Interim Decision #1920

MATTER OE CRUZ

. In Visa Petition Proceedings
A-18499217
Decided by Regional Commissioner November 26, 1968
Since a Master's degree, obtained upon successful completion of two years of
specialized study and supervised field work, is required for entry in. most
fields of social work, petitioner/beneficiary, who has only a Bachelor of
Science degree in social work awarded in 1967 and whose only employment
thereafter has been as a temporary worker of a tuberculosis society with
duties involving delivery of fund solicitation letters and follow up of
same, has not established that she possesses the high level of training and
experience required to qualify as a member of the professions as a social
worker within the meaning of sections 101(a) (32) and 203(a) (3) of the
Immigration and Nationality Act, as amended.*

This case comes forward on appeal from the decision of the
District Director, who on October 17, 1968 denied the petition in
that the petitioner has failed to establish that she is a qualified
member of the professions.
The petitioner is a 21-year-old unmarried citizen and resident
of the Philippines. She was awarded a Bachelor of Science degree
in social work in 1967 by the University of Santo Tomas and
thereafter worked in that country as a temporary liaison worker
for a private institution. She now seeks in her own behalf classification as a member of the professions under section 203 (a) (3)
of the Act, as amended, based upon her stated profession or occupation as a social worker.

Section 101 (a) (32) of the Act, as amended, defines the term
"profession" as including but not being limited to architects,
engineers, lawyers, physicians, surgeons and teachers.
An examination of the occupations listed in section 101 (a) (32)
of the Act indicates that in a general a person may be considered
a member of the professions if, as a minimum, he has been
awarded a baccalaureate degree following the successful comple* See Matter of Reyes, Interim Decision No. 2009.

61

Interim Decision #1920
tion of a specialized course of education on the college or university level. (Matter of Asuncion, 11 I. & N. Dec. 660).
While the acquisition of a baccalaureate degree is a minimum
academic requirement for recognition as a member of the professions, the acquisition of such a degree does not automatically and
by itself make the holder a member of the professions. (Matter of
Shin, 11 I. & N. Dec. 686). Some occupations require a degree
above the level of a baccalaureate degree to qualify as a professional in their field of study. The definition of professions, quoted
above, includes doctors and surgeons and it is well established
that a baccalaureate degree alone will not qualify a person as a
doctor or surgeon and that advance degrees are a requisite for
recognition in the profession of medicine and surgery.
The Dictionary of Occupational Titles, 1965, Volume I, Definition of Titles, Third Edition, published by the Department of
Labor, places social work in occupational code grouping 195.108
under the heading, Guidance and Counseling. The Dictionary
defines a social worker as a term applied to a worker perfoming
social service functions in a public or voluntary social welfare
agency, organization, or department and states that classifications
are made according to work performed such as social worker,
psychiatric; social group worker; social worker, delinquency prevention.
In a supplement to the Dictionary the Specific Vocational Preparation (SVP) Time for a social worker is rated from five to
eight years.
Volume II, Occupational Classification of the Dictionary, states
with regard to training and methods of entry that while a college
degree is a minimum requirement for entry into the field of social
work, in most cases education beyond the four year college level
is required; and that most municipal and state governments and
private organizations require two years of graduate study of persons interested in pursuing social work as a career. (See Matter
of Che,121. & N. Dec. 146, January 13, 1967).
The Occupational Outlook Handbook, 1968-1969 edition, also
published by the Department of Labor, states that while a Bachelor's degree, preferably in Social Welfare, generally is the minimum educational requirement for beginning jobs in social work,
certain areas in most fields of practice require a Master's degree.
For example, teaching positions require a Master's degree with a
doctorate preferred. In research, training in social science
research methods is required in addition to a graduate degree and
experience in social work. The Handbook also states that a Mas-

62

Interim Decision * 1920

ter's degree in social work is awarded upon successful completion
of two years of specialized study and supervised field work in an
accredited school of social work; that only graduates of such
schools are eligible for membership in the National Association of
Social Workers (NASW) and that persons with two years of paid
employment in social work under the supervision of a certified
social worker and two years of membership are eligible for certification as members of the Academy of Certified Social Workers
(ACSW).
The Handbook states further that:
The problems with which social workers are concerned include poverty; broken homes; physical, mental, and emotional handicaps; antisocial behavior;
racial tensions; and unsatisfactory community conditions such as inadequate
housing and medical care, and lack of educational, recreational, and cultural
opportunities.

As the foregoing indicates, the problems which are faced by a
social worker relate to a variety of social and mental attitudes

and conditions. Approaches to these problems are reflected in
three basic methods of social work practice; namely, case work,
group work, and community organization. In the instant petition,
the petitioner has not indicated or defined the social work practice in which she intends to engage.
On appeal, petitioner states in brief that at the time she filed
the instant petition, she was not a full-fledged social worker but
has now been issued a registration certificate as such. A copy of
this certificate has been submitted with appeal. Concerning two
years of graduate studies from an accredited school of social
work as a prerequisite to employment as a social worker here,
petitioner indicates that is the reason why she does not want to
work now as a social worker but is willing to work even as a
clerk so that she can pursue graduate studies in the United
States.
After carefully reviewing and considering all the facts in this
case, we find that professions generally require either college
graduation—often with an advanced degree—or experience of
such kind and amount to provide comparable knowledge. With
regard to social work, we find that a Master's degree is required
in most fields of that activity, obtained after specialized study
and supervised field work. The petitioner in the instant case does
not have a Master's degree nor any specialized training and field
work in her stated profession. Her only employment since obtaining her degree has been that of a temporary worker of a tuberculosis society in the Philippines with duties involving delivering

63

Interim Decision #1920
letters of solicitation for funds and following up same. The
record fails to establish that the petitioner has the high level of
training and experience needed to qualify as a member of the
professions as a social worker.
The burden of proof in visa petition proceedings to establish
eligibility for preference classification sought rests with the petitioner. (Matter of Cheung, 12 I. & N. Dec. 715). The petitioner
has failed to meet that burden of proof in establishing that she
qualifies as a member of the professions under section 203 (a) (3)
of the Act, as amended, as a social worker. The District Director's decision will be affirmed and the appeal dismissed.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.


MATTER OF N—

In DEPORTATION Proceedings
A-867601'2
Decided by Board May 26, 1960
Del.m-tability—Section 241(a)(4) of 1952 act—Commitment to California Youth
Authority not "sentence to confinement."
Alien convicted in California for attempted robbery (maximum punishment,
20 years' imprisonment) who was ordered "committed to the Youth Authority of the State of California for the term prescribed by law" has not been
sentenced to confinement within meaning of section 241(a) (4) of the act.
(Overrules Matter of C—R—, 4 I. & N. Dec. 136.)

CHARGE •
Order: Act of 1952—Section 241 ( a) (4 ) [8 U.S.C. 1251(a) (4) ]—Convicted

of crime committed within five years after entry any' sentenced to
confinement for a year or more: Attempted robbery.

BEFORE THE BOARD
Discussion: The case is before us by certification. The special

inquiry officer ordered proceedings terminated and certified the case
to this board for final decision. The examining officer and Service
representative urge that the decision of the special inquiry officer
be reversed. The action of the special inquiry officer will be approved.

The respondent, a 21-year-old male, a native and citizen of
Mexico, last entered the United States on May 17, 1954. On February 16, 1959, he was convicted in the Superior Court, County of Los
Angeles, California, for the crime of attempted robbery committed
on or about October 7, 1958, in violation of sections 211 and 664 of
the California Penal Code. The crime is punishable by imprisonment in a state prison for not more than 20 years. The court
ordered the respondent "committed to the Youth Authority of the
State of California for the term prescribed by law" and provided
that the respondent be held in custody of the sheriff subject to any
ortlere 'tho Authority might isouo. On March 6, 1959, the respondent was confined at Deuel Vocational Institution. He was released
on parole on December 23, 1959. Parole will continue for about
2 years.

660

Deportation is sought under that portion of section 241(a) (4)
of the Immigration and Nationality Act which provides for the
deportation of an alien who :
is convicted of a crime involving moral turpitude committed within five years
after entry and either sentenced to confinement or confined therefor in a prison
or corrective institution, for a year or more * * * (Emphasis supplied.)

The issue, as we see it, is whether the respondent has been sento confinement.
The Youth Authority was created "to protect society more effectively by substituting for retributive punishment methods of traVn
ing and treatment directed toward the correction and rehabilitation
of young persons found guilty of public offenses" (section 1700,
California Welfare and Institutions Code; emphasis added). The
purpose of the act is "training and treatment rather than punishment" and "A commitment for training and treatment" is not the
same as a sentence of imprisonment (Opinion of the Attorney General, State of California, No. 50-202, January 23, 1951).
A court may sentence a youth to imprisonment in the state or
county prison or, in its discretion, it may commit to the Youth
tenced

Authority a convicted person who has not been granted probation
and who was less than 21 years of age when apprehended, if his

sentence was other than to death, imprisonment for life, imprisonment for 90 days or less, or the payment of a fine 1 (section 1732,
California Welfare and Institutions Code).
A person committed to the Authority may be set free under supervision, ordered confined, or ordered discharged (section 1766, California Welfare and Institutions Code). Confinement may be in
places of confinement, in correctional schools, or medical or educational institutions, whether public or private; and wards of the
Authority may be placed in facilities for training even though they
are not in confinement (sections 1725, 1753, 1760; California Welfare and Institutions Code). In 1956, the Authority used seven training schools, two reception centers, the Deuel Vocational Institution,
and 20 forestry camps (Pathways of Delinquency, 31 Journal of the
State Bar of California, pp. 18, 21).
The Deuel Vocational Institution is one for the confinement of

is an intermediate security type institution whose primary
purpose is to provide custody, care, training, guidance and reformatory help for young men too mature to be benefited by programs of
correctional schools for juveniles and too immature in crime for
confinement in prisons (sections 2033-2042, Deerings Penal Code of
California). The Youth Authority may also commit a youthful
males. It

We are not dealing with a situation where prior to commitment to the
Youth Authority the court sentenced the person to confinement for a year or
more.

