Interim Decision #2942

MATTER OF ARBELAEZ-IsTARANJO

In Bond Breach Proceedings

A-22160018
Decided by Regional Commissioner March 2, 1988
(1)This proceeding involves the breach of a bond. Under the terms of the bond, the obligor
agreed to produce the alien upon request. The alien was ordered to appear at a hearing
and he failed to appear until 9 a.m. the following morning. The District Director informed
the obligor that the bond conditions had been violated. Accompanying the appeal was an
undated, preprinted "Excused Absence" note signed by a doctor.
(2) Substantial performance exists where there has been no willful departure from the
terms or conditions of It bond, where the conditions have been honestly and faithfully
complied with and the only variance from their strict and actual performance consists
of technical or unimportant occurrences. Matter of Nguyen, 15 I&N Dec. 176 (R.C.
1975), followed.
(s) netivpry.bonds are exacted to insure the aliens will be produced when required by
this Service for hearings or deportation. The courts have taken cognizanve of the confusion which would result if the aliens could be surrendered at any time it suited their
or surety's convenience. Matter of L , 3 I&N Dec. 862 (Comm. 1950), followed.
(4)An obligor shall be released from liability where there has been "substantial performance" of all conditions imposed by the terms of the bond. See 8 C.F.R. 103.6(eX3).
(5) A bond is breached when there has been a "substantial violation of the stipulated conditions (of the bond)." See 8 C.F.R. 103.6(e).
(6) Doctor's preprinted note without date, time, and type of treatment, and nature of
illness is insufficient to establish an excused nonappearance.
—

ON BEHALF OF OBLIGOR: uonald M. Zolin, Esquire
217 Broadway
New York, New

York 10007

This matter is before the Regional Commissioner on appeal from the
District Director's decision declaring that the conditions of the immigration bond had been violated.
The record indicates that on September 2, 1980, the obligor posted a
$7,500 bond conditioned for the delivery of the alien. A written demand
for the alien's surrender was mailed to the obligor by certified mail return receipt requested on December 12, 1980. A copy of this was
mailed to the alien and the attorney for the obligor. The written demand
required the obligor Lu surrender the alien to the Serviee for a hearing
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Interim Decision #2942
at 9:00 a.m. on January 7, 1981, at 26 Federal Plaza, New York, New
York. The obligor did not present the alien to the Service at the specified time and date and the alien failed to present himself. On January 8,
1981, the District Director informed the obligor that the conditions of
the immigration bond had been violated.
Counsel for the obligor on appeal argues: that the alien was ill on the
scheduled date of the hearing; that this was conveyed to the Service
trial attorney and immigration judge; that the alien was ready and able
to appear later in the afternoon but that the trial attorney and immigration judge had departed for the day; that the alien appeared at the
immigration court at 9 a.m. the following morning; that, therefore, the
alien has acted in good faith and substantially complied with the terms
and conditions of the bond. Counsel argues that while the conditions of
the bond were not strictly adhered to there was not a substantial violation of the stipulated conditions of the bond since the alien did report for
his hearing 24 hours later. Counsel cites Matter of Nguyen, 15 I&N Dec.
176 (R.C. 1975) and International Fidelity Insurance Company v.
Crosland, 490 F. Supp. 446 (S.D.N.Y. 1980) to support a conclusion
that the decision of the District Director be withdrawn and that the
bond be cancelled.
The record shows that on the hearing date at 10 a.m., one hour after
the scheduled time for the hearing, counsel for the obligor caller] the
Service trial attorney and informed him that the alien would be unable
to attend the hearing in the morning. Counsel at that time provided no
explanation as to why the alien did not appear. Counsel in an affidavit
states that he phoned the trial attorney a second time at 11:15 a.m. and
indicated that the alien was ill and could not attend the hearing. The
trial attorney acknowledges counsel's second phone call but states that
at no time during that phone call did counsel state that the alien was ill.
Counsel then promised to produce the alien as soon as possible, most
likely in the afternoon. Arrangements were made to have the immigration judge return from the Brooklyn Detention Facility to have the
hearing at 2:00 2:30 p.m. The alien still did not appear. At about 4:30
p.m., after the immigration judge and trial attorney had departed for
the day, counsel called the immigration court and stated that the alien
was in counsel's office and would now be able to appear for the hearing.
-

The immigration court clerk informed counsel that since all had left for

the day nothing could be transacted until the following morning. Counsel and the alien appeared at the immigration court the following morning at 9 o'clock. Counsel at that•time informed the trial attorney that the
alien had been ill the preceding day with the fu. The alien was subsequently arrested and the bond was breached. 8 C.F.R. 103.6(c)(3) provides that an obligor shall be released from
liability where there has been "substantial performance" of all conditions imposed by the terms of the bond-'8 C.F.R. 103.6 (e) provides that

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Interim Decision #2942
a bond is breached when there has been a "substantial violation of the
stipulated conditions (of the bond)."
Matter of Nguyen, supra; holds that "substantial performance" exists
where there has been no willful departure from the terms or conditions

of a bond, where the conditions have been honestly and faithfully complied with and the only variance from their strict and actual performance consists of technical or unimportant occurrences.
From our review of this record, we do not find that the obligor in this
matter has established substantial performance. We are not persuaded
by the evidence of record that there has been no willful departure from
the terms or conditions of the bond and we do not find it established that
the failure of the alien to appear at the scheduled time and place is
merely-a technical or unimportant occurrence simply because he appeared
at the court twenty-four hours after he was scheduled to do so.
Accompanying the appeal and in support of it is a copy of an "Excused
Absence" note signed by a doctor which states that the alien was under
the doctor's care for the period from January 7, 1981, the day of the
hearing, to January 8, ISM_ The note additionally states "I confirm that
the patient's absence was physician-advised." While the alien did appear
at the immigration court the day following his scheduled appearance
with the counsel and the trial attorney was informed that the alien had
been ill the preceding day with the flu, the doctor's note excusing the
absence was not presented at that time. An examination of this note
shows that it is not dated. It shows that counsel compared the copy of
the note to an original on January 23, 1981, some two weeks subsequent
to the date of the alien's appearance. The undated doctor's note does not
state at what time January 7, 1981, the doctor treated the alien. It does
not state where the alien was treated nor does it state what the alien
was treated for or what kind of treatment was prescribed.
The argument that an obligor may merely go on record as stating that
an alien was ill on the date of a scheduled hearing is rejected; likewise is
rejected the contention that an obligor may rely on an undated,
nonspecific, vague preprinted form "Excused Absence" note from a
doctor to establish an excused nonappearance.
Where there is a variance from the strict and literal performance of
the conditions of a delivery bond, an obligor must establish substantial
performance which is of benefit to the government.
The immigration judge and the trial attorney had arranged their schedules and the immigration court's calendar in advance to set aside a
particular period of time to hear this alien's case. Other matters were
not scheduled in order that this individual should have his day in court.
The immigration judge, trial attorney and immigration court were prepared and ready for the alien's case at the appointed time. The obligor
and the alien did not inform the immigration court of the aliens' alleged
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Interim Decision #2942
inability to attend the scheduled hearing until after the appointed time.
After the fact, when the Service was first informed that the alien
would be unable to attend the hearing, no explanation was given. While
counsel states that when he contacted the Service the second time he
stated that the alien's inability to appear was due to illness, the trial
attorney states that no explanation was provided at that time either.
While arrangements were made to hear the alien's ease later in the
afternoon, the alien still did not appear. It was only after 4:30 p.m.,
when the immigration judge and trial attorney had departed for the
day, that the alien appeared, not at the immigration court, but at counsel's
office, and informed the Service from there that now he was ready to
appear. While the alien did appear at the immigration court 24 hours
subsequent to the scheduled time, we do not find that his failure to
appear on the scheduled time was merely a technical or unimportant
occurrence. Substantial performance of benefit to the government has
not been established in this matter.
Matter of L—, 3 I&N Dec. 862 (Comm. 1950), states in part: "Delivery
bonds are exacted to insure the aliens will he produced when required
by this Service for hearings or deportation. They are necessary in order

that the Service may discharge its functions in an orderly manner. The
courts have taken cognizance of the confusion which would result if
aliens could be surrendered at any Lime it. suited their or surety's

convenience."
After a careful. review of the record and in consideration of the
foregoing, it must be concluded that the conditions of the bond have
been violated. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

406


Interim Decision #1557

Mamma or BRIDGES
In Section 212(e) Proceedings
A-14547429

'

Decided by District Director November B6, 1965
An exchange visitor is granted a waiver of the foreign residence requirement
of section 212(e),' Immigration and Nationality Act, as amended, since
compliance therewith would result in exceptional hardship to her United
States citizen 'husband, a graduate student, employed part time as a graduate assistant earning a salary of $2514 a year, who on his meager earnings

would be unable to support her if she were required to depart, and who,
if he were forced to terminate his studies to pursue a full-time lob or to
accompany her abroad would suffer a maior disruption of his education and
of his career.

