains that the approval of the visa
petition her current spouse filed on her behalf reflects that her first marriage
was bona fide, negates any adverse consequences from the 2014 interview,
and forecloses the Immigration Judge from relying on any misrepresentations
during that interview. She additionally contends that the Immigration Judge
clearly erred when he found that her testimony during her removal hearing
bolstered the conclusion that she had misrepresented whether and when she
resided with her first husband during the 2014 interview.
Thus, the issue in this case is whether the Immigration Judge correctly
concluded that the respondent did not establish her eligibility for adjustment
of status in removal proceedings—in that she failed to demonstrate that she
is not inadmissible under section 212(a)(6)(C)(i) of the Act for willfully
misrepresenting a material fact to procure a benefit under the Act—based on
a misrepresentation she made at her interview with the USCIS, where she
sought to remove the conditional basis of her permanent resident status.
Because the respondent filed her first application to adjust her status with the
USCIS and obtained a grant of conditional permanent resident status, we will
discuss this process as it relates to her current application for adjustment of
status before the Immigration Judge.

II. LEGAL BACKGROUND
A. Conditional Permanent Resident Process
The Act provides two ways by which the conditional basis of a permanent
resident’s status may be removed. First, the alien and the United States
citizen spouse may file a joint petition to remove the conditional basis of the
alien’s permanent resident status, pursuant to section 216(c)(1) of the Act,
during the 90-day period before the second anniversary of the date the alien
obtained that status. 8 C.F.R. §§ 216.4(a)(1), 1216.4(a)(1) (2020); see also
Matter of Mendes, 20 I&N Dec. 833, 834 (BIA 1994). Alternatively, the
alien may file an application for a waiver of the requirement to file the joint
petition under section 216(c)(4) of the Act, which provides three distinct

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grounds to waive the joint filing requirement. 8 C.F.R. §§ 216.5(a)(1),
1216.5(a)(1) (2020); see also Matter of Mendes, 20 I&N Dec. at 834. 2
If the USCIS denies the joint petition, it must provide written notice to
the alien of the reasons for denial, and the DHS will issue a notice to appear,
initiating removal proceedings. 8 C.F.R. §§ 216.4(d)(2), 1216.4(d)(2).
While there is no appeal from the USCIS’s decision, the alien may seek
review of it by an Immigration Judge in removal proceedings where the DHS
bears the burden to establish, by a preponderance of the evidence, that the
facts and information set forth by the joint petitioners are untrue or that the
petition was properly denied. Id. Similarly, if the alien spouse chooses to
pursue a waiver of the requirement to file a joint petition, the USCIS must
provide the alien with written notice of the decision on an application for a
waiver of the requirement to file a joint petition. 8 C.F.R. §§ 216.5(f),
1216.5(f). If the decision is adverse, a notice to appear will issue and the
alien may seek review of the denial in removal proceedings where she will
bear the burden of proof. Id.; see also Matter of Mendes, 20 I&N Dec. at 838
(explaining that, in proceedings before an Immigration Judge, the burden
shifts to the alien seeking a waiver of the joint petition requirement). 3
B. Application to Respondent
Following the approval of the visa petition filed by the respondent’s first
husband on her behalf, the USCIS granted the respondent’s application for
lawful permanent resident status on a conditional basis under section 216(a)
of the Act. The respondent filed a joint petition with her first husband to
remove the conditional basis of her permanent resident status, rather than
independently file a waiver of the joint petition requirement. In addition,
after being placed in removal proceedings, the respondent did not seek to lift
2

