Interim Decision 41598

- Marrsr or Jomwson
In Deportation Proceedings
A-6012667
Decided by Board November 8, 1965

Where, following an alfen’s plea of guilty in the Superior Court, Kings County,
Washington to @ charge of illegal possession of narcoties, imposition or
sentence was suspended by order of the court under the Probation Act and
he was placed on parole conditioned that he serve 4 months in jail after
which he was released, such alien has been convicted for the purposes of
seection 241(u) (11), Tuuulgnilion aud Watluyaitty Act ay amended,
Gxazas:
“Order: Act of 1952—Section 241(a) (11) [8 “U.S.C. 1251(a) (11) ]—Con-
‘vieted of violation of Inw relating to fllicit pos-
session of narcotle drogs, to wit, marihuana,

Respondent, a native and citizen of Canada, 2 24-year-old male,
last entered ‘the. United States on or about December 7, 1944, The
deportation. charge is based on the Service contention that respond-
ent’ was convictéd for illegal possession of narcotics. Respondent
contends that the oriminal proceeding: did not result in a conviction
for imnmigration purposes. The special inquiry officer, agreeing with

+ respondents contention, terminated deportation proceedings and ~
certified his ordet to the Board. We find the charge sustained and
will reopen Proceedings.

An information filed in the Superior Court, Kings County, Wash-
ington charged the réspondent with illegal possession of narcotics;
he entered a plea of-guilty and applied for probation.

- In Washington, following a plea or a verdict of guilty, 2 court,
with exceptions not applicable here, using either the Suspended Sen-
tence Act (Appendix A) or the Probation Act (Appendix 3) may
impose sentence and stay execution or using the Probation Act may
suspend the imposition of sentence. In the instant case, the court
using the Probation Act suspended the imposition of sentence. On

- March 12, 1969 tho court entered an order In respondent’s case pro- ~

401
Interim Decision #1528 i

‘viding that “the imposition of sentence against the Defendant here
be, and the same is hereby deferred for a period of five (5) years,
from date” upon the condition that he follow “the instructions of

the Board of Prison ‘Terms and Paroles” and that he “sorve a tornr ~

of four (4) months in the Kings County Jail.” The order provided
that it was to reinain in effect until the court's further action (Ex

9). Respondent served his sentence and was released. No further -

action has been taken by.the court, The question is whether the *
alien was convicted for purposes of that portion of section 241(a) (1!)

ing a law pertaining te nurcvtivs,
Many factors had to be considered before, the term “conyiction

could be interpreted for immigration purposes. There was the di
versity of state procedures following a plea or verdict of guilty, the:
fact that 2: conviction could exist for some state purposes and not
_ for others, the necessity for some_uniformity in deportation proceed-
ings, and the Sapreme Court’s holding that a degree of finality. had to
be achieved befure a conviction emicted for dopartation pnrpascs
(Pino-v. Landon, 849 U.S. 901 (1955)). As to the definition of the
term “conviction,” disregarding form and the ambiguous attitude of
a. state, wa sought to achieve uniformity by holding that a conviction
existed for immigration purposes if the state considered that a pro-'
ceeding in oné of its courts had resulted in a conviction for any one
purpose, As to finality, disregarding the conflicting interpretations
of the different states as to what orders are “fluul™ judgueuts, anid
egoncluding that a “final” judgment is not necessary, we found the
Ynality required by Pino present if a court disposed of a case with--
“an order which removed tho case from the dockat, and subjected the
dlien to judicial control without the necessity of giving the alien a
- new trial as to his guilt or innocence of the charged crime whenever
the court desired to exercise its right to control his person (Matter -
of O—, TI. & N. Dec. 539 (1957) ).
z “Thus, when a state considers a proceeding has resulted in a con-"
7 viction, we consider it one for deportation purposes if the judicial
-action results in a suspended sentence accomplished either by the
~ pasting of sentence and suspension of its execution, or 2 suspension
of the imposition of sentence; however, when 8 court merely post-
pones actiun following » plea or verdict of guilty and enntinnes, the
case on a calendar for further consideration, or where the slien is

entitled to » new trial to determine’his guilt or innocence before’

the court ean eontral him if it desires to supplement or change its
original order there is no conviction for immigration purposes.

£02

of the Act requiring the deportation of an alien eonvieted for violnt: -

- Tnterim Decision, #41528

‘The special inquiry officer, following Metter of O—, 18 of" the “be-
lief that: the court’s action here resulted not in the suspension of the’.
imposition of sentence but in the postponement of the case for con-
‘sideration ‘wl a future-date. Tho rocord dose not support. his con-
clusion. - In removing the case from the docket, imposing punish-
ment on respondent, and ‘subjecting him to-further punishment 2t”
the court’s pleasure without the. necessity of retrying the question _
of hig guilt, the court suspended imposition of sentence rather than
merely postponed to some future date the question of guilt or the
-question of punishment (Appendix C)._ panini To
Our rules requite the finding that tha stnta hold the criminal
proceeding had resulted in a conviction for_any one purpose, In
the instant case, we note that the Probation Act which provides for
the suspension of imposition of sentence comes into effect only “after
« conviction,” that the section dealing with expungements speaks of
+ the probationer as one punished “for the offense ‘for which hethas
been convicted,” and that it provides for the rélease from penalties
resulting from tha erima for which the person “has been convicted.”
‘We note further that the respondent was required to serve a term
of imprisonment as 8, condition of probation and that there can be
no punishment for an offense under tha laws of the State of Wash-
ington unless the person “shall have bech duly and legally convicted”
(RCW 10.050.). - eH i
+ Before we consider other matters advanced by the special inquiry
afiéer and counsel one further matter concerning Matter of O— te-
quires discussion. The alien in dfatter of O— sought judicial review
on the grounds that he had a nondeportable status which was pre-
served by a savings clause, and that a sentence to imprisonment ‘in
New York Stale, execution being’ suopiided and the suspension viever
revoked, lncks the finality to support-an order of deportation. The
court, without any, analysis of the issues, granted the slien’s motion
* for summary judgment (Ol v. Rogers, Civ. No. 9459-57, DDC.
March -8, 1959). With due respect to’the court, we believe that
Matter of O—, may still be followed. The sovings clause is not
invoked here and needs no comment, "If it was the contention that
a suspended sentence cannot be considered u conviction for immi-
gration purposes ecause.it lacks finality that persuaded the court,
it is one which has been. considered and rejected ina number of
cases after full concideration, For exanple, Arrellano-Flores , V.
Hay, 262 F.2d 667 (9th Cir., 1958), cert. den. 362 U.S. 921, Held.
that a conviction for deportation purposes resulted where under a
law similar to the one here considered, proceedings were suspended
by a California state court and probation granted on condition that

403
Taterim Decision 441598

the alien serve a year in jail. To similar effect, Burr v. Immigra-
tion and Naturalization Service, Civ. No. 19707 (9th Cir. August 2,
1965); Kelly. v. Immigration and Naturalézation Service, $49 F.2d
473 (9th Cir, 1969) ; Gurclu-Ginzulee v. Zuunigration and Naturalt-
zation Service, 844 F.2d 804 (9th Cir., 1965), cert, den. 84 I. W. 3195
Gutierres v. Immigration and Naturalization Service, 893 F.2d 593
(9th Cir., 1968), cert. den. 12 L. ed. 24 179; Zabanazad v. Rosen-
berg, 306 F.2d 861 (9th Cir, 1962); Adams y. United States, 299
F.2d 827 (9th Cir. 1962); Burr v. Edgar, 202 F.2d 803 (9th Cir.,
1961) ; Wood v. Hoy, 266 F.2d 825 (9th Cir., 1059); United Statés .
ew red, Fotle v. Gurfukel, 100 PF. Cupp. 894 WD. Pa. (1087), afd.
251 F'2d 846 (8rd Cir., 1958)., In view of this authority supporting
the view that 2 suspended sentence results in a conviction for immi-
gration purposes, we believe it proper to follow the rules laid down
in Matter of O—. 7

In reaching the conclusion he did, the special inquiry officer’ was ,
influenced by the ruling of the Attorney General ‘of the State of
‘Washington that the eusponsion of the impacitian af sentence fallaw- -
ed by an expungement does not result in a conviction for the pur-
poses of the law which provides for the increased punishment of a ~
person.convicted after having been previously convicted. (The rec-
‘ord does not show ‘an expungement here.) We have pointéd out if
a. state considers that a conviction exists for any one purpose, it is
immaterial in deportation proceedings that the stete does not con-
sider tha ennviction one for all purposes. Here the state has clearly

* shown it considers a conviction, to exist. (The fact that a corivic- ~

tion may be or is expunged does not affect it for deportation purposes
where the charge is based on a conviction for », narcotics violation
(Kelly v. Immigration umd Nuturuticution Service, supra; Carcia-
Gonzalez v. Immigration and Naturalization Service, supra; Burr v.
Immigration and Naturalization Service, supra; see In re Peola,
49 F. Supp. 128 ND. Cal. (1958). But see United States v. Cunha,
209 F.2d 326, (Ist Cir., 1954) (semble) ; In re Ringnaldi, 48 F. Supp.
975 S.D. Cal. (1948) ; Matter of A—F—, 8 I. & N. Dec. 429, A.G.;
Hatter of Helly, Int. Dec. No. 1838).) The rule is otherwise for |
‘expuhgement of convictions resulting from norimarcotic violations,
Matter of G—, 9 I. & N. Deg. 159, A.G. (criticized, Burr v. Immi-
gration and Naturalization Service, supra) )- 7
‘Tho special inquiry officer alco relied upon the fact that Washington
courts have ruled that deferment’ of imposition of sentence is not a
final judgment. A final judgment is not required for a conviction
to exist in a deportation proceeding (Matter of O—, supra pp. 551-
552). In Arrellano-Flores v. Hoy, supra, the court with knowledge

404
- Interim Decision #1528

material that an order under the Suspended Sentence Act is final
and appealable and one under the Probation Act js not; a, conviction
for immigration purposes exists in each case. (In a study of pro-
cedures under the Californis Jaw similar to the Washington Jaw, we

noted that no significance could be found from the: fact that one”

court suspended scntenca and. andther suspended the imposition, of
sentence (Matter of O—, supra, pp. 549-550).) -

“Counsel calls attention to respondent's cooperation with state and .