.Discussion: Applicant is a 26-year-old native and citizen of
Burma who is subject to the requirements of section 212(e) of the
Immigration and Nationality Act, as amended, due to her admission
as an exchange visitor, as defined in section 101(a) (15) (J) of the
Aet, at Honolulu, Hawaii on September 8, 1962. She terminated her
studies in Pecember 1963 and departed the United States. She returned toiaeta United States on November 6, 1964 as a visitor for
.pleasure and is Presently employed as a combination olerk seeretary.
-

On January 1, 1965 she married tent ,Bridges, t pitizen of the

United. States, at Honolulu, Hawaii.
Section 212(e) of the Immigration and Nationality Act, insofar
as is here pertinent, provides as follows:

-

No person admitted under section 101(a) (15) (J) or acquiring such status
after admission shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a) (15) (H)
until it is established that such person has resided and been physically present
in the country of his nationality or his last residence, or in another foreign
country for an aggregate of at least two years following departure from the
United States. • • Provided further, That upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested
United States Government agency, or of the Commissioner of Immigration
and Naturalization after he has determined that departure from the UniteS
' States would impose exceptional hardship upon the alien's spouse or child
(if such spouse or child is a citizen of the United States or a lawfully resident

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alien), the Attorney General may waive the requirement of such two-year
foreign residence abroad in the case of any alien whose admiiiion to the
United States is found by the Attorney General - to be in the public interest • • •

In determining the merits of an applicatioii . for a' waiver of the
foreign residence requirement, we muit,Consider the Congressional
intent of the statute. House of Representatives Report No.' 721
dated July 17, 1961, prepared by'Subcommittee No. 1. of the Committee on the Judiciary,_ on the "Imidgration AsPecti of the International Educational Exchange Program" iipertinent. On page 121
of this report, the Subcommittee reiterates and stresses the funds-.
mental significance, of a most diligent and stringent enforcement of
thit foreign residence requirement. The report states, It is believed
to be detrimental to the purposes of the_program and to the national
interests of the countries concerned to apply a lenient policy in the'
adjudication of waivers, including cases where marriage occurring
in the United States, or the birth of a child or children, is used to
support the contention that the exchange alien's departure from this
country would cause personal haerclellip." This application represents a claim by the applicant that her departure would impose exceptional hardship upon. her United States citizen spouse. Therefore, it must first be-determined whether or not such hardship would
occur as the consequence of his accompanying her abroad, which
would be the normal course of action to avoid separation. The mere
election by the spouse to remain in the United States, absent such
determination, is not a governing factor since any inconvenience or

might thereby occur would be self-imposed. Further, even though it is established that the requisite hardship would
occur abroad, it must also be shown that the spouse would suffer as
the result of having to remain in the United States. Temporary
separation is a problem many•families face in life and, in and of itself, does not represent exceptional hardship as contemplated by
section 212(e), supra.
The applicant's United States citizen husband resides with her at
2221 Hoonanea Street, Honolulu, Hawaii. He is a graduate student
at the University of Hawaii and is pursuing a program leading to a
master of science degree in zoology. He is working part time as
graduate assistant in general science, earning a salary of $2514 a
year, based on half-time - efnployment. If the applicant were reqUired to leave the United States, - her husband would be unable to
support her from his meager earnings.. If he were forced to terminate his studies and pursue a full-time job,' he would suffer a major
diprizption of his education 'and of his career. Advice has been rehardship which

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Interim Decision #1557
calved from the Department of State that it is quite unlikely that
the Burmese Government would issue an exit permit to the applicant

if she returned there for two years.
Satisfactory evidence of Mrs. Bridges' marriage on January 1,
1965 to a citizen of the United States has been submitted. There are
no adverse factors in this case.
In view of the foregoing, it has been determined thit compliance
with the foreign residence requirement would impose exceptional
hardship on her United States citizen spouse. The Department of
State has reviewed the application and recommends that the waiver
be granted. It is further found that the admission of the applicant
to the United States Would be in the public interest.
ORDER: It is ordered that the application of Biala Swe Bridget
for a waiver of the two-year foreign residence requirement of section
219(e) of the Immigration and Nationality Act, as amended, be and
the same ie hereby granted.

508


• Interim Decision #1454

MArrni oF B—
In Section 250 Proceedings
A-8362609-11

Decided by District Director January 7, 1985
Applications for removal pnrsnant•to the provisions of motion 250, Immigration

and Nationality Act., are granted a mother and child who are in need of public aid since the husband/father, from whom the mother obtained a divorce
in 1964, did not provide for his family subsequent to entry and abandoned
them in 1961; the mother, whose health was affected from working at two
sobs, is presently unemployed except for occasional domestic jobs which she
does in her home; and efforts to obtain suppoit payments from the husband/
father have been unsuccessful.

Discussion: The first named applicant is ta female, citizen of
Germany, born in Berlin, Germany on May 10, 1932. She was
married in Germany on March 15, 1952 to A—C--B— who was
then a member of the United States Armed Forces. •He was born
at Woonsocket, New Jersey on July 29, 1930. They are parents of
three children. The oldest, M—Y—, was born in Germany on July
12, 1950. The other two children, 11 — and A—, were born in the

United States,- Both applicants were admitted'to the United States
at New York City on August 31, 1952 as nonquota immigrants.
The applicants' husband/father did not provide for his family
following their arrival in the United States and was disinterested
in obtaining employment. The adult applicant was forced to work at
two jobs for a total of 16 hours a dat. This affected her health and
she became ill with pleurisy. Her doctor ordered her not to work for
a period of six months, thus she and the children were left without
means of support. She was denied -welfare assist ice for the reason that her husband was employable. She was forced to' prostitution as a means of providing her children with food and clothing.
She also hoped her husband would be shamed into obtaining employment by her acts. She was convicted on August 8, 1960 in Torrington, Connecticut of having engaged in prostitution, sentenced to
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Interim Decision *1454
90 days in jail, sentence was suspended for one year and she was
placed on probation. Her husband deserted her in April 1961. The
children received aid from the Yolo County Welfare Department,
Woodland, California from June A., 1960 through April 30, 1063.
The adult applicant obtained a divorce on April 2, 1964. She
worked as a practical nurse and as a cocktail waitress in Las Vegas,
Nevada until June 1964 when she contracted pneumonia and was
hospitalized for several days. Her children were taken into protective custody by the sheriff's office while she was hospitalized. The
boys were first returned to her, but her daughter, the minor applicant, was held in custody for medical examination because of her
admission that she engaged in sex acts with a 16, year old boy who
was living temporarily in their home. She has since been released
to her mother, but the Clark County, Nevada juvenile probation
officer reports that she has become an enforcement problem to them.
The adult applicant is presently unemployed except for occasional
baby-sitting and washing and ironing which she does in her home.
The county authorities are assisting her to obtain support payments
from her former husband who is presently apparently in Connecticut, but they have been unsuccessful to date. •
The applicants are in need. of public aid from causes arising subsequent to their entry and they have applied for removal under the
provisione'of section 250 of the Immigration and Nationality Act.
They have established that they are eligible for removal from the
United States. The two minor sons are citizens of the "United States,
but must accompany their mother if she is removed. She is unable
to defray the transportation cost; therefore, such transportation may
be at government expense. It is concluded that the applications
should be granted.
ORDER: It is ordered that the applications for removal pursuant
to the provisions of section 250 of the Immigration and Nationality
Act be and are hereby granted. •

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Interim Decision #3932

Matter of Julio MEDINA-JIMENEZ, Respondent
Decided August 7, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The categorical approach does not govern whether violating a protection order under
237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii)
(2012), renders an alien ineligible for cancellation of removal under section 240A(b)(1)(C)
of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2012); instead, Immigration Judges need only
decide whether the alien has been convicted within the meaning of the Act and whether
that conviction is for violating a protection order under section 237(a)(2)(E)(ii). Matter of
Obshatko, 27 I&N Dec. 173 (BIA 2017), followed.
FOR RESPONDENT: N. David Shamloo, Esquire, Portland, Oregon
FOR THE DEPARTMENT OF HOMELAND SECURITY: Cathy Ng, Associate Legal
Counsel
BEFORE: Board Panel: COLE, GUENDELSBERGER, and KENDALL CLARK, Board
Members.
GUENDELSBERGER, Board Member:

This case is before us on remand from the United States Court of Appeals
for the Ninth Circuit to further consider the respondent’s eligibility for
cancellation of removal under section 240A(b)(1) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b)(1) (2012), following his violation of a
protection order. We conclude that the respondent has been convicted of an
offense under section 237(a)(2)(E)(ii) of the Act, 8 U.S.C. § 1227(a)(2)(E)(ii)
(2012), and is therefore ineligible for cancellation of removal under section
240A(b)(1)(C). The respondent’s appeal will again be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who claims that he
entered the United States without inspection in 1995. On July 28, 2010,
he pled guilty to contempt of court for violating a protection order issued
by an Oregon circuit court. He was sentenced to 7 days in jail, fined, and
placed on probation for 18 months. The Department of Homeland Security
(“DHS”) issued a notice to appear on July 30, 2010, charging that the
respondent is inadmissible under section 212(a)(6)(A)(i) of the Act, 8 U.S.C.
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Interim Decision #3932

§ 1182(a)(6)(A)(i) (2006), as an alien who is in the United States without
being admitted or paroled.
At a hearing before an Immigration Judge, the respondent conceded
removability and applied for cancellation of removal. In a decision dated
December 13, 2011, the Immigration Judge denied the respondent’s
application after finding that he was convicted of an offense under section
237(a)(2)(E)(ii) of the Act, which rendered him ineligible for cancellation
of removal under section 240A(b)(1)(C). We dismissed the respondent’s
appeal on September 14, 2013.
The respondent subsequently filed a motion requesting that the Oregon
court correct the original judgment entered with regard to his violation of a
protection order. On October 9, 2014, the court issued a “General Judgment
of Contempt” nunc pro tunc to the date of its original order, changing the
terminology relating to a “conviction” to that of a “contempt of court”
judgment. On January 27, 2015, the Ninth Circuit granted the Government’s
unopposed motion to remand for us to determine the effect of this new
judgment on the respondent’s eligibility for cancellation of removal. In a
decision dated July 14, 2015, we determined that, although Oregon no
longer considers contempt of court a “crime,” the respondent’s contempt
offense, which was processed under State law as “punitive,” resulted in his
“conviction,” as that term is defined by section 101(a)(48)(A) of the Act,
8 U.S.C. § 1101(a)(48)(A) (2012).
On August 10, 2016, the Ninth Circuit granted a second unopposed
motion in which the Government requested a remand for the Board to address
the Supreme Court’s decisions in Mathis v. United States, 136 S. Ct. 2243
(2016), and Descamps v. United States, 570 U.S. 254 (2013), and to
consider in the first instance what approach—the categorical approach, the
“circumstance-specific” approach, or some other approach—should be used in
determining whether an alien is ineligible for cancellation of removal under
[section 240A(b)(1)(C)], for having been “convicted of an offense under section . . .
[237(a)(2)(E)(ii)],” and, if necessary, whether that same approach applies in the
context of determining an alien’s removability under [section 237(a)(2)(E)(ii)],
where a conviction is not required.