If a joint petition is no longer viable, a waiver of the joint filing requirement is available
in the following circumstances: (1) extreme hardship would result if the alien is removed;
(2) the alien spouse entered into the qualifying marriage in good faith, but the qualifying
marriage has been terminated (other than through the spouse’s death) and the alien was not
at fault in failing to meet the requirements of section 216(c)(1) of the Act; and (3) the alien
spouse entered into the qualifying marriage in good faith and, during the marriage, the alien
spouse was battered or subjected to extreme cruelty by his or her spouse and the alien was
not at fault in failing to meet the requirements of section 216(c)(1). 8 C.F.R.
§§ 216.5(a)(1)(i)-(iii), 1216.5(a)(1)(i)-(iii); see also Matter of Anderson, 20 I&N Dec. 888,
890 (BIA 1994) (explaining the circumstances under which a waiver is available and the
requirements for such a waiver).
3
An alien may supplement a joint petition or waiver with additional evidence if he or she
seeks review of the USCIS denial before an Immigration Judge. Matter of Herrera Del
Orden, 25 I&N Dec. 589, 595 (BIA 2011).

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the conditions on her permanent resident status before the Immigration
Judge. Rather, before the Immigration Judge, she sought to apply for
adjustment of status under section 245(a) through her second marriage. 4

III. ANALYSIS
In removal proceedings, the respondent bears the burden of establishing
her eligibility for adjustment of status under section 245(a) of the Act.
Section 240(c)(4)(A)(i) of the Act, 8 U.S.C. § 1229a(c)(4)(A)(i) (2018);
8 C.F.R. § 1240.8(d) (2020). Section 245(a) of the Act provides, in pertinent
part:
The status of an alien who was inspected and admitted or paroled into the United
States . . . may be adjusted . . . if (1) the alien makes an application for such
adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to
the United States for permanent residence, and (3) an immigrant visa is immediately
available to him at the time his application is filed.

The respondent has submitted an application for adjustment of status and
made the required showing that she is eligible to receive an immigrant visa
and that it is immediately available to her. However, the respondent must
also demonstrate that she is clearly and beyond doubt entitled to be admitted
to the United States and is not inadmissible under section 212(a)(6)(C)(i) of
the Act. See sections 240(c)(2)(A), (4)(A)(i), 245(a) of the Act.
A. Approval of Visa Petition
The respondent argues that, because the USCIS approved her current
husband’s visa petition, it must have necessarily concluded that the marriage
fraud bar under section 204(c) of the Act, 8 U.S.C. § 1154(c) (2012)—which
is triggered when an alien enters a prior marriage for the purpose of evading
the immigration laws—does not apply. She asserts that the approval of this
visa petition constitutes an implicit determination that her first marriage was
bona fide. See Matter of Tawfik, 20 I&N Dec. 166, 167–68 (BIA 1990).
Therefore, the respondent argues that the Immigration Judge erroneously
determined that she is inadmissible under section 212(a)(6)(C)(i) of the Act
based on a misrepresentation about her first marriage.
The bona fides of the respondent’s current marriage are not in dispute.
The USCIS did not deny the current visa petition for either a failure to meet
4

Termination of conditional resident status is not a bar to pursuing a separate application
for adjustment of status. Matter of Stockwell, 20 I&N Dec. 309, 311–12 (BIA 1991).