* federal narcotic agents, to- the facts that-he is the father..of ,
citizen children and ‘that he 1s attemptlug & sevunciliation

With his wife, and to the fact that he servéd honorably ‘Yn the Armed -

_ Forces of the United States from 1959 to 1962. These facts are not
matorial in determining whether respondent is déportable as a
matter of law. They would be of importance in determining wlieth-
er respondent stould be ‘granted discretionary relief, however, in
view of his recent narcotics conviction he does not appear to be eli-
gible for either suspenston of depurtulion (sections -101(b) (3) and

944(a) (2), Immigration and Nationality Act) or adjustment. of .

status (sections 212(a) (23) and“245, Immigration and Nationality
Act). 7 7
Respondent is deportable. The case will be returned to the special
inquiry officer so that he may enter an appropriate order after de-
termining the proper country of deportation and the possibility of
physical persecution. ;

ORDER: It is ordered that the order of the special inquiry officer
be and the same is hereby withdrawn. nnn

It is further ordered that the case be returned to the special inquiry
officer for further action not inconsistent. with what we have stated
jn.our opinion. In the event respondent finds fault with the special
inquiry officer's action in designating 4 place of deportation or de-
termining 2 claim of physical persecution, the special inquiry officer
shall certify his order to this Board. A

APPENDI£ “A”

‘The Suspended Sentence Act reads as follows:

992.060 Suspending sentences. Whenever any person shall be convicted of
any crime except murder, burglary in the Arst degree, arson in the first
degree, robbery, carnal Imowledge of a fomalo child under the age of ten
years, or rape, the court may in its discretion, at the time of imposing
Benterice upon such person, direct that such sentence be stayed and suspended
until otherwise ordered by such court, and that the sentenced person “be
mlared nnaor tha charge of a narole or neace officer during the term of such

405

Interim Decision #1528

“paspencion, upon ouch forms ac tho court may dotormine: Pronided, That
‘a8 a condition to suspension of sentence, the court may require the convicted
persén to make such monetary payments, on such terms as the court deems
. appropriate under the elreumstances, as are necessary (1). to comply with
any order of the ehnrt for the payment of family supnort. (2) to ‘make
“restitution to ay person or persoris who may have suffered loss or, damage
- by reason of the commission of the crime in question, and (8) to pay any

fine imposed and not suspended and the court or other costs incurred in the ©

prosecution of the case, including reimbursement of the state for costs of
extradition if return to this state by extradition was required. In no case

shall a sentence be suspended under, the provisions of this section unless the -

prisoner if sentenced to confinement in a penal institution be placed under
the charge of e parole officer, who is 2 duly appointed and acting officer of the
instizution to Walen ts Person 18 senvenced.

APPENDIX “B

Tho Probotion Act reads ac follows:

+ 995.200 Probation by court—Board to investigate. _After conviction by
plea or verdict of guilty of any crime, the court upon application or its own

motion, may summarily grent or deny probation, or at a subsequent time
AxeO mny Leas aud deleruluc, 1a Cie pscocmec of the defendant, the mattor

of probation of the defendant, and the conditions of such probation, if granted.
‘The court may, in its discretion, prior to the hearing on the granting of pro-
bation refer the matter to the board of prison terms and paroles or such

officers, as the hoard may designate for investigation and report to the court.

at a specified time, upon the circumstances surrounding the crime and con-
cerning the defendant, his prior record, and his family surroundings and
environment. In case there are no regularly employer ‘parole officers working
‘under the supervision of the board of prison terms‘and paroles in the county
or counties wherein the defendant is convicted by plea or verdict of guilty,

the court inay, in its discretion, refer the matter to the prosecuting attorhey

or sheriff of the county for investigation and-report,  ~
9.95210 Conditions may be imposed on probation. ‘The cqurt in granting
probation, may suspend te imposing oF ie execution of the eeulescs aunt
may direct that such suspension may continue for such period of time, not

exceeding the maximum term of sentence, except as hereinafter -set forth
and upon such terms and conditions as it shall determine. .

‘Pho court in the order granting probation and as 2. condition thereof, may
in its discretion imprison the defendant in the county jail for a period not
exceeding one'year or may fine defendant any sum not exceeding one thou-
sand dollars plus the costs of the action, and may in éonnection with such
probation impose both imprisonment in the county jail and fine’and court
costs. ‘The court may also require the defendant to make such monetary
Payments, on such terms as it deems appropriate under the circumstances,
as are necessary (1) to comply with any order of the court for the payment
ef family support, (2) to make rostitution to any persan ar persons wha may
have suffered loss or damage by reason of the commission of the crime in

‘question, and (3) to pay such fine as may be imposed and court costs, includ: °

ing reimbursement of the state-for costs of extradition if teturn to this state
by oxteadition was xoquized, ond may reqnira hands far the faithfu} observance

406
', >)". Interim Decision $1528

Of ANY and wil cwillttiens impored im thd prahattan, ‘The court shall order
the probationer to report to the board of” prison terms“and paroles or such
officer as the board may designate and a8 8 Condition ‘of said probation to .
follow implicitly the instrpetions of the board-of prison terms and paroles,
dhe boatd éf prison terme and paroles will promulgate rules end regulations
“for the conduct of such person ducing the term of his probation. “| :
9.95920 Violation of probation-—Rearrest—Imprisonment. Whenever the
tate parole officer or, other officer under whose supervision the probationer
has been- placed shall bave xeason to believe euch probationer is violating,
the terms of his probation, or engaging in erlminel practices, or is abandoned
to improper associates, or living @ vielous life,.he’shall cause the probationer
te be brought hefore the court wherein the probation was. granted. For this
‘purpose apy pence officer or state parole officer may rearrest any such person
Without warrant of OTMer process. “he court may thereupon ta ite discretion

-without notice revoke and terminate such ‘probation, In the event the judg- _

ment bas been pronounced by the court and the-execution thereof suspended,
. the court may revoke such suspension, whereupon the judgment shall be in full
furce and effect, and the defendant shall he felivered te the sheriff to be
transported to the penitentiary or reformatory as the case may be. It the
judgment has not been “pronounced, the, court, shall pronounce judgment after,

“ *'gueh revocation of probation and the defendant shall be delivereil to the -

shoriff fn ha transported to the pénitentiaxy or reformatory, in accordance
with the sentence imposed.

9.95240, Dismissal of information or indictment after probation completed.
Bery.defendant who has fulfilled the conditions of bis probation for the -
entire perlod-thereof,-or who shall have been. discharged from probation prior

> to the termination of the period thereof, may at any time prior to the ex
piration of the maximum period of punishment for the offense for which he
has been ‘Convicted be permitted in the discretion of the court to withdraw
his plea of guilty and enter a. plea of not guilty, or if he has been convicted
fatter @ plea of nut gullly, Lhe court may in. std discretion cot acide tha
verdict of guilty; and in elther case, the court may thereupon dismiss the
information or indictment against such defendant, who shell thereafter be
released from all penalties and, disabilities resulting from the offense of crime
df which ho has boon convictad. ‘The probationer shall be informed of this
right in bis probation papers: Provided, That in any subsequent prosecution, *
for any other offense, such prior conviction may be pleaded and proved, and
shall have the same effect as if probation had not been granted, or the infor-
mation or indictment dismissed. oe

APPENDIX “0”

_ A review -of the court cases construing the. Suspended Sentence
and Probation Acts has been-made, Except that the Susperided Sen-
tenca Act is not available pon éonvictiori for certain felonies, the
court, in its discretion, may elect to use eitlier act; there.is no con-

= fiiet’in. their provisiuus. Under the Buspended Sentence Act, tho
suspended senterice may be kept hanging over the person sentenced
~ until otherwise qrdered by court; under the Probation Act, suspen-”
sion of*this Impneitioni of sentence mév continue for a time not ex-
Interim Decision #1528
eceding the moximum term of sontonce which could hava heen im-
posed. Revocation of suspension of sentence or revocation of pro-
“ ‘bation of sentence has been deferred, must take place before the
court can take further action. If sentence to imprisonment is then,
imposed, it runs from the date of imposition (Vitts v. hay, 392 P.2d
934 (1964) ; State v. Shannon, 376 P.2d 646 (1962) ; State v. Essary,
375 P.2d 486 (1962); In re Jamie v. Rhay, 865 P.2d 772 (1961);
State v. Davis, 355 P2d 344 (1960)). ‘The order suspending execu-
- tion of sentence is final and appealable (State v. Liliopoulos, & P.2d
819 (1981) ; the order suspending the imposition of sentence is not a
* final judgment and is not appealable (State v. Shannon, supra).
‘Expungement of the record of conviction may follow the suspeusivn
of execution of sentence as it does the suspension of imposition of
sentence (Ops Atty Gen, 61-62, No. 187). Expungement occurs only
after the court has dismissed the proceedings in accordance with the
statutory authority (Jamie v. Rhay, supra). Although the state has
designated the suspension of the imposition of such sentence as a
conviction, it is not, following an expungement, a conviction for the
purpose of o law taking away the pension of a police officor who hac
been convicted of a felony (Tembruell v. City of Seattle, 392 P2d
453 (1964).