On remand, we requested supplemental briefing for the parties’ positions
on the issue now before us, taking into account our intervening decision
in Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), and that of the
Seventh Circuit in Rodriguez v. Sessions, 876 F.3d 280 (7th Cir. 2017).
The respondent, whose brief was filed prior to our request, has argued,
among other things, that the categorical approach should be applied in his
case. Relying on Matter of Obshatko, the DHS contends that neither the
categorical approach nor the circumstance-specific approach is applicable.
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Interim Decision #3932

II. ANALYSIS
Pursuant to section 240A(b)(1)(C) of the Act, an alien is ineligible for
cancellation of removal if he or she has been “convicted of an offense
under section 212(a)(2), 237(a)(2), or 237(a)(3).” At issue in this case is
whether the respondent has been convicted of an offense under section
237(a)(2)(E)(ii), which refers, in part, to
[a]ny alien who at any time after admission is enjoined under a protection order
issued by a court and whom the court determines has engaged in conduct that violates
the portion of a protection order that involves protection against credible threats of
violence, repeated harassment, or bodily injury to the person or persons for whom
the protection order was issued.

In Matter of Obshatko, 27 I&N Dec. at 175, we determined that “the plain
language of section 237(a)(2)(E)(ii) makes clear that a ‘conviction’ is not
required to establish an alien’s removability” under that provision. We
therefore held that “whether a violation of a protection order renders an alien
removable under section 237(a)(2)(E)(ii) of the Act is not governed by the
categorical approach, even if a conviction underlies the charge.” Id. at 176.
In the context of cancellation of removal, section 240A(b)(1)(C) renders
ineligible any person “convicted of an offense under section 237(a)(2).” We
must therefore decide if this reference to a conviction triggers the application
of the categorical approach in assessing whether the respondent is barred
from relief because he has been “convicted” of an offense under section
237(a)(2)(E)(ii) of the Act. As with a determination regarding an alien’s
removability under section 237(a)(2)(E)(ii), we hold that the categorical
approach does not apply when deciding whether an alien’s violation of a
protection order renders him “convicted of an offense” for purposes of
section 240A(b)(1)(C). See Matter of Obshatko, 27 I&N Dec. at 176–77.
Instead, “an Immigration Judge should consider the probative and reliable
evidence regarding what a State court has determined about the alien’s
violation.” Id.
Two distinct inquiries must be made in applying section 240A(b)(1)(C)
to determine whether a violation of a protection order is for an offense
under section 237(a)(2)(E)(ii). First, an Immigration Judge must determine
whether the offense at issue resulted in a “conviction” within the statutory
definition set forth at section 101(a)(48)(A) of the Act. 1 The Immigration
1

We emphasize that the question whether to apply the categorical approach, which
“looks to the statutory definition of the offense of conviction,” is a distinct inquiry from
determining whether someone has, in fact, been “convicted” for immigration purposes.
Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015).

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Judge must then decide whether the State court has found that the alien
“engaged in conduct that violates the portion of a protection order that
involves protection against credible threats of violence, repeated harassment,
or bodily injury to the person or persons for whom the protection ordered
was issued,” as directed by section 237(a)(2)(E)(ii). In conducting this
second inquiry, Immigration Judges should follow the analysis provided in
Matter of Obshatko—that is, they should review the probative and reliable
evidence regarding whether the State court’s findings that a protection order
has been violated meet the requirements of section 237(a)(2)(E)(ii). An
Immigration Judge might reasonably conduct these two inquiries—neither of
which involves the elements-based categorical approach—in either order.
The Seventh Circuit has addressed this issue and rejected the application
of the categorical approach in assessing whether an “offense under” section
237(a)(2)(E)(ii) of the Act is one that bars cancellation of removal under
section 240A(b)(1)(C). Garcia-Hernandez v. Boente, 847 F.3d 869, 872
(7th Cir. 2017); see also Rodriguez, 876 F.3d at 283–85. The court reasoned:
The key language [in section 237(a)(2)(E)(ii) of the Act], “the court determines,”
does not require a conviction of a particular kind or the categorical approach at all.
What matters is what the court “determines.” Section [237(a)(2)(E)(ii)] makes clear
that the protection order can be one that is issued and enforced in another proceeding
(such as a divorce action in which a court holds the alien in contempt for violating
the order). Given the reference to a “conviction” in [section 240A(b)(1)(C)], we
assume that a criminal conviction is needed, but the focus on what the court
“determines” points, as in Nijhawan [v. Holder, 557 U.S. 29 (2009)], away from any
sort of categorical test with respect to that particular element of the federal statute.
If a court “determines” that the alien has engaged in conduct that violates a portion
of the order that “involves protection against credible threats of violence,
repeated harassment, or bodily injury,” that is enough for purposes of [section
237(a)(2)](E)(ii)].

Garcia-Hernandez, 847 F.3d at 872. 2
The Ninth Circuit has also held that the most logical reading of the
reference in section 240A(b)(1)(C) to an alien who has been “convicted of
an offense under section 212(a)(2), 237(a)(2), or 237(a)(3),” is an alien
who has been “convicted of an offense described under” any of those three
2

We acknowledge the Seventh Circuit’s reference to Nijhawan, in which the Supreme
Court applied a circumstance-specific approach in assessing the amount of loss to
the victim for purposes of the fraud aggravated felony removal ground at section
101(a)(43)(M) of the Act. In Matter of Obshatko, 27 I&N Dec. at 176, we distinguished
the circumstance-specific approach from an inquiry into whether an alien is
removable under section 237(a)(2)(E)(ii) of the Act, although we recognized that both
determinations might reach the same result. We find no reason to alter that analysis here.

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Interim Decision #3932

sections. Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004). 3
In other words, once it is established that the respondent has committed an
offense described under section 237(a)(2)(E)(ii), section 240A(b)(1)(C) is
satisfied by evidence that the offense resulted in a conviction.
The use of the term “convicted” in section 240A(b)(1)(C) of the Act does
not mean that the categorical approach must be applied. That section refers
to offenses in various provisions of the Act that require a conviction, but here
we are concerned with an offense that is alleged to be “under” section
237(a)(2)(E)(ii) of the Act, for which a conviction is not essential. Although
a conviction is necessary in the context of cancellation of removal, it would
be incongruous to apply the elements-based categorical approach to section
237(a)(2)(E)(ii), which focuses on a court’s determination regarding an
alien’s conduct. Garcia-Hernandez, 847 F.3d at 872. Instead, Immigration
Judges need only decide whether the alien has been convicted within the
meaning of the Act and whether the conviction is for violating a protection
order under section 237(a)(2)(E)(ii).
Next, we must consider whether the record in this case establishes that
the respondent was convicted of an offense that renders him ineligible for
cancellation of removal under section 240A(b)(1)(C) of the Act. We have
already determined that the respondent has a conviction, as required by
this provision. 4 The remaining question is whether his conviction is for an
offense described in section 237(a)(2)(E)(ii).
As we concluded in Matter of Obshatko, the statute directs us to assess
(1) whether a State court “determine[d]” that the alien “has engaged in conduct that
violates the portion of a protection order that involve[d] protection against credible
threats of violence, repeated harassment, or bodily injury” and (2) whether the order
was “issued for the purpose of preventing violent or threatening acts of domestic
violence.”

3

The bar to eligibility for cancellation of removal in section 240A(b)(1)(C) applies to
offenses referenced under section 237(a)(2), even if, as in this case, the alien is not “in and
admitted to the United States,” as required by section 237(a) of the Act for an alien to be
removable under a section 237(a)(2) ground. Gonzalez-Gonzalez, 390 F.3d at 651–53
& n.2; Matter of Ortega-Lopez, 27 I&N Dec. 382, 398 (BIA 2018). In Gonzalez-Gonzalez,
the Ninth Circuit addressed the domestic violence provision at section 237(a)(2)(E)(i) of
the Act and held that an alien who had never been admitted could be convicted of an offense
“under” section 237(a)(2) of the Act for purposes of the section 240A(b)(1)(C) bar.
4
Although most of the respondent’s arguments on remand pertain to our prior finding
that he has been “convicted” within the meaning of section 101(a)(48)(A) of the Act, we
fully addressed that issue in our July 14, 2015, decision. The current Ninth Circuit remand
order, which is predicated on the Government’s unopposed motion, does not direct us to
reconsider that issue.

403

Cite as 27 I&N Dec. 399 (BIA 2018)

Interim Decision #3932

Matter of Obshatko, 27 I&N Dec. at 177 (alterations in original) (quoting
section 237(a)(2)(E)(ii) of the Act).
The record includes reliable and uncontested evidence that the respondent
was convicted of an offense under section 237(a)(2)(E)(ii) of the Act. The
judgment of the Oregon court states that the respondent was convicted of
contempt of court. It further indicates that the conviction was based on his
guilty plea to an information charging that he “did unlawfully and willfully
disobey a restraining order filed under the Family Abuse [Prevention] Act of
the Jefferson County Circuit Court by entering and remaining or attempting
to enter and remain within 150 feet of [the protected victim’s] residence.”
Thus, the court clearly determined that the respondent’s underlying conduct
involved a violation of the “stay-away” provision in a protection order issued
pursuant to the Oregon Family Abuse Prevention Act (“FAPA”), whose
purpose is to protect victims against threats of domestic violence. 5 See Szalai
v. Holder, 572 F.3d 975, 978 n.2 (9th Cir. 2009) (per curiam) (stating that
“the essence of [FAPA] is to prevent acts of family violence through
restraining orders” (alteration in original) (citations omitted)).
The Ninth Circuit has ruled that the violation of a “stay-away” provision
issued under Oregon’s Family Abuse Prevention Act is one that “involves
protection against credible threats of violence, repeated harassment, or bodily
injury” within the meaning of section 237(a)(2)(E)(ii) of the Act. Szalai,
572 F.3d at 982; see also Alanis-Alvarado v. Holder, 558 F.3d 833, 838–40
(9th Cir. 2009). Relying on the Ninth Circuit’s decisions, we have also held
that a violation of such a protection order’s “stay-away” provision falls
within section 237(a)(2)(E)(ii). See Matter of Strydom, 25 I&N Dec. 507,
510 (BIA 2011) (stating that “the primary purpose of a no-contact order is to
protect the victims of domestic abuse by the offender”).
Based on this controlling authority, we conclude that the Immigration
Judge properly determined that the respondent is ineligible for cancellation
of removal because he has been convicted of an offense under section
237(a)(2)(E)(ii) of the Act. Accordingly, the respondent’s appeal will be
dismissed.
ORDER: The appeal is dismissed.