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the relevant burden of proof or fraud under section 204(c) of the Act. 5 The
absence of a section 204(c) determination regarding the respondent’s first
marriage and approval of her current husband’s visa petition does not mean
evidence from the conditional permanent resident interview before the
USCIS is no longer relevant. Rather, the evidence presented by the DHS
about the respondent’s unsuccessful attempt to remove the conditional basis
of her permanent resident status remains relevant to the respondent’s
application in these proceedings. That the USCIS did not invoke section
204(c) of the Act in adjudicating the respondent’s current husband’s visa
petition has no bearing on the respondent’s admissibility to the United
States—that is, whether the respondent made a willful misrepresentation of
material fact at her 2014 interview with the USCIS to remove the conditions
on her permanent resident status. We must therefore determine whether the
respondent has met her burden of demonstrating in her removal proceedings
that she is not inadmissible under section 212(a)(6)(C)(i) of the Act.
B. Respondent’s Burden
Section 212(a)(6)(C)(i) of the Act provides that “[a]ny alien who, by
fraud or willfully misrepresenting a material fact, seeks to procure (or has
sought to procure or has procured) a visa, other documentation, or admission
to the United States or other benefit provided under this Act is inadmissible.”
Fraud or a willful misrepresentation may be committed through the
presentation of either an oral or written statement to an official of the United
States Government. Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994).
Fraud or a willful misrepresentation is not limited to “false testimony,” which
requires an actor to make a false statement under oath with the subjective
intent of obtaining an immigration benefit. Kungys v. United States, 485 U.S.
759, 780 (1988). “Misrepresentations are willful if they are ‘deliberately
made with knowledge of their falsity.’” Matter of A.J. Valdez and Z. Valdez,
27 I&N Dec. 496, 498 (BIA 2018) (quoting Matter of S- and B-C-, 9 I&N
Dec. 436, 445 (BIA 1960; A.G. 1961)). Information is “material” when it
has a “natural tendency to affect[] the official decision” of an adjudicator,
Kungys, 485 U.S. at 771, or “tends to shut off a line of inquiry . . . that would
5
The respondent’s current husband, as petitioner, could have appealed a denial of this
visa petition to this Board. Had the USCIS invoked section 204(c) to deny the visa petition,
it would have had the burden to prove by “substantial and probative evidence” that the first
marriage was fraudulent from its inception. Matter of P. Singh, 27 I&N Dec. 598, 602
(BIA 2019) (discussing the USCIS’s burden of establishing fraud to warrant the denial of
a visa petition pursuant to section 204(c) of the Act). In contrast, as noted, the respondent
bears the burden of proof in these removal proceedings to establish her eligibility for
adjustment of status, which includes demonstrating that she is not inadmissible.

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predictably have disclosed other [relevant] facts.” Matter of D-R-, 27 I&N
Dec. 105, 113 (BIA 2017).
The Director’s September 10, 2014, denial of the respondent’s joint
petition to remove the conditional basis of her residence indicates that the
respondent may be inadmissible to the United States pursuant to section
212(a)(6)(C)(i) of the Act. Therefore, the respondent bears the burden of
proving, by a preponderance of the evidence, in these removal proceedings
that this ground for denying her application for adjustment of status does not
apply. See sections 240(c)(2)(A), (4)(A)(i), 245(a) of the Act; 8 C.F.R.
§ 1240.8(d).
1. Willful Misrepresentation of Fact
The Immigration Judge found, without clear error, that the respondent
willfully misrepresented that, at the time of her September 2014 interview
with the USCIS, she was residing with her first husband. Her testimony
during her removal proceeding bolstered the other evidence the Director
cited, showing a different residential address for the respondent, as the basis
of his conclusion that the burden of proof had not been met. Specifically, the
respondent stated during her 2014 interview that she was currently living
with her first husband at an address in the borough of the Bronx in New York
City. However, the respondent repeatedly testified during her removal
proceedings that she lived with her former husband at this address only until
the time of her divorce, which she said occurred in May 2014, as opposed to
December 2014. 6 When asked about this discrepancy, the respondent
repeatedly confirmed that she stopped living with her former husband in May
2014. Thus, the Immigration Judge did not clearly err when he found that
the respondent misrepresented to the USCIS that, at the time of her
September 2014 interview, she continued to reside with her first husband at
the Bronx address. See Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017)
(holding that under clear error review, “[a] finding that is ‘plausible’ in light
of the full record—even if another is equally or more so—must govern”);
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985) (“Where
there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”).
The respondent made multiple unsuccessful attempts during her removal
proceedings to explain this misrepresentation. In this regard, she testified
that, as a consequence of financial stress, she engaged in a brief relationship
with her current husband during her prior marriage. This relationship
6
The Immigration Judge additionally noted that although the respondent claimed she was
living with her first husband at the Bronx address between 2010 and May 2014, she listed
a different address on her 2013 tax returns.