661

offender to a state prison (People v. Seherbing, 209 P.2d 796; sections 1753, 1755.5, California Welfare and Institutions Code) ; however, such confinement is not considered imprisonment pursuant to
a sentence of imprisonment (Opinion No. 50-202, January 23, 1951,
Atty. Gen., California).
If the Authority finds that a person in its custody is incapable of
reformation, the Authority may return him to the committing court,
and the court may commit the person to a state prison or county
jail as provided by law for the punishment of the offense for which
the person was convicted (section 1737.1, California Welfare and
InstitutionS Code).
The Youth Authority may retain custody for a period longer than
the period of imprisonment that may be prescribed for the offense
(In re Herrera, 143 P.2d 345) ; however, a person convicted of a
misdemeanor must be discharged upon the expiration of a two-year
period of control or when he reaches his 23rd birthday, whichever
occurs later; and a person convicted of a felony must be discharged
when he reaches his 25th birthday. (section 1771, California Welfare
and Institutions Code) unless the committing court acting upon a
petition filed by the Authority commits the offender to the state
prison. If a person is so committed, the maximum term of imprisonment is the maximum term prescribed by law for the offense
of which he was convicted less the period during which he was
under the control of the Authority (section 1782, California Welfare
and Institutions Code).
The Service position is that the respondent has been sentenced to
confinement and that the period of confinement should be considered
a teem of not more than 20 years. The respondent denies that the
commitment to the Youth Authority is a sentence to confinement.
The special inquiry officer in a well-reasoned opinion held that the
sentence to the Youth Authority was not a sentence to confinement
since the Youth Authority did not have to confine a person committed to its custody.
From the review of the law relating to the Youth Authority it is
clear that a person placed in the custody of the Youth Authority
has been committed for training and treatment rather than sentenced to imprisonment. There is a sentence to the control of the
Youth Authority but no sentence to confinement. Moreover, bearing
in mind that deportation statutes must be strictly construed (Fong
Haw Tan v. Phelan, 333 -U.S. 6, 10), and that a person sentenced tt
the custody of the Youth Authority need not be confined at all, Nevi
must. conclude that the respondent may not be considered as having
been sentenced to confinement under the immigration laws. It is th
disposition made by the court, not that made, by some other source
which must control. Although a commitment to the Youth Author
662

ity is a conviction under the immigration laws, it does not meet the
necessity of the law requiring that there be a sentence to confinement.
The Service 'representative points out that the respondent here
was actually confined, once while in the custody of the sheriff awaiting transfer to the Youth Authority, and then again at the Deuel
Vocational Institution. The fact that the respondent was held in
custody by the ,Youth Authority is immaterial if the custody was
not under a sentence to confinement. As we have shown, a sentence
to confinement was absent in this case. (The confinement in the
custody of the sheriff, the agent of the Youth Authority, could, of
course, have no greater effect than the custody by the Authority
itself.)
United States ex rel. Paladino v. Commissioner, 43 F.2d 821 (C.A.
2, 1930), relied upon by the Service representative is not apposite.
Paladino held that one sentenced under an indeterminate sentence
has been sentenced to the maximum possible term. We are not con_,Trned with the duration of the sentence but with whether there has
>eon a sentence to confinement.
The Service representative believes that a federal standard should
e applied to determine whether there has been a sentence to connement. We understand this to be a reference to the rule in Paladin
elating to indeterminate sentences. However, if a federal standard
; to be applied, there is a precedent which has a more direct bearLg upon the problem before us than Paladino does. In Matter of
A-8583853, Int. Dec. No. 1005, we held that there had been
sentence to confinement where a person had been committed to
e Attorney General of the United States for an indefinite term
der the Federal Youth Corrections Act relating to the convictions
persons under the age of 22 when convicted. The factors which
pelled us to this conclusion in Matter of V—, supra, are present
the instant case. Both youth corrections acts are based upon the
del Youth Correction Authority Act drafted by the American
a" Institute; in fact, the federal law "also borrows from Youth
thority statutes in California" (Cunningham v. United States,
F.2d 467, C.A. 5, p. 471; Pathways of Delinquency, supra, p.
; in both cases a sentence to the Youth Authority is in the dieion of the court which could have sentenced the convicted person
nprisonment instead; in both cases prisoners are treated differv than wards of the Youth Authority; in both cases the youthful
der is considered as being treated rather than punished; in
cases there are provisions to expunge the convictions; and
important of all, in both cases an adult offender given a nenof less than a year would not be deportable but a youthful
ier convicted of the same crime and committed to the Youth
-

,

662

Authority which could hold him for at least two years would be
deportable?
We find there has been no sentence to commitment and will affirm
the action of the special inquiry officer in terminating proceedings.
Order: It is ordered that no change be made in the order of
the special inquiry officer.
I Matter of C—R---, 4 I. & N. Dec. 136, a Service decision dealing with
a commitment to the California Youth Authority is overruled insofar as it is
in conflict with the view stated here.

664


Interim Decision #2061

MATTER OF YIU
In Visa Petition Proceedings
A-19182846
Decided by Board November 19, 1970
Beneficiary, who was born in Hong Kong in 1940 (the daughter of a female
servant who resided in petitioner's household), and whose care and custody were vested in petitioner in Hong Kong upon the death of beneficiary's mother in 1949, was not validly adopted by petitioner since the governing Chinese law and custom permits adoption only for purposes of
family succession and is limited to males; further, adoption of strangers
is allowed only when a person has exhausted all his kindred, and even
then the adopted child must be of the same surname.
ON BEHALF OF PETITIONER:

Arlin W. Hargreaves, Esquire

Fallon, Hargreaves & Bixby
30 Hotaling Place
San Francisco, California 94111

Petitioner appeals from a decision of the District Director denying this petition filed to accord the beneficiary status as the
adopted daughter of a United States citizen. For reasons to be
mentioned herein, we order this appeal dismissed.
Petitioner, a native of Hong Kong, claims that in 1949 she
adopted the beneficiary, who was born in Hong Kong on February
[5, 1940. The beneficiary was the daughter of a female servant
yvho resided in petitioner's household and when the servant died
n 1949, petitioner commenced carrying for the child. The record
liscloses that, following her mother's decease in 1949, the benefi:iary, under section 31 (2) of the Hong Kong Protection of
Nomen and Girls Ordinance, became a ward of the Secretary for
2hinese Affairs. Care and custody of the beneficiary were vested
n the petitioner.
In denying the visa petition, the District Director concluded
;hat this was not a valid adoption under Article 1079 of the
Thinese Civil Code inasmuch as the adoption was not in writing.
He further stated that "Chinese customary law and Article 1079
)1. the Chinese Civil Code require that an adopted person assume

624

Interim Decision #2061
the surname of the adopter. None of these conditions have been
met."
Petitioner argues on appeal that Article 1079 of the Chinese
Civil Code does not govern here since it is not the personal law of
Chinese domiciled in Hong Kong. She has presnted a memorandum on Chinese law and custom written by a barrister, Anthony
Dicks, dated February 14, 1967 concerning the adoption of one
Cyril Noel Bagalawis in Hong Kong. Therein the writer states
that Chinese law and custom prevail in Hong Kong to Chinese
domiciled there. We agree. The Chinese Civil Code which was in
force on the Chinese mainland from 1930 to 1950 cannot be considered the personal law of the petitioner or of the beneficiary,
for they were not born in China and were not domiciled in China.
Therefore, Chinese customary law as it applies in Hong Kong
governs here, Matter of Wong, Interim Decision No. 1982 (BIA,
1969)2
In that connection we note that under Chinese customary law
the adoption of the beneficiary, a female, would be impossible.
Chinese customary law permits adoption only for purposes of succession to the family and is limited to males. 2 Additionally, the
adoption of strangers is prohibited and allowed only when a person has exhausted all his kindred. However, the adopted chld
must be of the same surname. 4 Since the beneficiary is a female
and a stranger to petitioner's household, it is clear that she cannot be considered to be validly adopted under Chinese law and
custom.
ORDER It is ordered that the appeal be and the same is
hereby dismissed.

1 Another reason, indicated in the record, for the application of Chinese
custom law to adoptions effected in Hong Kong sterns from the fact that, in
1999, no statute governing adoptions had been enacted by the Hong Kong
authorities. See Report of the Governor's Committee an Chinese Law and
Custom in Hong Kong, p. 49 (Hong Kong 1948).
2 Id. at p. 200.

I Report of the Governor's Committee on Chinese Law and Custom in
Hong Kong (Extract from Report on Child Adoption and Domestic Service
Among Chinese), p. 194 (Hong Kong 1948). See also Jamison, Chinese Family and Commercial Law, pp. 17-31 (China 1921).

625


• Interim Decision #1425

MAlitat. OP YOUNG

In Visa Petition Proceedings
A-8869467
Decided by District Director September 8, 1964
First preference quota status under section 203(a) (1), Immigration and Naidonaumy Act, as amended, as a dentist, la aeeorded the beneficiary of a
petition filed by an organization—the Village 'of DeWitt, Michigan, which,
acting on behalf of the community; desires, and has established an urgent
need for, the services of the beneficiary—even though benticiary will not be
in the actual employ of the petitioner.

The petitioner, the Village of DeWitt, Michigan, seeks to bring a
dentist to DeWitt as a private practitioner to provide dental services for the people in. the community and the surrounding area. The
population of DeWitt is 1,300 and 7,000 persons live in the surrounding area.
The petitioner requires a dentist with the degree of doctor of dental surgery. The nearest. dentists are in Lansing, Michigan, eight

miles away. Appointments must often be scheduled two to four
months in advance... The Bureau of EMployment Security has found
that the occupation is one for which nationallythe supply of available workeis is inadequate to meet all demands.
The beneficiary is an 'unmarried, 32-year-old British subject, who.
was born in Hong Kong. Ho was admitted to the United States as
a nonimmigrant. Evidence has been presented that he received the
degree of doctor of dental surgery' from the University of Detroit,
Detroit, Michigan, in June 1963. He is employed as a dentist at
Wayne County General Hospital, Eloise, Michigan,
Under section 203(a) (1) (A) of 'the Immigration and Nationality •
Act, first preference quota status may be accorded to "qualified quota
immigrants -whose services are determined by the Attorney General
to be needed urgently in the United States because of the Itgh education, technical training„ specialized experience, or exceptional ability of such immigrants and to be substantially beneficial
96-

Interim Decision #1425 .
prospectively to the national economy, cultural interests, or welfare
of the United States".
Those who may file a visa petition under section 204(b) of the Act
to have an alien classified as a first preference quota immigrant are

"any person, institution, firm, organization, or governmental agency
desiring to have an alien classified as an immigrant under * * * section 208(a) (1) (A)".
While the Village of DeWitt will not be the beneficiary's actual
employer, it is an organization which, acting on behalf of the community, desires the services of the beneficiary and has established•an
urgent need for his services.