5
The court subsequently granted the respondent’s motion to correct the judgment nunc
pro tunc and issued an amended judgment, explicitly stating that the respondent was “found
in violation of a restraining order on . . . Count number 1, Contempt of Court, ORS 33.015.”
In our July 14, 2015, decision, we held that this amended judgment was a “conviction”
under section 101(a)(48)(A) of the Act. Both the original and amended judgments are
therefore convictions that meet the requirements of section 237(a)(2)(E)(ii).

404


Interim Decision #1324

MA1-r R or CHOW

In DEPORTATION Proceedings
A-15863660

Decided by Board February 84, 104
Designation of country of deportation within step 3 of section 243(a), Immigration and Nationality Act, is solely within the discretion of the Attorney
General and there are no limitations as to priority or preference because of
the order named in the statute.
CHARGE:
order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)]--Remained
longer—crewman

The respondent appeals from an order of the special inquiry officer
denying a motion to reopen the proceedings to permit a change in the
alternate order of deportation from the Netherlands to Hong Kong.
Counsel on appeal urges error in that the special inquiry officer has
arbitrarily directed the respondent's deportation to Netherlands
whereas the respondent is a Chinaman whose family resides in Hong
Kong and he was last a resident of Hong 'Kong.
The respondent has been found deportable as a nonimmigrant crewman who remained in the United States longer than permitted. An
order entered by the special inquiry officer on November 4, 1963,
granted the respondent the privilege of voluntary departure in lieu
of deportation. The order also contained alternative orders of deportation to the Republic of China on Formosa, the Netherlands and
Hong Kong in the event the respondent failed to depart when and
as required.
A notice requiring the respondent's departure by December 10, 1963,
was forwarded to him on November 19, 1963. He failed to depart
and a warrant for his deportation was issued on December 23, 1963.
The District Director at New York was notified on November 6, 1963,
that the respondent would not be accepted for deportation by the
Republic of China on Formosa. The respondent has been advised
that he will be deported to the Netherlands.
469

Interim Decision #1824
Counsel maintains that since the respondent has travel documents
which will permit him to enter both Hong Kong and the Netherlands
then under such circumstances there should be proper standards for

reaching a determination as to which country the alien will be deported. Counsel refers to the fact that this Board has designated certain standards to guide the special inquiry officer in reaching a determination as to whether the grant of voluntary departure is warranted.
Matter of M—, 4 L & N. Dec. 626. Counsel maintains that although
the statute (section. 243 (a) , Immigration and Nationality Act, 8 U.S.C.
1253 (a) ) permits the Attorney General a, certain amount of discretion
as to what country an alien may be deported, there should be limitations
on. this power, when there are factors present which indicate that the
alien is more closely identified with one country than he is with another
and both countries are willing to accept him.

The standard for reaching a determination as to what country an
alien may be deported is clearly set forth in the statute (section 243(a),
supra). We see no need to supplement the plain language setting
forth the authority granted the Attorney General. Under section
243(a) an alien must be deported "to a. country promptly designated
by the alien if that country is willing to accept him" unless the Attorney General "in his discretion" concludes that deportation to such
country would be prejudicial to the best interests of the United States.
(Emphasis supplied.) The alien is limited to "one such designation"
and he may not designate a foreign contiguous territory or adjacent
islands unless he is a native, national, or resident of such contiguous
territory or adjacent island.
Where the country designated by the alien or the country of his
citizenship is unwilling to accept him, the statute provides the Attorney
General with discretion to deport the alien to any of six different
categories of countries or places with which the alien may have had
some pridr association. Subparagraph (7) of section 243 (a) reads
"if deportation to any of the foregoing places or countries is impracticable, inadvisable, or impossible, then to any country which is willing
to accept such alien into its territory." The statute also provides, that
when the Attorney General has to resort to ordering the alien's deportation. to any of the seven categories named in the statute, "then such
deportation shall be directed by the Attorney General within his discretion and without necessarily giving any priority or preference
because of their order . . ." as set forth in the statute. (Emphasis
supplied.)
The respondent in the instant case refused to make any designation
of the country to which he desired to be returned in the event of an
order of deportation. When it was determined that the country of
his nationality and citizenship would not accept, him and upon the
470

Interim Decision #1324
making of this motion, the Immigration Service offered to effect the
respondent's deportation to Hong Kong. The offer was refused and
the respondent elected to proceed with this motion. Under the circumstances there is no substance to respondent's motion.
The alternate country to which an alien may be deported is solely
within the discretion of the Attorney General and there are no limitations as to the priority or preference because of the order named
in the statute. The wide discretion given the Attorney General by
subparagraph (7) of section 243(a) is obviously intended to 'avoid
arbitrary restrictions on the places to which a deportable alien may
be sent. Chan Mellen v. Esperdy, 285 F. 2d 353, 354 (C.A. 2, 1960).
Counsel's argument that this Board should set up certain stmulards
for the exercise of the authority granted the Attorney General by
section 243(a) is not in accord with the intent and purpose of the
statute.
The respondent in the instant case did not avail himself of the
opportunity granted him as a matter of right. He is in no position
to ask for relief at this time. The appeal will be dismissed.
ORDER: It is diieeted that the appeal be and the same is hereby
dismissed.

471


Interim Decision #1648

.I.ATTEE OF SS. CASTEL. FELICE

In Fine Proceedings• .
NYC 10/52.896
-

Dooidod by Board Sopterabor 27, 1968

(1) Liability to fine lies under section 231(b) of 'the Immigration and Nationality Act for failure of the carrier to present the necessary departure
manifest for passengers (Form I 412) within SO calendar days from the
date of departure of the vessel, as required by 8 OFR 231.2(a), notwithstanding the delay in presenting the manifest was allegedly occasioned by
loss in the mails.
(2) There is no provision in section 231 of the Act for mitigation or remission of a tine provided for therein once liability thereto has been
established.
•
BASIS FOR Fnag: Act of 1952—Section 231(b) [8 U.S.O. 1221) end 8 CFR
231.2 (a).
-

This matter originally came before us on appeal from a decision
of the District Director at New York dated January 26, 1966, directing that administrative penalties totaling $11,310, $10 as to each

passenger aboard the vessel at the time of its foreign departure, be
imposed on the Navcot Corporation, as owner, agent, charterer, or
consignee of the vessel, for failure to submit the required departure
manifests (Forms 1-418) as to the passengers in a timely manner.
On April 4, 1966, we withdrew that order of the District Director
and remanded the case to said official for the purpose of giving the
carrier an opportunity to fully support its claim that the necessary
manifests had been filed within the time required. Compliance was
had with that order, and on June 21, 1966, the District Director
again ordered the full fine imposed. He then certified the case to
this Board for final decision.
It appears from the record before us that the following material
facts exist without substantial controversy. On September 8, 1965,
the vessel departed 'from the port of New York for the port of
Southampton, England. The departure manifests (Forms 1-418)
831

Interim Decision #1648
covering that foreign sailing of the ship were filed with the Immigration and Naturalization Service on October 12, 1065. This event,
then, occurred 34 days after the departure of the vessel for foreign.
The carrier originally contended that the required manifests were
handed by the ship's purser to its agents at Southampton, England,
with instructions that such documents were to be air-mailed to New
York. It submitted an affidavit from the company representative at
Southampton intimating that the manifests were mailed between
September 18, 1965 and September 21, 1965.
After the case was remanded to the District Director at New York,
the carrier alleged that the postal clerk employed by 'the vessel's
agents in Southampton franked and posted all the ship's mail received from the vessel on September 21, 1965 and September 22, 1965.
The affidavit submitted by the postal clerk also included a photostat
of "postbook" listing the mailings for September 20, 21 and 22, 1965.
Among the listings for September 21, 1065 appeared "a/c Castel F.

Ship's Mail L 3-11-8," which the carrier claimed contained the required manifests. As noted by the District Director, however, this
affidavit by the postal clerk merely gives rise to conjecture that the
manifests -were mailed, since the contention that they were was based
only upon the weight and cost of the package mailed. In this connection, the District Director also noted that the postal clerk was
in the habit of registering certain types of mail, but that the manifests were not registered.
The carrier has also stressed that if the manifests were mailed, as
it believes the foregoing establishes, they would have been received
in New York well in advance of the filing deadline, and that since
they were not so received it appears that they must have been lost
in the mail because they were never returned to the carrier. It also
stresses that on the morning of the vessel's departure from New York,

one of its representativei was on board the ship taking care of the
necessary departure procedures, and .at that time discussed the
preparation• of the necessary immigration, forms with the vessel's
purser and emphasized to the latter the importance of having the

passenger manifests completed promptly and accurately and mailed
back to the United States upon the vessel's arrival at its first port
of call which was to be Southampton. In addition, the carrier
places great reliance upon evidence of record showing that when
the ,manifests were not .received in the carrier's New York office
within the period of: time. reasonably to be expected, Is representative of the -carrier, made.persistent inquiry• abroad as. to the whereabouts-, of the• necessary documents, and that it was such persistence
-

832

Interim Decision 44648
which resulted in new manifests being prepared and eventually sub'
mitted to the Service.
Despite the foregoing representations made by the carrier,' we feel
constrained to affirm. the District Director's decision to, impose the
full penalty herein. Subsection (b) of section 281 of the Immigration and Nationality Act contains a general provision requiring submission of departure manifestshefore the foreign: sailing of a vessel.
It does, however, authorize the Attorney General to arrange the
delivery of manifests of outgoing persons at a. later date in the cases .
of vessels such as this making regularly scheduled trips to ports of
the United States. Subsection (e) of the statute also authorizes the
Attorney General to prescribe the circumstances and conditions
under which the manifests required' by subsection (b) thereof may
,

be waived.