MA TER OF R
In DEPORTATION Proceedings
A-7500998
Decided by Board Jane 19, 1959
Deportability—Section 241(a)(11) of 1952 act—Mere possession of

marihuana

not deportation ground.

Conviction of simple possession of marihuana held not to be deportable offense under section 241 (a) (11) of the 1952 act. (Follows Hoy v. MendozaRiTera,, C.A. 9, April 3, 1959, and modifies Matter of 7 I. & N.
Dec. 571.)

CHARGE :
Order : Act of 1952—Section 241(a) (11) [8 U.S.C. 1251 (a) (11)1—Convicted
of illegal possession of marihuana.

BEFORE THE BOARD

Discussion: This case is before us on appeal from a special inquiry
officer's order of January 22, 1959, directing that the respondent be
deported from the United States in the manner provided by law on
the charge contained in the order to show cause.
The record relates to a 41-year-old married male who last entered
the United States on January 7, 1958, as a returning resident alien.
However, he now claims birth in Amargosa, Arizona, on November
30, 1917. But, upon careful consideration of the evidence of record,

which has been fully discussed in the special inquiry officer's opinion,
we find that the Government has met the burden resting on it in this
proceeding of establishing alienage. We will summarize that evidence briefly.
A baptismal certificate issued on February 8, 1918. as well as one
issued in 1958, reflects birth in Mexico; the godmother has testified
that respondent's father furnished the information reflected therein;
and the respondent has admitted that his father told him his baptismal certificate showed birth in Mexico. Forms 1-104—A, certificate
of admission of respondent's parents on March 2, 1923, shows that
respondent, then aged five, was born in Mexico; and Forms I-404—A
relating to his admissions in 1940 and 1941, show respondent's birthplace as Mexico. Alien Registration Forms executed by respondent
under oath in 1940 and 1953 contain statements by him that he was
397

born in Mexico. He also claimed birth in Mexico in a sworn statement to an immigration officer on February 2, 1958, and he then
,presented an Alien Registration Receipt Card (Form 1-151).
The evidentiary value of the documents submitted by the respond'ent is strictly limited by their nature in relation to the issue involved
.here. His army discharge reflects birth in the United States, but the
record reveals that said recitation therein is based on respondent's
unsupported claim and United States citizenship is not a requirement for military service. (See Matter of M , 6 I. & N. Dec.
415.) The same is true of the certificate of respondent's school attendance in Arizona in 1928-1929.
The weight to be accorded the testimony of respondent's sister,
his senior by 18 years, is affected by the relationship. The same is
true of the testimony of his aunt, his mother's sister, who was also
his godmother; and her testimony was also hearsay. The testimony
of his father's -Friend and former employer was also hearsay
The only remaining issue is that of deportability, which is predicated on respondent's conviction in the Superior Court, Pinal County,
Arizona, for the offense of illegally having marihuana in his possession on or about January 8, 1958. Imposition of sentence was
suspended for a term of two years; respondent was placed on probation for that period; and the court reserved the right to impose
service of the sentence. within the probationary period, if respondent
should violate the conditions of probation.
It has been judicially determined that, insofar as marihuana is
involved, deportability under section 241(a) (11) of the Immigration
and Nationality Act depends upon a conviction for possession for
the purpose of manufacture, production, etc. (Hoy v. MendozaRivera, C.A. 9, April 3, 1959, :t16,170). This record, however,
establishes that the respondent was only convicted of illegal possession of marihuana. Therefore, in the light of the cited decision he
does not fall in the ambit of the statute.
In Matter of M
V
, 7 I. & N. Dec. 571, we considered
whether the amendment to section 241(a) (11) of the Immigration
and Nationality Act (8 U.S.C. 1251) by the Narcotic Control Act
of 1950 was retroactive. We held that it was. Involved was a conviction for unlawful possession of marihuana. The issue in the
Mendoza-Rivera case, supra, was not raised in Matter of M
V
, supra. The latter decision must. 11P. read in the, light, of our
holding in the instant case.
Order : It is ordered that the proceeding be terminated.

398


Interim Decision 4t938

MATTER or P—
In SECTION 5 Proceedings, Act of September 11, 1957
A-7749930
Decided by Assistant Camrrninioner July 24, 1958
A waiver granted under section 5, 6, or 7 of the Act of September 11, 1957,
remains in full force and effect as to any subsequent entries by the alien if
no new grounds of excludability have nvleen and the alien is complying with
the conditions imposed. (NOTE: The alien in this case is also the subject
of Int. Dec. No. 928.)
APPLICATION : Waiver under section 5 of the Act of September 11, 1957, of
excludability under section 212(a) (12) of the Immigration and
Nationality Act.

This case has been certified to the Assistant Commissioner, Examinations Division.

Subject alien is a citizen of Mexico. She lives in El Paso, Texas,
with her husband, who is a lawful permanent resident alien, and her
3 native-born United States citizen minor children. She has lived
in the United States since 1944, when she was admitted for permanent
residence on surrender of an immigrant visa. She engaged in prostitution in Mexico in 1941-1943.
On September 14, 1957, she went to Mexico but returned to her
home in the United States the same day.
On April 21, 1958, the following final order was entered in her
case in deportation proceedings:
It is ordered that pursuant to the discretion contained in section 5 of the
Act of September 11, 1957, the alien be considered as having been lava-any
admitted to the United States for permanent residence at El Paso, Texas, on
September 14, 1957, notwithstanding her inadmissibility at that time as one
who hen engaged in prostitution (1041-1942), subject to revocation in the discretion of the Attorney General, after hearing, if the alien subsequently commits
any offense.

On June 23, 1958, while visiting in Mexico and in advance of her
application for re-entry to the United States, she applied in writing
to a representative of the United States Immigration and Naturaliza1

Interim Decision #938
tion Service stationed in Mexico City, Mexico, for a, waiver of the
same ground of excludability named in the aboVe quoted order. There
were no new material facts in her case. The application at once was
denied as being unnecessary and the case certified to the Assistant
Commissioner, Examinations Division, for review of the denial and
for determination of the extent to which the principle involved should
be applied. The case illustrates this general question—
An alien is a permanent legal resident of the United States by virtue of the
exercise of the discretion under section 5, 6 or 7 of the Act of September 11,
1957, to grant waivers of excludability or deportability. Such alien makes a
temporary visit abroad. Must he, in connection with each such individual visit,
apply for another waiver of excludability?

.To require an alien who has been granted a waiver under section 5,
4 or 7 of the act to reapply on each re-entry after a temporary absence
would constitute an undue burden, curtail the beneficial effects of
this remedial legislation; and unduly hamper travel. It is concluded;
therefore, that during such time as the order granting the waiver
remains. unrevoked, it be regarded as in full force and effect as to
any- subsequent entries if no new grounds for excludability have arisen,
and the alien is complying with the conditions under which the waiver
was granted. In such circumstances, no new application for waiver
of excludability is required. The instant case meets these standards and the denial of her application was proper.
ORDER: The denial of the application of this alien for a waiver
of excludability under section 5 of the Act of September 11, 1957, is
approved.
-

2


Interim Decision #2869

MATTER OF CONTRERAS
In Exclusion Proceedings
A-36631574

Decided by Board March 20, 1981
(1) An absence by a lawful permanent resident alien is an interruption of residence if the
attempt to come back to the United States was to accomplish some object which is
itself contrary to some policy reflected in our immigration laws. Fleuti v. Rosenberg.
374 U.S 449 (1963).
(2) Where the issue of whether an absence has been "meaningfully interruptive" within
Fleuti v. Rosenberg, 374 U.S. 449 (1963), has already been determined against the
applicant as the result of a criminal conviction for smuggling aliens, entry and excludability can be litigated in exclusion proceedings. Plascencia v. Sureck, 637 F.2d 1286
(9 Cir. 1980), distinguished.
(3) Where the primary purpose of an alien's departure was to assist an undocumented alien
to surreptitiously enter the United States, for 000, in violation of section E1E(a)(31)
of the Act the alien was making an "entry" into the United States even though he was
absent for only 3 hours.
(4) Smuggling for gain is established when there is a tangible substantial financial advantage
to the alien. Ribeiro v. INS. 531 F.2d 173 (3 Cir. 1976) distinguished.
EXCLUDABLE:

Order. Act of 1952—Sec. 212(a) (31)18 U.S.C. 1182(2)(31)1—Knowingly aiding attempted
illegal entry for gain
ON BEHALF OF APPLICANT:

By:

John J. Suter, Esquire
10181 Westminster, Suite 1
Garden Grove, California 92643

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

in a decision dated March 20, 1980, an immigration judge found the
applicant excludable under section 212(a)(31) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(31), and ordered his exclusion and
deportation from the United States. The applicant has appealed. The
appeal will be dismissed.
The applicant is a 30-year-old married male alien, a native and citizen
of Mexico. He was admitted to the United States as a lawful permanent
resident on October 18, 1978. On May 6, 1979, the applicant left the
United States and drove to Mexico where he remained for 3 hours. He
then attempted to reenter the United States with a man concealed in
30

Interim Decision #2859
the back of his vehicle but the man was discovered at the border. After
being advised of his rights, the applicant then gave a statement to an
immigration inspector in which he stated that he had gone to Mexico to
bring a man into the United States, for a friend who was going to pay
him $100.
On May 7, 1979, the applicant was convicted in United States District
Court for the Southern District of California upon a plea of guilty for
conspiracy to aid and abet the illegal entry of aliens in violation of Title
18 U.S.C. 371, Title 18 U.S.C. 2, and Title 18 U.S.C. 1325. The
applicant's sentence as to imprisonment was suspended and he was
placed on probation for 2 years and fined $150.
Section 212(a)(31) of the Act renders excludable any alien who at any
time shall have, knowingly and for gain, encouraged, induced, assisted,
abetted, or aided any alien to enter or to try to enter the United States
in violation of law.
The immigration judge found that the applicant was making an entry
at the time he was stopped at the border within the meaning of section
101(a)(13) of the Act, 8 U.S.C. 1101(a)(13), and is therefore properly in

exclusion proceedings. The immigration judge found that even though
the applicant was only absent from the United States for 3 hours, his
departure cannot be characterized as innocent, brief, and casual in nature.
The primary purpose for the applicant's departure from the United
States was to assist an undocumentedrr alien to surreptitiously enter the
United States for $100 that was to be paid on his return. LongoriaCastenada v. INS, 548 F.2d 233 (8 Cir. 1977); Cuevas-Cuevas v. INS,
523 F.2d 883 (9 Cir. 1975); Vargas-Banv,elos v. INS, 466 F.2d 1371 (5
Cir. 1972); Matter of Valencia-Barajas, 13 I&N Dec. 369 (BIA 1969).
The ixmnigration judge further found that the applicant had acted "for
gain" within the meaning of section 212(a)(31) of the Act. The applicant
in his sworn statement given on May 21, 1979, stated that he did not
know the man he was to pick up but that he had his name and the hotel
at which he was to meet him written down on a piece of paper. The
applicant further stated that his friend was going to give him $100 to
bring the man in and that he did not know what arrangements were
made between his friend and the man.
Based on the above, the immigration judge concluded that the applicant is excludable from the United States within the provisions of sec-

tion 212(a)(31) of the Act for having knowingly for gain encouraged,
induced, assisted, abetted, or aided an alien to enter or to try to enter
the United States in violation of the immigration laws.
On appeal, the applicant, through counsel, contends that the Service
has failed to show that he acted for gain and therefore cannot be found
excludable under section 212(a)($1) of the Act.
The first •question presented is whether or not the applicant is prop31

Interim Decision #2859
erly in exclusion proceedings. We find that he is. In the Ninth Circuit
case of Palatian v. INS, 502 F.2d 1091 (9 Cir. 1974), the court held that
an interruption of residence would properly be regarded as meaningful,

thereby making the attempted return an "entry" within the meaning of
section 101(a)(13) of the Act, if the attempt to come back to the United
States was to accomplish some object which is itself contrary to some
policy reflected in our immigration laws. The facts of the present case
are similar to those in Palatian v. INS, supra. In the instant case, the
applicant was convicted for conspiracy to aid and abet the illegal entry
of aliens in a criminal proceeding. Subsequent to this, exclusion proceedings were commenced under section 212(a)(31) of the Act to determine if

in fact the conduct of the applicant was such to render him excludable.
Further, we find that this case is distinguishable from the facts of the
recent decision of the Ninth Circuit in Plasencia v. &creek, 637 F.2d
1286 (9 Cir. 1980). In this case, the court held that where "the issue in
the case was simply whether, as a matter of law, the undisputed smuggling was or was not an 'entry' within the meaning of Flesh v. Rosenberg,
374 U.S. 449 (1963)," the issue was properly decided in an exclusion
proceeding. The court went on to say that the Plasencia decision only
applies to cases in which a permanent resident is returning from a visit
abroad and the question is whether the visit was "meaningfully

interruptive" of the alien's American residence. In such cases the issues
of "entry" and excludability must be litigated in deportation proceedings.
In the case at hand, as in Palatian, the question of "meaningfully
interruptive" has already been determined as a result of the criminal
conviction. Therefore, according to the decision in Plasencia, the issues
of entry and excludability can be litigated in an exclusion proceeding.
We concur with the finding of the immigration judge that the applicant is excludable under section 212(a)(31) of the Act. The record clearly
establishes that the applicant was detained at the border after attempting to enter the United States with an undocumented alien concealed in
the back of his car. Further, he was convicted in the Federal District

Court upon a plea of guilty for the crime of aiding and abetting an alien
to make an illegal entry into the United States. The applicant's plea of
guilty to the Title 18 U.S.C. 1325 offense establishes the first element
required to show that he knowingly aided and abetted another alien to
enter the United States in violation of law. See Cuevas-Cuevas v. INS,
supra. The applicant's conviction is a matter of record and the immigration judge may not go behind it to make an independent determination
of guilt or innocence. Aguilera-Ertriquez v. INS, 516 F.2d 565 (6 Cir.
1975). The only serious question is whether it was done for "gain" as
required by section 212(a)(31) of the Act and not merely just the bringing in of an alien illegally. This condition has been met when it is clear

32

Interim Decision #2859
that the bringing in was not done for either loVe, charity, or kindness,
but for tangible substantial financial advantage. Gallegos v. Hoy, 262
F.2d 665 (9 Cir. 1958). The record clearly establishes that the applicant
was to be paid $100 for this assistance and that he did not know the man
he was to bring into the United States. We agree with the immigration
judge's finding that this payment cannot be characterized as expenses
only. Considering the short distance traveled, the $100 was not a minimal payment. Matter of Arthur, 16 I&N Dec. 558 (BIA 1978).
We further find that the instant case is distinguishable from. Ribeiro
v. INS, 631 F.2d 179 (2 Cir. 1976) in that the Service has shown that the
applicant acted for gain by clear, convincing, and unequivocal evidence.
The $100 was clearly beyond an amount that can be eharacterized_as
reimbursement for expenses incurred. This case is also distinguishable
from Pryee v. INS, 568 F.2d 278 (2 Cir. 1978), in that it isflear'from the
applicant's own testimony that he was to receive the $100.
We conclude, therefore, that the applicant is excludable from the
United States by clear, convincing, and unequivocal evidence. There is
no relief from deportation available to the applicant. Accordingly, the
decision of the immigration judge is affirmed and the appeal will be
dismissed.
ORDER The appeal is dismissed_

33


Interim Decision #2818

MATTER OF PIMENTEL
In Deportation Proceedings
A-31263818

Decided by Board August 1, 1980 (1) Adjustment of status was denied as a matter of discretion to an alien who entered
into a bigamous marriage to avoid the effect of the immigration laws and to facilitate
his entry as a lawful permanent resident.
(2) Due to the evidence in the record of a bigamous marriage and the concealment of
information concerning his former marriages, the alien failed to meet the statutory
requirement of good moral character pursuant to section 244(a)(1) of the Act, 813.S_C_

1254(a)(1), in order to be eligible for suspension of deportation.
(3) Paragraph 5 of the Temporary Restraining Order of Silva v. Levi, made a permanent
injunction under the Revised Final Judgment Order in Silva v. Bell, No. 76-C4268 (N.D.
III. November 9, 1978), prohibits the. Board of Immigration Appeals from dismissing
an alien's appeal in> a deportation case in which the record of proceedings clearly
shows that the alien is a native of an independent country of the Western;Hemisphere
and has a priority date for the issuance of an immigrant visa between July 1, 1968, and
December 31, 1976, provided he entered the United States prior to March 11, 1977.
(4) An alien whose deportation is barred under Silva v. Bell, No. 76-C4268 (N.D. Ill.
November 9, 1978), still has the right to seek review on appeal to the Board of
Immigration Appeals of all issues involving relief from deportation.
(5) Notwithstanding a finding of ineligibility for suspension of deportation, discretionary denial of adjustment of status and refusal to terminate proceedings, the case will
be remanded since the alien comes within the protection of Silva v. Bell, No. 76-C4268
(N.D. III. November 9, 1978), and the question of a possible grant of voluntary
departure will be considered at a later date.
CHARGES:

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under
see.212(a)(14)NUS.C.1182(a)(14)]-14e valid labor certification at time of entry
Sec. 241(a)(1) (8 U.S.C. 1251(a)(1))—Excludable at entry under
sec. 212(a)(20) (8 U.S.C. 1182(a)(20)]—Immigrant not in possession of valid immigrant visa
ON BEHALF OF RESPONDENT: Peter Hirsch for
Antonio C. Martinez, Esquire
3M. West 14th Street

New York, New York 10014
By:

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
482

Interim Decision #2818
In an oral decision dated June 28,1978,' the immigration judge found
the respondent deportable as charged and denied him various forms of
relief from deportation. The respondent has appealed. The case will be
remanded.
The respondent is a 37-year-old married male, native and citizen of
the Dominican Republic, who initially entered the United States for
lawful permanent residence on June 21, 1971. He gained admission
through an immediate relative immigrant visa as the spouse of a
United States citizen, Fidela Carmona. The respondent, through previous counsel, conceded deportability as charged and sought relief in the
form of adjustment of status, suspension of deportation, and voluntary
departure.
The respondent originally married Juana Estella Morillo, a citizen of
the Dominican Republic, on Apri118, 1968, and divorced her on July 10,
1970. He married his second wife, Fidela Carmona, on May 5, 1970.
After obtaining an immigrant visa through his second wife, he
divorced her and remarried his first wife. He then applied for an
immigrant visa for his first wife. The respondent did not report the
true number of his prior marriages when applying for his first wife's

immigrant visa. He also failed to disclose his previous marriage when
he applied for a marriage license and an immigrant visa through his
second wife. The respondent also admitted having conceived a child
with his first wife while still married to his second wife. The immigration judge concluded that the respondent's bigamous marriage to his
second wife and the events that followed were part of a plan to avoid
the effect of the immigration laws and to facilitate his entry as a lawful
permanent resident, which warranted denial of the adjustment in the
exercise of discretion.

The immigration judge determined that the respondent was
statutorily eligible to adjust his status pursuant to section 245 of the
Immigration and Nationality Act, 8 U.S.C. 1255, as a nonpreference
immigrant, based upon an approved labor certification with a priority
date of March 11, 1976. However, he denied relief as a matter of
discretion because he found adverse factors in the record surrounding
the respondent's marriages.
The immigration judge further determined that the respondent did
not meet the statutory requirements for suspension of deportation. See
section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1). The immigration judge
found that the respondent lacked the requisite good moral character
because of his previously described actions and that no extreme hardship had been shown. He further found that the respondent did not
The oral decision of the immigration judge appears to be incorrectly dated and

should read July 21, 1978.
483

Interim Decision #2818
warrant relief in the exercise of his discretion.
The immigration judge also denied, on discretionary grounds, the
alternative relief of voluntary departure available under section 244(e)
of the Act, 8 U.S.C. 1254(e). He reached that result after weighing the
respondent's equity of residence in the United States for a period of
time against the adverse factors in the record.

On appeal, the present counsel for the respondent has brought to our
attention that the respondent, by virtue of his March 11, 1976 priority

date for an immigrant visa and his last entry into this country before
March 11, 197'7, is within the protected class of aliens described in the
Temporary Restraining Order in Silva v. Levi? See Matter of Zapata,

Interim Decision 2745 (BIA 1979). By the terms of that order, in cases
such as this, the Board is prohibited from dismissing the alien's
appea1.3 Paragraph 5 of the order provides in relevant part:
5. The Board of Immigration Appeals shall not dismiss an alien's appeal nor sustain
an INS appeal in a deportation case in which the record of proceedings clearly shows
that the alien is a native of an independent country of the Western Hemisphere and
has a priority date for the issuance of an immigrant visa between July 1, 1968, and

December 31, 1976, inclusive ....

There is no indication in this provision of the extent or the manner in
which the Board may review such an appeal. There Is authority for the

immigration judge to consider, as he did, the various forms of relief
advanced by the respondent. Specifically, paragraph 6 of the order
provides:
6. Nothing in this order shall prevent a deportation hearing from being held, nor a
decision from being rendered by a special inquiry officer (Immigration Judge) in any
case in which the alien seeks relief under either section 244(a) or section 245 of the
Immigration and Nationality Act, 8 U.S.C. 1254(a) or 1255, or seeks any other form of
relief from deportation. The enforcement of any resulting decision that may be
unfavorable to the alien is subject to the terms of this order.

We believe that it can be reasonably inferred from paragraph 5 that
a right to apply for relief permits a right of review to this Board if the
decision is adverse to the alien; otherwise, the denial would remain in
effect without further review until the Silva permanent injunction is
The Temporary Restraining Order in Silva v. Levi, No. 76-04268 (N.D. Ill. April 1,
1977) became a permanent injunction under the Revised Final Judgment Order in Silva
v. Bell, No. 76-C4268 (N.D. III, Nov. 9, 1979) enforcing 605 F.2d 978 (7 Cir. 1979). The order,

inter alia, provides that the INS shall not begin, continue, or conclude any efforts to
expel any alien who is a native of an independent country of the Western Hemisphere
and who has a priority date between July 1, 1968, and December 31, 1976, provided he
entered the United States prior to March 11, 1977.

'There are exceptions to this prohibition, but they are not present here. See paras.
5(1), 5(2), and 5(3), Temporary Restraining Order, Silva v. Levi, supra.

484

Interim Decision #2818
dissolved.' Moreover, restricting our review would frustrate the purpose of the Silva order which is to quickly and fairly redistribute
immigrant visas to those who qualify for recaptured Cuban visa
numbers. Furthermore, neither party has obj ected to our consideration of the matter on this appeal. We, therefore, find no impediments to
our review of the denial of the respondent's applications for adjustment of status, suspension of deportation, and voluntary departure.
For the same reasons, we are not prevented from considering the

respondent's additional argument for termination of proceedings as a
"form of relief from deportation" within the meaning of paragraph 6
of the Silva order, supra..

The Silva alien should not, however, have to exercise his right of
review at his peril. Regardless of our findings today, the protection

from deportation under Silva still remains in effect. See Silva v. Levi,
para. 6, Temporary Restraining Order, supra.. Our interpretation of
the Silva order merely recognizes the right of review of all issues
involving relief from deportation. The Silva alien may seek review
without the consequences of deportation if he is unsuccessful, while

enabling him to take advantage of immigration benefits if he prevails.
Under this approach, the purposes of paragraphs 5 and 6 can best be
served and their interests reconciled.

We now turn to the merits of the respondent's arguments on appeal.
Initially, the respondent contends that the proceedings below must be
terminated for failure to sustain the charge under section 241(a)(1)
and 212(a)(14) of the Act, 8 U.S.C. 1251(a)(1) and 1182(a)(14), that he
was excludable at entry for failing to have an approved labor certification. Essentially, the respondent argues that he had a duly approved
labor certification upon his last entry, which he claims is the controlling entry under the statute.
The respondent, through previous counsel, had conceded deportability. Nonetheless, we have examined the respondent's argument and
find that it is without merit. The mandate of section 241(a)(1) to
exclude certain aliens at the time of entry applies to any entry into the
United States, whether it is an original entry or a reentry. lA Gordon

and Rosenfield, Immigration Law and Procedures § 4.7(b), at 4-46 (rev.
ed. 1979). Moreoever, "entry" as defined in the Act means "any coming." Section 101(a)(13) of the Act, 8 U.S.C. 1101(a)(13). The term
includes initial as well as subsequent entries. See United States ex. rel
Volpe v. Smith, 289 U.S. 422, 425 (1933); cf. Matter of Sanchez, Interim
Silva v. Soil, Revised Final Judgment Order, supra, at para. 6, prnvidev

(6) The Order of this Court of April I, 1977, is hereby 'made a permanent injunction.
This injunction shall dissolve with the issuance of the last recaptured visa number
or the processing of the last class member, or upon further order of this Court.

485

Interim Decision #2818
Decision 2751 at 3 (BIA 1980). On each re-entry made by the respondent, he did not have a valid immigrant visa nor a labor certification. We
find, therefore, that deportability is supported by evidence which is
clear, unequivocal, and convincing. Wooclby v. INS, 385 U.S. 276, 286
(1966).

The respondent next argues that the immigration judge improperly
applied the presumption of fraud created by section 241(c) of the Act, 8
U.S.C. 1251(c), when evaluating the respondent's marriage to the
United States citizen, Fidela Carmona. On the contrary, the immigration judge's finding regarding the respondent's marriage was not
based upon any presumption under section 241(c), or otherwise. The
immigration judge drew reasonable inferences from the suspicious
sequence of events involved; namely, his bigamous marriage to the
United States citizen and acquisition of an immigrant visa through
her, the divorce from her and prompt remarriage to his first spouse,
and his subsequent filing of immigration papers for his first wife. In
addition, the respondent concealed information concerning his former
marriages. When considered together, these factors amply support the
immigration judge's conclusion that the respondent married the
United States citizen in order to facilitate his entry as an immigrant.
Under these circumstances, the denial of adjustment of status was
warranted as a matter of discretion. Matter of Blae,15 I&N Doc. 626 at

32 (A.G. 1976), ord, 556 F.2d 586 (9 Cir. 1977) (table). See Matter of
Arai, 13 I&N Dec. 494, 496 (BIA 1970).