The beneficiary has the required high education and his Services
would be substantially beneficial prospectively to the welfare of the
United States.
Since the requirements of the statute have been met, the petition
will be approved.
ORDER: It. s ordered that the petition be approved.


Interim Decision #1616

MATTER

or

LEGABEI

In Deportation Proceedings
A-13694431
Decided by Board September 21, 1966
Respondent, who entered the United States as a nonimmigrant, who was not-•
maintaining his nonimmigrant status, and who, following a brief visit to
marico, reentered the united States without inspection, made an entry
under section 101(a) (13), Immigration and Nationality Act, upon which
to predicate a ground of deportability under section 241(a) (2) of the Act
[Romberg v. ineuti, 374 U.S. 449, inapplicable].
CHARGE:

Order: Act of 1952—Section 241(a) (2) 18 U.S.C. 1231(a) (2)]-1intered
without inspection.

This is an appeal from a deCision of the special inquiry officer,
finding the respondent deportable as charged and granting voluntary
departure. The appeal will be dismissed.
Respondent is a 48-year-old married male alien, a native and citizen of the Philippines. He was admitted to the United States on
October 19, 1962, as a temporary visitor for pleasure, with permission to remain until April 10, 1063. No extension of stay was ever
applied for. Sometime in 1963, he filed a petition for naturalization,
under the provisions of section 324 of the Nationality Act of 1940,
and section 2 of the Act of AusuSt 16, 1940, based upon six years of
service in the United States Lmy. Counsel stated at the hearing,
"I recognize that Mr. Legaspi's claim to naturalization is a tenuous
one" (Tr. p. 2). However, although the Service, upon the filing of
the application for naturalization, knew of respondent's status, no
deportation proceedings were instituted against him for a-period of
almost three years.
In December of 1965, respondent and a friend left the United
States for a visit to Mexico that was intOnded to-last a few hours,
respondent claiming he was advised by his friend_ that the .only
reentry document required of him would be his Philippine passport,
819

Interim Decision 41646
which he had in his possession. After several hours in Mexico, respondent and his friend presented themselves at the United States

border, seeking admission. Respondent was refused admission because he did not have the proper documentation. For a period of
three days, while respondent remained in Mexico, counsel attempted
to arrange for parole of respondent into the United States. This was
unsuccessful, and on the third day, respondent discussed his problem
with the Mexican immigration officials, who advised him that if he
did not leave Mexico, he would be jailed for his unlawful presence
there.
Respondent stated that he was advised by the Mexican officials to
wait until later in the day, when there would be a number of people
entering Mexico from the United States, to mingle with them, and to
enter the United States by the gate, through which they were leaving
it. He testified that this was the manner in which he returned to the
United .States.
Deportability is contested. Although. respondent has denied allegations 8, 4 and 5 in the order to show cause, it has been conceded that
he physically entered the United States at the time and place set
forth in allegation 3, that he crossed through an exit gate, as indicated in allegation 4 rather than through the regular United States
border crossing station, and that he did not then present himself to,
and was not then inspected by, United States immigrant inspectors
(allegation 5). It is counsel's contention, the above facts notwith'Standing, that under the holdings in Rosenberg T. Neva, 374 U.S.
449, 10 L. Ed. 2d 1000, 83 8. CL 1801;

Wadman v. Intarotgration and

Naturalization Service, 329 F.2d 812 (9th Cir.) ; and Wong v. Immigration and Naturalization Service, 358 F.2d 151 (9th Cir.), respondent did not make an "entry.," and therefore is not deportable for
"entry without inspection." • We concur in the finding of the special inquiry officer that the
cited cases do not justify such a holding in the instant matter. The
Fleuti case was concerned with whether a permanent resident, whose
original entry was in all respects lawful and who, had he never
stepped out of the United States, would not be subject to deportation
on the charges in the order to show cause, rendered himself excludable and hence deportable by an absence of "about a couple hours,"
and subsequent return to the United States. The Supreme Court,
considering the alien's situation in its entirety, and cognizant of the
grave and essentially punitive nature of deportation, stated: .
• • • we decliire today simply that an innocent, casual, and brief excursion
,

by a resident alien outside this country's borders may not hare been "intended" as a departure disruptive of his resident alien status and therefore
•

820

Interim Decision #1646
may not subject him to the consequences of an "entry" into the. country on
his return. The more civilized application of otir immigration laws given
recognition by Congress in §101(a) (13) and other provisions of the 1952 Act
protects the resident alien ,from unsuspected risks and unintended consequences of Each a wholly innocent action. Respondent here, so far as appears
from the record, is among those to be protected. litowever, because - attention
'was not previously focused upon the application of I 101(a)(13) to the case,'
the record contains no detailed description or characterization of, his trip, to
Mexico in 1956, except forhis testimony, that he was gone "about a couple
hours," and that he was "just visiting"; "taking a trip."., That being the case,
we deem it appropriate to remand the case .for further consideration of the
application of g 101(a) (13) to this casd in light of our discussion herein.
If it is determined that respondent did not "intend" to depart in the sense
contemplated by § 101(a) (13), the deportation order will not stand • • •.
Rosenberg v. Fieuti, supra, at pp. 462 and 468.

The pertinent portion of section 101(a) (13) interpreted by the Supreme Court in the Fleuti case, by its terms, relates only to "an
alien having a lawful permanent residence in' the United States."
In the TVadman case, supra, the 9th Circuit had before it not the
question of "entry"; but whether a. five day visit to Mexico broke the
continuous period of physical presence in the United r.States required
to establish eligibility for suspension
ion of deportation under section
244(a) (1) of the Act. '(WO 'shall not dieCuss the is., .of establishing good moral character also presented to the eoiirt, ;in Jfiddinun, ,
since it has no relevance to the instant ease.). Although thqe were
• some small factual similarities.between TV adman and Fleuti, and the
court in TV' adman made repeated. reference to the Fleuti decision, the
legal question to be resolved .was not the same in ;Wellman. The only
sense in which Fleuti can he considered to have been authority for
TV adman is that the pattern of legal reasoning followed in TV adman
,

was m derivative of Pleatie The actual issue in 'Warn= wee limed

and disposed of by the court in the two paragraphs which follow:
Here there can be no qaestioi of the sufficiency of physical presence. The
question is whether there was a sufficient continuity. 'In our judgment, the
term "continuous" is no more subject to a hard andtaSt construction than is the
term "Intended." The question is whether the interruption, viewed in balance ,
of its consequences, can be said ,to have been a significant one, under the
guides laid down in .Fieuti. • '
The answer cannot be foind aS
mititer'of Further 'Ninthly by the
special inquiry officer is necessary: Wadman v. Younigration and Waturtilization
Service, supra, at p. 816.
Deportability in TV atinzan, could le, and was, established - irrespecl:

tive of the question of whether return from the .five...day
'wds
"entry." The character of the Visit, not the return;' Wig 'relevant
only to the question of eligibility fOr relief from deimitaiieni •
821

Interim Decision #1646
In the Wong case, supra, (which cited both Wildman and Fleuti),
although the original entry and subsequent return from Mexico were
made by the alien under a false claim of American citizenship (as
distinguished from Wadmcga, who originally entered with an immigrant visa and return from Mexico with the documentation of a returning resident alien), the legal issue raised by the visit is identical
with that in Wadman. Deportability could be, and was, established
irrespectiVe of the character of the alien's return from Mexico. He
would have been deportable if he had never left the United States.
It was the character of the visit, not the return, which was relevant,
and not to deportability but to the question of eligibility for relief
from deportation (whether, as in Wadman, the stay is Mexico had

interrupted the continuous period of physical presence in the United
States required for suspension of deportation).
The issue in this case is more closely related to Fleuti than either
Wadman or Wong. Here, the question of &portability, as charged
in the order to show cause, will stand or fall on whether respondent's return from Mexico was an "entry" as contemplated by section 101(a) (13). Wadman and Wong are not controlling. And
Fleuti cannot aid respondent, since it interpreted the exception contained. in section 101(a) (13), which is restricted by its terms to aliens
having a lawful permanent residence in the United States. Respondent has never been admitted for lawful permanent residence.
The holding in Fleuti, in spite of background discussion in the
opinion, relates to a specific and clearly defined issue. It is not,
and we believe it was not intended to be used as, blanket authority
for the proposition that no short-term absence of any alien from the
United States can result in an "entry" on return. Neither can it
serre to wipe out, for all and any purposes, the fact that under
specific circumstances such an absence may well affect the alien's

status or eligibility for relief.
Counsel has discussed two other factors in this ease. He stated
that respondent's brother has filed a preference petition on respondent's behalf, based on their relationship, and that it was respondent's
intention to apply for a section 245 adjustment upon the approval of
the petition. Because of his entry without inspection, respondent
has rendered himself statutorily ineligible for a section 245 adjustment. However, respondent will gain a visa preference if the petition is approved, and it can be used by respondent and his family
in malting applications for immigrant visas at a consulate abroad.
Second, it was indicated in the brief on appeal dated August 3,
1966 that respondent's petition for naturalization was still pending.
Counsel stated at the hearing on April 23, 1966, that although the
822

Interim Decision 44646
claim to naturalization eligibility was tenuous, a substantially similar
case was scheduled for hearing in the "United States District Court
a week later, which, if granted, would improve respondent's chances
for naturalization (Tr., p. 2). No further particulars were given,
nor was the case or its outcome referred to in the brief. We have

no desire to foreclose any possibility of naturalization for respondent on the basis of six years of service in the United States Army,
but we cannot take or suspend action on the basis of the scanty and
vague material now of record on this point. The dismissal of this
appeal is without prejudice to a motion to reopen, if such motion is
made within a reasonable time, and is supported by substantial
evidence showing a likelihood that respondent's application for na-

turalization would be approved upon hearing by the appropriate
court.
At this time, the only relief for which respondent is eligible is
voluntary departure, which has been granted by the special inquiry
officer.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed, without prejudice to a motion to reopen upon the conditions set forth above.