Pursuant to the foregoing statutory authority, the Attorney General has promulgated S .0FR 231.2(a) which, insofar as here pertinent, required the departure manifests (Forms I-118) to be presented to the immigration officer at the port of departure within 90
calendar days from the date of departure. This is the only regulation here pertinent which the-Attorney General has seen fit to promulgate pursuant to the authority invested in him by section 281
of the statute. It has the force and effect of law and is binding on
all parties here concerned (Di ,gieri v. Uhl, 96 F.2d 92).
Our inquiry ,eridi with the establishMent of the fact that the requirements of the regulation promulgated pursuant to _statutory
authority have not been met. The evidence of record, as herein;
before summarized, establishes that we are confronted with precisely
such a situation here. It does' so not only to our satisfaction, but
irrefutably and concededly. - Thus, 'the requirements of subsection
(d) of the statute 'requiring the imposition of the fines have been
met. • There is. no authority to waive the manifest requirements' of
subsection (b) of the statute under circumstances or conditions Other
than those contained in the regulations promulgated by the Attorney
General pursuant to the authority contained in the statute.
We find wanting the claim that the efforts made by the carrier's
personnel to insure timely delivery of the manifests in this case, as
hereinbefore outlined, constitute the imposition of the penalties herein an unjust result and an undue hardship calling for remission or
substantial reduction in the amount of the fines.' The circumstances
relied on by the carrier in this respect are hazards of the trade which
it must overcome. Also, there is no provision in the statute 'for
mitigation or remission of the fines provided for therein once
883

Interim Decision #1648
bility thereto has been established, as it has here. Moreover, as
pointed out by the District Director and conceded by the carrier,
the latter was well aware of the requirements in case such as this
• because of a similar delay in submission of manifests for this same

vessel's next prior foreign sailing from the United States on August
19, 1965.
We reject the carrier's argument that the fines should not be imposed here became the fqnr-day period beyond the date for filing
the manifests actually involved a weekend and a h-oliday and that,
accordingly, it cannot be seriously urged that the filing of the manifests on October 12, 1965, resulted in any inconvenience or expense
to the Service.2 8 CFR 1.1(11) provides that:
The term "day" when computing the period of time for taking any action
provided in this chapter, including the taking of an appeal, shall include
Sundays and legal holidays, except that when' the last day of the period
so computed falls on a Sunday or a legal holiday, the period shall run until
the end of the next day which is neither a Sunday nor a legal holiday.

The 30th and final day for the filing of the manifests in this case,
as required by the regulations, was October 8, 1965, a Friday. Obviously, Saturday intervened between that day and Sunday. That,
in turn, was followed by a Monday; October 12th (a Tuesday) was
not a federal legal holiday; and the carrier filed the manifests on
that clay with the Service, which was obviously open for business.
Further comment on this aspect of the case is unnecessary.
Finally, under predecessor legislation, as under the present law,

there was a general requirement for the submission of departure
manifests prior to the foreign sailing of the vessel. Under the former
law, however, there was no regulation promulgated as has been done
under the present statute. In the absence of such a regulation, there
was a long standing administrative policy to permit pilots to deliver
departure manifests to the Immigration Service after they had left
the ship and returned ashore. Under these circumstances, fines were
not imposed for the-delivery of the departure manifests later than
the law permitted, ntion the theory of substantial compliance, in those
cases where the ciecuniptances warranted such a finding. Under
the present law, however, there is a regulation which spells out what
substantial compliance is. Again, there is no. authority to waive
the manifest requirements of subsection (b) of the statute under
circumstances or conditions other than those contained in the regale-

2

.91pparently, the.eattier is tlum endeavoring to argue that the manifests

were only.stibudtted one (1) day late.

834

Interim Decision 4t1648
tion promulgated by the Attorney General pursuant to the authority
contained in the statute.
In view of the foregoing, this Board has no alternative but to
uphold the District Director's decision to impose the fines in this

case. Said official's decision, therefore, is approved.
ORDER: It is ordered that the District Director's decision of
June 21, 1966, be and the same is hereby affirmed.

835


Interim Decision #2014

MATTER OF WONG

In Deportation Proceedings
A-12588659
Decided by Board November 28, 1969
When more than one ground of deportation exists and one ground arises
later than the other, the period of continuous physical presence required
to establish statutory eligibility for suspension of deportation under section 244(a) of the Immigration and Nationality Act, as amended, will be
measured from the date of the later deportable violation.

CHARGES:
Order: Act of 1952—Section 241 (a) (2) [8U.S.C. 125(a) (2)] Remained
longer—crewman.
Lodged: Act of 1952—Section 241(a) (5) [8 U.S.C. 1251(a) (5)3—Failed
to furnish notification of address in violation of
section 265 of the Act (8 U.S.C. 1305).
ON BEHALF OF RESPONDENT:
Joseph S. Hertogs, Esquire
Jackson and Hertogs
580 Washington Street
San Francisco, California 94111
(Brief filed)

ON BEHALF OF SERVICE:
R. A. Vielhaber

Appellate Trial Attorney

Respondent appeals from the special inquiry officer's ruling
that he is ineligible for discretionary relief.
The main question is whether the physical presence in the
United States needed for suspension of deportation is to be reckoned from the first event which made respondent deportable or
the last. We hold it is the last. The appeal will be dismissed.
Respondent, a 46-year-old male, a native and citizen of China,
admitted in 1960 as a nonimmigrant crewman for a period not to
exceed 29 days, remained without authority. On June 19, 1962, a
special inquiry officer ordered him deported on the charge stated
in the order to show cause. There was no other charge at this
hearing. Respondent did not appeal.
In the summer of 1965, respondent failed to report as ordered

427

Interim Decision #2014
for deportation. He could not be located (Exs. 5, 6) He left his
employment and he moved. He did not notify the Service of his
address. He did not file address reports for 1966 and 1967 because he feared he would be located and deported. The Service arrested him on August 21, 1967 (Ex. 7).
On September 20;1967, respondent moved for reopening of deportation proceedings so that he could apply for suspension of
leportation. On September 29, 1967, the special inquiry officer delied the motion because respondent lacked the seven years resiience required for such relief. Respondent appealed to the Board.
3y this time seven years had passed. The Board reopened the
,roceedings. At the reopened hearing, the respondent applied for
uspension of deportation. He admitted that he failed to report
or deportation because he did not want to leave the United
tates, that he hid from the Service, and that he failed to file his
nnual address report because he was afraid to let the Service
now where he was (pp. 9-10). The Service lodged the charge
ised on his failure to furnish his address (Ex. 9). The special
quiry officer sustained the original charge and the lodged
.arge.
An applicant for suspension of deportation who is deportable
a section 241 (a) (5) charge must establish that he has been
ysically present in the United States "[F]or a continuous peid of not less than 10 years immediately following the commisin of an act, or the assumption of a status, constituting a
ound for deportation. . . ." Section 244 (a) (2) of the Act, 8
3.C. 1254(a) (2). In Matter of V—R---, 9 I. & N. Dec. 340
IA, 1961), we held the period of physical presence required for
pension of deportation is measured from the time the alien
became deportable. Relying on this rule, the special inquiry
per denied respondent's application for suspension of deportat. He held that the act which last made respondent deportable
the failure to file an address report in January 1967, and
'e it had not been followed by the passage of ten years, readent was not eligible for the relief.
he difficulty which, confronts us arises from the fact that
•e are conflicting judicial views on the issue. In Louie King
g v. INS, 308 F.2d 191 (9 Cir., 1962), the court rejected our
r and held that the ten-year period of physical presence starts
the commission of the first act. We felt constrained to follow
ruling of the court. In Matter of Bagai, 10 I. & N. Dec. 683
k, 1964), we overruled Mutter of V—R—, supra, and adopted
ule in Louie King Fong, supra. After we did this, the issue
.

428

Interim Decision #2014
was reviewed in the Eighth Circuit. The court considered Louie
King Fong, supra, and Matter of V—R--, supra. The court refused to follow Louie King Fong, .supra, and held that the tenyear period ran from the commission of the last deportable act.
Patsis v. INS, 337 F.2d 733 (1964), cert. denied 380 U.S. 952
1965).
In the following year, both Louie King Fong, supra, and Patsis,
supra, were considered in the Second Circuit. Rejecting Louie
King Fong, supra, the court followed Patsis, supra, and held that
the ten-year period ran from the commission of the last deportable act. Gagliano v. INS, 353 F.2d 922 (1965), cert. denied 384
U.S. 945 (1966).
The issue was also considered in several cases decided before
Louie King Fong, supra. These cases were not the subject of comment in the cases we have already discussed. In the Sixth Circuit,
a court held that an alien could not, in 1958, establish he had the
necessary ten years of physical presence when he had been a subversive from 1932 to 1949. See Williams v. Sahli, 271 F.2d 228
(1959), cert. denied 361 U.S. 966. In an unreported district court
case in the Sixth Circuit, a court stated by way of dicta that the
ten-year period of physical presence runs from the time of the
last failure to furnish an address report. Krug v. Pederson, C
62-376, N.D. Ohio, E.D. (June 24, 1964). In the Third Circuit, a
court held that an alien who was deportable on two grounds arising out of an entry in 1956, and who in 1956 and 1957 failed to
report his address, was ineligible for suspension of deportation
because he could not establish ten years of physical presence immediately following the commission of such acts. But alino v. Hatland, 277 F.2d 270, 280 (1960), cert. denied 364 U.S. 863 (semble) ; Matter of Bufalino, 11 I. & N. Dec. 351, 357-358 (BIA,
1965).
Counsel seeks to establish that Patsis and Gagliano are consistent with Louis King Fong. We must dismiss the contention.
Counsel seeks to reconcile the cases. He believes they stand for
the proposition that when there is more than one deportable
ground, the period of physical presence runs from the time the
more serious ground arose. To support his contention, counsel relies chiefly upon the fact that in Gagliano, the court said that
Gagliano committed a more serious offense in entering the United
States as a stowaway who had been previously deported than
Fong committed by failing to register as required by law—a dereliction Fong had termed "a minor infraction." Gagliano v. INS,
supra, at 929.
429

Interim Decision #2014
The language in Gagliano, supra., relied upon by counsel must
be considered with other language there. When so considered, it
is clear that Gagliano, supra, does not rest on the attempted distinction. The court went on to say:
the Eighth Circuit in Pitsis v. Immigration and Naturalization Service, 337
F.2d 733 (1964), cert. den. 380 U.S. 952, 35 S. Ct. 1085, 13 L.Ed.2d 970
;1965), reached the opposite conclusion, reasoning that an alien who has
ommitted a deportable act of any kind within ten years of his application
or suspension should not be allowed to apply for such relief for it was this
en-year probationary period with which Congress was concerned. "We
rould have regarded it as a matter of common sense interpretation," said
le court, "not to wring good fortune for an alien out of the statute because
f a deportable offense cornmittted more than ten years previously when he
,ntinues to commit other deportable offenses in the interim." Id. at 740. We
rree, and hold that Gagliano's reentry as a stowaway within the ten-year
riod bars his request for discretionary relief (at 929; emphasis added).