Although the respondent contends that he has been in the United
States over 7 years, he has not shown that he has been a person of good
moral character during that time nor did he show how his deportation
would result in the required extreme hardship to himself or to qualifying family members designated in section 244(a)(1) of the Act. We
concur with the ruling of the immigration judge that the respondent
has failed to sustain his burden of establishing statutory eligibility for
suspension of deportation and that he does not warrant relief as a

matter of discretion. See Matter of Marquez, 15 I&N Dec. 200 (BIA
1975).
As to the immigration judge's denial of voluntary departure to the
respondent, the appeal will be sustained. Due to the remand under
Silva a decision of a grant of voluntary departure will be reserved for
further consideration by the immigration judge at an appropriate
future date.
The respondent finally contends that the immigration judge erred by
admitting into evidence the marriage and divorce certificates when
deportability was already conceded, citing 8 ("1_F_R. 242.16(h). That

regulation presents no such bar to the admissibility of these documents. The documents were admitted into evidence within the sound
486

Interim Decision #2818
discretion of the immigration judge. Even if cumulative on the issue of
deportability, they provided original and probative information concerning the respondent's good moral character and his scheme to
circumvent this country's immigration laws, which formed the basis
for the immigration judge's denial of relief from deportation.
Having decided that the proceedings should not be terminated and
that relief from deportation should be denied, we must now dispose of
the case under the mandate of Silva v. Levi, supra. Accordingly, the

case shall be remanded to the immigration judge for further consideration under the terms of the Temporary Restraining Order, now made
a permanent injunction in Silva v. Bell, supra.'
ORDER, Relief in the form of termination of proceedings, adjustment of status, and suspension of deportation is denied.
FURTHER ORDER, The appeal from denial of voluntary departure is sustained.
FURTHER ORDER: The case is remanded to the immigration
judge for disposition under the court order, or modification thereof, of
Silva v. Bell, No. 76-C4268 (N.D. Ill. November 9, 1979).

The record shows that the respondent has no absences from this country since
January 1977, and has a nonpreference visa priority date of March 11, 1976. Ho does not

appear within the exceptions of paragraph 4 of the Silva Temporary Restraining Order.
See Matter of Zapata, supra, at 3-4, 4 n.3. Therefore, no action can be taken to effect his
deportation. Silva v. Levi, supra, Temporary Restraining Order at para. 4.
487


Interim Decision #2218

MATTER OF ZAPPA

In Exclusion Proceedings
A-17085834
Decided by Board August 16, 1973
The immigration judge, whose decision in the instant exclusion proceeding was
rendered on November 21, 1972, lacked jurisdiction to consider applicant's
application for adjustment of status under section 245 of the Immigration and
Nationality Act, as amended, notwithstanding the annually revised editions of
Title 8 of the Code of Federal Regulations from January 1971 to January 1973,
inclusive, inadvertently omitted in 8 CFR 245.2(aX1) language expressly
barring immigration judges from considering section 245 applications for
adjustment of status in exclusion proceedings.
EXCLUDABLE: Act of 1952—Section 212(aX20) [8 U.S.C. 1192(0-X20)] No immigrant visa.
ON BEHALF OF SERVICE:
Paul C. Vincent
Appellate Trial Attorney

ON BEHALF OF APPLICANT:
Joseph A. Gatti), Esquire
3280 Penobscot Building
Detroit, Michigan 48226
(Brief filed)

This is an appeal from a decision of an immigration judge, dated
November 21, 1972, which found the applicant excludable from the
United States under section 212(aX20) of the Immigration and
Nationality Act. The immigration judge further determined that
he did not have jurisdiction to consider the applicant's application
for adjustment of status since the District Director has exclusive
jurisdiction to consider applications for section 245 relief except in
deportation proceedings. We shall dismiss the appeal.
The applicant is a 45 year-old male alien who is a native and
citizen of Italy. He first entered the United States on or about
August 1, 1966 as a visitor for pleasure. He was subsequently
accorded status under the fifth and the sixth preference portions
of the quota allocations as set out in section 203 of the Act.
On December 21, 1971, the applicant applied for, and was
granted, authorization for advance parole into the United States
so that he could visit relatives in Italy. On January 20, 1972, he
returned to this country and was paroled into the United States
405

Interim Decision #2218
for an indefinite period. Approximately one month later, he applied for status as a permanent resident. In a decision dated June
13, 1972, a District Director denied the application for section 245
relief and revoked the applicant's parole.
At applicant's exclusion hearing, he attempted to renew his
application for section 245 relief. The immigration judge refused to
consider the application and the applicant appealed to this Board
from that decision. The appeal is based solely on the applicant's
contention that an immigration judge hag jurisdiction in an
exclusion proceeding to grant relief under section 245 of the Act.
The applicant based this assertion on a purported amendment to 8
CFR 245.2(a)(1) which appeared in the 1971 and succeeding issues
of Title 8 of the Code of Federal Regulations. This publication
erroneously incorporated into 8 CFR 245.2(aX1) an amendment to 8
CFR 2452(bX1), as promulgated in 35 FR 18582 (December 8, 1970).
This error was subsequently corrected in 38 FR 11340 (May 7,
1973), as follows:
CFR Correction
In § 245.2 appearing on page 108 of title 8 revised as of January 1, 1973, an
amendment to paragraph (b)(1), published at 35 Fit 18582, December 8, 1970,
was inadvertently incorporated into paragraph (aX1).
Paragraph (a)(1) of § 245.2 should read as follows:
§ 245.2 Application.
(a) General.—(1) Jurisdiction.—An application for adjustment of status
under section 245 of the act or section 1 of the act of November 2, 1966, by an
alien after he has been served with -an order to show cause or warrant of
arrest shall be made and considered only in proceedings under part 242 of this
chapter. In any other case, an alien who believes that he meets the eligibility
requirements of section 245 of the act or section 1 of the act of November 2,
1966, and § 245.1, shall apply to the district director having jurisdiction over
his place of residence.

We conclude that the entire basis for the appeal was predicated on
a purported change in 8 CFR 245.2(a) which actually never
occurred.
In Matter of Wong, 12 I. & N. Dec 407 (B IA, 1967), we analyzed 8
CFR 245.2(aX1) and held that it refers only to expulsion proceedings. We concluded that 8 CFR 245.2(a) clearly specifies that the
District. Director has exclusive jurisdiction to consider an application for adjustment of status except in proceedings pursuant to
section 242 of the Act after an order to show cause or a warrant of
arrest has been served.
In the present case, no order to show cause or warrant of arrest
has been served. Further, the proceedings were conducted pursuant to section 236 and not pursuant to section 242. Therefore, it
is evident that the immigration judge did not have jurisdiction to
406

Interim Decision #2218
consider the applicant's application for relief under section 245 of
the Act.
Since the applicant's parole was revoked by the District Director
on June 13, 1972 and he is not in possession of a valid unexpired
immigrant visa, re-entry permit, border crossing identification
card, or other valid entry document required by the Immigration
and Nationality Act, we conclude that the applicant is excludable
from admission into the United States under section 212(aX20) of
the Act.
ORDER: The appeal is dismissed.

407


Interim Decision #2208

MATTER OF RAPACON
Application for Permission to Reapply
A-19049946
Decided by Regional Commissioner June 4, 1973
Notwithstanding the presence of adverse factors consisting principally of applicant's prior false testimony to the Service concerning his employment abroad
and his return to the United States as a nonimmigrant without the requisite
permission to reapply, his application for permission to reapply for admission
to the United States after deportation is granted, in the exercise of discretion,
since it appears that applicant was honestly unaware that he had executed an
outstanding order of deportation upon his departure from this country;
departure was at his own expense; and his services are urgently needed in the
United States.

ON BEHALF OF APPLICANT:

Bert D. Greenberg, Esquire
Suite 1800, California Federal Building
5670 Wilshire Boulevard
Los Angeles, California 90036

The applicant, a 26-year-old unmarried male, native and citizen
of the Philippines, was deported to that country on December 8,
1969. He seeks permission to reapply as an immigrant. The matter
is before us on appeal from the decision of the District Director,
who denied the application as a matter of discretion.
The record reflects that the applicant has been represented by
his present counsel hi all proceedings before the Service. Therefore, they will not be discussed in detail except as to matters
touching on the matter before us. However, to clarify the issues
there follows a resume of pertinent events concerning the applicant's status in the United States.
September 21, 1968

Admitted as a nonimmigrant visitor at Toronto Airport
until December 1, 1968.

September 28, 1968

Telephonically notified his Canadian employer he would
not be returning to his position there.

November 30, 1968

Applied for extension of his nonimmigrant status to
January 15, 1969, application granted January 7, 1969..

January 14, 1060

Commenced unauthorized employment at a Los Angeles

hospital.

375

Interim Decision #2208
February 3, 1969

Filed third preference visa petition in own behalf. Petition approved September 22, 1969.

March 12, 1969

Apprehended by Service investigator and interviewed
under oath in presence of present counsel. Order to
show cause why he should not be deported was issued.