823


MATTER OF S

K

C

In DEPORTATION Proceedings
A-3656158
Decided by Board November 14, 1958
Good moral character—Suspension of deportation—Employment as dealer

in

gambling bonne, during part of statutory pori o d burs alion from ontubliahing

good moral character (section 101(0(4)).
Applicant for suspension of deportation who received salary for six months
as dealer or operator of gaming table Is held to have derived income from
gambling activities within meaning of section 101(f) (4) of the 1952 act and
by reason of such employment within statutory period to be barred from
establishing good moral character.

CHARGE:
Order: Act of 1952—Section 241(a) (11), as amended July 18, 1950 (8 D.S.E.
1251(a) (11), 1952 ed., Supp. V)—Convicted of violation of law
relating to illicit possession of narcotic drugs,

BEFORE THE BOARD

Discussion: This case is before us on appeal from a decision of
a special inquiry officer denying the respondent's application for
suspension of deportation and directing that he be deported.
The respondent is a 62-year-old married male, native and citizen
of China, who last entered the United States on November 1, 1932,
as a returning resident. He has resided in the United States since
July 1911 but had been absent on 3 occasions prior to November 1,
1932. On March 11, 1938, he was convicted of possession of narcotic drugs in violation of a statutory provision of the State of
Washington, and he served 2 years of a 3 to 10 years' sentence.
The respondent has conceded his deportability, and the only
issue involved is whether the application for suspension of deportation should be granted or denied. For the reasons hereinafter stated,
Ave hold that he has not established statutory eligibility for suspension of deportation, and we do not reach the question of whether,

in the exercise of discretion, a grant or denial of suspension would
have been appropriate.
It is contended by counsel that deportation for a crime committed
20 years ago is too extreme a penalty to impose on a man who has

185
16271:;-61

14

reformed. The charge of deportability stems from 8 U.S.C. 1251
(a) (11) as amended by the Act of July 18, 1956 (70 Stab 567),
and apparently 1 he ro,pnrilenf wrird a not, h 3. vs been deportable prior
to that amendment. However, the retroactive nature of the legislation is not a bar to deporlation (Mileabey v. Catalanotte, 153
V , I. & Dec. 571 (1957)).
U.S. 692 (1957); Matter of M
Hence, regardless of all other factors, 8 U.S.C. 1251(a) (11) requires the respondent's deportation unless he can establish his
eligibility for suspension of deportation or some other statutory
relief.
8 U.S.C. 1254(0 (5) sets forth the statutory requirements for
suspension of deportation which are applicable to the respondent's
care, including one that lie must establish his good moral character

for 10 years preceding the filing of the application (Matter of
5 I. & N. Dec. 261, 268 (1953)). The respondent having
filed his application for suspension on December 12. 1957, must
prove good moral character since December 12, 1917. The special
inquiry officer held that the respondent was precluded from doing
so by reason of the provision contained in 8 U.S.C. 1101(f) (4) and
the fact that he had been employed as a dealer in the gambling
games of Chinese dominoes and fan-tan at the Bataan Recreation
Club, Seattle, Washington, from about October 1956 until about
April 1957 at a salary of $M1 weekly.

The pertinent part of 8 U.S.C. 1101 is as follows: "(f) For the
purposes of this chapter—No person shall be regarded as, or found
to be, a person of good moral character who, during the period
for which good moral character is required to be established, is,
or was—* * * (4) one whose income is derived principally from
illegal gambling activities * *." Hence, the question resolves
itself into whether this statutory provision bars the respondent from
establishing good moral character because of his employment as a
dealer from October 1956 to April 1957.
, operator of the Bataan Recreation Club, was
Mr. D
S
questioned by an investigator of the Service. He indicated that
players of Chinese in his establishment could not bet more
than $1.00 at a time that a player could win or lose $50 to $100
during a night ; and that the "house" collected 10 percent of the
winnings.
The respondent taatified that he had never acted a. a dealer

except at the Bataan Recreation CH) and that he took the job
there because he was unable to find any other employment at the
time. When he was asked whether the fan-tan games in which he
was a dealer were gambling games, he said that there were chips
on the table but that he did not see any money changing hands.
He admitted that he had control of the games in which he was
180

dealing to the extent that he gave the winners more chips and that
he took the chips away from the losers. He stated that he placed
the chips of the losers in a chip receiver and that these chips belonged to Mr. S- .
The respondent also

claimed that. he did not know

how

the

players obtained the chips; that he had no idea whether the players
brought their own chips; and that he does not know whether there
was a cashier at the club from whom the players might have obtained their chips. When he was asked whether he observed any
gambling while employed at the Bataan Recreation Club, he answered, "I don't remember, I did not see any." When asked whether
the people playing fan-tan or dominoes won or lost any money, his
answer was that he saw them win chips and lose chips.
Counsel argues that if money changed hands, it was handled by
the proprietor (S ) "as the investigative report reveals."
was familiar with the amount that could be won or lost in his club
during the course of a night, but there is nothing to indicate that
he handled the money. Although counsel does not make the assertion in his brief, it seems clear from the respondent's testimony
that he is claiming that he did not know that Money was being
wagered in the games in which he was a dealer, He was a mature
person, he was being paid solely for his work as a dealer, and he
was employed in this gambling house for 6 months. tinder these
circumstances, his claim is too preposterous to believe, and we find,
as a fact, that he was fully aware that money was being wagered
on these games.
It is contended by counsel that the respondent was a mere employee at the Bataan Recreation Club and cannot be said to have
been &ambling if he did not handle the money nor receive any of
the winnings. No authority is cited for the contention. We hold
that the reference in 8 U.S.C. 1101(6) (4) to income from illegal
gambling activities includes income from (1) an alien's financial
interest in a gambling establishment, (2) the gambling activities of
the alien himself, and (I) an alien's employment in a gambling
establishment where the employment has some proximate relationship to the gambling activities, such as a dealer or operator of a
gaming table. Hence, we conclude that the salary received by the
respondent as a. dealer in the Bataan Recreation Club was income
derived from gambling activities.
Counsel has referred to the fact that Mr. S
had a city license
to conduct a card room and that there was nothing to indicate
any arrests for gambling had been made in his establishment.
The investigating officer stated that in all probability the games
played at the Bataan Recreation Club were illegal under the Washington Statute but are tolerated and licensed by the City of Seattle.
197

The special inquiry officer cited section 9.47,0110 of the Revised Code
of Washington which prescribed a term of imprisonment up to 5
years in the case of a person who operates, as the owner, deafer,
etc., any gambling game or geese of chance. Counsel does not
urge that gambling may be conducted lawfully in the State of
Washington, and we hold that the gambling activities under discussion here were illegal.
As appears from the foregoing, the respondent's income was derived from illegal gambling activities during the period from October 1956 until April 1957. In connection with the further question
of whether his income was derived p rint %pa71y irony that source,
we have indicated that the respondent testified that he took the job
in the Bataan Recreation Club because he was unable to find any
other employment at the time. There is nothing in the record indicating that he had any source of income from October 1956 to
April 1957 other than his salary of $35 weekly from the Bataan
Recreation Club. Hence, not only was his income derived principally from illegal gambling activities, but it appears that his
income was derived solely from such activities.
We have considered one additional point although it was not
specifically raised by counsel. This relates to the connotation to
be given to the word "principally" in 8 U.S.C. 1101(f) (4). In
other words, does it mean a case in which, considering the 10-yearperiod as a whole, the income was derived principally from illegal
gambling activities? If that had been the intention of Congress,
the result could have been achieved by inserting the words "during
such period" as was done in paragraphs (2), (3), (5) and (7) of 8
U.S.C. 1101(f). The fact that it does not appear in paragraph (4),
which is here involved, is abundant reason for refusing to interpret
that paragraph as though it read, "one whose income during the
to-year-period is derived principally from illegal gambling activities."
The interpretation suggested in the preceding paragraph would
lead to absurd results. In the respondent's case, although all of his
income during a period of 6 months was derived from illegal
gambling activities, it would represent only one - twentieth of his
income during the 10 - year - period, and in those cases in which 10
years of good moral character must be established, it would apparently be necessary for the alien to have derived his income
principally from illegal ga mbling activities for approximately 5
years before the bar of this provision would come into effect.
In cases under 8 U.S.C. 1101(f) (4), the suggested construction
would result in reducing by approximately one-half the period of
good moral character which such aliens would be required to establish. That such a construction was not intended by Congress is
188

amply demonstrated by other paragraphs of 8 U.S.C. 1101(f). For
example, paragraph (2) bars an alien from establishing good moral
character if he committed a single act of adultery at any time during the required period of good moral character (5, 7 or 10 years),
paragraph (5) precludes establishment of good moral character
where the alien has been convicted of two gambling offenses at any
time during the entire period even though the convictions may have
been for minor gambling infractions, and paragraph (6) bars an
alien who, in order to obtain benefits under the act, gave false testimony on any occasion during the entire period.
As we have indicated above, 8 U.S.C. 1101(T) commences with
the statement that no person shall be regarded as a person of good
moral character "who, during the period for which good moral
character is required to be established, is, cm was — " which is followed by paragraphs (1) to (8), inclusive. 8 U.S.C. 1254(a) (5),
under which the respondent's application for suspension of deportation was filed, contains the requirement that the alien prove "that
during all of such period he has been and is a person of good moral
character." In view of the language we have emphasized, we believe that the specific terms of the statute preclude a finding of good
moral character in the case of any alien who has committed the
forbidden acts or in whose case the proscribed condition existed at
any time during the required period of 5, 7 or 10 years. For that
reason and on the bans of our finding above that the respondent's
income for a period of approximately 6 months was derived principally from illegal gambling activities, we hold that 8 U.S.C.
1101(f) (4) precludes a finding of good moral character in the
respondent's case. Hence, he has not proved that "during all of
such period" (10 years) he has been a person of good moral character as required by R US.C. 1254(a) (5), and the appeal will be
dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.

189


Interim Decision #1654

ALVA-Leg Or

TING

In Deportation Proceedings
A-9301237

Decided by Board September 30, 1966
An alien who, following his initial entry into thin country no a nonimmigrant

crewman in 1945, thereafter sailed continuously on vessels of American
registry, entering the United States as a nonimmigrant crewman at least
33 times up to his last entry - as a crewman in 1953, during which period
'his home port was San -Francisco and his longest absence between trips
was 4 months, Vas had his residence in the United States continuously since
such entry for. the purposes of section 24.9, Immigration and Nationality
Act, as amended. [Matter of
8 I. & N. Dee. 46,3, distinguished.]
Damon:
Order: Act of 1952—Section 141(a) (2) (8 V.S.O. 1251(a) (2)3—Nonimmigrant, remained longer.