hus, it is clear that Gagliano followed Patsis and that it re',Med Patsis and Fong as inconsistent with each other.
Furthermore, Patsis shows that the court rejected the contenm that one charge was to be weighed against another as to
rich was the most reprehensible. The court stated that "[I]t is
t for the courts to measure whether failure to file an address
rd does or does not equate with subversion and immorality.
ngress has said in so many words, and clearly, that it does"
atsis, supra, at 741). Patsis expressed disagreement with the
ult in Fong and its characterization of the filing requirement
"'only a minor infraction of law"' (at 742).
Chus, we have authority in the Second, Sixth and Eighth, and
sibly the Third Circuits holding one way, and authority in the
tth holding the other. This creates a dilemma. We are bound
lecisions of circuit courts, but we are concerned with a federal
which we must give a uniform interpretation in each part of
United States. To follow the majority view in jurisdictions
re it has been adopted or where the courts have not spoken on
issue, and to follow the minority view in the Ninth Circuit, is
ily a satisfactory way to achieve a consistent administrative
tion. In an attempt to achieve uniformity, and to afford the
Circuit an opportunity to review its Fong decision in light
ecisions in the other circuits, we shall, with due deference to
Vinth Circuit, uniformly follow the rule that when more than
ground of deportation exists and one arises later than the
the period of physical presence required for suspension of
rtation will be measured from the later violation rather than
the earlier. See Matter of Amado, Interim Decision No.
430

Interim Decision #2014
1951 (BIA, 1969) ; Matter of Lim, Interim Decision No. 1947
(BIA, 1969).
Counsel contends that the Service is inconsistent in that it will
in one case use a charge under section 241 (a) (5) foreclosing the
alien from suspension of deportation, while in other cases with
similar facts the charge is not used. In two cases cited, Matter of
Lok, A10 824 448, and Matter of Chung, A10 824 951, alleged to
be similar to the instant case, counsel states that suspension of
deportation was granted. The cases are not part of our records
for they are not cases in which the Board acted. The charge to be
used in a deportation case is a determination to be made by the
Service. Our concern is with whether or not a charge should be
sustained.
Counsel sees an inconsistency in the fact that Patsis, although
ineligible for suspension of deportation, was held eligible for voluntary departure, but the special inquiry officer here held respondent ineligible for voluntary departure. There is no inconsistency. The ground of deportation in Patsis was not a ground
which precluded the grant of voluntary departure: one of the
grounds here, section 241 (a) (5) of the Act does make a person
ineligible for voluntary departure unless he is eligible for suspension of deportation, section 244 (e) of the Act. We have seen that
respondent is not eligible for suspension of deportation.
ORDER: The appeal is dismissed.

431


Interim Decision #1369

MATTER OF

Lux

In SECTION 245 Proceedings
A-12975895

Decided by Regional Commissioner January 23,1968
An alien who entered this country as a member of the United States Coast Guard
is statutorily ineligible for adjustment of status under section 245, Immigration and Nationality Act, as amended, because he was not inspected, admitted,
or paroled into the United States.

This ease has been certified to me by the District Director at Portland, Oregon, for review of his decision denying the application under
section 245 of the I. & N. Act, as amended.
The record relates to a 23-year-old male, native and citizen of the
Philippines. He is presently married to a United States citizen and
a petition according him nonquota status under section 101(a) (27) (A)
of the Immigration and Nationality Act was approved June 26, 1961
Ho last arrived in the United States on February 18, 1959, as a
member of the United States Coast Guard on the USNS "General
Barret". On the occasion of this arrival, he was not inspected by an
Immigration officer. The record does not disclose any prior entries
where the applicant was inspected and admitted or paroled into the
United States. On June 22, 1959, he appeared at the Service office
in San Francisco, California, and was registered and fingerprinted as
an alien and was issued Form 1-94 as evidence thereof. His enlistment
in the United States Coast Guard expires on June 22, 1963.
One of the requisites for adjustment of status to that of a permanent
resident is that the applicant be inspected and admitted or paroled into
the United States. The applicant has not met this requirement. Accordingly, the application must be denied and the decision of the District Director is proper.
ORDER : It is ordered that the application be and the same is hereby
denied.

653


MATTER OF ir-

In DEPORTATION Proceedings
A-11769123
Decided by Board September V, 1960
CPR 101.1(i) (formerly 4.2(H)—Not availPresumption of Ian ful
able where admission prior to December 24, 1952, was that of an unskilled

contract laborer.
Where original entry into Guam occurring prior to December 24, 1952, was
as a contract laborer, Philippine national's subsequent admission in 1904
as a skilled worker does not gain him benefit of presumption of lawful
admission for permanent residence under 8 CFR 101.1(1), formerly 8 CFR
4

CHARGE •

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. '1251(a) (2)j—Nonimnalgrant temporary laborer, remained longer.
BEFORE THE HOARD

DISCUSSION: Respondent is 30 years old, an unmarried male
alien, a native and national of the Republic o-f the Philippines. Respondent's last entry into the United States was at Agana, Guam,
on November 24, 1954, at which time he was admitted as a nonimmigrant worker, authorized to remain in the United States until
March 31, 1059. The special inquiry officer found respondent deportable on the above-stated charge and granted voluntary departure
in lieu of deportation. Respondent appeals to the Board.
Counsel seeks to bring this case within the rule of Matter of
C—Y---L--, 8-371, wherein the Board decided that certain alien
workers admitted to Guam prior to the passage of the Immigration
;Hid Nationality A et. were not. contract, ia. hewers and were entitled to
the "presumption of lawful admission" contained in 8 CFR 4.2(j), 1
8 CFR 4.2(j), as promulgated December 8, 1954, effective January 3, 1955:
An a on of a ny of the following-described
classes shall be presumed to have been lawfully admitted for permanent residence within the meaning of the Immigration and Nationality Act (even
though no,.recorcl of his admission can be found, except as otherwise provided in this part) unless the alien abandoned his status as a lawful permanent resident, or lost such status by operation of law, at some time subsequent to such admission: . . . (j) Aliens admitted to Guam. (1) An alien
1

PrPstumpticm of Tawful s.ei an.

82,

as published in the Federal Register on December 8, 1051, effective

January 3, 1955. In that decision we found that specific persons who
were shown to have entered Guam for the purpose of doing work
'requiring skill and experience and supervision of other employees, who
were assigned to these duties immediately or shortly after their arrival (making allowance for an adjustment period), and who received
s alaries several times that being paid the general laborers in the area,
could not be excluded from the benefits of the presumption as "contract laborers."
Respondent entered Guam first in 1947, and worked for approximately six months as a cook's helper. His duties were then changed
to that of "tireman," changing and fixing tires, and he remained in
this job until 1949 or 1950 when he returned to the Philippines for
a 30-day vacation. The record does not show the salary paid respondent between 1947 and his reentry in 1949 or 1950. After his
reentry he was employed by Brown, Pacific, Maxon, contractors on
Guam, as a blaster. He testified that he had no previous experience
in the Philippines as a blaster, no supervisory duties and received
no prior instruction. He did not detonate the dynamite. His duties
from the time of his employment until 1953 consisted of drilling
holes in rock, inserting the dynamite, and, sometimes, mixing- cement.
He received 320 an hour and a 20 raise every six months. In 1953
he was promoted to construction foreman.
Respondent departed from Guam on October 15, 1954, for another
30-day visit to the Philippines, and returned in November 1954. He
was reemployed on his return by Brown, Pacific, Maxon. Respondent
was drafted into the United States Army on August 16, 1956, and
served until his honorable discharge on March 25, 1958, at which
time he was returned to Guam in the status in which he had been
previously admitted. Exhibit 6, Form I-94D, states that respondent
"resumed contract laborer status on 4/1/58." In May 1958 he went
to work for Tommy's Bakery as a delivery salesman at $130 a month,
and is still employed in this capacity.
Respondent was a contract laborer at the time of his original entry
and probably until 1953. His readmission as a "construction foreman" on November 24, 1954, was too late to gain him the benefit of
8 CFR 4.2(j), as originally promulgated on December 8, 1954, as that
benefit depends upon admiscinn to Guam prior t.o Derernhor 94, 1952

"other than as a contract laborer."
who establishes that he was admitted to Guam prior to December 24, 1952,
Uc recurUs, such as Service records subsequent lo Juue 10, 1952, records of

the Guamanian Immigration Service, records of the Navy or Air Force, or
records of contractors of those agencies, other than as a contract laborer,
was not otherwise excludable under the Act of February 5, 1917, as amended,
and who continued to reside in Guam until December 24, 1052, regardless of

the period of time for which admitted.
83

The Philippine Consul at Agana, Guam, revoked the respondent's
passport on March 30, 1959. Counsel argues that the revocation was
improper, unfair to respondent, and the result of an altercation
between Mr. T—T—, respondent's employer, the Philippine Consul,.
the Department of Labor of the Republic of the Philippines, and a
group of former employ - ors of respondent. There is no Allegation of
wrongdong on the part of respondent in connection with this revocation, and no charge that respondent entered illegally. The revocation
of respondent's passport and the matter of Mr. T—'s difficulty with
various departments of the Philippine Government are not within
the jurisdiction of the Board.
Respondent is ineligible for a further extension of the period
for which he was admitted under section 212(a) (20) c,f the Immigration and Nationality Act, which provides for the exclusion of any
nonimmigrant who is not in possession of a passport valid for a
minimum period of six months. Under the circumstances of this
record the grant of voluntary departure is correct.
ORDER: It is ordered that the appeal be dismissed and that the
special inquiry officer's order of November 20, 1959, be and is hereby
affirmed.