June 17, 1969

During hearing before special inquiry officer in expulsion proceedings, applied for privilege of voluntary departure from the United States in lieu of deportation.
Application granted, with alternate order of deportation
if departure not effected within 20 days. Appeal from
special inquiry officer's order reserved.

June 27, 1969

Appeal taken from special inquiry officer's decision on
ground applicant was not permitted to remain indefinitely until third preference visa numbers became available.

August 28, 1969

Appeal dismissed by Board of Immigration Appeals.

October 2, 1969

Warrant of deportation issued.

October 9, 1969

Request for stay of deportation denied.

October 20, 1969

Complaint for judicial review and declaratory relief filed
in U.S. District Court.

DprPmher

R, 1969

Applicant departed for the Philippines at own expense.

June 28, 1971

Applicant obtained nonimmigrant visa and gained entry
into the United States as an H-1 temporary worker,
authorized to remain until May 9, 1972.

November 29, 1971

Applied for permanent resident status pursuant to section 245 of the Act.

May 2, 1972

Application denied on the ground he was inadmissible
under section 212(a)(17)—no application for permission
to reapply for admission submitted or granted.

In his initial action denying the applicant permission to remain
in the United States while awaiting the availability of an immigrant visa, the District Director concluded that the circumstances
did not warrant favorable exercise of discretion. His action was
based, in part, on results of the applicant's interview by a Service
investigator on March 12, 1969. During the interview the applicant

was questioned as follows:
Q. Was it your intention to return to Canada at the time of your entry?
A. Yes, I wanted to go back. I was still employed, and I haven't resigned,
and the position is still open.

Further questioning was attempted but the applicant, on advice
of counsel, declined to answer. Subsequent inquiry established
that the applicant had, in fact, voluntarily terminated his Canadian employment on September 28, 1968, a week after his entry
from that country.
In the mattes- before us the District Director relied on the

376

Interim Decision #2208
foregoing misrepresentations as being of sufficient seriousness to
find that favorable exercise of the Attorney General's discretion
was not warranted. He also found that the applicant was fully
aware he had been deported despite his stated belief that departure at his own expense meant otherwise.
On appeal counsel argues that the Service erred in fmding that
the applicant had a preconceived intent to engage in employment
when he first entered the United States from Canada. He states
that it has been held (Matter of Arai, 13 I. & N. Dec. 494) that an
application for adjustment of status may be granted where unauthorized employment was taken by an overstayed visitor. Counsel
also cites applicant's occupation as a professional registered nurse
as constituting a sufficient equity to overcome any other adverse
factors, a criterion favorably considered by the Central Office
(Matter of H—R, 5 I. & N. Dec. 769). Request was made for oral
argument.
Oral argument was held as requested on April 13, 1973 with both
applicant and associate counsel, Mr. Leslie J. Frank, present. Also
present was Miss Marian Heffler, Associate Director of Nursing,
Kaiser Foundation Hospital, Inglewood, California, the applicant's
direct supervisor. Counsel stated that denial of the present application is an extreme "punishment" in view of the circumstances

and that its effect is to find the applicant permanently ineligible to
live in the United States. He also stated that the deportation issue
was before the United States District Court and was unresolved at
the time the applicant left at his own expense, thus, leading him to
believe that he departed voluntarily rather than executing his
own deportation order. Miss Heffler stated that registered nurses,
male nurses in particular, are in short supply locally and that
there are four vacancies on the hospital staff for which they have
been unable to recruit qualified nurses. She stated that the

applicant is a team leader in the surgical unit of their institution
and is highly qualified to perform his specialized duties. The
applicant stated that he is unmarried and has no dependents in the
United States but is furnishing financial assistance for the education of two siblings in the Philippines.
The record of proceeding, including oral argument and brief
furnished on appeal, has been carefully considered. It is noted that
the applicant concedes "misstatements" concerning his Canadian
employment during his March 12, 1969 investigatory interview.
That false testimony constitutes the principal substantive evidence which can be construed as adverse, in addition to the
applicant's return to the United States without the required
permission to reapply for admission after his deportation.

The record does not unequivocally establish that the applicant
377

Interim Decision #2208
fully understood the effect of his departure while unresolved
proceedings on his behalf still were before the Court. We note that
the record contains a letter from the applicant wherein he requested information concerning the whereabouts of his petition.
He added "I made a voluntary departure from Los Angeles to
Manila, Philippines last December 6, 1969." The letter bears a
Manila return address and is dated December 8, 1970. Under the
circumstances, it is reasonable to assume that the applicant quite
honestly may have been unaware of his ineligibility to reapply for
admission to the United States without the permission he now
seeks. The applicant's false testimony in 1969 is not condoned. On
the other hand we note that the applicant's departure under the
outstanding order of deportation was at his own expense and that
the record establishes that he possesses occupational qualifications which are needed in the United States.
On balance, on the basis of the evidence of record, it is concluded
that the adverse factors are not of such gravity as to preclude the
favorable exercise of the Attorney General's discretion. Accdrdingly, the appeal will be sustained and the application granted
nune pro tune from date of issuance of the nonimmigrant visa.
ORDER: It is ordered that the appeal be sustained and the
application granted nunc pro tune from date of issuance of the
nonimmigrant visa.

378


Interim Decision #1389

MATER OF 1V1001t3fAlf

In SECTION 245 Proceedings
A-12977383
Decided by District Director July 28, 1984
An alien who entered as a nonimmigrant student and who was born in the
United States but was expatriated under section 401(e) of the Nationality
Act of 1940 is not precluded by section 245(e), Immigration and Nationality
Act, as amended, from adjusting her status to that of a lawful permanent

resident under section 245(a) of the Act since she is not, in fact, a native of
a country contiguous to the United States, even though under section 202 (a) (3)
of the Act she is considered, for quota purposes, as having been born in
Canada and to be a nonquota immigrant under section 101(a) (27) (C) of the
Act.

The applicant was born in Meade, Kansas on August 8, 1910 and was
a United States citizen at birth. Her parents were also born in the
United States. Her father first went to Canada on May 15, 1912,
being followed on August 23, 1912 by the applicant, her mother, and
other children in the family. Her father was naturalized in Canada
on April 19, 1915. In Apri11920, the applicant and family returned to
the United States. On September 11, 1923, the applicant returned to
Canada and was married in 1951 to Stanley Moorman, a naturalized
citizen of Canada.
The applicant voluntarily voted in Canadian provincial elections on
May 10, 1952 and September 19, 1956. At that time she knew she
had been born in the United States and the record does not establish
that she had been informed by any official that she had no claim to
United States citizenship. By her act of voting on May 10, 1952, the
applicant lost her United States citizenship under the provisions of
section 401(e) of the Nationality Act of 1940.
Section 245 of the Immigration and Nationality Act, as amended,
provides that the status of an alien who was inspected and admitted
or paroled into the United States may be adjusted by the Attorney
General, in his discretion, to that of an alien lawfully admitted for
permanent residence. Subparagraph (c) of seetion. 245 further pro708

Interim Decision #1389
vides that the provisions of the section shall not be applicable to any
alien who is ". . . a native of any country contiguous to the United
States .. .".
Section. 202(a) (3) of the Act provides that "an alien born in the
United States shall be considered as having been born in the country
of which he is a citizen or subject, or if he is not a. citizen or subject

of any country then in the last foreign country in which he had his
residence as determined by the consular officer;".
The last-cited section serves the purpose of providing a means to
determine the quota to which an immigrant born in the United States
shall be chargeable. Under the terms of this section, the applicant
is considered to be a nonquota immigrant under section 101 (a) (27)
(C) of the Act, as though she were born in Canada. Although by its
terms, the applicant, for quota purposes, is considered as having been
born in Canada, she is not, as a matter of fact, a native of Canada, a
country contiguous to the United States. She is not precluded under
section 245(c), therefore, from being granted status as a lawful
permanent resident.
The applicant last entered the United States on January 28, 1963

as a student in practical nursing under the provisions of section
101 (a.) (15) (F) of the Act. She was inspected and admitted. She is
in all respects eligible to have her status adjusted to that of a lawful
permanent resident under section 245 and her application. will be
granted.
It is ordered that the application for status as a lawful permanent
resident under section 245 of the Immigration and -Nationality Act,

as amended, be approved.