The respondent, an unmarried male alien, 52 years of age, is a native and citizen of China.. He has been found deportable as a. nonimmigrant crewman who remained longer than permitted. An order
entered by the special inquiry officer o(June 17, 1966 suspended the
respondent's deportation under the provisions of section 244(a) (1)
of the Immigratimi and Nationality Act, as amended (8 U.S.C.
1254(a) (1)). The order also denied the respondent's application
for the creation of a record of lawful admission for permanent residence pursuant to section 249 of the Immigration and Nationality
Act, as amended (8 U.S.C. 1259). The respondent took no appeal
from the decision of the special inquiry officer. The case has been
certified by the special inquiry officer for final decision by the Board
Of Immigration Appeals on the issue of the respondent's eligibility
for the creation of a record of lawful admission for permanent residence pursuant to section 249 of the Immigration and Nationality
Act, as amended (supra).
The respondent originally arrived in the United States during the
spring of 1945 as a crewman aboard a British ship. He deserted the

849

Interim Decision *1654
British ship and on April 9, 1945 signed on an American ship at the
port of San Francisco. Theieafter, he sailed on American vessels
continuously until his last entry on October 16, 1953. He was admitted as a crewman on this occasion and failed to depart within
the 29-day limitation. Deportability on the charge stated in the
order to show cause is conceded.
Section 249 of the Immigration and Nationality Act, as amended,
provides in substance that the Attorney General may create a, record
of admission for permanent residence in the case of an alien who
affirmatively establishes (a) that he entered the -United States prior
to June 30, 1948, (b) that he had had his residence' in the United
States Continuously since such entry, (c) that he is a person of good
moral character and (d) that he is not ineligible to citizenship. The
special inquiry officer finds that the respondent has affirmatively established that he is not ineligible.to citizenship; that he is a person
of good moral character and that he entered the United States prior
to June 30, 1948. He finds the respondent ineligible for the creation
of a record of lawful admission for permanent residence under section 249 of the Immigration and Nationality Act, as amended, on
the ground that the respondent has not established that he has had
his "residence" in the United States continuously since such entry.
The facts with regard to the issue of "residence" are not in dispute. They establish that following the respondent's original entry
in 1945 he entered the United States during the next nine years at
least 33 times as a noninimigrarit crewman. His longest absence between trips was approximately four months.
The respondent testified that he has considered the United States
as his home since 1945. When in San Francisco,' his home port, he
always stayed at the same place, 848 Kearny Street. There is evidence that in the event the respondent was discharged at a port in
the United States, other than San Francisco, the steamship eompany
-would provide transportation money for his return to San Francisco.
The respondent was injured in 1953 while serving on an American
vessel en route to Japan. He was hospitalized in Japan and upon
his recovery returned to the United States as a passenger. Although
he did not work as a crewman, he was admitted on October 16, 1953,
his last entry, as a crewman.
-

Section 101(a) (SS) of the Immigration and Nationality Act of 1952,
defines the term "residence" as follows:
(33) The term "residence" means the place of general abode; the place of
general abode of a person means his principal, actual dwelling place in fact,
without regard to intent . . .

850

Interim Decision #1654
The special inquiry officer relying on the Assistant Commissioner's
decision in Matter of 1.9 1 B , 8 I. & N. Dec. 463, 465,2 concludes
that the respondent's temporary admission as a crewman over a
period of years would not support a claim of "continuous residence"
in the United States for the purpose of'qualifying under section 249
of the ImmigratiOn and Nationality Act, as amended. Counsel for
the respondent maintains that the Assistant Commissioner's opinion
does not apply in the respondent's case for the reason that the facts
are distinguishable.
-

—

—

We agree. Sit Jay Sing originally entered the United States as a
crewman in 1939. He did. not depart within the 29-day limitation.

A warrant for his arrest in deportation proceedings was served upon
him on June 26, 1942. A hearing was accorded and on February 12,
1943 a warrant of deportation was issued. Sit Jay Sing departed
foreign as a crewman aboard an American vessel on September 22,
1945. The Immigration Service noted "executed" on the warrant
of deportation.
The issue before the court in the Bit "ay Sinui case was whether
the alien's departure at a time, when a warrant of deportation was
outstanding against him, interrupted the continuous residence he
had established in the United States since his original entry in 1939.
Sit Jay Sing conceded that he "effected his own deportation" when
he voluntarily departed foreign in September of 1945 at a time when
a warrant of deportation was outstanding. He maintained, however,
that ;there was no interruption in his residency in this particular

instance because he departed foreign voluntarily with the permission
of the Immigration Service aboard a vessel of United States registry.
The court held that a departure from the United States under a
warraiit of deportation break the continuity of residence for the
purpose of section 249 and the fact that the Immigration Service
consented to his departure as a crewman did not lessen the force of
deportation. In its discussion of whether . deportation interrupts
residence the court assumed that residency in the United States can
be made out by an alien while aboard a vessel of United States
registry (182 F. Supp. 292, 294, Note 5).

A foreign voyage by an alien seaman on a vessel of United States
he enjoyed

registry does not terminate the constitutional protection

'The decision of the Assistant Commissioner dated October 20, 1559 weal:

sustained by the United States District Court for the Northern District of
California, Southern Division on March 11, 1960. Sit Jay Sing, Plaintiff T.
H. D. Nice, District Director, 182 F. Supp. 292, affirmed in a per curiam
opinion by the Court of Appeals for the Ninth Circuit, 287 11`.2d 561 (March

7. 1061).
851

Interim. Decision #1654
departure. Kwang Hai Chew v. Golding, 344 U.S. 590.
Applying the foregoing principle to the present case, We conclude
that the respondent's service aboard a vessel of United States registry since his original entry in 1945 may be deemed as "continuous
•esidente" in the United States for the purpose of qualifying for the
creation of a record of lawful admission for permanent residence
pursuant to the provisions of section 249 of the Immigration and
Nationality Act. The respondent's several departures as an alien
crewman since his original entry in 1945 have not been under an
order and warrant of deportation. This factor distinguishes the
case before us from the decision of the Assistant Commissioner in
the case of S--J—.6—, 8 I. & N. Dec. 463. Cf. Roggenbila v. Lusby
et al., The Malden, 116.Fed. Supp. 315, 318• (U.S.D.C. Mass., 1953).
ORDER: It is directed that the alien's application for the creation of a record of lawful admission for permanent residence pursuant to the provisions of section 249 of the Immigration and Nationality Act, be and the same is hereby granted.
It is further directed that the order entered by the special inquiry
officer on June 1'7, 1966 be and the same is hereby withdrawn.
prior to his

852


Cite as 28 I&N Dec. 1 (BIA 2020)

Interim Decision #3985

Matter of F-S-N-, Respondent
Decided June 12, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
To prevail on a motion to reopen alleging changed country conditions where the
persecution claim was previously denied based on an adverse credibility finding in the
underlying proceedings, the respondent must either overcome the prior determination or
show that the new claim is independent of the evidence that was found to be not credible.
FOR RESPONDENT: Celestine Tatung, Esquire, Largo, Maryland
BEFORE: Board Panel: MALPHRUS and HUNSUCKER, Appellate Immigration
Judges; GEMOETS, Temporary Appellate Immigration Judge.
GEMOETS, Temporary Appellate Immigration Judge:

This case was last before us on August 4, 2017, when we dismissed the
respondent’s appeal from an Immigration Judge’s December 5, 2016,
decision denying her applications for asylum, withholding of removal, and
protection under the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted and opened for signature
Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N.
Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United
States Apr. 18, 1988) (“Convention Against Torture”). The respondent has
filed a motion to reopen the proceedings. The motion will be denied. 1
In his decision, the Immigration Judge determined that the respondent, a
native and citizen of Cameroon, had not presented credible evidence to
establish the factual basis for her persecution claim. His adverse credibility
finding was based on significant inconsistencies, omissions, and
contradictions in the respondent’s testimony and evidence, pursuant to
section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1158(b)(1)(B)(iii) (2018). The Immigration Judge also found that the
respondent did not provide reasonably available evidence to support her
claim, because the testimony she gave regarding the severity of her physical
mistreatment was not corroborated by her credible fear interview and prior
statements, her medical records, or third party affidavits. Her claim to have
been in hiding was directly contradicted by other evidence in the record.
1

Given our disposition of the motion, we need not address the respondent’s stay request.

1

Cite as 28 I&N Dec. 1 (BIA 2020)

Interim Decision #3985

In regard to the respondent’s assertion that Cameroonian Government
officials perceived her to be a member of an anti-government group and
would arrest and indefinitely detain her, the Immigration Judge found
the claim implausible based on the evidence presented. Finally, he accorded
diminished weight to the affidavits submitted by the respondent’s family,
friends, and medical provider, observing that their statements lacked detail
and were, in part, inconsistent with the respondent’s statements.
We concluded that these relevant factors pertained to the underlying
elements of the respondent’s claim and supported the Immigration Judge’s
adverse credibility finding. See Matter of J-Y-C-, 24 I&N Dec. 260, 266
(BIA 2007). Consequently, we affirmed the Immigration Judge’s decision
in a final administrative order that the respondent did not appeal.
The respondent seeks to reopen her proceedings to pursue a persecution
claim based on changed personal circumstances and country conditions in
Cameroon. The factual basis for her alleged fear is essentially the same as
her previous claim before the Immigration Judge, namely, that Government
officials have associated her with the Anglophone Nationalist Movement,
which she identified as the “SCNC.” 2 She now also asserts that a cousin who
resembles her was arrested in July 2019 based on the mistaken assumption
that the respondent had been removed from the United States and had
returned to Cameroon. In support of her motion, the respondent has
submitted undated affidavits from her mother, grandmother, a cousin, and
two of her mother’s neighbors, along with an arrest warrant, a search notice,
and a letter from an attorney in Cameroon. She also provided 2017 and 2018
general background country conditions reports and November 2017 news
articles, but the country information does not specifically refer to her.
Generally, an alien requesting reopening of removal proceedings
must file a motion to reopen within 90 days of the date of a final
administrative order of removal. Section 240(c)(7)(C)(i) of the Act, 8 U.S.C.
§ 1229a(c)(7)(C)(i) (2018); C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1) (2020).
This time limitation does not apply to a motion to reopen seeking to pursue
asylum or withholding of removal based on changed circumstances arising
in the country of nationality, if such evidence is material and was not
available and could not have been discovered or presented at the previous
hearing. Section 240(c)(7)(C)(ii) of the Act; 8 C.F.R. §§ 1003.2(c)(3)(ii),
1003.23(b)(4)(i); see also Wanrong Lin v. Holder, 771 F.3d 177, 182
(4th Cir. 2014). A party seeking to reopen removal proceedings must state
the new facts that he or she intends to establish, supported by affidavits
or other evidentiary material. Section 240(c)(7)(B) of the Act; 8 C.F.R.
§§ 1003.2(c)(1), 1003.23(b)(3).
2

We note that SCNC is the abbreviation for the Southern Cameroons National Council.
See Djadjou v. Holder, 662 F.3d 265, 268 (4th Cir. 2011).