84


Interim Decision #2443

MATTER OF DIAZ

In Exclusion Proceedings
A-17145706 •

'Decided by Board October

28, 1975

(1) Since a permanent resident alien commuter does not make a Fleuti-type departure
. each time he returns to his place of residence from his place of employment in the
United States ? applicant, an alien commuter, was not returning after a Fleuti-type
absence at the time of her application for readmission on January 7, 1974, and the
lawfulness of her original entry for permanent residence may be examined in exclusion
proceedings. (Matter of Maldonado-Sandoval, 14 T. & N. Dec. 475 distinguished.]
(2) Since the benefits of section 212(i) of the Immigration and Nationality Act, as
amended, can waive only grounds of inadmissibility under section 212(0(19) of the Aet,

as amended, applicant, who is also inadmissible on grounds other than section 212(a)(19)
[section 212(8)(20) and section 212(a)(14)) is ineligible for a waiver of excludability
provided by section 212(i) of the Act.
EXCLUDABLE;

Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant
without valid immigrant visa.
Act of 1952—Section 212(a)(19) [8 U.S.C. 1182(a)(19)]—Procured immigrant visa by fraud or willful misrepresentation of material fact.
Act of 1952—Section 212(a)(14) [8 U.S.C. 1182(a)(14)]—Immigrant, no
valid labor certification.
ON BEHALF OF SERVICE:

ON BEHALF OT APPLICANT:

Williams E. Weinert
Trial Attorney

L.A. Velarde, Jr., Director.
U.S. Catholic Conference
700 South Sa:ita Fe Street
El Paso, Texas 79901

This case :is before us on certification of the immigration judge of his
decision dated July 11, 1974 finding the applicant inadmissible to the
United States under sections 212(a)(20) and 212(a)(19) of the Immigration and Nationality Act, and denying her applications for relief under
sections 212(i) and 241(f) of the Act. The decision of the immigration
judge will be affirmed.
The applicant is a married female alien who is a native and citizen of
Mexico. On October 23, 1967 she was admitted to the United States as a

lawful permanent resident. She obtained her visa on the basis of a labor
488

Interim Decision #2443
certification as a maid. It is apparent from the record of proceedings
that the applicant never worked in that capacity and never had an
intention to do so. On June 17, 1968, the applicant became a commuter.
She gave birth to a United States citizen child on June 9, 1973. On
January 7, 1974, the applicant sought admission to the United States as
a returning lawful permanent resident 1 and was placed in exclusion
proceedings.
The applicant testified that at one point she ceased to be employed in
the United States due to the birth of her child. However, a commuter
does not lose her status when her continued absence is due to pregnancy. See, e.g., Matter of Burciaga-Salcedo, 11 I. & N. Dec. 665, 669

(BIA 1966).
The immigration judge found that the applicant was attempting to
make an "entry" into the United States as that term is defined in the
Act; and that the lawfulness of her original admission into the United
States could be adjudicated in exclusion proceedings. The immigration
judge relied on our decision in Matter of Maldonado-Sandoval, 14 I. &
N. Dec. 475 (BIA 1973), reversed Maldonado-Sandoval v. INS, 518
F.2d 278 (C.A. 9, 1975). In reversing our decision, the Ninth Circuit
held that the lawful permanent resident status of an alien returning

from a brief, casual and innocent trip abroad could not be adjudicated in
an exclusion proceeding in view of the holding in Rosenberg v. Fleuti,
374 U.S. 449, (1969)_

Maldonado-Sandoval is not apposite. The applicant is a commuter.
This Board has repeatedly held that a commuter is not within the
doctrine of Rosenberg v. Fleuti, supra. Matter of Hoffman-Arvayo, 13
I. & N. Dec. 750 (BIA. 1971); Matter of Moore, 13 I. & N. Dec. 711 (BIA
1971); Matter of Estrada-Tena, 12 L & N. Dec. 429 (BIA 1967). A
commuter does not make a "casual" departure within the meaning of
Fleuti each time he returns to his place of residence from his place of

employment in the United States. Rather, his residence abroad is a
continuing one, from which he makes temporary incursions into the
United States. Since the applicant is not seeking to enter after a Fleuti
type absence, her case is distinguishable from Maldonado-Sandoval,
supra, and the lawfulness of her original entry may be examined in
exclusion proceeding.
We find nothing in Sa.xbe v. Bustos, 419 US 65 (1975) to impair our
earlier holdings. Saxbe v. Bustos recognized the commuter as having
the status of a lawful permanent resident for the purpose of acquisition
of that status. Thus, thd alien commuter may continue to reside in a
foreign contiguous territory and engage in daily or seasonal work in this
1 The immigration judge's decision refers to the date oho sought admission es January 4,
1975, the date the applicant sought to have her 1-151 replaced. (See Tr. pp 3-4).

489

Interim Decision #2443
country. However, Saxbe v. Bustos does not purport to invalidate the
residence requirements of the law so as to bestow immigration benefits
where they can arise only from actual residence in this country. Only
after the alien takes up residence in the United States, and ceases to be
a commuter; is he eligible for the residence benefits of the immigration
and nationality laws. See 8 CFR 211.6(c).
We agree with the conclusion of the immigration judge that the
applicant obtained her original admission to the United States through
fraud or misrepresentation, and is therefore inadmissible under section
212(a)(19) of the Act. She accordingly cannot use her Form 1 - 151 to gain
entry; she does not have a visa and is therefore also inadmissible under
section 212(a)(20) of the Act. In addition, at the time of her original
admission she also was inadmissible under section 212(a)(14) in that she
had not obtained a valid labor certification.
The applicant applied for relief under section 241(f) of the Act, and
section 212(i). The benefit of section 241(f) is not available in exclusion
proceedings. Matter of Pendon, 13 I. & N. Dec. 769 (BIA 1971).
Moreover, even if available, this applicant could not qualify for such
relief in view of recent decisions of the Supreme Court, the Courts of
Appeals and this Board. See Reid v. INS, 420 US 619 (BIA 1975);
Castro-Guerrero v. INS, 515 F.2d 615 (C.A. 5, 1975); Guel-Perales v.
INS,
F 2d , No. 73-2986 (9 Cir. June 24, 1975); Matter of
Monternayor: 15 I. & N. Dec. 252 (BIA 1975).
We also hold that the waiver of inadmissiblity provided in section
212(i) of the Act is not available to this applicant. That section provides:
Any alien who is the spouse, parent, or child of a United States citizen or of an alien
lawfully admitted for permanent residence and who is excludable because (1) he seeks,
has sought to procure, or has procured, a visa or other documentation, or entry into the
United States, by fraud or misrepresentation, or (2) he admits the commission of
perjury in connection therewith. may be granted a visa and admitted to the United
States for permanent residence, if otherwise admissible, if the Attorney General in his
discretion has consented to the alien's applying or reapplying for a visa and for admission to the United States.
Section 212(i) of the Act is parallel in language and purpose to section
241(f) of the Act. Both sections derive from section 7 of the Act of
September 11, 1957, Pub. L. No. 85-316. It is apparent that the portion
of section 7 of the Act of September 11, 1957, relating to deportation,
and the portion relating to exclusion were both adopted for the same
reasons. See H. Rept. 1199 85th Cong., 1st Sess., U.S. Code Cong.
Adm. News at 2023-24. (195'7).. There is nothing in the legislative
history, or the language of the two present sections, which suggests
that they should not be given, as nearly as possible, identical interpretations.
In Reid v. INS, supra, the Supreme Court greatly circumscribed the
490

Interim Decision #2443
availability of section 241(f), pointing out that the language of that
section "tracks" with section 212(a)(19). Thus, an alien whose deportability may be predicated on a charge other than section 212(a)(19) will
not be able to obtain the benefit of section 241(f). Castro-Guerrero v.
INS, supra; Guel-Perales v. INS, supra; Matter of Montemayor, supra.
See Matter of Joquin, 15 I. & N. Dec. 348 (BIA 1975); Matter of
Munguia -Mendoza, 15 I. & N. Dec. 698 (DIA 1975). Similarly, the

language of section 212(i) "tracks" the language of section 212(a)(19). We
conclude that a waiver under section 212(i) can waive only the grounds
Act. The applicant -ofinadmsbltyerhcion21(a)9fthe
remains inadmissible on other grounds as already discussed.
The result reached by the immigration judge is correct. Accordingly,
his decision is affirmed.
ORDER: The decision of the immigration judge is affirmed.

491


Interim Decision #1329

Meassa or PARAssos
In ADVANCE SECTION 212(c) Proceedings
A-1050350

Decided by Board Afaroh. 6,1984
Since applicant's inadmissibility under section 212(a) (22) by virtue of having
filed DSS Form 301 in 1942 was known to, and considered by, the Congress in
approving the suspension of his deportation in 1859, and since me creation of
a record of lawful permanent residence pursuant thereto removed any known
exclusion ground which existed prior to that date, his application for advance
section 212(c) waiver of such ground of inadmissibility is denied, as
unneoassary.

The case comes forward pursuant to certification by the district
direztor of his decision dated January 8, 1961, dismissing the applica.tion for the advance exercise of permission to return to an unrelinquished domicile pursuant to section 212 (0) of the Immigration and
Nationality Act.
The record relates to a native and citizen of Turkey, 51 years old,
male, who entered the United States on. May 24, 1937, as a nonimmigrant treaty trader and has resided here continuously since that date.
On November 11, 1942, he applied for relief from United States military service by executing and filing DSS Form 301 with the Selective
Service Board, as a result of which his military draft classification
was changed on June 21, 1948 from Class I—A to Class IV—C.
On June 28, 1957, deportation proceedings were commenced against
the alien charging that he remained in the United States beyond
December 26, 1956, without authority. In the deportation proceedings
it was brought out that the alien was lawfully married on June 26, 1943,
to a native-born United States citizen and they have a minor nativeborn United States citizen child. The alien's wife suffered from ulcers
and a form of anemia and his child was under medical care for a kidney
ailment. He is self-employed in the import-export business. The
alien showed substantial assets in this country, presented evidence
that he had been continuously present in the United States for at least
the preceding 7 years, and no criminal record was shown.
491

Interim Decision #1329
The alien in those deportation proceedings testified that before he
filed Form DSS 301 he consulted with the Consul General of Turkey
and was informed that under Turkish law if he served in the Armed