709


Interim Decision #2586

MATTER OF RAMIREZ
in Visa Petition Proceedings
A-22139915

Decided by Board Mcty 25, 1977
(1) Under Article 279 of the Civil Code of El Salvador, a child born out of wedlock may be
acknowledged by the parents by the act of registration of the child's birth in the office of
the Civil Registry.
(2) Under Article 217, if the child has been acknowledged, the subsequent marriage of the
parents legitimates him by operation of law. However under Article 225(2), the legitimation is not retroactive from the date of the parents' marriage.
(3) Petitioner son was recognized by beneficiary father on February 8, 1938, one day after
his birth. However his parents did not marry until April 13, 1959, when he was 21 years
of age. Since the beneficiary did not marry the petitioner's mother until after petitioner's eighteenth birthday the petitioner never came within the definition of "child" in
section 101(b)(1)(C) of the Immigration and Nationality Act, and therefore the beneficiary cannot receive immigration benefits as petitioner's "parent," and the petition
to classify petitioner's father as an immediate relative under section 201(b) of the Act
was properly denied.
ON BEHALF OF PETITIONER: Michael M. Laufer, Esquire
307 East 89th Street
New York, New York 10028
BY: Milhollan, Chairman; Maniatis Appleman, and Maguire, Board Members
,

The United States citizen petitioner applied for immediate relative
status for his father tinder section 201(b) of the Immigration and Nationality Act. In a decision dated February 2, 1977, the District Director
denied the petition. The petitioner has appealed from that denial. The
appeal will be dismissed.
In order to claim benefits for a parent under the immigration laws, the
United States citizen petitioner must establish that he would have
qualified as a "child" under the Act. Section 101(b)(2) of the Act. Since
the petitioner's parents were not married at the time of his birth and he
does not claim to have been adopted by the beneficiary, the petitioner
must establish that he was legitimated before his eighteenth birthday.
See section 101(b)(1)(C) of the Act.
-

The record contains a translation of the petitioner's birth certificate
-

which shows that the beneficiary recognized the petitioner as his son on
222

- Interim Decision #2586
February 8, 1938, the day after the petitioner was born. On appeal, the
petitioner has also submitted a copy of a translation of his "parents' "
marriage certificate which shows that they were married on April 13,
1959. The marriage certificate also contains a notation stating that at the
time of their marriage the parties had seven children. The petitioner is
listed as one of these children.
We have received a memorandum from the Library of Congress,
dated May 9, 1977, containing a discussion of the provisions of the Civil
Cude of El Salvador relating to the legitimation of children born out of
wedlock. See Appendix A.
Though two editions of the code, one published in 1926 and one
published in 1959, were consulted, it appears that no significant changes
in the governing procedures have been made between 1926 and the
present time. Under Article 279 of the Civil Code of El Salvador
(hereafter Civil Code), a child born out of wedlock may be acknowledged
by his parents, and one, of the ways such acknowledgments may be
effected is by the act of registration of the child's birth in the office of the
Civil Registry.
If a child has been acknowledged by both his parents, then their
subsequent marriage legitimates him by operation of law. See Article
217 of the Civil Code. Legitimation also takes place if the child is
acknowledged by his parents at the wedding ceremony and the recognition is annotated on the record of the marriage.
Although a child legitimated by his parents' subsequent marriage is
considered as a legitimate child conceived in wedlock and has the same
rights and benefits, the legitimation is not retroactive from the date of
the parents' marriage. Article 225(2) of the Civil Code.
Although the petitioner's parents took the steps necessary for his
legitimation, because the beneficiary did not marry the petitioner's
mother until after the petitioner's eighteenth birthday, the petitioner
never came within the definition of child in section 101(b)(1)(C) of the Act,
and therefore the beneficiary cannot receive immigration benefits as the
petitioner's "parent." We therefore must find that the District Director's
decision denying the petition was correct.
ORDER: The appeal is dismissed.
APPENDIX A
LEGITIMATION OF CHILDREN
El Salvador
The letter of inquiry requests information concerning the legitimation
of children under the law of El Salvador. The facts of the ease may be
summarized as follows: A child was born out of wedlock in El Salvador in
228

Interim Decision #2586—Appendix
1938. His natural father registered his birth and recognized him as his
son. The child's parents married approximately 21 years later. There is
no indication as to whether the child's mother also recognized him as her
natural son.
The subject of legitimation of children born out of wedlock is governed
by the Civil Code of El Salvador. Given the time element in this request,

two editions of this Code, published in 1926' and 1959, 2 were consulted,
the currency of which was verified using our Index to Latin American
Legislation. 3 According to our research, there have been no significant

changes in the statutes governing the procedures for legitimation from
1926 to the present time.
Pertinent provisions applicable to the instant case state that a child
born out of wedlock may be voluntarily acknowledged by his or her
parents. 4 Acknowledgment may be effected, among other ways, in the
act of registration of the child's birth in the office of the Civil Registry. 5
If a child has been acknowledged by both parents, their subsequent
marriage legitimates him or her ipso ju,re.6 An ipso jure legitimation
also takes place when the child is acknowledged by his or her parents in
the wedding ceremony and this recognition is annotated in the record of
marriage. Legitimation takes place regardless of the fact that the child
may be dead.'
There are two exceptions to the above rules, however, children conceived in an adulterous relationship cannot be legitimated by the subsequent marriage of their parents.° This applies even in those cases
where the married parent believed in good faith that she or he was no
longer married at the time of conception.° The second exception concerns putative marriages, -which cause legitimation of children born out
of wedlock only in those cases where at least one of the spouses was in
good faith at the moment of contracting marriage.'°
The Civil Code also provides that, if the father has legally acknowledged the child or his paternity has been established by a court decision,
and in either case the mother's name is established in the child's birth
Constitucidn y Cddigos de la Republica de El Salvador [Imprenta Elzeviriana y
Librerce Cami, S.A. Barcelona, Spain, 1926].
2 Ciidigo Civil de El Salvador IC. Civ.] [Instituto de Culture Bispdnica, Madrid, Spain,
1959].
Index to Latin American Legislation 1950-60 [Library of Congress, G.K. Hall & Co.,
Boston, 1961] and Supplements.

C.
C.
6 C.
7 C.

4

Civ., art. 279.

Civ., art. 280.
Civ., art. 217.
Civ., art. 218(1).
° C. Civ., art. 216(1).
° C. Civ., art. 216(2).
'° C. Civ. art. 215.
I

224

Interim Decision #2586
record, there shall be no need for a formal acknowledgment of the child
by the mother in order to be legitimated ipso jure by the subsequent
marriage of the parents."
If there has been no previous acknowledgment of the child, there is no
ipso jam legitimation as a result of the parents' marriage, but the
parents, at any time after their marriage, can legitimate the child by
means of a public instrument."
Children legitimated by their parents' subsequent marriage are considered as legitimate children conceived in wedlock and have the same
rights. 13 However, the benefits of legitimation are not retroactive from
the date of the parents' marriage. 14 Also, unless legitimated children are
expressly excepted, the designation of legitimate children in laws, decrees, wills and contracts shall be understood to include legitimated
children. 15
Based on the above paraphrased provisions, we may conclude that in
the instant case the child was a natural one until apparently legitimated
ipso jure by the subsequent marriage of his parents, provided that: (a)
he was nOt conceived in an adulterous relationship between his parents;
(b) his parents were legally married or at least had contracted a putative
marriage, with one of them in good faith; and (c) he was acknowledged

not only by his father but also by his mother, or at least her name was
included in the birth record signed by his father.

" C. Civ., art. 218(2).
0. Civ., art. 219.
" C. Civ., art:s. 214 and 225(1).
" C.' Civ., art. 225(2).
a C. Civ., art. 226.

12

225


Interim Decision 44458

IIan= or Enamor
In Section 212(e) Proceedings
A. 18808086
-

Decided by District Director January 29, ,1965
Waiver of the 2-year-foreign-realdence requirement of motion 212(e), Immigra-

don and Nationality Act, as amended, is granted an exchange visitor alien;
a 'research physicist, and his dependent wife and 2 minor children, since his
compliance with. the requirement world be detrimental. to a program of
official interest to the Atomic Einergp Commission and the Department of
State has recommended favorably in the matter,

Dr. Erginsoy, a, forty-year-old native and citizen of Turkey, entered• the United States as an exchange visitor, with his dependent
wife and two.unmarried, minor children, on July 6, 1962. He has
since been a participant in Exchange Visitor Program -No. P—I-1957,
sponsored by Brookhaven National Laboratory, Upton, New YorkUpon his arrival, he commenced a one-year appointment as Visiting
Associate' Physicist in the Physics Department of the Laboratory.
On -July 1, 1963, Dr. ErginsOy accepted a two-year appointment as
Associate Physicist on the Laboratory's Scientific Staff. This appointment is currently in'effect.
Dr. Erginsoy came to the Brookhaven National' Laboratory after
completing a Iwo-year appointment at 'the Ilternational Atomic •
'Energy Agency in Vienna, Austria. He states that he is not obliga- ;
-

tedbymploncitesfayknd.
Dr. Erginsoy's present sponsor wishes to retain his services as a
' research physicist for an indefinite period of time.
The Atomic Energy Commission requested the Department of
State to recommend to this Service that Dr. Erginsoy and his family
be granted waivers of the two year foreign residence requirement of
section 212(e) of the Immigration and Nationality Act, as amended,
applicablVto exchange aliens. On January 22, 1965, the Department
of State. upon reviewing the circumstances, recommended. that such
waivers be, granted on the grounds that Dr. Erginsoy's compliance
-

144

. ,Interim -Decision *1458
with this statutory requirement would be clearly detrimental to a
program of official interest to the Atomic Energy Commission.
ORDER: Pursuant to the favorable recommendation of the Department of State, it is ordered that the two-year foreign residence
requirement of section 212(e) of the Immigration and Nationality
Act, as amended, be and the same is hereby waived in the case of Dr.
Cavid Erginsoy.
It 18 further ordered that the above-cited statutory requirement
be and the same is hereby waived in the cases of Mrs. Ulker Say
soy.
Erginsoy, All Erginsoy and Omer Erginsoy.

145