2

Cite as 28 I&N Dec. 1 (BIA 2020)

Interim Decision #3985

The evidence presented with a motion to reopen must also establish prima
facie eligibility for the relief. See INS v. Doherty, 502 U.S. 314, 323 (1992);
Onyeme v. INS, 146 F.3d 227, 234 (4th Cir. 1998); Matter of J-G-, 26 I&N
Dec. 161, 169 (BIA 2013). The respondent has a “heavy burden” to prove
that if the proceedings are reopened with all the attendant delays, the new
evidence offered would likely change the result in the case. INS v. Abudu,
485 U.S. 94, 110 (1988); see also Matter of Coelho, 20 I&N Dec. 464, 473
(BIA 1992). We consider the respondent’s motion by comparing the
evidence of current country conditions with those that existed at the time of
her merits hearing. Matter of S-Y-G-, 24 I&N Dec. 247, 253 (BIA 2007).
Moreover, to prevail on a motion to reopen alleging changed country
conditions where the persecution claim was previously denied based on an
adverse credibility finding in the underlying proceedings, the respondent
must either overcome the prior determination or show that the new claim is
independent of the evidence that was found to be not credible. See Zhang
v. Mukasey, 543 F.3d 851, 855 (6th Cir. 2008) (finding that the alien “did not
carry her ‘heavy burden’ of demonstrating a prima facie case for relief”
where she “made no attempt . . . to rehabilitate her credibility”); see also Paul
v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2006) (“[A]n applicant may prevail
. . . despite an [Immigration Judge’s] adverse credibility ruling . . . , so long
as the factual predicate of the applicant’s claim . . . is independent of the
testimony that the [Immigration Judge] found not to be credible.”). 3 Only
then is it necessary to consider whether the respondent can make a prima
facie showing that she is eligible for the requested relief based on changed
country conditions. See Slyusar v. Barr, 787 F. App’x 309, 314 (6th Cir.
2019) (stating that “the Board was within its discretion to deny reopening
where ‘the factual predicate’ of the petitioner’s motion to reopen was
not ‘independent of the testimony’ already found unbelievable by an
immigration judge” (citation omitted)); Ngede v. Att’y Gen of U.S., 764
F. App’x 245, 248 (3d Cir. 2019) (per curiam) (citing Zhang, 543 F.3d at
855, as stating that the Board “may reasonably expect an alien who is
proceeding on reopening with the same theory of persecution to attempt to
rehabilitate his credibility” and upholding our denial of a motion that did
not “remedy the [Immigration Judge’s] conclusion that [the alien] failed to
provide a credible account of the harm he experienced as a SCNC member”).
3

To rehabilitate a claim that was denied based on an adverse credibility finding, a
respondent must present previously unavailable evidence that is independent of the prior
claim or refutes the validity and finality of the credibility determination in the prior
proceeding. This is a particularly heavy burden in the context of an untimely motion, given
the strong public interest in the finality of immigration proceedings. See Abudu, 485 U.S.
at 110–11; see also, e.g., Heredia v. Sessions, 865 F.3d 60, 65 (2d Cir. 2017); Sadhavani
v. Holder, 596 F.3d 180, 182 (4th Cir. 2009).

3

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Interim Decision #3985

In this regard, the United States Court of Appeals for the Fourth Circuit,
in whose jurisdiction this matter arises, affirmed the denial of an alien’s
motion to reopen where the “new evidence in support of her claim that
country conditions had changed did not address the adverse credibility
finding” previously made by the Immigration Judge. Gurung v. Holder, 506
F. App’x 219, 220 (4th Cir. 2013) (per curiam). The court emphasized that
“even if country conditions had changed, [the alien] failed to address the
finding that her claim . . . was not credible.” Id.; see also Zhang, 543 F.3d at
855 (upholding our decision to deny reopening when we “declin[ed] to credit
a letter from [the alien’s] best friend without corroboration” after she made
no effort to counter the Immigration Judge’s finding that she was “not
credible and her documents [were] fraudulent”).
Previously, however, the Fourth Circuit remanded a case involving
a motion to reopen based on changed country conditions where the
Immigration Judge made an adverse credibility finding in the proceedings
below, holding that the Board failed to explain why reopening was
unjustified based on newly submitted evidence, which we “did not tie” to the
prior credibility issues. Nken v. Holder, 585 F.3d 818, 822 (4th Cir. 2009).
Thus, if newly submitted evidence is based on information independent of
the prior adverse credibility finding, it must be addressed.
But where such evidence is contingent, in part or in whole, on factors that
were determined to lack credibility and have not been rehabilitated, the
respondent’s ability to successfully establish prima facie eligibility may be
undermined. See Wanrong Lin, 771 F.3d at 185 (upholding the denial of the
alien’s second motion to reopen based on alleged changed country conditions
where the Board had “catalogued [the] submissions, both old and new,
evaluated the evidence of record,” much of which had previously been found
insufficient to warrant reopening, and “explained why the evidence did not
meet [the alien’s] heavy burden”); see also Dieng v. Barr, 947 F.3d 956,
961–63 (6th Cir. 2020) (noting that “the Board has ‘broad discretion’ to
weigh the credibility of the proffered evidence on a motion to reopen,” which
will be upheld “[s]o long as the [Board] adequately indicates its finding that
new evidence was inherently unbelievable” (citation omitted)).
In her motion to reopen, the respondent alleges factual circumstances that
were previously determined to lack credibility, but she has not addressed the
Immigration Judge’s adverse credibility finding. See Slyusar, 787 F. App’x
at 314 (noting that the alien “has not rehabilitated her credibility, yet she
depends on her prior incredible testimony” in seeking reopening). Although
the motion is supported by additional allegations, it has a substantially
similar factual basis and is, in essence, a continuation of the respondent’s
previously discredited claims. See generally Matter of M-A-F-, 26 I&N Dec.
651, 655 (BIA 2015) (explaining that a second or subsequent asylum
4

Cite as 28 I&N Dec. 1 (BIA 2020)

Interim Decision #3985

application is considered to be a “new” one where it is “predicated on a new
or substantially different factual basis”). Thus, the respondent’s newly raised
claim is not independent of her prior one but merely supplements it,
“intertwin[ing] the new with the old.” Slyusar, 787 F. App’x at 314.
For example, the respondent continues to allege that Government
officials seek to cause her harm because of their belief that she participated
in anti-government protests and is a member of the SCNC. However, the
new evidence she submitted is not sufficiently persuasive to independently
establish a valid claim of persecution or to rehabilitate her credibility,
which the Immigration Judge previously found she lacked, based, in part, on
the absence of detail and specificity in her testimony and in the written
statements she provided to support her claims.
The evidence the respondent has presented in support of her motion
similarly lacks specificity and detail. Her written statements and those of her
family and neighbors are undated and make only generalized references to
the mistreatment alleged, without providing sufficient explanation to give a
full understanding of the respondent’s claimed circumstances. While these
statements assert that the respondent’s cousin was detained and mistreated,
they fail to describe the nature of the harm inflicted. In any case, they are
of limited value in establishing the respondent’s prima facie eligibility
for relief. See Djadjou v. Holder, 662 F.3d 265, 276 (4th Cir. 2011)
(recognizing that letters and affidavits from family and friends are not
objective corroborating evidence and are therefore not required to be
considered by Immigration Judges and the Board); Matter of H-L-H& Z-Y-Z-, 25 I&N Dec. 209, 215 (BIA 2010) (observing that limited weight
may be given to letters from family and friends who “are interested witnesses
[and are] not subject to cross-examination”), abrogated on other grounds by
Hui Lin Huang v. Holder, 677 F.3d 130, 134–35 (2d Cir. 2012).
The respondent has also not presented evidence to rehabilitate her claim
of a perceived membership in the SCNC or to indicate that she was accused
of associating with the SCNC subsequent to her removal proceedings.
Although the respondent has alleged that her cousin was mistaken for her
and detained by law enforcement officials, the corroborating evidence does
not speak to the respondent’s claim that she was perceived to be associated
with the SCNC, which the Immigration Judge found to be not credible. The
respondent’s failure to rehabilitate the credibility of her previous claim
makes her statements that she is still pursued by law enforcement officials
several years after her departure from Cameroon less believable.
Additionally, although the respondent has presented an arrest warrant
on appeal, it states that she failed to appear for a summons that was issued
in December 2014 and makes no reference to her perceived continued
participation with the SCNC. These factors diminish the veracity and
5

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Interim Decision #3985

reliability of the newly submitted evidence. As a result, the respondent’s
claims of worsened country conditions are not sufficiently independent of
those previously found to be not credible so as to warrant a conclusion that
her credibility has been rehabilitated. See Nken, 585 F.3d at 822 (stating that
a prior adverse credibility determination must be tied to newly submitted
evidence if it serves as the basis for denying a motion to reopen).
In any case, the respondent has not established changed circumstances
that warrant an exception to the filing deadline. She alleges that conditions
in Cameroon are now different from those at the time of her 2016 hearing,
citing the country conditions reports she submitted from 2017 and 2018.
However, the evidence indicates that unrest has continued since 2016 and
that conditions have not materially deteriorated in the relatively short period
of time since her hearing. These general allegations, without more, do not
establish a material change in country conditions sufficient to excuse her
untimely motion. See Matter of S-Y-G-, 24 I&N Dec. at 252. The absence
of materially changed country conditions is a separate and independent basis
to deny the motion to reopen. See section 240(c)(7)(C)(ii) of the Act; Matter
of C-W-L-, 24 I&N Dec. 346, 354 (BIA 2007) (denying an untimely motion
seeking asylum in the absence of changed country conditions).
For these reasons, we conclude that the respondent has not rehabilitated
her credibility or presented a claim independent of her previous evidence or
established changed country conditions, and thus she has not made a prima
facie showing of eligibility for relief to warrant reopening of the proceedings.
Accordingly, her motion to reopen will be denied. See Zhang, 543 F.3d at
855.
ORDER: The motion to reopen is denied.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the Department of Homeland
Security, or conspires to or takes any action designed to prevent or hamper
the respondent’s departure pursuant to the order of removal, the respondent
shall be subject to a civil monetary penalty of up to $799 for each day the
respondent is in violation. See Section 274D of the Act, 8 U.S.C. § 1324d
(2018); 8 C.F.R. § 280.53(b)(14) (2020).