Forces of the United States he would not be able to return to Turkey,
his property there would be confiscated, and his mother and brother
might suffer discrimination in Turkey. On the advice of the Consul
he therefore executed. the Form DSS 301: Thereafter, when Turkey
became a cobelligerent on February 23, 1945, the alien was reclassified
and placed in Class I–A but he was removed from that class because of
overage.
The special inquiry officer, while not condoning his action in requesting exemption from military service as a neutral alien, in view of the
fact that his aucontra.dioted testimony indicated that such action was
prompted by the advice of the Consul General of Turkey and that
he was willing to serve in the Armed Forces of the United States after
Turkey became a. cobelligerant, the claim of exemption should not bar
him from a grant of suspension or deportation in view of the other
meritorious factors in the case. On July 8, 1957, the special inquiry
officer ordered that the deportation of the alien be suspended under
the provisions of section 244(a) (1) of the Immigration and Nationality Act, the case was certified to the Regional Commissioner, Northeast Region, for review and on September 16, 1959, the suspension of
deportation of the alien was approved by Congress.
The applicant now wishes to proceed abroad temporarily in connection with his import-export business. While he urges that the
creation of a record of lawful permanent residence in 1959 vitiates any
known grounds of excludability existing at that time, he has however
filed this application in an endeavor to resolve any question as to his
possible inadmissibility under section 212(a) (22) of the Immigration
and Nationality Act.
Suspension of deportation under section 244 of the Immigration and
Nationality Act requires, in the event of a favorable decision, that the
case be reported to Congress and unless the Senate or House of Representatives passes a resolution that it does not favor the suspension of
such deportation, the deportation of the alien is suspended and the
deportation proceedings cancelled. by the Attorney General.
It can thus be seen that the discretionary relief of suspension of
deportation is legislative as well as administrative in character. Indeed, prior to the enactment of the Alien Registration Act of June
28, 1940, which vested in the Attorney General the discretionary authority to suspend. deportation and to grant permanent residence to
specified classes of aliens, the only relief in many cases was the passage
of a private relief bill in Congress? It was held in Matter of J ,
—

1

W. M. Besterman, Commentary on the I. & N. Act, 8 U.S.C.A. 65, 66

492

Interim Decision #1329
6 I. & N. Dec. 287, that where Congress, in enacting private legislation intended to permit the alien to gain lawful permanent residence
in the United States and with full knowledge of prior deportation,
authorized reentry by a private bill waiving the provisions of the
Act of March 4, 1929, relating to permission to reapply after arrest
and deportation, the alien did not become deportable under section
241(a) (18) of the Immigration and Nationality Act by reason of
his prior misconduct. Analogous cases are found in the recommendation by a court against deportation on criminal grounds, which
was held to immunize en alien from exclusion on. those grounds?
It has also been held that grounds for exclusion known at the time of
approval of an alien's application for creation of a. record of lawful
admission pursuant to section 249 of the Act was waived for the purposes of reentry. 3
In the instant case, when the alien's case was considered for suspension of deportation, the matter of his inadmissibility under section
212 (a) (22) on the ground that he was ineligible to citizenship by
virtue of filing a Form DSS 301, was considered and discussed in
granting suspension of deportation. It may be noted that the present Act differs from its predecessor,. the Act of June 28, 1940, in that

ineligibility to citizenship is no longer a bar to suspension. Inasmuch
as the order granting suspension of deportation discussed the ground
of inadmissibility arising under section 212(a) (22) of the Act, the
creation of a record of ,lawful permanent residence on September 16,
1959, removed any known ground for exclusion which existed prior
to that date. The application for advance permission to return to an
unrelinquished domicile pursuant to section 212(c) of the Immigration and Nationality Act is therefore considered unnecessary. Parenthetically it may be observed that the applicant has lawful permanent
residence only since September 16, 1959, and would not be eligible for
such relief.' The order of the district director will be approved.
ORDER: It is ordered that the order of the district director dated
January 8, 1964, dismissing the application for advance permission
to return to an unrelinquished domicile pursuant to section 212(c) of
the Immigration and Nationality Act be and the same is hereby
approved.
3 I. & N. Dec. 236; Matter of If—, 9 I. & N. Dec. 121.
8 I. & N. Dec. 288.
Moller of 5—, 5 I. & N. Dec. 116.

'Matter of H— and
a Matter of S—,

493


MATTER OF N
In DEPORTATION Proceedings
A-8584934
Decided by Board November 9, 1959
Cr,:me involving moral turpitude—Malicious mischief, section 692, Delaware
Penal Code.

Penal Code) encompasses crimes which both do and do not involve moral turpitude. When
record of conviction -fa',s to show with particularity that misconduct was
inherently base or depraved. finding of moral turpitude cannot be made.

Delaware malicious mischief statute (section 692, Delaware

CHARGE :
Order: Act of 1952—Section 241(i., (4) [8 P.S.C. 1251(a) (4)1—Convicted

of two crimes, to wit: malicious mischief and malicious mischief.
BEFORE THE BOARD

Discussion: An order entered by the special inquiry officer on
July 17, 1959, provides for respondent's deportation under section
241(a) (4) of the Immigration and Nationality Act (3 U.S.C. 1251
(a) (4)), as a twice convicted alien. The special inquiry officer has
certified the case to this Board for final decision (8 CFR 3.1(c) ).
The respondent., a native and national of Poland, male, 21 years
of age, unmarried, last entered the United States for permanent
residence through the port of New York on November 27, 1953. He
has been convicted on two occasions (August 1957 and December 30,
1958) by the Municipal Court at Wilmington, Delaware, for the
offense of malicious mischief.
The information charging the respondent. with committing an
offense in violation of section 692 of the Delaware Penal Code, reads
in part as follows: "* C * with force of arms * C did unlawfully
commit a misdemeanor, to wit: Did commit an act of malicious
mischief at 201 South Market Street, Rest Room." The information
Charging a violation of section 691 of the Delaware Penal Code
charges that the respondent "did commit an act of malicious mischief by causing damage to the furnishing of the Wilmington Girls
Club."
The crime of malicious mischief is defined by section 692 of the
Delaware Penal Code of 1953, as follows:
466

Whoever unlawfully, maliciously and mischievously destroys or injures any
real or personal property, or any other thing of value, to the value of less than
$100, shall be fined not less than $25 nor more than $500, or imprisoned not
more than six months, or both.

Section 691 of Title 11 of the Delaware Penal Code defines a
similar offense except the value of the property is $100 or more and
the penalty on conviction is loft to the discretion of the court.

Counsel urges that the offense of malicious mischief as defined
by the Delaware statutes does not involve moral turpitude. The
special inquiry officer on the other hand finds that since the Delaware statutes contain the element of malice the crimes defined involve moral turpitude.
The special inquiry officer could find no reported cases in which
the courts of Delaware have interpreted the statutory offense of
"malicious mischief." The statutes were added to the Delaware
Penal Code by the Act of June 5, 1951 (48 Delaware Laws, ch. 308,
section 1.). The special inquiry officer relies on cases decided prior
to 1951 which are based on the common law offense of "malicious
mischief."' These cases, in effect, hold that the mischief must be
inspired by a malicious intent either expressed or implied.
The State of Illinois has a statute which defiles the offense of
"malicious mischief" in most identical terms as that of Delaware?
We have held on two occasions that the offense defined by the Illinois statute does not necessarily or inherently involve moral turpi, A-5411764 (B.I.A.,
tude under all circumstances (Matter of 7'
. A-6111128 (B.I.A.,
May 16, 1947, unreported) ; Matter of M
September 30, 1953, unreported)). Both the Delaware and Illinois
statutes are extremely broad in scope, including offenses which may
or may not involve moral turpitude. Where a criminal statute is
divisible, it is a well established rule that we must look to the record
-

of conviction for a determination of whether the crime committed
involves moral turpitude.
The special inquiry officer is of the opinion that his finding of
moral turpitude is consistent with prior reported rulings by this
Boards We find the cases distinguishable.. We noted in Matter of
(./pra 3 ) that the indictment averred that the alien did
711
"maliciously and wantonly injure and destroy * * * two hogs beState v. Cubberlv, 26 Del. 100, 80 Atl. 1003 (19111 ; State v. McCollister,
28 Dol. 301, 76 Atl. 226 (1909) ; ,ctette v. 'Fright, 25 Del. 393, 79 Atl. 399 (1911).
2 The Illinois statute defining malicious mischief reads as follows: "Whoever willfully and maliciously destroys, injures or defaces any building or
fixture attached thereto, without consent of the owner, or destroys, injures or

secretes any goods or chattels of another, shall be imprisoned,"

etc.

(Cahill's

Illinois Revised Statutes (1929), ch. 38, section 418; Jones Illinois Statutes
Annotated (1936), section 37-378).
Holler of R—, 5 I. & N. Dec. 612 (B.I.A., 1954) ; Mutter of M
, 3
I. & N. Dec. 272 (ELLA., 1048).

467

longing to J
B—L
, by then and there stabbing, strming,
and killing said hogs with an axe." The indictment in Master of
(supra s) charged the alien with "wantonly, willfully and
maliciously attempting to destroy property by the use of explosives."
We could determine from the indictments returned in both cases
that the aliens were convicted of offenses perpetrated . maliciously
and wantonly and not for acts accompanied by negligence or carelessness.
We are unable to make such a determination in the instant case.
The informations here under consideration merely charge the respondent with committing misdemeanors, to wit: "Did commit an
act of malicious mischief at 201 South Market Street, Rest Room"
(-xh. 2) ; "Did commit an act of malicious mischief by causing
damage to the furnishing of the Wilmington Girls Club" (exh. 4).
The statute by its very terms includes offenses which do and offenses
which do not involve moral turpitude. The records of conviction
fail to show with suMeient particularity that the offenses of which
the respondent stands convicted are inherently base and vile. as
distinguished from acts which are wrong merely because prohibited
by law (37 Op. Atty. Gen. 293, 1933).
We are unable'to determine 1.poin the records of conviction that
the respondent has been convicted of offenses which necessarily involve moral turpitude. Taking the statute at its minimum, it is
concluded that the offenses in question have not been shown to be
crimes involving moral turpitude. An appropriate order will be
entered.
Order: It is directed that the order entered by the special inquiry officer on July 17, 1959, directing the alien's deportation from
the United States pursuant to law on the charge contained in the
order to show cause, be and the same is hereby withdrawn.
It is further ordered that the proceedings under the order to show
cause be and the same are hereby terminated.

468