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involved a single physical encounter that resulted in the pregnancy and birth
of a child in October 2013. The Immigration Judge’s determination that this
and the respondent’s other explanations were unpersuasive is not clearly
erroneous under the totality of the circumstances. See Matter of O-M-O-, 28
I&N Dec. 191, 196 (BIA 2021) (stating that an Immigration Judge is not
required to “adopt an applicant’s explanation for an inconsistency if there are
other permissible views of the evidence” (citation omitted)). Thus, we will
affirm the Immigration Judge’s finding that, for purposes of adjustment of
status in removal proceedings, the respondent failed to demonstrate that she
did not make a willful misrepresentation of fact during her USCIS interview.
See sections 212(a)(6)(C)(i), 240(c)(2)(A), (4)(A)(i), 245(a) of the Act;
8 C.F.R. § 1240.8(d). 7
2. Materiality
Finally, we are unpersuaded by the respondent’s argument that her
misrepresentation of fact during the September 2014 interview was
immaterial. To remove the conditional basis of her resident status, the
respondent had to establish that her first marriage was bona fide and that she
did not enter into it to procure her admission to the United States as an
immigrant. See Matter of Munroe, 26 I&N Dec. 428, 430 (BIA 2014). The
respondent’s misrepresentation to the USCIS that she was residing with her
first husband either had a natural tendency to affect what conclusions the
USCIS official who interviewed her drew regarding these issues, or it tended
to shut off a line of inquiry that would have disclosed relevant facts. See
Kungys, 485 U.S. at 771; see also Matter of D-R-, 27 I&N Dec. at 113. We
will therefore affirm the Immigration Judge’s conclusion that the
misrepresentation was material.

IV. CONCLUSION
As discussed above, the process by which an alien may adjust his or her
status to permanent residence depends on the category of adjustment of status
an alien chooses to pursue. The burdens and standards of proof, and their
allocation, vary depending on the category of adjustment chosen. The
respondent first pursued adjustment of status before the USCIS based on a
family-based visa petition her first United States citizen spouse filed on her
behalf. Through this petition, she was granted permanent resident status on
a conditional basis. From among other options, the respondent chose to file
a joint petition with her first husband to remove the conditions on her
7

The Immigration Judge noted that the respondent did not pursue a waiver of
inadmissibility under section 212(i) of the Act.

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permanent residence. The USCIS denied the joint petition because
discrepancies arose during an interview before the USCIS regarding the
validity of the respondent’s first marriage, including that the respondent had
not established that she was sharing a residence with her first husband at the
time of the interview, as she had claimed. The USCIS then terminated her
conditional resident status, and the respondent was placed in removal
proceedings.
The respondent elected to rely on a different visa petition, which her
second United States citizen husband filed on her behalf, to apply for
adjustment of status before the Immigration Judge in removal proceedings.
To establish her eligibility for adjustment of status in removal proceedings,
the respondent bears the burden of demonstrating by clear and convincing
evidence that she is not inadmissible.
The Immigration Judge properly relied on the willful misrepresentation
of material fact the respondent made during her interview before the USCIS
to remove the conditional basis of her permanent resident status in assessing
whether, for purposes of adjustment of status, she was not inadmissible under
section 212(a)(6)(C)(i) of the Act. Because the respondent made a willful
and material misrepresentation about the bona fides of her first marriage
during an interview with the USCIS, she has not met her burden of proving
clearly and beyond doubt that she is not inadmissible under section
212(a)(6)(C)(i) of the Act. 8 Consequently, she cannot establish her
eligibility for adjustment of status. Accordingly, the Immigration Judge’s
decision to deny the respondent’s application for adjustment of status under
section 245(a) of the Act is affirmed, and the respondent’s appeal is
dismissed.
ORDER: The respondent’s appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

8

In light of this disposition, we need not address the respondent’s other arguments.

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