6


Interim Decision #2039

MATTER OF JOLLEY

In Deportation Proceedings
A-18168898
Decided by Board March 19, 1970
Respondent, by formal renunciation'of U.S. nationality before an American
Consul at Toronto, Ontario, Canada, on May 16, 1967, thereby lost United
States citizenship under section 349(a) (6) of the 'Immigration and Nationality Act, he being presumed under section 349(c) of the Act to have voluntarily performed the expatriating act since he has not testified or offered any evidence to support a conclusion that his renunciation was other
than voluntary.•
CHARGES:

Order : Act of 1952—Section 291(a) (1) [8 U.S.C. 1251 (a) (1) 1—Excludable at time of entry, to wit, immigrant, no visa
(section 212(a) (20); 8 U.S.C. 1182(a) (20)).
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable at time of entry, to wit, person who departed from or remained outside United States
to avoid or evade training or service in the
armed forces in time of war or national emergency (section 212(a) (22); 8 U.S.C. 1182(a)
(22)).

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Irving A. Appleman
Appellate Trial Attorney
(Brief filed)

Peter E. Rindskopf, Esquire
859 1/2 Hunter Street, N.E.
Atlanta, Georgia 30314
(Brief filed)

Joseph W. Monsanto
Trial Attorney
(Brief filed)

This is an appeal from an order of a special inquiry officer
dated November 25, 1968, finding the respondent deportable on
both charges above stated and granting voluntary departure
within 90 days, with an alternate order for his deportation to
* Reaffirmed, 441 F.2d 1245 (C.A. 5, 1971).

543

I

iterim Decision #2039
anada if he fails to depart when and as required. The appeal
ill be dismissed.
The facts have been fully stated and the evidence has been critally examined in the special inquiry officer's exhaustive and able
pinion, and need not be repeated here at length. The special inuiry officer concluded that the evidence had been properly admited into the record and that it established clearly, convincingly,
,d unequivocally that the respondent is an alien and that he is
leportable as charged. We concur in those conclusions.
At , the hearing, the respondent denied that he is an alien and
hat he is deportable. Indeed, he refused to concede that he is the
Jerson to whom much of the documentary proof related. Consemently, the threshhold question presented is one of identity.
The order to show cause, dated March 20, 1968, charges that
Thomas Glenn Jolley, the respondent, is not a citizen or national
if the United States; that he is a native of the United States and
undetermined citizenship; that he renounced his United States
citizenship before an American consul at Toronto, Ontario, Canada on May 16, 1967; that he entered the United States at Detroit, Michigan on an unknown date subsequent to May 16, 1967,
for the purpose of resuming his residence; and that at the time of
entry he was not in possession of a valid immigrant visa. Deportability was charged under section 241 (a) (1) of the Immigration
and Nationality Act on the ground that he was inadmissible at
entry under section 212(a) (20) of the Act for lack of the required visa.
At the deportation hearing, respondent was represented by
counsel, who conceded that respondent is the Thomas Glenn Jolley named in the order to show cause (Tr. p. 10). Called as the
Service's first witness over his attorney's objection, respondent on
advice of counsel refused to answer most of the questions on
self-incrimination grounds. He did testify that he is 24 years old
(Tr. p. 26) and that he is married (Tr. p. 27); that he is Thomas
Glenn Jolley, married to Margaret Elizabeth Townsend, aged 20,
a citizen of the United States born in Atlanta, Georgia (Tr. p.
80) ; and that he had lived in Canada (Tr. p. 93).
Admitted into evidence over respondent's objection was a certified copy of a birth certificate (Ex. 6) attesting to the birth of
Thomas Glenn Jolley on January 26, 1944 in Greensboro, North
Carolina. Also admitted over objection were certified copies (Ex.
7) of the following: (1) an oath of renunciation of allegiance
under section 349(a) (6) of the Act, signed and sworn to on May
16, 1967 before the American consul at Toronto, Ontario, Canada
544

I

Interim Decision #2039
by Thomas Glenn Jolley, born at Greensboro, North Carolina on
January 26, 1944; (2) a supporting affidavit, executed by Thomas
Glenn Jolley on the same day before the same American consul;
and (3) a Consular Certificate executed May 31, 1967 and approved by the State Department on June 16, 1967, reciting that
Thomas Glenn Jolley, born at Greensboro, North Carolina on January 26, 1944, had expatriated himself on May 16, 1967 under
section 349 (a) (6) of the Act.
James R. Coplen, a Service investigator, testified over objection
that he had interviewed the respondent at the latter's home on
March 19, 1968, during the course of an investigation into the respondent's immigration status. Mr. Coplen testified that he had
then asked the re s pondent whether he was the Thomas Glenn Jolley who had renounced his citizenship in Canada and he said he
was; that respondent stated he had last entered the United States
through the port of Detroit, Michigan, but he refused to state
what name he had used or what he told the officials when he entered (Tr. p. 60).
We agree with the special inquiry officer that the foregoing evidence was properly received and that it establishes clearly, convincingly, and unequivocally that respondent is the Thomas Glenn
Jolley who executed the renunciation forms at Toronto on May
16, 1967. In our view, the Service has amply met its burden of establishing that the respondent is an alien.
The dissenting opinion strongly contends, however, that on this
record it cannot be said that respondent's act of renunciation was
voluntary. Even though the respondent did not testify as to the
circumstances which led him to execute the renunciation, we
agree that it is clearly inferable that respondent's action was motivated by his desire to avoid induction in our armed forces. That
this desire may have been based on conscientious scruples does
not, in our view, make his act of renunciation any the less deliberate or voluntary. There is no evidence that, confronted with the
choice of facing liability to induction or renouncing his citizenship, the respondent was subjected to influences which overbore
his free will in making his election.
Our unreported decision of June 26, 1969 in Matter of Susan B.
Anthony (A-8823447), cited in the dissenting opinion, is readily,
distinguishable. The expatriating act in that case (an oath of allegiance) took place in 1954 and the deportation proceedings were
started in 1961, before the enactment of section 349 (c) of the
Act. Consequently, under the rule then applicable, as enunciated
in Nishikawa, v. Dulles, 356 U.S. 129 (1958), the burden was on

545

;erim Decision 4t20:39
Service to prove not only the expatriating act, but also that it
Ls voluntarily performed; and this burden could be met only by
.ar, convincing and unequivocal evidence. The respondent in the
ithany case testified in the deportation proceedings as to the
- cumstances surrounding her decision to take the oath of alleance. We concluded, on the basis of her testimony, which we beLved, that the Service had not borne its burden of establishing
clear, convincing, and unequivocal evidence that her act was
duntary.
The case now before us is not only factually different but is
wernecl by a different rule. Under section 349(c) of the Act,
hich now applies, there is a presumption that respondent acted
Militarily in performing the expatriating act; and the burden is
a him to rebut that presumption. This he has not done. He has
of testified, or offered any evidence, to support a conclusion that
is renunciation of allegiance was other than his voluntary and
3nsidered choice.
We must also reject respondent's challenge to section
49(a) (6) of the Act. Although the Board may not pass on the
onstitutionality of the statutes we administer, Matter of L—, 4
. & N. Dec. 556 (BIA, 1951), the Attorney General has laid
own guide lines for the application of the principles set forth in
Ifroyim v. Rusk, 387 U.S. 253 (1967). 1 If anything emerges with
rystal clarity from the diverse views expressed in Afroyim, it is
he unchallenged proposition that an articulated renunciation of
;llegiance is a constitutionally permissible means of expatriation.
Respondent's alienage having thus been satisfactorily estabished, under section 291 of the Act the burden is upon him to
wove the time, place, and manner of his entry into the United
;tates. The respondent has presented no evidence on this issue.
-laving failed to sustain his burden, under the specific terms of
section 291 respondent is presumed to be in the United States in
iiolation of law. There is no evidence to show that at the time of
its entry at Detroit at an unspecified date he was in possession of
sn immigrant visa or any document in lieu thereof. The charge
stated in the order to show cause is clearly sustained.
We have reached the foregoing conclusion without _
on
the portions of respondent's Selective Service record (Ex. 9)
received in evidence over his objection. While we agree with the
special inquiry officer that these were properly received and that,
Attorney Generta's Statement of interpretation Concerning Expatriation
of United States Citizens, 42 Op. Atty. Gen. No. 34 (January 18, 1969); 39
Fed. Reg. 1079.

546

Interim Decision #2039
when coupled with the other evidence, they sustain the lodged
charge, we wish here merely to point out that the finding of
deportability is amply sustained on the original charge, even
without the Selective Service records.
We must also reject respondent's thesis tnat, even if the Service's charges have been established, his marriage to a United
States citizen saves him from deportation under section 241 (f) of
the Act. He argues that his entry at Detroit must have involved
fraud and that this brings him within the ambit of section
241(f). Fraud is not an essential ingredient of the documentary
charge on which he has been ordered deported. An alien may not
pull himself up by his own bootstraps and claim he was guilty of
fraud at entry and thereby eligible for the benefits of section
241(f). See Ntovas v. Ahrens, 279 F.2d 483 (7 Cir., 1960), cert.
denied 364 U.S. 826 ; Tsaconas v. INS, 397 F.2d 946 (7 Cir.,
1968) ; Ferrante v. INS, 399 F.2d 98 (6 Cir., 1968). Congress did
not intend to grant immunity from deportation to all aliens entering by fraud merely because they have the requisite family ties in
this country, De Vargas v. INS, 409 F.2d 335 (5 Cir., 1969), cert.
denied 396 U.S. 895.
Even if fraud were shown to be the basis for the documentary
charge under section 212(a) (20), so as to bring into play the
rationale of Mustemi v. INS, 408 F.2d 1196 (9 Cir., 1968),
respondent would still not be entitled to the benefits of section
241 (f). That provision requires the alien to be "otherwise admissible at the time of entry." An alien who enters the United States
without inspection by a knowingly false claim of citizenship,
thereby completely circumventing the immigration visa system, is
not "otherwise admissible" within the meaning of section 241 (f),
Matter of Lee, Interior Decision No. 1960 (A.G., 1969); Gambino
v. INS, 419 F.2d 1355 (2 Cir., January 7, 1970) footnote 1.
We have carefully considered the other arguments raised on
appeal and find them without merit. The same contentions were
urged before the special inquiry officer and he disposed of them
properly in his exhaustive opinion. To the cases cited at page 14
of his opinion, as to the admissibility of respondent's admissions
to Investigator Coplen, there can now be added Lavoie v. INS,
418 F.2d 732 (9 Cir., 1969).
The running of the voluntary departure time authorized by the
special inquiry officer has been stayed pending this appeal.
ORDER: It is ordered that the appeal be and it is hereby dismissed.
It is further ordered that, pursuant to the special inquiry
547

I

nterim Decision #2039
ifficer's order, the respondent be permitted to depart from the
Jnited States voluntarily within 90 days of this order or any
xtension beyond that date as may be granted by the District
Director; and that, in the event of failure so to depart, the
respondent shall be deported as provided in the special inquiry
)fficer's order.

I
DISSENTING OPINION: Antlion , L. Montagu;la, Alternate Member

Since this record fails to establish by clear, unequivocal and
tonvincing evidence that respondent voluntarily and meaningfully
renounced his United States citizenship, acquired by reason of his
birth here, I dissent from the majority opinion finding loss of
American nationality.
The issue presented here is narrowly circumscribed: Did
respondent voluntarily and meaningfully intend a renunciation of
his citizenship? Do the circumstances leading to such renunciation dilute the oath of renunciation and, thus, render it involuntary and ineffective?
Respondent refused to testify at his deportation hearing other
than to state his name, place of birth and recent marriage to a
United States citizen.
The evidence presented by the Immigration and Naturalization
Service to establish loss of United States citizenship is, in substance, documentary, with the exception of testimony concerning
pertain draft records relating to one, Thomas Glenn Jolley, the
-

name of respondent; and the testimony of an Immigration inspec-

:or who testified that he interviewed respondent who admitted to
-Jim that he had renounced his American nationality before an
American consul in Canada.
Respondent on May 16, 1967 made formal renunciation of his
American nationality pursuant to section 349 (a) (6) of the Immi;ration and Nationality Act, before an American consul in
Toronto, Canada, and at the same time, and as part thereof,
stated, "I do not wish to break the laws of the United States.
These laws (Selective Service) conflict with my present beliefs"
(Ex. 7).
Prior thereto, on March 5, 1967, respondent had attempted to
secure reclassification of his draft status without success. He had
been ordered to report for induction on June 13 and again on
August 7, 1967, but failed to do so. He had already departed for
Canada on March 31, 1967. He was classified I—A on April 18,
1967 and again on July 19, 1967. On April 7, 1967, while in

548

Interim Decision # 2039
Canada, respondent wrote his draft board requesting a 1-0 classification (that of a conscientious objector available for civilian
work contributory to the maintenance of the national health,
safety or interest). On April 18, 1967 and again on July 19, 1967,
as stated, he was classified I—A. Respondent returned to the
United States sometime after May 17, 1967, the exact date not
having been established.
It was after all efforts to secure a change in his draft status,
that respondent executed the renunciation on May 16, 1967. So, in
reality, the renunciation was to avoid regular army service. He so
indicated in the oath of renunciation; and in his letter to the local
draft board relative to his renunciation of American nationality.
Thus, as indicated, the issue narrows to whether respondent's
renunciation constituted a voluntary and meaningful act.
There is no need here to discuss the effect of various provisions
of the statute relating to loss of citizenship' or, the several decisions of the Supreme Court of the United States relating to the
constitutionality thereof,' for we are here concerned with the
right to renounce American nationality. Section 349 (a) (6) of the
Immigration and Nationality Act; Act of July 27, 1968, section
1999 of the Revised Statutes. Even in the absence of a statute,
formal renunciation of nationality usually has been considered an
act of expatriation. 14 Op. Atty. Gen. 295 (1873); Borchard, The
Diplomatic Protection of Citizens Abroad, 552, 681. However,
since 1940, our statutes have recognized the expatriative effect of
a formal renunciation of nationality made before an American
diplomatic or consular officer outside the United States. Section
401(f), Nationality Act of 1940, 54 Stat. 1169; section 349 (a) (6),
Immigration and Nationality Act, 8 U.S.C. 1481 (a) (6). In addition, a 1944 Act codified in 1952, sanctions renunciation of citizenship in the United States during time of war, if approved by
the Attorney General. Section 401 (i), Nationality Act of 1940, as
amended, 58 Stat. 677; section 349(a) (7), Immigration and
Nationality Act, 8 U.S.C. 1481 (a) (7).
The Immigration and Naturalization Service receives communications from persons in the United States imprisoned for crime
who wish to renounce their citizenship, and those who wish to
avoid military service. It would appear that on the basis of the
Afroyim ruling emphasizing a citizen's voluntary choice to re1 Section 1481, Title 8, U.S.C.A.
2 Savorgnan v. Unitpd States, 338 U.S. 491 (1950) ; Kennedy v. MendozaMartinez, 372 U.S. 144 (1963) ; Schneider v. Rusk, 377 U.S. 163 (1964) ;
Marks v. Esperdy, 377 U.S. 214 (1964).

549

Interim Decision #2039
nounce, that some doubt would exist if a statute attempted to circumscribe that choice. The exception would be where a state of
war exists and by reason thereof prohibiting renunciation. However, there are no procedures in the present laws as was the case
involving Japanese renunciants during World War II. See
Kiyama v. Rusk, 291 F.2d 10 (9 Cir., 1961), cert. denied 368 U.S.
866; McGrath v. Abo, 186 F.2d 766 (9 Cir., 1951); Acheson v.
Murakami, 176 F.2d 953 (9 Cir., 1949).
In Afroyim v. Rusk, 387 U.S. 253 (1967), which involved the
constitutionality of section 401(e), Nationality Act of 1940, relating to loss of American nationality by voting in a foreign election, the court questioned the power of Congress to expatriate
without consent. However, there is unanimity in the right of voluntary renunciation or abandonment by the citizen himself. However, the court did not indicate what constitutes voluntary relinquishment of citizenship. As indicated in the Attorney General's
interpretation of the Supreme Court's decision in Afroyim as to
what constitutes voluntary renunciation, it is necessary to look to
earlier decisions of the court. In Perez v. Brownell, 356 U.S. 44
(1958), overruled by Afroyim, the Chief Justice stated that it has
long been recognized that citizenship may not only be voluntarily
relinquished through exercise of the right of expatriation but also
by other actions in derogation of undivided allegiance to this
country; and in Nishikawa v. Dulles, 356 U.S. 129 (1958), Justice
Black stated that, of course, a citizen has the right to abandon or
renounce his citizenship and that Congress can enact measures to
regulate and affirm such abjuration.
The Afroyim ruling apparently does not affect the right, of renunciation of citizenship under section 349(a) (6) of the Immigration and Nationality Act upon which the respondent's act is
used. Hence, for example, expatriation may result by naturalization in a foreign state or the taking of a meaningful oath of allegiance to a foreign state, and the like. But even in these situations the act must he voluntary and meaningful.
The rule should be no less here. It would seem that in all such
cases, including renunciation, the person involved should be
given, to the extent possible, an opportunity to state fully all the
facts and circumstances, and the motives and purposes surrounding the expatriative act, with emphasis on ascertaining the intent
in performing such act. While respondent gave very limited testimony, the other evidence of record appears clear on this important aspect of the case.
Whatever else may emanate from respondent's conduct in
550

Interim Decision #2039
violating the draft laws, criminal proceedings or otherwise, his
continued attempts at reclassifications, both before and after he
left the United States, his stated reasons at the time of renunciation and his letter to the draft board the following day, all concerned with his prospective status in the military, evince a clear
intent that his act was involuntary. While renunciation cannot be
used as "on again, off again" to justify a change of mind,
respondent's act was not a normal act of renunciation. He did not
acquire a new nationality but became a "man without a country."
The possibility of deportation is remote, if not indeed, improbable.
The circumstances of this case bring it squarely within the
ruling of this Board in the Matter of Susan B. Anthony,
A-8823447 (June 26, 1969), that the taking of an oath of allegiance to the British Crown was, because of surrounding circumstances, involuntary, and, hence, not expatriative. And in the case
of Baker v. Rusk, decided by a Federal District Court in California in March 1969, it was held that an oath of allegiance to King
George V was not meaningful. The renunciation must involve
duress, whether economic or otherwise. Stipa v. Dulles, 233 F.2d
551 (3 Cir., 1956). Where the renunciant's intent is clear, as
here, that renunciation is the result of factors not consonant with
a normal desire to abandon or change citizenship, then the
burden on the sovereign is a heavy one. The loss must be established by clear, unequivocal and convincing evidence. Nishikawa
v. Dulles, 356 U.S. 129; Gonzales v. Landon, 350 U.S. 926 (1955);
cf. Matter of Jacuzzi, A-16841893, approved by Attorney Gen-

eral Rogers February 2, 1959. In the absence thereof, retention of
citizenship is favored. Schneiderman v. United States, 320 U.S.
118 (1943); Chin Chuck Ming v. Dulles, 225 F.2d 849 (9 Cir.,
1955); Yee Mee v. Dulles, 136 F. Supp. 199 (U.S.D.C., W.D. Pa.,
1955); Fletes-Mora v. Rogers, 160 F. Supp. 215 (U.S.D.C., S.D..
Cal., 1958) .
Because of the conclusion reached herein, it is unnecessary to
reach other issues presented by this record.
I would hold that respondent retains his American citizenship
acquired at birth.

551